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NYT Neglects to Mention Foggo and the Torture Tapes

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There’s a keystone to understanding the story from David Johnston (who frequently regurgitates highly motivated leaks) and Mark Mazzetti (CIA’s guy at NYT) on Dusty Foggo’s role in setting up the black sites run by the CIA: Foggo’s testimony in the torture tape investigation. Early this year, remember, DOJ and CIA told the ACLU that they couldn’t FOIA information pertaining to the disappearing torture tapes because John Durham’s investigation of their destruction was ongoing and would be for perhaps two more months.

And then, just as Dusty Foggo was about to go to jail, John Durham said he needed to interview Foggo. And since then, as far as we know, Durham’s investigation continues, now four months beyond when he thought he’d finish up. As recently as a month or so ago, Durham was flying people back from remote locations to appear before the grand jury. While we can’t be sure, it does seem likely that Foggo’s testimony provided new information that has sustained it.

And, thanks to Johnston and Mazzetti, we now know why Foggo would have something pertinent to say about the torture tapes–because he was the guy who set up the black sites. 

In March 2003, two C.I.A. officials surprised Kyle D. Foggo, then the chief of the agency’s main European supply base, with an unusual request. They wanted his help building secret prisons to hold some of the world’s most threatening terrorists.

[snip]

“It was too sensitive to be handled by headquarters,” he said in an interview. “I was proud to help my nation.”

With that, Mr. Foggo went on to oversee construction of three detention centers, each built to house about a half-dozen detainees, according to former intelligence officials and others briefed on the matter.

[snip]

Early in the fight against Al Qaeda, agency officials relied heavily on American allies to help detain people suspected of terrorism in makeshift facilities in countries like Thailand. But by the time two C.I.A. officials met with Mr. Foggo in 2003, that arrangement was under threat, according to people briefed on the situation. In Thailand, for example, local officials were said to be growing uneasy about a black site outside Bangkok code-named Cat’s Eye. (The agency would eventually change the code name for the Thai prison, fearing it would appear racially insensitive.) The C.I.A. wanted its own, more permanent detention centers.

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The Waterboarding Authorization the Torturers Used?

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I wanted to fully explain what I think may be the backstory to the LAT’s revelation that the torturers weren’t aware of the limits in the Bybee Two memo. Here’s what the LAT said:

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

A number of you have suggested (correctly, on the merits as presented by LAT) that if the torturers didn’t know what, specifically, was in the OLC memos, then they couldn’t very well think their torture was legal.

But that assumes they don’t have another document that, they may have been led to believe, authorized the torture they did.

On July 24, 2002, OLC verbally authorized a number of torture techniques, not including waterboarding. Around the same time, DOD urgently asked JPRA–the entity that administered SERE–to provide a list of its techniques so it could reverse-engineer interrogation techniques from them. In response, JPRA sent a memo with an attachment that described its techniques. Sort of.

(U) On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office. The memo stated that "JPRA has arguably developed into the DoD’s experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students …"

In the memo, JPRA informed the General Counsel’s office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees."190 The memo also stated:

Within JPRA’s evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and ‘breaking’ the OEF detainees’ will to resist."

The first attachment to the July 26,2002 memo was ”Physical Pressures used in Resistance Training and Against American Prisoners and Detainees."192 Read more →

John Rizzo Pre-Empts the OPR Report

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As we speak, the CIA–including, by all appearances, John Rizzo–is reviewing the Office of Professional Responsibility’s report on OLC’s torture memos.

As if on cue, the LAT has a story profiling him. (Also, as if on cue, I take up Spencer’s bait.)

Given its scope, the OPR report must focus on two different periods: the months leading up to the August 2002 OLC memos, and the months leading up to the May 2005 OLC memos (as well as, probably, the time leading up to the March 2003 OLC memo, but that was a DOD memo, not a CIA one).

