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Bush Admits to Approving Torture–But Which Use of It?

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The WaPo reports that Bush, in his book, admits to approving waterboarding.

In a memoir due out Tuesday, Bush makes clear that he personally approved the use of that coercive technique against alleged Sept. 11 plotter Khalid Sheik Mohammed, an admission the human rights experts say could one day have legal consequences for him.

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

At one level, this is thoroughly unsurprising. We know the Bush Administration very deliberately implemented torture, so it’s unsurprising to hear that it was approved by the President.

But–at least as Jeffrey Smith relays the admission from Bush–it raises as many questions as it does answers.

It appears that Bush admits to approving torture for use with Khalid Sheikh Mohammed. That is, he approved torture sometime around March 1, 2003, when KSM was captured.

That date is itself very significant. After all, on February 5, 2003, the first Democrat (Jane Harman) was briefed that the CIA had used waterboarding. Her response was a letter, objecting not just to the destruction of the torture tapes, but also asking specifically whether Bush had signed off on torture.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In response, CIA appears to have met with the White House around February 19, ostensibly to talk about an appropriate response. They also appear to have consulted with the White House on how they should record the results of the Gang of 4 briefings from that month; in the end, they only recorded the outcome of the Senate briefing–which Jay Rockefeller did not attend and at which Pat Roberts is recorded to have signed off not just on torture, but on destroying the torture tapes depicting that torture. In other words, for much of February 2003, CIA was working closely with the White House to create a false appearance of Congressional approval for torture, even while they were specifically refusing to give Congress something akin to a Finding making it clear the President had signed off on that torture.

And now we come to find out that’s precisely the period during which–at least according to Bush–he approved torture.

But note what that leaves out. At least from Smith’s description, it appears that Bush says nothing about approving the waterboarding of Abu Zubaydah (nor the reported waterboarding of Ibn Sheikh al-Libi). Mind you, Ron Suskind has reported that Bush was intimately, almost gleefully, involved in ordering torture for Abu Zubaydah.

But Bush doesn’t cop to that in his book.

Now, there may be good reason for that. After all, John Yoo had not yet written the memo claiming that waterboarding did not amount to torture at the time Abu Zubaydah was first tortured.

Moreover, there’s the whole issue of the approval method for the torture that occurred before August 1, 2002.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

According to multiple reports, the White House–Alberto Gonzales at least, if not his boss–approved the torture of Abu Zubaydah on a daily basis. And when you read the Bybee Memo and the OPR Report on it, it’s very clear that the memo carved out legal authorization specifically for the torture directly authorized by the President. Indeed, the White House’s prior approval for torture–potentially up to and including waterboarding–may explain the urgency behind the memo in the first place, to provide retroactive legal cover for Bush’s unilateral disregard for US laws prohibiting torture.

In other words, Bush has admitted to approving torture in 2003. But that likely obfuscates his earlier approval for torture at a time when he had no legal cover for doing so.

In other news, the statute of limitations on the torture tape destruction expires in just three or four days. Yet we’ve got silence coming from John Durham.

KSM Asked after His Sons in December 2006

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Terry McDermott will have a 9/11-timed biography of Khalid Sheikh Mohammed in the New Yorker this week. But in the interim, he has posted a few of the letters he got in Pakistan as part of his research. In a letter sent December 15, 2006 to his brother–sent just months after KSM first became accessible to the Red Cross at Gitmo and described as the first his family received from him–KSM includes a request for photos of his sons:

If my wife [Umm] Hamza is living with her family in Iran Bluchistan then let her to be [in contact] with me through the Iran[ian] Red Crescent Society, but please [to write only] social and family news [not political or] Mujahideen news and to send the pictures of all sons plus [Halima] with Big Smile plus their education[‘s] grades & news. [my transcription–with your corrections/suggestions in brackets]

The passage is followed by nine lines of redaction, in turn followed by directions for the family and friends to pray.

Now, perhaps McDermott covers this in his article (I’ll chase that down, but it’s not available online yet). And there is much that I was unable to understand, either because it is illegible or seems designed to be opaque.

But the request is particular important given reports that the US captured two of KSM’s sons–then aged around 6 or 7 and 8 or 9–and interrogated them to get information on KSM.

