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Shorter DiFi: The Torture Report Started in Response to Michael Hayden’s Lie

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I gotta hand it to Dianne Feinstein: the closest she comes to calling Michael Hayden a shriveled impotent old man in response to his suggestions she’s a hysterical female is when (at 6 minutes) she says calling women emotional is “an old male fallback position.”

Far more interesting, though, is the description she offers for the genesis of the report. It arose in response to Hayden’s damage control after CIA’s destruction of the torture tapes became public.

In December [2007]–the 11th–Director Hayden appeared before our committee and said he would allow members and/or staff to review operational cables which he said were just as good.

[snip]

The genesis of the report was back with the videotape and back under then Chairman Rockefeller, who assigned staff, staff studied the operational cables, came back, reported to us, we took a look at that and said — both sides — we should move ahead and do a full study.

And while she doesn’t say it, she makes clear that Hayden lied in this damage control, when he said the “operational cables were just as good” as the torture tapes.

He can’t know that.

The backup to the CIA IG Report, after all, is that the even by the time CIA’s Office of General Counsel decided to destroy the tapes, they had been damaged.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

And at least one torture session, including waterboarding, was not captured on the tapes at all.

OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

That’s important because the IG also found that the waterboarding depicted in the videos that remained undamaged didn’t comply with the guidelines laid out by DOJ. In other words, there’s very good reason to believe that the tapes got destroyed, in part, because they showed CIA exceeding the legal limits laid out by DOJ.

To make things worse, Rockefeller had requested the torture tapes in the weeks before they got destroyed.

So I can imagine how Hayden’s bullshit line about the cables being just as good as the torture tapes withheld from Rockefeller might launch an investigation.

Michael Hayden has only himself to blame for this report.

CIA’s Own Records of CIA’s Lies to Congress

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Monday, WaPo made big news for reporting what Ron Wyden made clear 14 months ago: a key conclusion of the Senate Torture report is that CIA lied to Congress (and DOJ and the White House).

But much of this has been clear for even longer, having been exposed in some form in 2009-10.

Yet much of that got lost in CIA’s aggressive attack on Congress — one that anticipated what we’ve seen and will surely continue to see with the release of the Torture Report.  At the time, CIA attempted to claim Congress had been fully briefed on torture, and therefore shouldn’t criticize the agency. Yet it gradually became clear how laughable CIA’s claims were. Along the way details of the lies CIA told in briefings came out.

The lies CIA told Congress in its first several years of the torture program include that it,

  • Refused, at first, to reveal that the CIA relied on the September 17, 2001 Finding and therefore hid that the President had personally authorized the torture.
  • Briefed on torture techniques that had happened months in the past, but claimed they had never yet been used.
  • Falsely claimed CIA had not tortured before the August 1 memos purportedly authorizing it.
  • Claimed Abd al Rahim al-Nashiri and Abu Zubaydah were not yet compliant as late as February 2003, even though they had been found compliant, after which CIA continued to use torture anyway.
  • Claimed the torture tapes were a perfect match with what had been recorded in the torture log when a CIA OGC lawyer reviewed them in December 2002.
  • Did not disclose the tapes had already been altered by the time CIA OGC reviewed them.
  • Claimed the torture tapes had shown the torturers followed DOJ’s guidance when in fact they showed the torturers exceeded DOJ guidance.
  • Misled regarding whether the detainees who had been killed had been tortured.
  • Oversold the value of information provided by Abu Zubaydah.
  • Lied about importance of torture in getting Abu Zubaydah to talk.

There are a number of claims CIA made that are almost certainly also false — most notably with regards to what intelligence came from torture — but most of that didn’t get recorded in the CIA’s records. I fully expect we’ll find details of those in the Senate Intelligence Committee report.

September 17, 2001: Bush signs “Gloves Come Off” Memorandum of Notification that authorizes capture and detention of top al Qaeda leaders, but leaves CIA to decide the details of that detention

Before I focus on the briefings, some background is in order.

