Posts

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

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Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing 4 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2013

What a Targeted Killing in the US Would Look Like

Amid now-abandoned discussions about using the FISA court to review targeted killing, I pointed out that a targeted killing in the US would look just like the October 28, 2009 killing of Imam Luqman Abdullah.

Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

When the second memo (as opposed to the first 7-page version) used to authorize the killing of Anwar al-Awlaki, it became clear that OLC never really decided whether the killing was done under Article II or the AUMF. That’s important because if it’s the latter, it suggests the President can order anyone killed.

John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights

I know in the Trump era we’re supposed to forget that John Brennan sponsored a whole lot of drone killing and surveillance. But I spent a good deal of the Obama Administration pointing that out. Including by pointing out that the Constitution he swore to protect and defend didn’t have the First, Fourth, Fifth, and Sixth amendment in it.

2014

The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice

I actually think it’s unreasonable to expect the government’s dragnets to prevent all attacks. But over and over (including with 9/11), NSA gets a pass when we do reviews of why an attack was missed. This post lays out how that happened in the Boston Marathon case. A follow-up continued that analysis.

A Guide to John Rizzo’s Lies, For Lazy Journalists

Former CIA General Counsel John Rizzo lies, a lot. But that doesn’t seem to lead journalists to treat his claims skeptically, nor did it prevent them from taking his memoir as a statement of fact. In this post I summarized all the lies he told in the first 10 pages of it.

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

Over the year and a half when one after another member of Congress asked for the OLC memos that authorized the drone execution of Anwar al-Awlaki, I tracked all those requests. This was the last post, summarizing all of them.

The West’s Ideological Vacuum

With the rise of Trump and the success of Russia intervening in US and European politics, I’ve been talking about how the failures of US neoliberal ideology created a vacuum to allow those things to happen. But I’ve been talking about the failures of our ideology for longer than that, here in a post on ISIS.

KSM Had the CIA Believing in Black Muslim Convert Jihadist Arsonists in Montana for 3 Months

There weren’t a huge number of huge surprises in the SSCI Torture Report for me (indeed, its scope left out some details about the involvement of the White House I had previously covered). But it did include a lot of details that really illustrate the stupidity of the torture program. None was more pathetic than the revelation that KSM had the CIA convinced that he was recruiting black Muslim converts to use arson in Montana.

2015

The Jeffrey Sterling Trial: Merlin Meets Curveball

A big part of the Jeffrey Sterling trial was CIA theater, with far more rigorous protection for 10 year old sources and methods than given to 4 year old Presidential Daily Briefs in the Scooter Libby trial. Both sides seemed aware that the theater was part of an attempt, in part, to help the CIA gets its reputation back after the Iraq War debacle. Except that the actual evidence presented at trial showed CIA was up to the same old tricks. That didn’t help Sterling at all. But neither did it help CIA as much as government prosecutors claimed.

The Real Story Behind 2014 Indictment of Chinese Hackers: Ben Rhodes Moves the IP Theft Goal Posts

I’ve written a lot about the first indictment of nation-state hackers — People’s Liberation Army hackers who compromised some mostly Pittsburgh located entities, including the US Steel Workers. Contrary to virtually all the reporting on the indictment, the indictment pertained to things we nation-state hack for too: predominantly, spying on negotiations. The sole exception involves the theft of some nuclear technology from Westinghouse that might have otherwise been dealt to China as part of a technology transfer arrangement.

Obama’s Terrorism Cancer Speech, Carter’s Malaise Speech

In response to a horrible Obama speech capitulating to Republican demands he treat the San Bernardino attack specially, as Islamic terrorism, I compared the speech to Jimmy Carter’s malaise speech. Along the way, I noted that Carter signed the finding to train the mujahadeen at almost the exactly moment he gave the malaise speech. The trajectory of America has never been the same since.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

CIA Finally Declassifies “Gloves Come Off” Memorandum of Notification Reference

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Screen Shot 2016-06-14 at 3.22.25 PM

Back in 2012, I wrote a series of posts on the Obama Administration’s extraordinary efforts to censor this title. (post 1, post 2, post 3, post 4, post 5, post 6, post 7, post 8)

The title was part of some smart CYA on the part of George Tenet. When things started to go south with the torture program in 2003, he wrote this document, ostensibly putting order to the torture program, but also making it clear the whole thing operated on Presidential authority. (The document, which should have been released to David Passaro in his criminal trial for torturing a detainee who subsequently died, was withheld, which prevented him from pointing out anything he did, he did with Presidential approval, so Tenet’s CYA didn’t help him at all.)

The judge in ACLU’s lawsuit to liberate torture documents, Alvin Hellerstein, decided the language should not be censored, and ordered the government release it. Then National Security Advisor Jim Jones wrote a secret declaration stating that it could not be disclosed. All the while, ACLU thought they were fighting to release a description of waterboarding, when in fact Hellerstein was trying to force the Administration to release the single detail that torture had been done on the President’s order.