Two young sons of Khalid Sheikh Mohammed, the suspected mastermind of the September 11 attacks, are being used by the CIA to force their father to talk.

Yousef al-Khalid, nine, and his brother, Abed al-Khalid, seven, were taken into custody in Pakistan last September when intelligence officers raided a flat in Karachi where their father had been hiding.

He fled just hours before the raid but his two young sons, along with another senior al-Qa’eda member, were found cowering behind a wardrobe in the apartment.

The boys have been held by the Pakistani authorities but this weekend they were flown to America where they will be questioned about their father.

Last night CIA interrogators confirmed that the boys were staying at a secret address where they were being encouraged to talk about their father’s activities.

“We are handling them with kid gloves. After all, they are only little children,” said one official, “but we need to know as much about their father’s recent activities as possible. We have child psychologists on hand at all times

and they are given the best of care.”

The sons were reportedly captured in September 2002. From this letter, it appears that one of the first things KSM asked once he got contact with the outside world again through the Red Cross was proof that they–and their mother–were safe.

But I’m not entirely convinced the letter is as transparent as that. KSM names his wife, where her family lives, and then uses the name Haluma (I think). Why would KSM’s brothers need all these details? It seems that KSM may be writing in such a way that his brother can identify precisely what KSM is after.

Also note the odd detail that KSM technically asks for social news on the Mujahadeen before he asks for pictures of his sons. Update: With the correction, he’s specifically directing his brother not to forward news on the Mujahadeen.

And finally, note the long redaction, which the US presumably did before the letter was sent to KSM’s brother. Given that the passage just after the redaction is an exhortation for the family and friends to pray–precisely the topic preceding the redaction, it appears that KSM wrote things that the US found too sensitive (or deemed a coded message) to pass along.

[Thanks for the help on transcribing this.]

You Have a Right to Speedy Trial … Unless They Need to Torture You First

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As we’ve discussed some in comments, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s challenge to his trial for the African embassy bombings on speedy trial grounds. Kaplan rejected Ghailani’s argument that, since the government had held him for five years before charging him, he had been denied the right to a speedy trial. Mostly, Kaplan ruled that, since the government got no advantage from waiting, the delay did not infringe on Ghailani’s rights.

This has been read to suggest that civilian judges would reject a similar challenge on the part of Khalid Sheikh Mohammed, meaning one possible barrier to a civilian trial for him, too, has been eliminated. That’s probably true. But it bears note that Kaplan did find government excuses for some of the delays in charging Ghailani unpersuasive.

In sum, the only reason for the delay of this prosecution during the period September 2006 through late February or early March 2007 was the fact that the executive branch decided to hold Ghailani at Guantanamo and not to proceed with the prosecution. The government’s justification for the roughtly one-year delay from February or March 2007 until March 28, 2008 is weak. The time during which the military commission proceedings were pending, March 28, 2008 until January 2009, also weighs against the government because the government and not the defendant was responsible for it. The same is true with respect to the interval from the suspension of the military commission prosecution in January 2009 until Ghailani eventually was produced in this Court.

Now, I think the argument that Kaplan used here will still largely hold sway. But some future judge may well look more skeptically on the current delay in charging KSM. After all, this delay — to let the political winds blow over until such time as KSM can be charged in a civilian court (if that’s what is happening) — is something the government is doing to gain advantages over KSM. Eric Holder has explained unambiguously that one reason he thinks we stand a better chance of trying KSM in civilian courts is to be able to impose the death penalty, and there’s actually a greater risk that KSM’s torture might lead a military commission to compensate for the treatment. The Attorney General, that is, has repeatedly said he wants to try KSM in civilian court because it holds certain advantages over military commissions for the government; and the only possible way to move forward in civlian courts is to wait until either Rahm and Lindsey say it’s okay or until the election passes. I don’t think it’ll happen, but there is an argument to be made that the current delay in charging KSM is designed to gain an advantage and therefore could be judged to violate his right to a speedy trial.