Torture started as a covert operation authorized by the September 17, 2001 Memorandum of Notification. Under the National Security Act, the Intelligence Committees had to be briefed on that Finding and they were. However, the Finding was structured such that it laid out general ideas — in this case, the capture and detention of senior al Qaeda figures — and left the implementation up to CIA. As a result, key members of Congress (notably, Jane Harman, who was Ranking Member of the House Intelligence Committee for much of the period during which the program operated) apparently had no idea that the Finding they had been briefed on in timely fashion actually served as the Presidential authorization for torture until years later. Also, since that September 17, 2001 Finding authorized both torture and the outsourcing of nasty jobs to foreign intelligence partners, the earliest torture, such as that of Ibn Sheikh al-Libi in Egyptian custody starting in February 2002 and Binyam Mohamed in Pakistani custody starting in April 2002, should be considered part of the same covert op.

April to July 2002: CIA tortures Abu Zubaydah based solely on Presidential authorization

By now there is no dispute: the CIA started torturing Abu Zubaydah well before the August 1, 2002 memo that purportedly prospectively authorized that treatment. CIA even exceeded early verbal guidance on things like sleep deprivation, after which CIA unilaterally authorized what CIA had done retrospectively. The CIA appears to have gotten in real trouble when they moved to conduct mock burial with Abu Zubaydah, to which Ali Soufan objected; his objections appear to be the reason why mock burial (and by extension, mock execution) was the only technique John Yoo ultimately rejected. On July 13, after Michael Chertoff refused to give advance declination of prosecution to CIA for things they were ostensibly talking about prospectively but which had in fact already occurred, Yoo wrote a short memo, almost certainly coached by David Addington but not overseen by Yoo’s boss Jay Bybee, that actually served as the authorization CIA’s CTC would rely on for Abu Zubaydah’s torture, not the August 1 memos everyone talks about. As a result, CIA could point to a document that did not include limits on specific techniques and the precise implementation of those techniques as their authorization to torture.

CIA had, in internal documents, once claimed to have briefed the Gang of Four (then Porter Goss, Nancy Pelosi, Richard Shelby, and Bob Graham) in April 2002. But after being challenged, they agreed they did not conduct those briefings. This, then, created a problem, as CIA had not really briefed Congress — not even the Gang of Four — about this “covert op.”

Septmber 4, 2002: CIA provides initial trial balloon briefing to Pelosi and Goss, then starts destroying evidence

On September 4, 2002, 7 months after Egypt started torturing Ibn Sheikh al-Libi at America’s behest, almost 5 months after CIA started torturing Abu Zubaydah, and over a month after the OLC memo that purportedly started a month of torture for Abu Zubaydah, Jose Rodriguez, a CTC lawyer, and Office of Congressional Affairs head Stan Moskowitz first briefed Congress on torture techniques.

The record supports a claim that CIA provided some kind of description of torture to Nancy Pelosi and Porter Goss. It supports a claim that neither objected to the techniques briefed. Both Pelosi and Goss refer to this briefing, however, as a prospective briefing. Goss referred to the torture techniques as “techniques [that] were to actually be employed,” not that had already been employed, and when asked he did not claim they had been briefed on techniques that had been used. Pelosi claimed,

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.

Those conducting the briefing promised to inform the appropriate Members of Congress if that technique were to be used in the future.

Thus, at least as far as Goss and Pelosi are concerned, over a month after they first waterboarded Abu Zubaydah (and many more after Egypt had waterboarded al-Libi for us), CIA implied they had not yet done so with any detainee.

As striking as the evidence that CIA only briefed prospectively on torture that had been used for as many as 7 months, however, is what happened next. CIA moved to destroy evidence.

The day after that initial briefing in which CIA told Congress it might torture in the future, it “determined that the best alternative to eliminate those security and additional risks is to destroy these tapes.” Then, the following day, CTC altered its own notes on the substance of the briefing, taking out a sentence (it’s not clear what that sentence said). CIA’s Office of Congressional Affairs never finalized a description for this, and at one time even listed Jane Harman as the attendee rather than Pelosi. In fact, in a list of the briefings on torture compiled in July 2004, it did not treat this briefing as one covering torture at all.

In addition, for some reason a briefing for Bob Graham and Richard Shelby  initially scheduled for September 9 got rescheduled for the end of the month, September 27. According to available records, Jose Rodriguez did not attend. According to Bob Graham’s notoriously meticulous notes, the briefing was not conducted in a SCIF, but instead in Hart Office Building, meaning highly classified information could not have been discussed. Graham says it chiefly described the intelligence the CIA claimed to have gotten from their interrogation program. Graham insists waterboarding did not come up, but Shelby, working off memory, disputes that claim.