But the Second Circuit overruled Hellerstein, declaring these 8 words a source and method (for the record, I guessed exactly what was behind the redaction so their secret was only useful for legal challenges).

That the torture program operated pursuant to a Finding (that is, as a covert op) had long been known thanks to blabby CIA types like John Rizzo. But it was formally declassified as part of the Torture Report. It got released today as part of a Jason Leopold lawsuit.

So there you have it. “Presidential Memorandum of Notification of 17 September 2001.” A secret Obama fought to the circuit court, now public for all the world to see.

It doesn’t feel so momentous, does it?

A Guide to John Rizzo’s Lies, For Lazy Journalists

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By my count, John Rizzo completes his first lie in his purported “memoir,” Company Man, at the 64th word:

55: Zubaydah

56: was

57: a

58: senior

59: figure

60: in

61: the

62: Al

63: Qaeda

64: hierarchy

Zubaydah complained in his diary (see page 84) before he was captured in 2002 that he was being called Osama bin Laden’s heir when he wasn’t even a member of al Qaeda. And in his Combatant Status Review Board hearing in 2007 (see page 27), Zubaydah described his interrogators admitting he wasn’t Al Qaeda’s number 3, not even a partner. And in a 2009 habeas document the government calls Zubaydah an Al Qaeda affiliate, not a member (see 35 to 36 and related requests).

And yet Rizzo tells this lie right in the first paragraph of his book.

Granted, I’m more sympathetic to this lie than many of Rizzo’s other lies. I understand why he must continue telling it.

Back in 2002, Rizzo told John Yoo that Abu Zubaydah was a top al Qaeda figure during the drafting of the August 1, 2002 Bybee Memo authorizing torture. And based on that information, Yoo wrote,

As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.

[snip]

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.

[snip]

Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.

If Rizzo were to admit that the representations he made to Yoo back in 2002 were false, then the legal sanction CIA got to conduct torture would crumble.

And unlike a lot of the lies CIA — and John Rizzo in particular — told DOJ during the life of the torture program, I’m not absolutely certain CIA knew this one to be a lie when they told it. CIA (and FBI) definitely believed Zubaydah was a high ranking al Qaeda figure when they caught him. In his CSRT, Zubaydah describes admitting he was al Qaeda’s number 3 under torture. Though it’s not clear whether that was the torture that took place before or after the memo authorizing that torture got written, raising the possibility that CIA presented lies Zubaydah told under torture to DOJ to get authorization for the torture they had already committed. But by the time of the memo, CIA had also had 4 months to to read Zubaydah’s diaries, which make such matters clear (and had it in their possession, so that by itself should invalidate the memo). So they should have and probably did know, but I think it marginally conceivable they did not.

Still, that doesn’t excuse journalists who have these facts available to them yet treat Rizzo as an honest interlocutor, as James Rosen is only the latest in a long line of journalists to do.

So as a service to those journalists who aren’t doing the basic work they need to do on this story, I thought I’d make a list of the documented lies Rizzo tells just in the first 10 pages of his “memoir.” These don’t include items that may be errors or lies. These don’t include everything that I have strong reason to believe is a lie or that we know to be lies but don’t yet have official documentation to prove it. They include only the lies that are disproven by CIA and other official documents that have been in the public domain for years.

These lies, like Rizzo’s lie about Abu Zubaydah’s role in 9/11, also serve important purposes in the false narrative the torturers have told.

I’ve gone through this exercise (I’m contemplating a much longer analysis of all the lies Rizzo told, but it makes me nauseous thinking about it) to point out that any journalist who treats him as an honest interlocutor, accepting his answers — he made some of the same claims to Rosen as he made here — as credible without real challenge is just acting as a CIA propagandist.

Don’t take my word for it — take the CIA’s word, as many of Rizzo’s claims are disproven by CIA’s own documents!

Update, April 21: Ben Wittes, in his review of this tract: “Rizzo is just being honest.” To be fair, Wittes appears to have meant it to describe Rizzo’s unvarying viewpoint, always serving his loyalty to the CIA. But in a review that doesn’t mention Rizzo’s serial lies, it’s embarrassing.

(1) Abu Zubaydah was not CIA’s first significant “catch.” Ibn Sheikh al-Libi was, though the CIA outsourced his torture to the Egyptians.

(3) Correspondence describes tapes of Abu Zubaydah’s torture in April 2002, not July 2002, as Rizzo claims. (see PDF 1)

(3-4) Obviously, CIA had another option besides torture: to let the FBI continue interrogating Zubaydah. Even if you don’t believe FBI had the success they claim to have had, they were an alternative that Rizzo makes no mention of.