Those are, not surprisingly, the two years, at least, that appear in this story. We are told–with no sourcing–that Rizzo never dealt with legal questions about torture before the capture of Abu Zubaydah.

Rizzo had never dealt with legal questions about interrogation until officials from the agency’s Counterterrorism Center approached him in 2002 with a list of techniques they wanted to employ to get a suspected Al Qaeda captive, Abu Zubaydah, to talk. Among them was waterboarding, in which a prisoner is strapped to a plank and doused to make him feel he is drowning.

This would suggest the War Council–David Addington, Jim Haynes, John Yoo, and Rizzo–weren’t already talking about torture in December 2001, when Mitchell and Jessen first started developing their torture program. It would also suggest that Rizzo never weighed in on the treatment of Ibn Sheikh al-Libi and others rendered to torture. It would repeat the same myth the Cheney apologists like to tell–that these ideas bubbled up from CTC, rather than were imposed from the top.

It’s an interesting story. If true, then I wonder why it’s taking CIA so long to review that OPR report?

And then there are the 2005 dates. As Spencer describes, at some point in 2005 Rizzo personally observed the Salt Pit.

Rizzo kept close watch on the interrogation program. Once, during a 2005 trip by senior CIA executives to Kabul, Afghanistan, Rizzo disappeared from the crowd after dinner with Afghan intelligence officials.

It wasn’t until the next day, one participant remembered, that Rizzo revealed he had arranged a midnight trip to the Salt Pit, a secret CIA prison on the outskirts of the city, to see detention operations up close.

A CIA detainee had died at the site in 2002. But Rizzo came away newly assured that the operation was well-run, former officials said.

The story would have you believe that Rizzo thought, in 2005, that the torture we were conducting at the Salt Pit was all hunky dory. Read more →

CIA Now Reviewing OPR Report on Yoo, Bybee, and Bradbury

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Sheldon Whitehouse revealed raised during today’s Department of Justice oversight hearing that the CIA is now reviewing the results of the Office of Professional Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in authorizing torture.

Whitehouse: CIA was given a opportunity for substantive comment and classification review. Is it now the CIA that is holding up the release of the report?

Eric Holder claimed that the CIA’s review was not holding up the report. But when asked whether or not DOJ was ensuring that those at CIA reviewing the document had clean hands on torture, Holder twice did not answer, and ultimately said he wasn’t worried whether those involved in torture get to make substantive comment on the OPR report.

Whitehouse: Role of CIA in substantive comment and in classification review, interesting conflicts of interest. What assurances from CIA that those who seek to influence OPR report through substantive comment or those who have effect of delaying report are not complicit or involved in underlying conduct. Have you got a clean scrub of those at CIA who are involved in program?

Holder: As complete a report as we can. Declassify as much as we can. Full feeling of what it is that OLC lawyers dealt with. Pushing to declassify as much as we can. 

Whitehouse: Doesnt’ address question of whatever assurances from CIA that in discharge of review role the people involved in that had clean hands WRT this program and are giving untainted advice.

Holder: We haven’t gotten anything yet. This may not be an issue at all.  Will interact with Panetta. Want to have as much declassified as possible.

Whitehouse: And on question of substantive comments? Is it not important that CIA should be doing so in manner that keeps agencies hands clean.

Holder: I’m actually less worried about substantive comments.

Whitehouse: Would they be likely to look at substantive comments differently if CIA had not kept report from people with clean hands.

Holder: Fact-driven. Conclusion that one draws from the facts, Justice Department’s view of facts that we have uncovered.

In other words, no, Holder doesn’t find it problematic that someone like John Rizzo–who remains the Acting General Counsel at CIA and who made apparently false declarations to OLC in 2002 when it first approved torture–gets a chance to review the OPR report.