February 4 and 5, 2002: CIA gets Republican approval to destroy the torture tapes, kills SSCI’s nascent investigation, and refuses to explain torture’s Presidential authorization

By November 2002, Bob Graham had started to hear vague rumors about the torture program. He did not, he says, receive notice that CIA froze Gul Rahman to death after dousing him with water or even hear about it specifically. But because of those rumors, Graham moved to exercise more oversight over the torture program, asking to have another staffer read into the program, and asking that a staffer see a Black Site and observe interrogation. That effort was thwarted in the first full briefing CIA gave Congress on torture on February 4, 2002, when CIA told Pat Roberts (who had assumed Senate Intelligence Chair; newly Ranking Member Jay Rockefeller was not present at this briefing, though a staffer was) they would not meet Graham’s requests. CIA claims — but Roberts disputes — that he said he could think of “ten reasons right off why it is a terrible idea” to exercise such oversight.

In addition to getting Roberts to quash that nascent assessment, CIA gave Roberts the following false information:

  • CIA described Abu Zubaydah and Abd al Rahim al-Nashiri “as founts of useful information” about “on-going terrorist operations, information that might well have saved American lives.” While Abu Zubaydah provided some useful information, the “ongoing operations” were often invented. Moreover, of all the information Abu Zubaydah gave up under torture, just 10 bits of it were deemed important enough to appear in the 9/11 Report.
  • CIA told Roberts about the “difficulty of getting that information from [Nashiri and Zubaydah], and the importance of enhanced techniques in getting that information.” Public records show CIA repeatedly attributed to Abu Zubaydah either things FBI had elicited without torture or things CIA learned via other means.
  • CIA claimed Nashiri and Abu Zubaydah were not yet compliant. “[T]hey have not, even under enhanced techniques, revealed everything they know of importance.” Subsequent reports made clear that in both cases, they were fully compliant but people within CIA demanded more torture believing they were withholding information.
  • To get Roberts to buy off on the destruction of the torture tapes, CIA told Roberts “the match” between what appeared in the torture tapes and what got recorded in CIA logs “was perfect” and that the CIA OGC lawyer who had reviewed the tapes “was satisfied that the interrogations were carried out in full accordance with the guidance.” While it is in fact true that CIA OGC claimed the tapes were an exact match, in fact the tapes had already been significantly altered (and the taping system had been shut down for some torture sessions), and the tapes showed that the torturers had not followed DOJ’s guidelines on torture. CIA also appears to have neglected to tell Roberts that 2 of the tapes showed interrogations involved Nashiri.

The Memorandum of Understanding of this briefing appears to be one of only two that got finalized (it actually included a reference that Goss and Harman had been briefed on the torture tape, but not that Harman warned against destroying it).

The February 5, 2003 briefing involving Porter Goss and Jane Harman is just as interesting, though CIA has refused to release their notes from it.

Five days after the briefing, Harman wrote a letter questioning whether torture had been reviewed from a policy perspective and advising against destroying Abu Zubaydah’s torture tape. In addition, she asked if the President had signed off, revealing that she didn’t know that the Finding she had been briefed on included torture. The CIA and the White House met to decide how to respond. In the end, CIA General Counsel Scott Muller’s response didn’t really answer any of Harman’s questions, nor note her warning against destroying the torture tape.

Also note: in the month before these briefings, the CIA prepared what appears to be a tear-line document on Abu Zubaydah. While it’s not certain the document was prepared to brief the Gang of Four, it matches what we know to have been said to Roberts, especially as regards to the torture tapes. But it also reveals real discrepancies between the tear-line (Secret) claims and the Top Secret claims it was based on, notably inflating the value of Abu Zubaydah’s intelligence below the tear-line.

September 4, 2003: An innocuous briefing left off some of the tracking

We don’t really know what happened in the September 4, 2003 briefings of both Goss and Harman and Roberts and Rockfeller, which is a shame because it would have covered Khalid Sheikh Mohammed’s treatment (and that of Ammar al-Baluchi, whom we now know may have been treated even worse than his uncle). In fact, it was left off lists of “sensitive” briefings at different times.