(4) The first torture memo was not the August 1, 2002 one. Yoo wrote a shorter fax on July 13, 2002, which (according to the OPR Report) is actually the memo CTC’s lawyers relied on for their guidance to the torturers.

(5) Jose Rodriguez did not decide to destroy the tapes in October; he decided on September 5, the day after first briefing Nancy Pelosi on torture (without having told her they had already engaged in it).

(5) CIA did not follow the guidelines laid out in the Bybee memo for waterboarding, as CIA’s IG determined in 2004, and at least by the time the CIA IG reviewed the tapes, there was a great deal censored via damage, turning off the camera, or taping over of the content.(see PDF 42 and this post)

(6) The Gang of Eight was not briefed in 2002; only the Gang of Four (the Intelligence Committee heads) was. According to CIA’s own records, only one Congressional leader got a timely briefing, Bill Frist in 2004 (though Pelosi was briefed as HPSCI Ranking Member in 2002).

(8) John McPherson did not review the tapes after Christmas, 2002; he reviewed them about a month earlier. (see this post and linked underlying documents)

(8) Jay Rockefeller was not briefed in January 2003; only a staffer of his was. See this post for all the lies they told Pat Roberts in that briefing.

(9) While John Helgerson did not write about techniques that had not been authorized, he did describe that the waterboard as performed did not follow the guidelines given by DOJ. (see PDF 42) Rizzo also doesn’t note Helgerson’s observations about the tampering done to the tapes, which may have hidden unauthorized techniques.

(10) It is false that the 9/11 Commission Report relied heavily on Abu Zubaydah’s interrogations. They are cited just 10 times, and at least one of those was not corroborated.

How the Torture Report Declassification Is Likely to Work

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Aspiring Senate Intelligence Chair Richard Burr has announced he will vote to declassify the Torture Report.

Sen. Richard Burr, R-N.C., also said he planned to vote to declassify.

[snip]

Burr added: “We’ve already expressed our opposition to the content.”

Declassifying, he said, is “the only way that we get minority views out there,” because the Republicans plan to offer their views on the report.

This gives a pretty strong indication of where this Torture Report debate will go — and why CIA got so quiet all of a sudden, aside from former CIA lawyer John Rizzo’s tireless propaganda efforts.

The Committee would have published dissenting views in any case, but Republican Susan Collins specifically included them in her support for the report.

What we’re going to get will be the Executive Summary, Findings, and Additional and Dissenting Views. Because we’ll get just the Executive Summary, we won’t get much hard detail — aside from that which has been public for years — about the allegations that will appear in the Executive Summary, which will make it harder to rebut any claims CIA’s defenders make.

Moreover, I would not be in the least surprised if the same rule that applies to CIA Publication Review Board decisions — that the writings of torture critics like Ali Soufan and Glenn Carle are aggressively censored, while the views of torture boosters like Rizzo and Jose Rodriguez will be permissively published — applied here. The CIA has — as McClatchy emphasizes — already assumed they’ll do the declassification review. And in spite of calls for the White House to take the lead, I expect they won’t. After all, the White House has relied on CIA to hide the Executive Privilege-lite documents (which I suspect would show that CIA only lied to some people at the White House, but not to people like David Addington). So CIA is owed something by the White House.

That mutual embrace of incrimination will provide the CIA a great deal of protection.

Remember, too, that torture critics have gotten recent warnings not to speak publicly, even while Rodriguez and Rizzo blather away.

And all this — what will surely be calls that Democrats have unfairly tainted noble Jose Rodriguez’ reputation — will play out against electoral politics, as Republicans try to take out Mark Udall for his opposition to torture.

Thus far, too, the torture boosters have laid the groundwork to win this debate. Even ignoring Rizzo and Rodriguez’ books, they’ve been working the press with details, as compared to the vague releases that the Torture Report will find CIA lied.

Which is my pessimistic way of saying that unless torture critics get a lot more serious about the propaganda onslaught the Republicans plan to launch to defend torture, this Torture Report release may not do all that much good at all. Torture critics largely lost this debate in 2009, and they’ll actually have less new information with which to fight this if CIA gets its way on declassification.

Robert Eatinger and CIA’s Counterterrorism Center Lawyers’ Lies about Torture: A Timeline

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The traditional media is catching up to my post the other day focusing on Robert Eatinger, the CIA lawyer who referred Senate Intelligence Committee staffers for criminal investigation. Welcome traditional media!!

Just to expand the discussion of how deeply involved CTC’s lawyers — including, but not limited to, Eatinger — have been in torture, I thought I’d expand on my post from the other day with a timeline of CTC documents and consultation, most from its legal team, that might be among the 1,600 mentions of Eatinger in the Senate Torture Report that Dianne Feinstein referred to the other day.