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John Rizzo’s Nomination and the Bybee Two Memo

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On August 23, 2006, Jello Jay Rockefeller wrote to Michael Hayden requesting a number of documents in relation to John Rizzo’s nomination to be CIA’s General Counsel. In addition to a list of all OLC memos and access for the full committee to the 2004 CIA IG report on torture, Rockefeller asked for materials relating to the Bybee Two memo listing all the torture techniques CIA could use. As with the IG report, Jello Jay asked that all committee members be able to read the document (starting on page 15).

[For Bybee Two] the question is not whether it should be delivered [to the Committee], for it is here, but whether all Members of the Committee and their staff assisting them in preparing for the hearing may read it. The Senate has referred the nomination to the full Committee, not to the Chairman and Vice Chairman alone. Each Member must decide how to vote. In doing that, each should be able to ask those questions that he or she deems necessary for an informed vote. The memo was requested from OLC for the CIA by the nominee and he had responsibility for implementing it. Members may therefore wish to question him about it.

And in a section asking for more information about Rizzo’s role in buying off on torture policy (and following a completely redacted paragraph), Jello Jay asked specifically about Rizzo’s role in formulating Bybee Two.

The focus of the requests described above concerns matters relating to and following the August 2002 Second Bybee Memo. There were also important decisions about U.S. legal policies related to counterterrorism, including on such matters as the application of the Geneva Conventions, that preceded the Bybee Memos, and my understanding is that the nominee had a role in that process, both within the CIA and outside of it. It will therefore be important to assess his participation in the formulation of those policies. Accordingly, in addition to documents relating directly to the Second Bybee Memo, please provide documents authored by the nominee, or prepared under his supervision, that set forth the nominee’s contribution to the development of U.S. legal policy after the September 11 attacks.

The request is important for several reasons. First, it asks to what degree Rizzo was involved in the shredding of the Geneva Conventions, particularly repeated exemptions even from the flabby support of the GC applied to other agencies. Read more →

Did Bybee Say No to Waterboarding on July 24, 2002?

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Earlier today, I showed that Jim Haynes personally pushed the SERE people to come up with some materials on waterboarding on July 25, 2002, just one day after OLC had given CIA clearance to use some–but not all–of the techniques they had asked for. The same day Haynes got that information and forward it to OLC (or had John Rizzo do it, depending on whom you ask), OLC approved the use of waterboarding.

I wish I had read this passage from this Charlie Savage story before I wrote that post.

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

This is the second time we’ve heard about emails.

Emails.

Hahahahahaha!

Imagine there were emails between–say, Addington–and Yoo, discussing what it would take to get Bybee to sign off on the torture memos? Imagine those emails were dated July 25, 2002, the same day that Haynes was pushing  JPRA to come up with some description of waterboarding that–since we did it to our own Navy men, could get past the bar of legality.

I want these guys to pay for their crimes. But I’d take special pleasure if they somehow didn’t manage to destroy all the emails. 

Did Condi Really Not Know Defense Was Sleeping with the Spooks on Torture?

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There’s a weird detail in John Yoo’s prepared testimony for last year’s House Judiciary Committee hearing on Assholes Who Torture. He claims the National Security Council (so, presumably John Bellinger or Condi or her boss) ordered OLC not to let on what it was doing to either State or Defense.

In particular, the offices of the CIA general counsel and of the NSC legal advisor asked OLC for an opinion on the meaning of the anti-torture statute. They set the classification level of the work and dictated which agencies and personnel could know about it. In this case, the NSC ordered that we not discuss our work on this matter with either the State or Defense Departments. 

To be fair, Yoo is referring to the production of just the Bybee One memo–the one requiring torture to rival organ failure or death–and not the recently-released Bybee Two memo–the one detailing the techniques in question.  And from reviewing the hearing now that Bybee Two has been released (trust me, I mean it when I call it the hearing on Assholes Who Torture), it’s clear that Addington and Yoo both maintained a clear distinction between the two memos (in Addington’s case, for example, he did so to avoid admitting he had discussed torture techniques with the folks in Gitmo.)