July 2004: CIA has to tell Congress even CIA(‘s IG) thinks they lied

On May 7, 2004, CIA’s IG John Helgerson completed his report finding that the torture had exceeded guidelines and questioning the value of the intelligence obtained using it. On June 23, the Roberts and Rockefeller got copies (it’s not clear whether Goss and Harman got advance copies). On July 13, 2004, CIA briefed Goss and Harman again.

The briefing did include some details from CIA IG John Helgerson’s report on the program — that it violated the Convention Against Torture and did not comply with the OLC memos. He also explained that both Abu Zubaydah and Khalid Sheikh Mohammed’s waterboarding was problematic, the first in execution and the second in number.

As part of that briefing (or by reading the IG Report), Harman learned that the Finding authorized this torture; in the briefing she pointed out the Finding had only authorized detention and capture, not interrogation.

But CIA persisted in a narrow dodge and two false claims:

  • CIA claimed that none of the at least 3 or 4 detainees who had died in CIA custody by that point were in the interrogation program; by that, it meant only that they weren’t part of the RDI program, but CIA did in fact torture them before they died.
  • CIA claimed we had not used any torture before the OLC memos, which is only true if you ignore that al-Libi and Mohamed’s torture was carried out by proxies.
  • CIA claimed it did not start torturing Abu Zubaydah until August 1; in reality, they had started torturing him earlier.

There are few details on the briefing CIA gave Roberts and Rockefeller on July 15.

These are just the details of the lies CIA itself has documented and released CIA telling Congress. There are other allegations of CIA lies in briefings, though those records were not released under FOIA. And things started getting really funky in 2005, as Dick Cheney started participating in CIA briefings to try to defeat the Detainee Treatment Act. In addition, CIA briefed Pete Hoekstra (who had become the Chair of the House Intelligence Committee) on the morning they destroyed the torture tapes; the content of that briefing has never been revealed.

None of this excuses Congress, of course: the knew enough to know this was problematic.

But it is clear that CIA lied to them both to boost the value of the torture they were doing and to diminish the problems and abuses.

Did CIA’s Handsomely Paid Contractors Doctor Its Log Books, Again?

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I wanted to return to one other detail of John Brennan’s (designed to be made public, I believe) January 27 letter to Dianne Feinstein explaining the urgent need to continue the “investigative, protective, or intelligence activity” targeted at CIA’s overseers.

In the letter, Brennan describes the original basis for CIA’s claimed suspicion into SSCI this way:

CIA maintains a log of all materials provided to the Committee through established protocols, and these documents do not appear in that log, nor were they found in an audit of CIA’s side of the system for all materials provided to SSCI through established protocols. Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and review audit data to determine whether anyone had access the files. [my emphasis]

The original basis CIA used to justify investigating their overseers was a log purportedly recording which documents they had been given.

Recall that CIA worked with contractors — SAIC, as I understand it — to review and re-review each document before they turned it over to SSCI.

CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff.

This process accounts for much of the $44 million cost of the report.

The log must have come out of this process: contractors, being paid handsomely by the CIA to slow the investigation, recording each document that they claimed to hand over to investigators.

So at the base of Brennan’s claim is a log, made by self-interested contractors employed by CIA, about torture.

The CIA’s contractors don’t have a very reliable history recording issues relating to torture.

Recall that — contrary to much of the public reporting on the matter — the destruction of the torture tapes did not just destroy ugly images of torture inflicted on Abu Zubaydah.

In addition, by destroying the torture tapes, CIA destroyed evidence that:

  • The CIA’s contractors used torture on Abu Zubaydah that exceeded the guidelines provided by DOJ
  • The CIA’s contractors’ descriptions of those torture techniques — in written cables and logs — did not match what they had actually done to Abu Zubaydah
  • By the time CIA shut down the Thai black site and decided to stop taping their torture, someone (the CIA’s contractors?) had already destroyed or sabotaged a number of the torture tapes, including ones depicting waterboarding

That is, one of the likely reasons why CIA destroyed the torture tapes is that their handsomely paid self-interested contractors produced a substantively inaccurate log about torture.

And at the base of the CIA’s witch hunt into SSCI staffers is a log about torture presumably made by handsomely paid self-interested contractors.