I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

Note, some of this information relies on the OPR report; at least three of CTC’s lawyers refused to cooperate with that report, two based on advice of counsel. Remember too that, just as happened with the SCIF CIA made the Senate Intelligence Committee use, between 10 and 61 torture documents disappeared from DOJ’s OLC SCIF during the period when OPR was working on its report.

April 2002: Months before the first torture memo, CTC’s lawyers, in consultation with NSC and DOJ, approved 24-48 hours of sleep deprivation for use with Abu Zubaydah (who, remember, was still recovering from life-threatening bullet wounds). The torturers promptly exceeded those limits. So CTC, on its own, approved the new amounts because, they claimed, Abu Zubaydah hadn’t suffered any adverse consequences. (See PDF 113-114)

After consulting with the NSC and DOJ, CTC[redacted] originally approved 24-48 hours of sleep deprivation.

In April 2002 CTC[redacted] learned that due to a misunderstanding, that time frame had been exceeded.

However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucinations (thereby disrupting profoundly Abu Zubaydah’s senses or personality) it was within legal parameters.

After August 1, 2002: After the Bybee Memos laid out which torture techniques were permitted, then, CTC chief lawyer Jonathan Fredman sent out legal guidance to the torturers in Thailand. Rather than relying on the Bybee Memos, he relied on a July 13, 2002 John Yoo memo, purportedly prepared without the knowledge of Bybee (but, given the timing, probably written in response to Chertoff’s refusal to provide pre-declination andwith coaching from David Addington). The earlier memo lacked some of the key caveats of the later ones.

September 6, 2002: On September 4, 2002, Jose Rodriguez and a lawyer from CTC briefed Nancy Pelosi and Porter Goss on torture. The following day, CIA started discussing destroying the torture tapes. Then, on September 6, a lawyer from CTC altered the record of the briefing to Pelosi and Goss. (see PDF 84 and PDF 11-12)

October 2, 2002: CTC top lawyer Jonathan Fredman briefs Gitmo about torture and says a number of inflammatory things about detainee treatment.

December 24, 2002: CTC completes memo advocating for destruction of torture tapes.

Early 2003: After DOJ told CIA’s Inspector General to develop its own set of facts for review of any criminal liability in torture, John Yoo and Jennifer Koester start freelancing with CTC’s lawyers to develop the “Legal Principles” or “Bullet Points” document which expanded on the analysis officially approved by OLC. Koester told DOJ’s Office of Professional Responsibility the document would be used to assess the legality of the torture.

She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.

June 16, 2003: In her review, Koester took out language CIA had included saying that “comparable, approved techniques” to those approved in the Bybee Memo did not violate law or the Constitution. But when CTC’s lawyers sent the “Bullet Points” back to OLC in 2003 as an attempted fait accompli, that language had been inserted back into the memo.

April 2004: Eatinger takes over as top CTC lawyer.

Unknown date: CTC’s lawyers write a declination memo recommending against charges for Salt Pit manager Matt Zirbel in the murder of Gul Rahman based on (according to Jay Bybee’s characterization) an entirely intent-based exoneration. (see footnote 28)

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

May 11, 2004: White House meeting, possibly attended by Eatinger, at which White House lawyers tell CIA not to destroy torture tapes.

June 2004: According to John Rizzo, Eatinger attends White House meeting at which White House lawyers instruct not to destroy torture tapes.

August 4-5, 2004: CTC lawyers provide Daniel Levin additional information on waterboarding; the Torture Report found this information to be inaccurate.

August 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 5, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture report found to be inaccurate.

February 2, 2005: A CTC lawyer worked closely with Daniel Levin to try to finish the Combined Memo before Levin moved to NSC. At that point, the Memo did not include waterboarding. Nevertheless, Levin did not complete it, and Steve Bradbury would add waterboarding back in when he completed the memo that April.

Febraury 14, 2005: CTC panics because Congress might hold hearings into detainee treatment.

March 1, 2005: Steven Bradbury’s main contact for Combined and other torture memos is a CTC attorney. The Torture Report found information used in these memos to be inaccurate.

March 2, 2005: CTC sends Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. John Rizzo says CTC lawyers were involved in drafting this document.

April 15, 2005: CTC sends Briefing Notes on the Value of Detainee Reporting to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. Rizzo says CTC lawyers were involved in drafting this document.

May 10, 2005: Steven Bradbury completes two OLC memos — the Techniques Memo and Combined Memo — that the Torture Report found are based on inaccurate information.

May 30, 2005: Bradbury completes a third OLC memo — the CAT Memo — that the Torture Report found is based on inaccurate information.

November 8, 2005: The day CIA destroyed the torture tapes, someone from CTC/LGL gave HPSCI Chair Pete Hoekstra a briefing with no staffers present. (see page 32) The briefing was included in a summary of all Congressional briefings completed that day.

November 8, 2005: Eatinger and another CTC lawyer claim there is no legal reason to retain the torture tapes, in spite of several pending legal requests covering the videos. Jose Rodriguez orders their destruction.

