Posts

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

/18 Comments/in , /by

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 →

The Torture Apologists Ignore the 4,000 Americans They Killed

/34 Comments/in /by

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 →

The Dianne Feinstein-Jose Rodriguez Grudge Match

/13 Comments/in /by

It cannot be sheer coincidence that Dianne Feinstein released two letters to acting CIA Director Michael Morell just hours before WaPo published yet another fact-free defense of torture from Jose Rodriguez.

In addition to demanding proof for assertions Morell made–after DiFi sent her first letter–in a letter to CIA employees about Zero Dark Thirty…

In your December 21, 2012, statement to CIA employees regarding the film, Zero Dark Thirty, you state that “the film creates the strong impression that enhanced interrogation techniques” were “the key to finding Bin Ladin” and that this impression “is false.” However, you went on to refer to multiple streams of intelligence that led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad and stated that “Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.”

DiFi also noted (in her first letter) that the false assertions in the film tracked public claims made by Michael Hayden and Rodriguez.

As you know, the film depicts CIA officers repeatedly torturing detainees. The film then credits CIA detainees subjected to coercive interrogation techniques as providing critical lead information on the courier that led to the UBL compound. While this information is incorrect, it is consistent with public statements made by former Director of the CIA Counterterrorism Center, Jose Rodriguez, and former CIA Director Michael Hayden.

DiFi sent her first letter December 19. Morell made his incorrect claims two days later. Then DiFi demanded he back his claims on Monday.

Then here we are, on Thursday, with Rodriguez both denying the brutal aspects of the torture depicted in the movie resemble what the CIA did, while claiming (as DiFi predicted) that torture was central to finding Osama bin Laden.

I guess this is why the name of Jane Harman–who may have been terrible on a number of points but pushed back on the Bush Administration’s torture regime–got floated in the last few days as CIA Director, instead of Morell, who had previously been a lock?

In addition to preventing Morell from officially directing the CIA, DiFi does have another way to respond to this insubordination: to release her long report showing that torture not only didn’t work, but did resemble the brutal scenes in the movie.

Mind you, she’s going to face an increasingly fierce battle over classification. Does CIA retain primary classification authority for the program–in which case they’ll fight her? Or does Obama–and will the CIA’s godfather, John Brennan, allow the report to be released?

In any case, this seems a clear moment when DiFi’s authority (indeed, when Congress’ authority) on an issue on which she has been productive, is being challenged head on.

We shall see whether the Congressional overseer or the torturer wins this battle.

Eric Holder Rewards the Teams that Gave Torturers and Mortgage Fraudsters Immunity

/7 Comments/in , , , , /by

As TPM’s Ryan Reilly noted yesterday, among the awards Attorney General Eric Holder gave out at yesterday’s Attorney General’s Award Ceremony was a Distinguished Service Award to John Durham’s investigative team that chose not to prosecute Jose Rodriguez or the torturers who killed their victims.

The 13th Distinguished Service Award is presented to team members for their involvement in two sensitive investigations ordered by two different Attorneys General. In January 2007, Attorney General Michael Mukasey asked Assistant U.S. Attorney John Durham to lead a team that would investigate the destruction of interrogation videotapes by the CIA. Assistant U.S. Attorney Durham assembled the team and began the investigation. Then, in August 2009, Attorney General Holder expanded Assistant U.S. Attorney Durham’s mandate to include a preliminary review of the treatment of detainees held at overseas locations. This second request resulted in the review of 101 detainee matters that led to two full criminal investigations. In order to conduct the investigations, the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.

The timing on this award–coming even as DOJ aggressively prosecutes John Kiriakou for talking about this torture–is particularly cynical.

Holder also presented a Distinguished Service Award to the team that crafted a $25 billion settlement effectively immunizing the banksters for engaging in systemic mortgage fraud.

The third Distinguished Service Award is presented to the individuals involved in procuring a $25 billion mortgage servicing settlement between the United States, 49 state attorneys general and the five largest mortgage servicers, representing the largest federal-state settlement in history.   The settlement includes comprehensive new mortgage loan servicing standards, $5 billion to state and federal treasuries and borrowers who lost their homes to foreclosure, $20 billion in consumer relief and a $1 billion resolution of False Claims Act recoveries by the Eastern District of New York.