Jose Rodriguez’ Idea of “Ugly Visuals”: Blank and Altered Tapes

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Jose Rodriguez, not exactly a squeamish guy, is spreading a myth that the reason he destroyed the torture tapes was because the torture depicted on them was so bad that people would kill CIA officers in response to the violence

Especially after the Abu Ghraib prison abuse scandal, Rodriguez writes, if the CIA’s videos were to leak out, officers worldwide would be in danger.

“I wasn’t going to sit around another three years waiting for people to get up the courage,” to do what CIA lawyers said he had the authority to do himself, Rodriguez writes. He describes sending the order in November 2005 as “just getting rid of some ugly visuals.”

Except there’s a problem with that claim.

The problem with the torture tapes is not what they showed, but what they didn’t show. Such as the two separate waterboarding sessions that were, for some reason, not captured on tape at all.

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

Or the way many of the tapes showed some sign of tampering that hid their content.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

In other words, the tapes probably didn’t show the worst torture sessions. On the contrary, the tapes were enduring proof that the torturers tampered with the tapes to make sure they didn’t show the torture sessions.

Apparently, Jose Rodriguez thinks a bunch of snowy taped over tapes–proof that the torturers covered up evidence of what they did–constitutes “ugly visuals.” And I guess it does, but not in the way he’s claiming in his book.

George Tenet’s Bureaucratic CYA

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Let me divert from my obsession on the CIA’s efforts to hide references to what I believe is the September 17, 2001 Memorandum of Notification authorizing torture and a whole lot else to talk about what a neat bureaucratic trick George Tenet pulled. As I’ve confirmed, what the CIA is going to some length to hide is the second half of the title of the document George Tenet drew up to try to impose some kind of controls on the CIA’s torture program in January 2003. The title reads, “Guidelines on Interrogations Conducted Pursuant to the” with the authorities that authorize such interrogations redacted.

But let’s take a step back and put that document–with its now highly sensitive invocation of the authorities on which the torture program rested–in context.

As far as I’m aware, unlike Michael Hayden and John Rizzo, Tenet has not publicly confirmed a Presidential Memorandum of Notification authorized the torture program. In his memoir, he describes a briefing he conducted on September 15, 2001, two days before Bush signed the MON. He describes asking for authority to detain al Qaeda figures.

We raised the importance of being able to detain unilaterally al-Qa’ida operatives around the world.

He also pitched using drones to kill al Qaeda operatives.

We suggested using armed Predator UAVs to kill Bin Laden’s key lieutenants, and using our contacts around the world to pursue al-Qa’ida’s sources of funding, through identifying non-governmental organizations (NGOs) and individuals who funded terrorist operations.

And he describes a whole bunch of other asks, like partnering with the Uzbekistan and–as part of another ask–with Syria and Libya. In short, Tenet describes asking for authorization to do the things we know are included in that MON.

Then, he describes watching Bush kick off the war on September 20, reflecting,

By then, as I remember, the president had already granted us the broad operational authority I had asked for.

Well, sucks to be Tenet, because as it happens, Bush authorized those activities broadly, but never put in writing that the authorization to detain al Qaeda figures included the authorization to torture

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Read more →

CIA General Counsel: If the President Authorizes It, It’s Legal

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I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–“national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

Read more →

The CIA IG Report on Renditions

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There are a couple of details I want to return to in this AP story on what has happened to those responsible for CIA’s biggest fuck-ups and crimes.

One is this discussion of the CIA Inspector General’s report on “erroneous” renditions.

While the inspector general was investigating the mishandled el-Masri case, congressional investigators discovered several other CIA renditions that seemed to rest on bad legal footing, a U.S. intelligence official said. The CIA looked into them and conceded that, yes, the renditions had been based on faulty analysis.

But the agency said the renditions would have been approved even if the correct analysis had been used, so nobody was disciplined.

Now, we’ve heard of this investigation before. References to it (but no details) appear in a lot of the documents or Vaughn Indices released as part of the torture and ghost detainee FOIAs (often in the form of Congress nagging the CIA for the results of the study). The most detailed early description of the investigation comes from a 2005 Dana Priest article that was also one of the earliest detailed description of Khaled el-Masri’s treatment.

The CIA inspector general is investigating a growing number of what it calls “erroneous renditions,” according to several former and current intelligence officials.