But that’s not what I find most interesting about this ruling. It’s the way Kaplan decides that the two years Ghailani was held — and, Ghailani says, abused — at a black site didn’t violate his right to a speedy trial. Here’s the argument:

The CIA interrogated Ghailani for the first two years in the reasonable belief that Ghailani had important intelligence information. While some of the methods it widely is thought to have used have been questioned and, to whatever extent they actually were used, might give rise to civil claims or even criminal charges, 139 no one denies that the agency’s purpose was to protect the United States from attack.

“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” While the Speedy Trial Clause conceivably might have been violated if a prosecution were delayed for the purpose of extended use of appalling or unlawful methods of interrogation even for important national security reasons, that is not the case. There was no prolonged delay here for any such purpose. The two year delay attributable to the CIA interrogation served a valid purpose. The balance of considerations with respect to that period, especially in the light of the lack of substantial prejudice to Ghailani’s Speedy Trial Clause-protected interests, tips heavily in favor of the government.

139 But see Detainee Treatment Act of 2005, 42 USC 2000dd-1(a) (establishing qualified defense for government personnel charged with offenses or liability in connection with officially authorized operational practices “that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States”).

This is a lovely example of the muddlespeak one has to resort to to make an argument that is not entirely persuasive. “While some of the methods it widely is thought to have used have been questioned”? That construction is all the more ridiculous given that a few of the documents Kaplan cites on torture–like the Bradbury CAT memo, the CIA’s Combined Techniques document, and a version of the OMS guidelines are publicly available. And how does Kaplan decide that Ghailani’s trial hasn’t been delayed just for torture? Because John McCain subsequently declared it retroactively legal?

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If Ever You Doubted Water-Boarding KSM Was a Bad Decision…

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George Bush is on the rubber chicken circuit in anticipation of the release of his book, A’m the Deciderer Decision Points. Which means he’s now out in public defending two of his “greatest” decisions, side-by-side:

George Bush admitted yesterday that Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, was waterboarded by the US, and said he would do it again “to save lives”.

“Yeah, we waterboarded Khalid Sheikh Mohammed,” the former president told a business audience in Grand Rapids, Michigan. “I’d do it again to save lives.”

[snip]

In his speech, Bush also defended the decision to go to war with Iraq in 2003. He said ousting Saddam Hussein “was the right thing to do and the world is a better place without him”.

Of course, Bush has absolutely zero proof that waterboarding KSM saved lives. Just as he can’t be sure that the world is better without Saddam, hundreds of thousands of Iraqis (and almost 5,000 American servicemen and women), with the US deep in debt, and the seeds of the same kind of abusive government–this one with close ties to Iran–in place in Iraq.

But the really telling bit about this news is that it puts the decision to waterboard KSM right there next to the decision to launch a war of choice rather than focus on beating the terrorists who attacked us. That is, it puts Bush’s decision to embrace torture right there next to what many consider one of the biggest foreign policy mistakes in history.

Walter Pincus’ Chummy Torture Apology

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This is the kind of lede you’d expect from a dirty hippie blogger, not from a septuagenarian TradMed journalist.

Who other than the acerbic John A. Rizzo, who served a long tenure as the CIA’s acting general counsel, would use his first talk after retiring from government to lay out a series of ironies that illustrate the frustration felt by older agency professionals, given the treatment of their activities during the past decade?

Rather than focusing on the details John Rizzo revealed that slightly advanced the story of the investigation into the John Adams Project, Pincus chooses to uncritically air Rizzo’s complaints about torture. Pincus doesn’t even challenge Rizzo’s claim that there is an irony to the way CIA has been treated.

Which is a pity, because Rizzo made some downright absurd comments. Take Rizzo’s complaint about the shock over the number of times Abu Zubaydah and Khalid Sheikh Mohammed were waterboarded.

He pointed out that while Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, and Khalid Sheik Mohammed were undergoing waterboarding in CIA detention, the United States was conducting lethal operations against terrorists. “There was never, ever, as far as I could discern, any debate, discussion, questioning on moral or legal grounds about the efficacy of the United States targeting and killing terrorists,” he said.

“A lot of attention, a lot of criticism was given about the number of waterboarding sessions they [Abu Zubaida and Mohammed] had,” Rizzo said, “but I don’t believe there would have been nearly as much similar discussion about the number of bullets that would have been pumped into them if they had been killed rather than captured.”