So it’s possible that Yoo was only ordered to keep this memo secret from DOD; it’s possible Condi knew the techniques memo was basically a group project for the torture kids over at Defense and CIA. 

But with this weird detail in mind, I find another weird detail from the Senate Armed Services Report even weirder.  Both DOD’s Jim Haynes and CIA’s John Rizzo kind of sort of take credit for passing the material from JPRA to Yoo and friends at OLC. Here’s Haynes:

Mr. Haynes also recalled that he may have been "asked that information be given to the Justice Department for something they were working on," which he said related to a program he was not free to discuss with the Committee, even in a classified setting.

And here’s Rizzo:

According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice.

These aren’t necessarily contradictory. Read more →

Yet Another Warning against Torture Ignored

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So what kind of Friday night news dump do you think would elicit this much silence? (h/t scribe)

Haynes declined to comment, as did Rizzo and the CIA. Jay. S. Bybee, who as an assistant Attorney General signed the Aug. 1, 2002, memo, did not respond to a request for comment.

[snip]

James Mitchell and Bruce Jessen … declined to comment on their role in formulating interrogation policy.

How about a document–given to DoD and from DoD to CIA and from CIA to Jay Bybee–referring to harsh tactics as torture and warning they don’t work?

The key operational deficits related to the use of torture is its impact on the reliability and accuracy of the information provided. If an interrogator produces information that resulted from the application ofphysical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop.

The document comes complete with quotes from someone (my wildarsed guess is John Bellinger) who had been involved in deliberations on the torture policy stating that CIA shared none of this with the National Security Council.

A former administration official said the National Security Council, which was briefed repeatedly that summer on the CIA’s planned interrogation program by George Tenet, then Director of Central Intelligence, and agency lawyers, did not discuss the issues raised in the attachment.

"That information was not brought to the attention of the principals," said the former administration official, who was involved in deliberations on interrogation policy who requested anonymity because of the sensitivity of the issue. "That would have been relevant. The CIA did not present with pros and cons, or points or concern. They said this was safe and effective, and there was no alternative."

The urgent efforts of all the people involved in setting up our torture regime to blame each other seems likely to keep us in new document dumps for the next several weeks. But I don’t know about you–I’m getting overwhelmed. Though, imagine how Haynes, Rizzo, Bybee, Mitchell, and Jessen feel. It’s almost … "poignant."

Abu Zubaydah’s FBI Interrogator Removes the Legal Cornerstone of the Torture Regime

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Ali Soufan, the FBI interrogator described in the DOJ IG report on interrogation as the interrogator (whom they call "Thomas") who called CIA’s tactics on AZ, "borderline torture," has an important op-ed in the NYT. He writes,

One of the most striking parts of the memos is the false premises on which they are based. 

I pointed this out myself, in a post on why the debate over whether these techniques were necessary and effective is so heated.

Check out what the second paragraph of the Bybee Memo says:

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. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

Here’s what Ali Soufan says:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Read more →

The OLC Memos, “Erroneous and Inflammatory Assumptions,” and John Rizzo’s Lies

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In his statement on the torture memos today, Obama suggested that some of the "assumptions" about what Americans had done were wrong, and that releasing the memos would correct these "assumptions."

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.[my emphasis]

This suggests (though weakly) that the OLC memos–and not other evidence–should be taken as authoritative on the events surrounding our interrogation program.

Though, on several counts, this is not true.

The most troubling example pertains to Abu Zubaydah’s mental state before he was tortured. John Yoo (writing under Jay Bybee’s name) goes to some lengths to establish Abu Zubaydah’s sanity. After five paragraphs that basically make Abu Zubaydah out to be a self-confident stud, here’s what Yoo says about AZ’s psychological health.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,] … enduring mood or mental health problems." He is in fact "remarkably resilient and confident that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufiicient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled., and deliberate." He has maintained tius demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Read more →