One official said about three dozen names fall in that category; others believe it is fewer. The list includes several people whose identities were offered by al Qaeda figures during CIA interrogations, officials said. One turned out to be an innocent college professor who had given the al Qaeda member a bad grade, one official said.

“They picked up the wrong people, who had no information. In many, many cases there was only some vague association” with terrorism, one CIA officer said.

Priest reviews several of the people rendered by the CIA but ultimately dumped in Gitmo which served–one of Priest’s sources explains–as the dumping ground for CIA’s mistakes.

Among those released from Guantanamo is Mamdouh Habib, an Egyptian-born Australian citizen, apprehended by a CIA team in Pakistan in October 2001, then sent to Egypt for interrogation, according to court papers. He has alleged that he was burned by cigarettes, given electric shocks and beaten by Egyptian captors. After six months, he was flown to Guantanamo Bay and let go earlier this year without being charged.

Another CIA former captive, according to declassified testimony from military tribunals and other records, is Mohamedou Oulad Slahi, a Mauritanian and former Canada resident, who says he turned himself in to the Mauritanian police 18 days after the 9/11 attacks because he heard the Americans were looking for him. The CIA took him to Jordan, where he spent eight months undergoing interrogation, according to his testimony, before being taken to Guantanamo Bay.

Another is Muhammad Saad Iqbal Madni, an Egyptian imprisoned by Indonesia authorities in January 2002 after he was heard talking — he says jokingly — about a new shoe bomb technology. He was flown to Egypt for interrogation and returned to CIA hands four months later, according to one former intelligence official. After being held for 13 months in Afghanistan, he was taken to Guantanamo Bay, according to his testimony.

Note Habib is one of the former detainees whose treatment at the hand of Omar Suleiman has come under new scrutiny given Suleiman’s role in a post-Mubarak Egypt.

Now, the AP piece doesn’t provide many new details, but two are worthy of note.

First, apparently Congress identified the erroneous renditions, not the CIA. That suggests the CIA was not forthcoming in admitting its mistakes to Congress (which is about par for the course).

But I’m interested too in the conclusion:the renditions had been based “on faulty analysis” but they would have been approved even if “the correct analysis” was used.

That suggests Inspector General John Helgerson, not long after CIA had finagled a way to limit his conclusions about torture, focused on just the analysis–presumably, the approval process–that went into the rendition. I’m not sure what that means, but looking back at Priest’s description of the problem behind “erroneous” renditions–notably, its reliance on torture-induced evidence from al Qaeda detainees–I wonder whether Helgerson assessed the actual facts behind the rendition, or just whether the rendition, using those faulty facts, would have been approved according to the right decision process. That is, I wonder whether the CIA decided that the disappearances that even it considers were wrong didn’t matter so much because they didn’t evaluate the lies and misinformation their torture program had introduced into the process by which they chose people to disappear.

That is, it appears CIA has labeled its disappearances simply a matter of flawed bureaucracy rather than a clear example of the problems that result when you eliminate due process.

Jay Rockefeller and the Torture Tape Investigation

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I’ve been writing a lot about the way CIA gamed briefings with Congress so they could destroy evidence of torture: how they created potentially misleading records about the September 2002 briefings with destroying the torture tapes in mind, how they created a record of Pat Roberts’ approval for destroying the torture tapes in February 2003 but not Harman’s disapproval of them, and how Crazy Pete Hoekstra got a really suspicious briefing the morning the torture tapes were destroyed.

But I’ve been neglecting the role Jay Rockefeller may play in all this.

Yesterday’s AP-hosted CIA spin made a big deal of Harriet Miers’ early 2005 order that CIA not destroy the torture tapes.

In early 2005, Rizzo received a similar order from the new White House counsel, Harriet Miers. The CIA was not to destroy the tapes without checking with the White House first.

It’s in that context where they list all the requests that might cover the videotapes and explain why they weren’t legally binding on the CIA: three judges orders and the 9/11 Commission request.

But that narrative left out a few more data points. Oddly, the AP seems to make nothing of John Negroponte’s warning to Porter Goss–issued on or before July 28, 2005–not to destroy the torture tapes. Maybe that’s because it reveals that months after Rizzo got the order from Harriet Miers, the Director of CIA was still actively discussing destroying the tapes. Maybe that’s because, given Goss’ apparent happiness with Rodriguez’ destruction of the tapes in November 2005, the evidence that Goss was considering destroying them three months earlier suggests complicity.