January 25, 2006: Another letter from a lawyer other than John Rizzo that Torture Report may have found to be inaccurate.

April 19, 2006: Fax from a lawyer other than Rizzo that Torture Report may have found to be inaccurate.

May 18, 2006: Letter from a lawyer other than Rizzo, claiming torture techniques would be used for safety reasons, the Torture Report may have found to be inaccurate.

Update: h/t to DocEx blog for some additions to this timeline.

John Kiriakou’s Prosecution Is an Important Precedent to CIA – Senate Intelligence Committee Spat

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On several occasions, I have pointed to the arbitrary system our classification system constructs. It asks government employees to spy on their colleagues. It permits agencies to conduct fishing expeditions into personal information as part of the polygraph process. It permits Agencies to selectively approve propaganda under the guise of pre-publication review (most notably in the case of Jose Rodriguez and John Rizzo). By stripping sensitive unclassified jobs of their Merit Board protection, even lower level staffers who don’t receive a clearance-related income boost are now subject to this arbitrary system. And Congress even tried to use pensions as another leverage point against cleared personnel.

The arbitrary nature of this system is perhaps most clear, however, when it comes to prosecutions.

Which is a point John Kiriakou made in an op-ed yesterday. In it, he suggests Leon Panetta and James Cartwright could be sitting next to him in Loretto Prison.

The [Espionage Act] states: “Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates … the same to any person not entitled to receive it … shall be fined under this title or imprisoned not more than 10 years, or both.”

A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.

U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.

The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.

[snip]

If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.

[snip]

If Panetta and Cartwright aren’t accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?

Kiriakou goes on to call for changes in the Espionage Act to focus on issues of intent and harm.

Kiriakou is, of course, correct that he got punished for things that Panetta and Cartwright have (so far, at least) escaped such levels of punishment for. (I’d also add the unnamed real sources for the UndieBomb 2.0 leak, who are being protected by the scapegoating of Donald Sachtleben.)

But I’d go even further. Given reports that FBI is investigating whether Senate Intelligence Committee staffers violated the law for obtaining proof the Agency they oversee was hiding evidence from it, it’s crucial to remember how Kiriakou’s prosecution came about, which I laid out in this post.

It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.

As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.

The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.

[snip]

According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

[snip]

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba. Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.

What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.

Read more →

John Rizzo Buries the Mock Burial

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The DC elite media continues to help John Rizzo promote his misleading memoir, this time with a Politico excerpt of his claim of how the torture techniques got chosen.

Here and elsewhere, Rizzo alludes to the one torture technique John Yoo rejected, though he says “DOJ” rejected it because it was “so gruesome.” (Note the context in which this appears, though, as an afterthought to the sentence describing simulated drowning.)

Waterboarding: The interrogator would strap Zubaydah to an inclined bench, with his feet slightly elevated. A cloth would be placed over his forehead and eyes, and water would be applied to the cloth in a controlled manner—for 20 to 40 seconds from a height of 12 to 24 inches. The intention would be simulate the sensation of drowning. There was also another technique that I’m barred from describing that was so gruesome that the Justice Department later stopped short of approving it. [my emphasis]

As I reported almost 4 years ago, this technique actually should be unclassified, as DOJ released it in unredacted form in a draft of the Office of Professional Responsibility report.

The technique is mock burial.

They planned to use simulated drowning and simulated burial.

And Yoo didn’t reject it outright: he told Rizzo he would “need more time” if he wanted that technique to be approved.

Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute, he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved.

Moreover, Yoo likely rejected it not because he found it gruesome (remember, Yoo has said he would seriously consider authorizing torturers crushing a child’s testicles to make his father talk). He almost certainly rejected it because Ali Soufan called the torturers’ plan to stick Abu Zubaydah (whose gunshot wounds were still not entirely healed) into a coffin, “borderline torture,” and then left the torture site and complained to his superiors. So (again, this is supported but not confirmed by the public record) when Michael Chertoff — then head of the Criminal Division and trying to ensure he wouldn’t have to charge the torturers with torture because the FBI witnessed and then complained about it — reviewed the techniques, this one presented a problem.

That DOJ approved, instead, both small and large box confinement shows they had no squeamishness with putting someone inside a box to simulate death. And we have reports that small or large box confinement got used as mock burial later in the torture program.

Plus, Rizzo does provide one other detail that helps explain one detail of how they planned to simulate burial.

For the small box, the interrogator would have the option to place a harmless insect inside.

That is, the insect they approved for use with Zubaydah was tied to the small — not the large — box. Stick him in a box, make him think he was buried alive, only to find an insect crawling around in there, as if he were 6 feet under.

Perhaps that’s why they never used the insect? Because they could never conduct unfettered live burial like they wanted, because Ali Soufan objected to it.