As DDay has documented relentlessly, the settlement is little more than kabuki, with most of the “consumer relief” consisting of actions the banks were already taking.

To get an idea of how outrageous it is to give an award to the torture non-prosecution team and the kabuki settlement team, compare what those teams did with the rest of the Distinguished Service recipients.

  1. The team that successfully prosecuted United States v. AU Optronics et al.,an international cartel that fixed the price of liquid crystal display (LCD) panels sold in the United States and around the world
  2. The team that implemented national standards aimed at eliminating sexual abuse in our nation’s confinement facilities
  3. The kabuki mortgage settlement team
  4. The team that investigated and dismantled the Coreflood Botnet, also known as Operation Adeona [this was a controversial expansion of Federal power to combat hacking, though since the team worked with a court order, better at least than what the government did to WikiLeaks]
  5. The team that investigated and convicted 37 members of the La Mara Salvatrucha (MS-13) gang in the San Francisco area
  6. The Tribal Trust Negotiation Team, which negotiated settlements with more than 40 Tribes in complex and long-running Tribal Trust cases [I’m not sure, but I believe this is the Cobell settlement, which is in many ways another kabuki settlement, but at least the tribes finally get some compensation]
  7. The Raj Rajaratnam investigation and prosecution team
  8. “The team whose extraordinary service led to the prosecution of Ahmed Warsame” [I quoted this because Warsame has not been convicted yet; the second-to-last item in his docket was a sealed January 5, 2012 document following a continuance, suggesting he may be cooperating in some way; this award should be considered recognition for the further twisting of our legal system to allow for novel war on terror uses]
  9. The Rod Blagojevich investigation and prosecution team
  10. INTERPOL Senior Inspector Joseph J. DeLuca for his outstanding leadership and law enforcement coordination in the apprehension and extradition of international fugitives
  11. Assistant Inspector General Thomas F. McLaughlin for 22 years of service in OIG and certain initiatives he conducted while there, including prosecuting department employees
  12. The CrimeSolutions.gov Development Team for its leadership in creating and launching the premier online resource for information about evidence-based programs and practices in criminal justice, juvenile justice and crime victim services
  13. The torture non-prosecution team
  14. The Congressman William Jefferson investigation and prosecution team

Five of these are for successful prosecutions–AU Optronics, MS-13 gang members, Raj Rajaratnam, Rod Blagojevich, William Jefferson. Another two–the Coreflood Botnet and Warsame actions–neutralized a threat, albeit through novel and controversial means. And then there are the teams that worked to make the criminal justice system more humane.

But rather than holding criminals accountable–punishing those that degraded our nation and created new reasons for people to join terrorists, punishing those who crashed our economy and stole the wealth of millions of families–the Durham and Mortgage Settlement teams made us less safe. They immunized crime, rather than punishing it.

“No one is above the law,” Eric Holder has said on other occasions. Not surprisingly, he didn’t say that yesterday, because it’s clear that some people–the torturers and the banksters–are indeed above the law.

Why Is Jose Rodriguez Hanging Out John Brennan NOW?

/9 Comments/in , , /by

I’m no fan of either Jose Rodriguez or John Brennan. So I take no pleasure that the former is blaming the latter for a big intelligence scam carried out against the CIA back in the day.

As head of the multi-agency Terrorist Threat Integration Center in 2003 and 2004, Brennan disseminated to the Bush White House a stream of CIA intelligence from a bogus source, former CIA officials say. Ridiculed by some with the CIA, the bogus intelligence nevertheless led to disruption in the U.S. and abroad, including an orange terror alert and the cancellation of dozens of international flights.

[snip]

At the CIA, the information was controversial from the beginning, and many agency officials said at the time that it should not have been distributed. Jose Rodriguez, who was directing the CIA’s Counterterrorism Center, said the CTC viewed the intelligence as “crazy.”