The shock over the revelation that Abu Zubaydah was waterboarded 83 times and Khalid Sheikh Mohammed 183 times in a month doesn’t just stem from the claims John Yoo made–based on representations from Rizzo–that waterboarding was not torture. The shock also stems from the divergence between CIA-sponsored disinformation that waterboarding worked immediately, after just one use, and the reality that CIA used it over and over and over. Which in turn leads to questions of efficacy–and to the inaptness of Rizzo’s comparison. You pump someone full of bullets and each bullet adds just one more piece of certainty that the objective–the neutralization or death of the target–is accomplished. But when you waterboard someone an 83rd time, does it advance the objective–purportedly collecting reliable information–in the least? In the case of Abu Zubaydah, whose 83 waterboardings seem to have yielded in just 10 pieces of useful intelligence, the answer appears to be no. Indeed, in a memo addressed to and based on information from John Rizzo, John Yoo wrote,

Moreover, you have also orally informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.

[snip]

You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.

There’s no irony here! John Rizzo (and the lawyers from the Counterterrrorism Center who contributed to this memo) either lied to John Yoo about the number of times waterboarding would be used, or CIA itself failed to meet the terms of this memo. And poor John Rizzo thinks the public is wrong to be shocked at the result.

All of which details might be appropriate to mention in an article about Rizzo’s self-indulgent claims of irony. But they don’t appear in this article.

The Right to Counsel at Gitmo

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Best as I understand it, the shiny new military commission manual says the following about right to counsel:

  • Defendants will generally get military lawyers
  • Defendants can use civilian attorneys, but the government isn’t going to pay those attorneys
  • If a defendant is charged with a capital crime, they can have someone who specializes in death penalty cases in addition to their other lawyer and the government might even spring for a civilian lawyer
  • The government can prevent specific military lawyers from defending defendants by simply not detailing those lawyers to the Office of Military Commission as defense counsel (in the past, the government has basically forced detainees to change defense counsel by reassigning the lawyers; though see the update that seems to limit this to good cause reasons)
  • It appears that the manual does not prohibit a detainee from defending himself in a capital case (which is what KSM wanted to do)

All of which seems to make it more likely KSM will end up in a military commission, so he can plead guilty and become a martyr. Though they have required that defendants who represent themselves maintain a particular decorum, suggesting that if KSM uses self-representation as a soapbox, they will force him to accept a lawyer.

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Meet Deputy Attorney General Robert Gibbs

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I guess, in addition to President Rahm Emanuel and Attorney General Lindsey Graham, Deputy Attorney General Robert Gibbs sees the wisdom in putting aside rule of law for political expediency.

Some policy advisers have wondered why the administration’s flack is so often in attendance, but insiders fluent in the administration’s power dynamics know Obama values his views. According to one administration official, who would not be quoted speaking about internal White House discussions, Gibbs late last year pointed out the political perils of letting the Justice Department try Khalid Sheikh Mohammed in a civilian court and has urged the president to ignore Wall Street critics who argue Obama has adopted too populist a tone when speaking out against executive bonuses. [my emphasis]

You know, when Karl Rove unacceptably took over DOJ, he did so to support world domination. He had a plan.

But apparently we’ve decided to shred the Constitution for no other reason than a press flack thinks it would be smart.

Has Aafia Siddiqui’s Daughter Surfaced?

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Aafia Siddiqui has been at the center of one of the many mysteries flowing from the Bush and Obama administrations’ conduct of  intelligence operations. A Pakistani native and former MIT scientist, background on Siddiqui can be found several places, including a Seminal diary by ondelette here.

The stories of Siddiqui’s disappearance and  her recent trial in the US are too convoluted to easily summarize.  For purposes of the story now emerging — the possible appearance of Siddiqui’s daughter — the bare bones are that, after returning to Pakistan from the US, Aafia Siddiqui was named by Khalid Sheikh Mohammed in his US-run torture interrogations.  Shortly thereafter, in March, 2003, Siddiqui disappeared. Her three children —  oldest son Ahmed, 4-year-old Maryam and her infant son, Suleman — disappeared with her.