In any case, Rizzo will no doubt get a lot of mileage claiming that DOJ got squeamish about a single torture technique. But the truth is DOJ got cornered by the legal dilemma presented by a complaint about a coffin.

John Rizzo Declares Entire Torture Program Illegal

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As I have noted in the past, John Rizzo has gone on the record to admit that the torture program was authorized by a Presidential Memorandum of Notification.

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. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.

As always, CIA dutifully followed White House orders, [my emphasis]

Two years ago, at least, when he was trying to diss Congress using demonstrably false claims about the degree to which they had been briefed, John Rizzo claimed that the authority for the torture program all came directly from George Bush (Michael Hayden has said the same).

Not so today, apparently.

Steve Coll reports that Rizzo’s memoir claims Bush knew nothing about the details of torture his authorization provided the legal cover for.

Rizzo’s most remarkable account concerns President Bush. Essentially, Rizzo concludes that Bush has lately invented a memory of himself as a someone who was well informed and decisively in favor of waterboarding certain Al Qaeda prisoners, when, as far as Rizzo can tell, Bush seems not to have known at the time what the C.I.A. was doing.

In “Decision Points,” his 2010 memoir, Bush recalled that George Tenet provided a list of brutal interrogation techniques the C.I.A. proposed to use, and that Bush overruled “two that I felt went too far.” Later, when Tenet asked the President directly if he could employ waterboarding on Khalid Sheikh Mohammed, Bush wrote that he answered, “Damn right.”

Yet, according to Rizzo, “The one senior U.S. Government national security official during this time—from August 2002 through 2003—who I did not believe was knowledgeable about the E.I.T.s was President Bush himself. He was not present at any of the Principals Committee meetings … and none of the principals at any of the E.I.T. sessions during this period ever alluded to the President knowing anything about them.”

Some of the chronology of events related to the C.I.A. interrogations that Bush provides in “Decision Points” doesn’t compute, according to Rizzo. Also, Rizzo would certainly have known if Bush had banned two techniques, but Rizzo has “no idea” what Bush might have been referring to in his memoir. Throughout this period, Rizzo, as he remembers it, was in daily contact with George Tenet, who said “nothing about any conversations he had with the president about E.I.T.s, much less any instructions or approvals coming from Bush.”

Rizzo writes, “It simply didn’t seem conceivable that George [Tenet] wouldn’t have passed something like that on to those of us who were running the program.” Rizzo got in touch with Tenet while preparing “Company Man” and Tenet confirmed “that he did not recall ever briefing Bush” on specific interrogation techniques being used at C.I.A. prisons. “I have to conclude that the account in Bush’s memoir simply is wrong,” Rizzo concludes. [my emphasis]

There are, as there always are with John Rizzo’s claims, obvious gimmicks. He apparently discusses the period from August 2002 — the date when DOJ’s OLC authorized torture for Abu Zubaydah, at which point much, if not all of the techniques approved, had already been used on him — through 2003, the year before Bush issued a second authorization for the torture program in Tenet’s last days. The key authorizations from the White House came before August 2002, as the torture was happening (and Coll should review these details if he wants to review Rizzo’s memoir competently). And we know Tenet did record Bush’s authorization for the program — he did it in a document Rizzo handled.

Moreover, there are other public claims that refute Rizzo’s claim, as when Glenn Carle described being told CIA had a letter from the President authorizing it to go beyond SERE with detainees.

“We don’t do that sort of thing,” [Glenn Carle responded to a CIA Counterterrorism Center Deputy about “going beyond SERE” with a detainee].

“We do now,” Wilmington’s voice was flat. The conversation remained quiet.

“What about EO12333? We’ve never done that sort of thing. The Agency’d never do that. We’d need a finding, at least.”

[snip]

“We have it.” Wilmington’s manner brightened a little. “We have a letter from the president. We can do whatever we need to do. We’re covered.” [my emphasis]

In other words, Rizzo’s claims don’t mean much (except that, goddamnit I’m going to have to read his stinking memoir).

But hey, let’s take him at his word. Because if Bush really was ignorant about the torture program, then it means the entire thing was illegal.

If CIA’s former top lawyer wants to claim the torture program was illegal, who are we to doubt him?

Big-Footing Superpower Status Also about Legally Immune Commander in Chief(s)

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In a piece making the obvious comparison between fugitive spy Robert Seldon Lady and accused Espionage fugitive Edward Snowden, Tom Englehardt writes off the press silence about presumed American assistance to Lady in fleeing an international arrest warrant as the reality of being the sole superpower.

It’s no less a self-evident truth in Washington that Robert Seldon Lady must be protected from the long (Italian) arm of the law, that he is a patriot who did his duty, that it is the job of the U.S. government to keep him safe and never allow him to be prosecuted, just as it is the job of that government to protect, not prosecute>, CIA torturers who took part in George W. Bush’s Global War on Terror.