“We were very skeptical,” Rodriguez recalled.

[snip]

“It was briefed by John. He was the guy who was bringing it there,” said Rodriguez, who added that he believes Brennan was trying to build up his own profile. “My own view is he saw this, he took this, as a way to have relevance, to take something important to the White House.”

But I am interested in why Rodriguez is doing this now–particularly since, as Defense News points out, he chose not to do so in his own book.

I can think of three possible reasons this is coming out now–they’re all wildarsed guesses. It’s possible that Brennan’s star is fading, so he’s vulnerable now in a way he wasn’t before.

It’s possible that some story behind the underlying scam this guy–Dennis Montgomery–carried out against the government is about to unfold. Read more →

If by “Fact Check” You Mean “Spy on MoDo”

/7 Comments/in , /by

A funny thing happened when Judicial Watch tried to catch the White House buttering up Kathryn Bigelow and Mark Boal for the Zero Dark Thirty film. It caught CIA doing so.

More embarrassing still, it caught the CIA asking NYT’s spook reporter, Mark Mazzetti, to find out how much Maureen Dowd (pictured here posing as a blogger covering the Prop 8 trial) would expose the CIA’s own involvement in the movie.

It seems some DOD sources had leaked information to MoDo that exposed the CIA.

It was clear that the White House had outsourced the job of manning up the president’s image to Hollywood when Boal got welcomed to the upper echelons of the White House and the Pentagon and showed up recently — to the surprise of some military officers — at a C.I.A. ceremony celebrating the hero Seals.

“This didn’t come from me…and please delete after you read,” Mazzetti wrote when he forwarded MoDo’s entire column to Marie Harf. “See, nothing to worry about”

Except Harf apparently is less skilled at destroying evidence than Jose Rodriguez, cause there the email is, exposing the collaboration between reporter and reportee.

Things got more interesting when NYT Managing Editor Dean Baquet got involved, after Politico’s Dylan Byers asked for comment. Baquet stuck up for Mazzetti.

“The optics aren’t what they look like,” he went on. “I’ve talked to Mark, I know the cirucmstance, and given what I know, it’s much ado about nothing.”

At which point, I suspect, MoDo went apeshit, given the suggestion Baquet left that she routinely shares her work before publication with her colleagues, allowing them to warn others about what she writes. Cause then NYT’s own flack, Eileen Murphy, wrote Byers to assure him this is not, in fact, “much ado about nothing.”

“Last August, Maureen Dowd asked Mark Mazzetti to help check a fact for her column. In the course of doing so, he sent the entire column to a CIA spokeswoman shortly before her deadline. He did this without the knowledge of Ms. Dowd. This action was a mistake that is not consistent with New York Times standards.”

Consider: this is the best face the Gray Lady can put on this rather cozy relationship with the nation’s spy agency, claiming that Mazzetti’s spying on MoDo for the CIA was a “mistake.”

But what I want to know is this: is this how the NYT conducts fact checks? Or just fact checks of its MoDos and other columnists? “Here, beat writer. I’m writing a column suggesting Obama has a very small penis. Can you ‘fact check’ it and make sure I’ve got the details correct?” And how often do these “fact checks” get sent off as a beat sweetener in the information economy of the beltway?

Using Pensions to “Punish” “Leaks” Will Subject Clearance Holders to Arbitrary Power

/4 Comments/in , , , , /by

The Senate Intelligence Committee’s new anti-leak laws are the part of the Intelligence Authorization that will generate the most attention. Greg Miller already got Dianne Feinstein to admit there’s no reason to think one of the new provisions–permitting only the most senior intelligence officials to do background briefings–will limit leaks.

Feinstein acknowledged that she knew of no evidence tying those leaks or others to background sessions, which generally deal broadly with analysts’ interpretations of developments overseas and avoid discussions of the operations of the CIA or other spy services.

Another of the provisions–requiring intelligence committee heads to ensure that every sanctioned leak be recorded–ought to be named the Judy Miller and Bob Woodward Insta-Leak Recording Act.