Now consider the two requests from Jay Rockefeller for John McPherson’s report on the torture tapes.

In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005.

It was during this 2005 period that I proposed without success, both in committee and on the Senate floor, that the committee undertake an investigation of the CIA’s detention and interrogation activities. In fact, all members of the congressional intelligence committees were not fully briefed into the CIA interrogation program until the day the President publicly disclosed the program last September. [my emphasis]

So in May 2005, Rockefeller asked John Helgerson for McPherson’s report. Then in September 2005, Rockefeller asked Porter Goss for the report directly. And Porter Goss–the guy who was actively considering destroying the torture tapes in July 2005 and who ultimately applauded Rodriguez’ success in destroying them–completely blew off Rockefeller’s request.

Mind you, Rockefeller asked for the report on the tapes, not the tapes themselves. But we now know that the report lacked any mention of the things noted in the IG Report: descriptions of the broken and blank tapes. We also know that the report didn’t do what is was purportedly intended to do: review whether the torturers had followed guidelines on torture.

Had Rockefeller gotten that report in 2005–in response to either his request of Helgerson or his request directly of Goss–he would have had good reason to at least suspect that the CIA had been engaging in a cover-up in November 2002 to January 2003, when it claimed to have reviewed whether Abu Zubaydah’s torturers followed DOJ guidelines but really did no such thing. He would have had reason to wonder why a lawyer, having reviewed tapes with abundant evidence of tampering, hadn’t even bothered to mention that tampering.

Which probably would have led him to ask for the tapes.

Mind you, like the 9/11 Commission, Rockefeller didn’t subpoena the report (as he noted, his push for a torture investigation was thwarted, presumably by then SSCI Chair Pat Roberts, the guy who had signed off on destroying the tapes).

But for some reason the CIA doesn’t want to admit it had this request pertaining to the torture tapes, in addition to all the requests from judges.

The AP’s “Most Complete Published Account” that Leaves Out Torture

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The AP’s DOJ and intelligence writers have a story out on the Durham investigation that purports to be “the most complete published account” of the destruction of the torture tapes. Only, it ignores key details that have already been published which paint a much more damning picture of the tapes and their destruction.

First, the news. The AP story does reveal the following new details:

  • The name of the guy in Thailand–then station chief Mike Winograd–involved in the destruction of the tapes
  • The news that the guy who destroyed the torture tapes–former CTC and Clandestine Services head Jose Rodriguez–is still lurking around Langley as a contractor with Edge Consulting
  • The observation that Rodriguez did not include the two CIA lawyers who “approved” the torture tape destruction (Steven Hermes and Robert Eatinger, who have been identified before) on his order to destroy them, which is perceived within CIA as highly unusual
  • The hint that prosecutors may use Sarbanes-Oxley to establish the requirement to keep the tapes as well as the detail that John Durham has prosecuted two of the only half a dozen cases that have used this Sarb-Ox provision
  • A list of reasons why all the requests that should have covered the tapes purportedly don’t:

_In early May 2003, U.S. District Judge Leonie M. Brinkema told the CIA to reveal whether there were interrogation videos of any witnesses relevant to the case of Zacarias Moussaoui, who was charged as a Sept. 11 conspirator. But that order didn’t cover Zubaydah, who Brinkema ruled was immaterial to the Moussaoui case, so the CIA didn’t tell the court about his interrogation tape.

_A judge in Washington told the agency to safeguard all evidence related to mistreatment of detainees at Guantanamo Bay. But Zubaydah and al-Nashiri were held overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.

_A judge in New York told the CIA to search its investigative files for records such as the tapes as part of a Freedom of Information Act suit. But the CIA considered the tapes part of its operational files and therefore exempt from FOIA disclosure and did not reveal their existence to the court.

_The Sept. 11 commission asked for broad ranges of documents, but never issued a formal subpoena that would have required the agency to turn over the tapes.

As such, the story adds valuable insight into the strategies that John Durham may be using to prosecute Jose Rodriguez and others.