So there are two men, both of whom, Washington is convinced, must be brought in: one to face “justice,” one to escape it.  And all of this is a given, nothing that needs to be explained or justified to anyone anywhere, not even by a Constitutional law professor president.  (Of course, if someone had been accused of kidnapping and rendering an American Christian fundamentalist preacher and terror suspect off the streets of Milan to Moscow or Tehran or Beijing, it would no less self-evidently be a different matter.)

Don’t make the mistake, however, of comparing Washington’s positions on Snowden and Lady and labeling the Obama administration’s words and actions “hypocrisy.”  There’s no hypocrisy involved.  This is simply the living definition of what it means to exist in a one-superpower world for the first time in history.  For Washington, the essential rule of thumb goes something like this: we do what we want; we get to say what we want about what we do; and U.N. ambassadorial nominee Samantha Powers then gets to lecture the world on human rights and oppression.

This version of how it all works is so much the norm in Washington that few there are likely to see any contradiction at all between the Obama administration’s approaches to Snowden and Lady, nor evidently does the Washington media.

Englehardt doesn’t mention Sabrina De Sousa’s claims about the CIA’s kidnapping of Osama Mustapha Hassan Nasr (Abu Omar) and Italy’s subsequent prosecution of those involved. Adding her in the mix makes it clear how closely immunity for the Commander in Chief and his top aides is part of this superpower big-footing.

De Sousa, who says she served as an interpreter for the kidnappers on a planning trip, but not in the operation itself, was convicted and sentenced in Italy in part because the government refused to invoke diplomatic immunity (she admits she worked for CIA, but was under official cover).

The kidnapping did not meet US standards for renditions, but Station Chief Jeff Castelli wanted to do one anyway, and pushed through its approval even without Italian cooperation.

Despite concerns with the strength of Castelli’s case, CIA headquarters still agreed to move forward and seek Rice’s approval, De Sousa said. She recalled reading a cable from late 2002 that reported that Rice was worried about whether CIA personnel “would go to jail” if they were caught.

In response, she said, Castelli wrote that any CIA personnel who were caught would just be expelled from Italy “and SISMi will bail everyone out.”

Of her CIA superiors, De Sousa said, “They knew this (the rendition) was bullshit, but they were just allowing it. These guys approved it based on what Castelli was saying even though they knew it never met the threshold for rendition.”

Asked which agency officials would have been responsible for reviewing the operation and agreeing to ask Rice for Bush’s authorization, De Sousa said they would have included Tenet; Tyler Drumheller, who ran the CIA’s European operations; former CIA Director of Operations James Pavitt and his then-deputy, Stephen Kappes; Jose Rodriguez, then the head of the CIA’s Counterterrorism Center, and former acting CIA General Counsel John Rizzo.

De Sousa says the Italians and Americans colluded to protect the highers up, while prosecuting her and other lower level people.

De Sousa accused Italian leaders of colluding with the United States to shield Bush, Rice, Tenet and senior CIA aides by declining to prosecute them or even demanding that Washington publicly admit to staging the abduction.

Calling the operation unjustified and illegal, De Sousa said Italy and the United States cooperated in “scape-goating a bunch of people . . . while the ones who approved this stupid rendition are all free.”

Note, she doesn’t say this, but some of the people in the chain of command for this kidnapping — in both the US and Italy — were also involved in planting the Niger forgeries used to start the Iraq War. And, of course, a number of the Americans were involved in the torture program and its cover-up.

Since then, De Sousa has used all legal avenues to blow the whistle on this kidnapping.

De Sousa said that she has tried for years to report what she said was the baseless case for Nasr’s abduction and her shoddy treatment by the CIA and two administrations.

Her pleas and letters, however, were ignored by successive U.S. intelligence leaders, the CIA inspector general’s office, members and staff of the House and Senate intelligence committees, Rice, former Secretary of State Hillary Clinton and Attorney General Eric Holder, said De Sousa.

Assuming De Sousa’s story is correct (and an anonymous source backs its general outlines), then it adds one more reason why Lady quietly got to return to the US while Snowden will be loudly chased around the world.

What Americans are buying off on — along with superpower status that may defund schools in exchange for empire — with their silence about the disparate treatment of Sady and Snowden, then, is not just the ego thrill of living in a thus far unrivaled state.

It’s also, implicitly, the kind of immunity for the Commander in Chief and executive branch that shouldn’t exist in democratic states.

The Torture Apologists Ignore the 4,000 Americans They Killed

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A bit of a row has started between Jay Rosen and Will Saletan for the latter’s attempt to “see how [the torturers] saw what they did” in this post. Frankly, I think Rosen mischaracterizes the problem with Saletan’s post. It’s not so much that Saletan parrots the euphemisms of the torturers. It’s that he accepts what John Rizzo, Michael Hayden, Jose Rodriguez, and Marc Thiessen said — in a presentation with multiple internal contradictions even before you get to the outright demonstrable lies — as the truth.