(a) RECORD REQUIREMENT.—The head of each element of the intelligence community shall ensure that such element creates and maintains a record of all authorized disclosures of classified information to media personnel, including any person or entity under contract or other binding agreement with the media to provide analysis or commentary, or to any person or entity if the disclosure is made with the intent or knowledge that such information will be made publicly available.

I’m sure someone can think of some downside to this provision, but I can’t think of it at the moment (which is why Obama will probably find some way to eliminate it). It will end some of the asymmetry and abuse of classification as it currently exists.

In addition, there are a bunch of provisions that are just dumb bureaucracy.

But it’s this one that is deeply troubling. Among the other provisions making nondisclosure agreements more rigorous is a provision that would allow an intelligence community head to take away a person’s pension if they “determine” that an individual violated her nondisclosure agreement.

Read more →

The First Torture Cover-Up Was Covered Up By The First Torture Cover-Up Lawyer

/2 Comments/in , /by

Document Exploitation blog has read Jose Rodriguez’ book so I don’t have to!

Seriously, I will eventually get around to reading Rodriguez’ book, when I can get it cheaper than toilet paper. But until then, I’m glad a document wonk has done the work.

One of the more interesting observations from DocEx pertains to Judge Hellerstein’s apparent misreading of CIA’s promises to fix their contemptuous document responses. Click through for that. (Though now that I understand that Hellerstein was unsuccessfully trying to expose that the President had authorized all this torture, perhaps he believed he had achieved a just result.)

But the real “ah ha” for me was this–showing that the CIA lawyer that reviewed the already-damaged torture tapes and found evidence of that damage not noteworthy…

This report appears to show McPherson admitting that he saw some of the tapes were partially blank, or had snow on them.

[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.”

Though he claims not to have noticed that two of the tapes were broken (though perhaps they were broken later). When asked why he had not reported the blank tapes in his report, McPherson said he didn’t find that “noteworthy.”

… Was also the lawyer who provided the original, contemptuous FOIA response.

Rodriguez’s account also sheds new light on a crucial lynchpin in the ACLU FOIA case by identifing the CIA attorney from the Office of General Counsel (OGC) who viewed the videotapes in Nov. 2002 as “one of the assistant general counsels” whom Rodriguez calls “a very senior Agency officer.”  The attorney was later interviewed by the CIA Office of Inspector General (OIG) about that review. Rodriguez’s small, but important details corroborate earlier reporting by the AP and WashPo that the OGC attorney was John L. McPherson, who based on unrelated court filings, was an Assistant General Counsel as of 2001 and later became an Associate General Counsel.

Why is this significant? Hellerstein found the tapes subject to FOIA because they were “identified and produced to” the CIA’s OIG “as part of its investigation into allegations” of unauthorized interrogations and human rights violations. Yet Hellerstein stopped short of finding the CIA in contempt in part because “the individuals responsible for processing and responding to plaintiffs’ FOIA requests may not have been aware of the videotapes’ existence before they were destroyed.”

Remarkably, however, the crucial FOIA response from the CIA regarding the records of the OIG in April 2005 (ergo, 7 months prior to the destruction of the tapes) was written by none other than John L. McPherson. Read more →

“Remember, an FBI agent [like Ali Soufan] always keeps his notes.” Why Won’t Obama Admin Release Them?

/13 Comments/in , /by

As Ali Soufan has been making the rounds rebutting Jose Rodriguez’ self-serving lies, he has said something, repeatedly, that hasn’t gotten a lot of attention.

Soufan has notes that prove Rodriguez is lying.

He actually first mentioned them publicly (AFAIK) in his book, Black Banners.

In early 2008, in a conference room that is referred to as a sensitive compartmented information facility (SCIF), I gave a classified briefing on Abu Zubaydah to staffers of the Senate Select Committee on Intelligence. The staffers present were shocked. What I told them contradicted everything they had been told by Bush administration and CIA officials.

When the discussion turned to whether I could prove everything I was saying, I told them, “Remember, an FBI agent always keep his notes.” Locked in a secure safe in the FBI New York office are my hand-written notes of everything that happened with Abu Zubaydah [redacted] (434-435; my emphasis)

He mentions them again later in the book, almost begging someone to go get them.