But the story buys into certain well-cultivated CIA myths that obscure some other important details of the story:

  • The story replicates CIA’s favored narrative about why the tapes were made–“to prove that interrogators followed broad new rules Washington had laid out”–and why they were destroyed–to protect the identities of officers involved in the interrogation.
  • The story presents Winograd’s justification for destroying the tapes–“the inspector general had completed its investigation and McPherson had verified that the cables accurately summarized the tapes”–without any discussion of the fact that McPherson acknowledged evidence of tampering with the tapes during the IG Report and couldn’t say whether the techniques reflected the guidance given to the torturers.
  • The story ignores all evidence of earlier destruction of evidence and cover-up of criminal acts.
  • This claim–“The White House didn’t learn about the tapes for a year, and even then, it was somewhat by chance”–is either further evidence of a cover-up or simply false.

Let’s start with the primary fiction–that the tapes were designed solely “to prove that interrogators followed broad new rules Washington had laid out.” Aside from indications they were used for research purposes about the efficacy of the methods they were using, this claim suffers from a fundamental anachronism. After all, when the taping started on April 13, 2002, Washington had not yet laid out the broad new rules ultimately used to authorize Abu Zubaydah’s torture on August 1, 2002. Bruce Jessen didn’t even complete his proposed interrogation plan until three days after taping started.

Although, if “Washington” had indeed given Abu Zubaydah’s torturers broad rules three and a half months before the Bybee Memo was signed–reports have said that Alberto Gonzales authorized that treatment on a day to day basis–then that by itself would provide an entirely different logic for why the tapes were made and then destroyed (which is sort of the argument Barry Eisler makes in his book Inside Out).

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Why Were the Torture Tapes Destroyed?

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Bob Baer has a column out stating that he can’t figure out why the torture tapes were destroyed–and repeating CIA spin claiming the torture depicted in the tapes should not, itself, be a legal problem, since it was approved by DOJ. (h/t cs)

Did the CIA want to destroy graphic evidence of sleep-deprivation or waterboarding? They were interrogation methods approved by the Department of Justice in memos sent to the CIA, and therefore shouldn’t have been deemed a legal problem. The closest thing we come to answer is an internal CIA e-mail released last Thursday, in which an unidentified CIA officer writes that Rodriguez decided to destroy the tapes because they made the CIA “look horrible; it would be devastating to us.”

[snip]

I haven’t been able to clear up the mystery either, beyond the fact that a former CIA officer aware of the details of the 2002 interrogation of the two al-Qaeda suspects told me that the tapes’ images were “horrific.” He believes that although the interrogations fell within the guidelines provided by the Department of Justice, if the public ever saw them, it would conclude that “enhanced interrogation” is just another name for torture.

Those of you who have been following along already know this, but I thought I ought to sum up what we do know–but what Baer’s CIA sources aren’t telling him.

First, Baer’s source who “believes … the interrogations fell within the guidelines provided by the Department of Justice” is wrong–at least so long as we’re talking DOJ’s written guidelines. As CIA’s Inspector General made clear, the waterboarding that was depicted on the tapes in 2003 did not fall within the limits of the Bybee Two memo, both because the torturers used far more water, forced it down Abu Zubaydah’s throat, and used it with far more repetition than allowed by the memo. Furthermore, the torturers exceeded even the guidelines the Counterterrorism Center set on sleep deprivation–though Yoo may (or may not have) have set the limit in the Bybee Two memo high enough to cover what had already been done to Abu Zubaydah. Folks in the IG’s office had about seven more pages of concerns about what was depicted on the torture tapes (PDF 86-93)–but that all remains redacted.

So the tapes did not, in fact, match the written guidelines DOJ gave them. The torturers claim to have kept John Yoo and others up-to-date on their variances, but John Yoo’s statements thus far challenge that claim.

And in any case, that only describes the evidence on the torture tapes as they existed in 2003 when the IG reviewed them and presumably in 2005 when CIA destroyed them.

The other, potentially bigger problem for those depicted in the torture tapes has to do with what once appeared on the 15 tapes that the torturers altered before November 30, 2002, when CIA lawyer John McPherson reviewed them. Before that point, the torturers had altered 21 hours of the torture tapes, which covered at least two of the harshest torture sessions. Had someone done forensics on the tapes before they were destroyed, we might have learned what happened during those 21 hours. But by destroying the tapes completely, the CIA prevented that from happening.

I’m guessing–though it’s only a guess–that was the point.

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