I’m particularly troubled by the way Saletan takes this assertion (which is based on the pseudo science behind the torture):

EITs were used to break the will to resist, not to extract information directly. Hayden acknowledged that prisoners might say anything to stop their suffering. (Like the other panelists, he insisted EITs weren’t torture.) That’s why “we never asked anybody anything we didn’t know the answer to, while they were undergoing the enhanced interrogation techniques.

And concludes this, which I take to be Saletan’s belief, not the torturers’:

Fourth, the right question to ask about the EIT program isn’t whether people lie under torture but whether using torture to train human beings in obedience is wrong despite the payoffs.

In an effort to take the torturers’ comments — and very notable silences, which Saletan doesn’t discuss — in good faith, Saletan presumes we might treat obedience among detainees being exploited as one of its “payoffs.”

Doing so ignores how the Bush Administration used torture to get detainees to tell useful lies, the most important of those being that Iraq had ties to Al Qaeda, which is one of the key pieces of “intelligence” that was used to get us into the Iraq War. That lie from Ibn Sheikh al-Libi — extracted through the use of mock burial and waterboarding, the two main forms of torture discussed in the panel — contributed directly to the unnecessary deaths of 4,000 Americans, to say nothing of hundreds of thousands of Iraqis.

Hayden’s claim we always knew the answer to questions we asked under torture

Here’s the full exchange from which Saletan takes as truthful the assertion that torture is about “learned helplessness” (no one here uses Mitchell and Jessen’s term, but that’s what we know they called it).

MR. THIESSEN: Mike, one of the – one of the scenes, you have the interrogator throws the – whoever the detainee is down and starts pouring water over his face and starts shouting, when’s the last time you saw bin Laden? And I think that gets to a deep misunderstanding of how interrogation actually worked. And one of the things you explained to me when I was working on my book and on the president’s speech was that there’s a difference between interrogation and debriefing, and the purpose of interrogation was not – we actually didn’t ask questions that we didn’t know the answers to. It was to ascertain whether they were being truthful or not. (So if you ?) walk through that?

[snip]

MR. HAYDEN: I’m almost willing to make an absolute statement that we never asked anybody anything we didn’t know the answer to while they were undergoing the enhanced interrogation techniques. The techniques were not designed to elicit truth in the moment – which is what was, you know, tell me this or I’ll hurt you more, I’m not your friend – for about a third of our detainees. By the way, for two thirds of our detainees, this wasn’t necessary. Now, I’m willing to admit that the existence of the option may have influenced the two-thirds who said, well, let’s talk, all right? I mean – I mean, let’s be candid with one another. But for about a third, techniques were used not to elicit, again, information in the moment, but to take someone who had come into our custody absolutely defiant and move them into a state or a zone of cooperation, whereby – and then you recall the scene in the movie after the detainee is cleaned up and they’re having this lengthy conversation – for the rest of the detention, and in some cases it’s years – it’s a conversation. It’s a debriefing. It’s going back and forth with the kind of dialogue that you saw in that scene about a – about a third of the way through the movie.

You know a lot of people kind of reflexively say – they’ll say anything to make you stop, which may actually be true. That’s why we didn’t ask them questions while this was going on. Again, as John said, I mean, you know – these things weren’t gentle or kind, but the impact – and I think Jose’s written very thoughtfully about this – the impact was psychological. The impact is you are no longer in control of your destiny, all right? You are in our hands, and therefore, that movement into the zone of cooperation as opposed to the zone of defiance. But Jose’s got more of the fine print on that. [my emphasis]

As I mentioned the other day, I still haven’t seen the movie, so I’m not sure. But Thiessen’s effort to dismiss the claim that we asked detainees where Osama bin Laden was while being waterboarding may be an effort to rebut Khalid Sheikh Mohammed’s assertion that he lied about OBL’s location to get them to stop waterboarding him — all while hiding the importance of the courier, Abu Ahmed al-Kuwaiti, who would eventually lead to OBL.

Now, Hayden’s claim is so obviously false as to be almost pathetic.

The ticking timebomb that blows up Hayden’s claim

It’s a claim that Rodriguez — in the very same appearance — undermines, when he describes turning to torture out of sheer ignorance.

MR. THIESSEN: Follow-up, Jose. I mean, take us back to – since we’re pulling the broader picture – take us back to September 11 th , 2001. You know, we’ve just been hit – there’s smoke in the ground in New York, buildings have fallen, the Pentagon is broken. And what do we know about al-Qaida? I mean, did we know that KSM was the operational commander of al Qaida or that he had this – or that members of his network – or all this information that we take for granted that we know now?

MR. RODRIGUEZ: Yeah, we didn’t know that much. Read more →