After seven years, Siddiqui suddenly reappeared in Afghanistan, where the US alleged she was involved in the attempted shooting of an American soldier as she was being detained for interrogation. When Aafia was  apprehended in Afghanistan, a boy was with her. The US handed off the boy to Afghan intelligence while they shipped Siddiqui to the US for trial.

Pakistan became involved diplomatically over the child and demanded his return. He was handed over to Siddiqui’s family in Pakistan, but her other children have remained missing. There has been controversy in Pakistan over the status of the boy and whether he truly was Siddiqui’s son or not.

Last weekend a girl approximately 12 years old, who spoke only English and Persian and claimed her name was  “Fatima,” was dropped off in front of the home of Siddiqui’s sister.  Some stories indicate an American named “John” may have been with her. Dawn reported a senior policeman described that the girl was:

… wearing a collar “bearing the address of the house in case she wandered off”.

That was last week.

This week, April 11 marks the start of a visit by Pakistan’s Prime Minister, Yousuf Raza Gilani, to the Read more →

Another Administration withholding OLC Memos

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I’m going to have a few posts on answers Eric Holder gave to the Senate Judiciary Committee’s Questions for the Record submitted after his last appearance in November 2009.

Two of the questions (one from John Kyl and the other from Tom Coburn) asked whether Gitmo detainees brought to the United States for civilian trial would get additional constitutional rights. Both Senators asked Holder for details on OLC opinions on whether this would happen.

Though Holder did point to a public document (it’s the last several pages of his response packet) laying out the risks that courts would require even military commissions to grant such constitutional rights, he refused to let Congress see the OLC memos in question. Here’s Kyl’s question and response.

Prosecution of Khalid Sheikh Mohammed and Other 9/11 Conspirators in Federal Court :

68. Now that the Administration has made a final decision to bring Khalid Sheikh Mohammed and other 9/11 conspirators to the United States for prosecution, please provide this Committee with any memoranda written by the Office of Legal Counsel articulating what additional constitutional and statutory rights detainees may receive by virtue of their presence in the United States that are not currently available to them at Guantanamo.

Response: Please find attached a memorandum concerning the application of the Due Process Clause of the Fifth Amendment to military commission proceedings in the United States and at the Guantanamo Bay Naval Base, which the Department of Justice previously provided in response to a congressional inquiry (Attachment 3). The Department would have substantial confidentiality interests in any other memorandum that OLC or other components might have prepared on this topic.

As I said, Coburn asked a similar question and got an identical response.

Now, I get a weird spidey-sense every time DOJ refuses to show members of Congress who have an oversight role the OLC memos that DOJ has written. Even if these memos say Khalid Sheikh Mohammed would have the right to free health care and a shiny new pony the moment he was taken off a plane in the continental US, I still think Committee Members with a proper oversight interest ought to be able to see these memos.

But I gotta say, I also suspect there’s a reason they’re so insistent on not only the existence of memos, but also their right to see them. Is it possible that Bradbury or Yoo or someone wrote up a KSM’s shiny pony memo before they left DOJ as one more justification for keeping Gitmo open indefinitely? Are they hoping to flush out another of the hack memos written under the Bush Administration?

Jeff Sessions: George Bush Waited 7 Years to Set Up Military Commissions

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Jeff Sessions has already seized on yesterday’s release of DOJ’s list of 390 terrorist convictions and twisted it to sustain his claim that we need to try Khalid Sheikh Mohammed in a military commission. Much of his response consists of making non-specific claims about individuals on the list in an attempt to minimize the applicability of all these convictions.

The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.

Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials.

[snip]

The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence. [my emphasis]

But by far the most amusing attack on this list is Jeff Sessions’ explanation–after pointing to the procedural problems and delays in the Moussaoui trial–that most of these 390 convictions happened before military commissions were operational, which he dates to 2008.

Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008. [my emphasis]

Someone better tell George Bush, who claims to have set up military commissions on November 13, 2001. And someone better tell Salim Hamdan, who was first charged in a military commission in 2004, and whose appeal of the terms of the military commissions lasted two years, after which there was another two year delay until his trial began.

In other words, Jeff Sessions deals with precisely the kind of delay we can expect for any future military commissions–one of the biggest reasons not to use them–by simply ignoring the delays that have already happened.