It was apparent from the [torture] memos that the introduction of EITs was based on lies. The proof resides in my notes–locked, as noted earlier, in FBI vaults. (526)

Soufan repeated this emphasis on his notes in a piece explaining why Jose Rodriguez’ lies might help Abd al Rahim al-Nashiri in his military commission.

Nonetheless, the government has my investigative notes, as well as daily reports, and the inspector general also found instances where Rodriguez’s team went far beyond what they had approval for and the legal guidelines set forth by the George W. Bush administration, including holding a drill to Nashiri’s head. [my emphasis]

And in the Q&A with Amy Davidson, Soufan again mentions that documentary proof that Rodriguez is lying.

The claim about waterboarding leading to unmasking of K.S.M. as the mastermind of the September 11, 2001, attacks is similarly false. We got that information in April, 2002, before the contractors hired by the C.I.A. Counterterrorism Center even arrived at the site. One by one, the successes claimed by E.I.T. proponents have been shown to be false.

I went before the Senate Judiciary Committee and under oath recounted what happened. And, as I note in “The Black Banners,” I sent daily reports from the secret interrogation location, to Washington, recording what happened, which the U.S. Government has in its possession.

[snip]

The tapes also contained our interrogations, done with traditional techniques. The tapes would have shown under which circumstances Abu Zubaydah coöperated and when he stopped coöperating. But while the tapes were destroyed, our daily reports from the location are luckily safe and still in the government’s possession. [my empahsis]

Notes, notes, notes and daily reports, daily reports, daily reports.

Read more →

Big Boy Pants and the Presidency

/32 Comments/in , , /by

Frankly, I think Jose Rodriguez was being naive when he claimed that having Jay Bybee’s signature on a memo authorizing some, but not all, of the torture the torturers had already done by August 1, 2002 constituted full authority for what they had done.

But before moving forward, Jose Rodriguez got his superiors, right up to the president – to sign off on a set of those techniques, including waterboarding.

Jose Rodriguez: We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed.

Lesley Stahl: Their big boy pants on–

Jose Rodriguez: Big boy pants. Let me tell you, I had had a lot of experience in the agency where we had been left to hold the bag. And I was not about to let that happen for the people that work for me.

Lesley Stahl: There wasn’t gonna be any deniability on this one?

Jose Rodriguez: There was not gonna be any deniability. And I tell you something. In August of 2002, I felt I had all the authorities that I needed, all the approvals that I needed. The atmosphere in the country was different. Everybody wanted us to save American lives.

After all, to this day, these counterterrrorism programs are being run on a Memorandum of Notification that not only doesn’t comply with the terms of the National Security Act, but shields the President (Obama even more so than Bush) from any direct accountability, a carefully crafted deniability that the CIA has worked to preserve.

Lesley Stahl was apparently not up to the task of asking Rodriguez about the torture the torturers actually used which exceeded the terms of the authorization. She describes waterboarding as laid out in the Bybee Memo, without acknowledging that the torturers didn’t follow those guidelines. Stahl asserts as fact that the CIA kept Abu Zubaydah up for 3 straight days, when evidence suggests his sleep deprivation lasted longer, perhaps as long as 11 days. Had Stahl laid out the degree to which the torturers were known to have exceeded guidelines (both before and after those guidelines were codified in the Bybee Memo), she might have noted the underlying problem with this exchange.

Lesley Stahl: Oh, you had rules for each thing?

Jose Rodriguez: Yes, we had rules. And not only that, but every time we did any of this, we had to ask permission. The field had to ask permission of headquarters.

Lesley Stahl: Each time.

Jose Rodriguez: Each time.

As she herself pointed out, Rodriguez was not doing the torture. He wasn’t in the field. He was at HQ. In fact, he was one of the guys sitting in Langley giving the oral permissions for individual torture techniques both before and after Bybee signed his memo, the techniques that exceeded the rules laid out in Bybee. You’d think Stahl might have pointed that out.

Read more →