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Rove: Three More Detainees Waterboarded?

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Check out this tidbit MadDog found:

In 2008, CIA head Michael Hayden told Congress it had only been used on three high-profile al-Qaeda detainees, and not for the past five years.

One of those was Khalid Sheikh Mohammed, a key suspect in the 9/11 attacks.

Mr Rove said US soldiers were subjected to waterboarding as a regular part of their training.

A less severe form of the technique was used on the three suspects interrogated at the US military prison at Guantanamo Bay, he added.

Maybe this is a typo. But it appears to feature Turdblossom, boasting that three Gitmo prisoners (as DOD detainees, not included among the three CIA detainees who got waterboarded), got waterboarded in some “less severe” form.

Rahm’s Mouthpiece: White House to Cave on KSM Trial

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Rahm’s mouthpiece is reporting that the White House is all set to cave on civilian trials for Khalid Sheikh Mohammed.

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.

Now, since this is coming from the WaPo, the newspaper that has been all-Rahm all the time in the last week, I’m curious whether this discussion of Obama’s advisors’ readiness to recommend that Obama cave on civilian trials is the same thing as Obama himself being prepared to cave on civilian trials. In other words, this might just be Rahm presenting this as a fait accompli to make his job of persuading Obama easier. He did it once before with the NYT, after which the claims were quickly walked back.

But for the moment, let’s pretend this story reflects actual reality, and not Rahm’s reality.

If so, this is a colossal mistake on the White House’s part.

That’s because the Military Commissions are going to have big problems that civilian trials are not going to have. And if Obama caves on this point without being forced to do so by Lindsey Graham wearing a Speedo and a semi-automatic, then Obama, not Lindsey, will own the shortcomings of the MCs. If MCs fail to give KSM either a quick guilty verdict or a real prison term, then Obama, not Lindsey, will be responsible.

But Obama seems to have given up advocating for the most efficacious solution to any problem, it seems.

Dealing Away Civilian Law

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In her piece on Holder’s efforts to uphold the rule of law last week, Jane Mayer explained that Rahm Emanuel opposed the idea of civilian trials for the 9/11 plotters because it would piss off Lindsey Graham.

Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. Emanuel was particularly concerned with placating Lindsey Graham, the Republican senator from South Carolina, who was a leading proponent of military commissions, and who had helped Obama on other issues, such as the confirmation of Supreme Court Justice Sonia Sotomayor. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

At Emanuel’s urging, Holder spoke with Graham several times. But they could not reach an agreement. Graham told me, “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.” Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials. “The President’s advisers have served him poorly here,” he said. “I like Eric, but at the end of the day Eric made the decision.” Last week, Graham introduced a bill in the Senate to cut off funding for criminal trials related to 9/11. [my emphasis]

Josh Gerstein has two pieces (one, two)–elaborating on the WaPo’s piece this morning–describing the degree to which the Administration may well be in the process of dealing away civilian trials in exchange for Lindsey Graham’s love (and with it, a means to close Gitmo, Rahm believes).

Josh has the full quote of something Holder said to the WaPo, which seems to show Holder setting up a rationale for using military commissions.

WaPo: When you talk about the symbolic nature of such a trial, both to al Qaeda and maybe as importantly to the allies and to the nation having gone through what it has gone through for 10 years – 8 years, is it eroded somewhat if this trial winds up happening on a military base or in a federal prison complex instead of a federal courthouse?

AG: No, I don’t think so. I think that at the end of the day whether, wherever this case is tried, whatever forum, what we have to ensure is that it is done in as transparent a way as possible with as close as is possible adherence to the rules that we traditionally use in criminal cases. And if we do that, I’m not sure that the location or even ultimately the forum is going to be as important as what it is the world sees when whoever it is stands up and says I represent the United States, what the world sees in that proceeding.

WaPo: Is that an opening to say this may not be an article III court trial after all?

AG: I expect it’s going to be in article III court but what I’m saying is that if for whatever reason, I don’t know what it would be, but if for whatever reason it ended up as a military commission trial, given the reformed status of those military commissions, I think that we could have a trial that would be, that would stand up to the test that I was talking about before, in terms of transparency, adherence to the traditions that we have a nation. I continue to think though that this case, to bring the strongest case, there are reasons why you want to bring it in an article III setting. [my emphasis]

And against the background of Holder seeming to cede on the issue of civilian trials, Josh describes Lindsey Graham meeting with Rahm on this issue.

Sen. Lindsey Graham (R-S.C.) has told colleagues that he’s negotiating with the White House over legislation aimed at heading off the possibility of civilian criminal trials for suspects in the Sept. 11 attacks, according to congressional sources.

Graham met White House chief of staff Rahm Emanuel last week to discuss the issue, sources said.

[snip]

Several leaders of groups who favor civilian trials said they were aware that Graham was in discussions with the White House about a legislative proposal that would effectively force the Sept. 11 suspects into military courts by barring civilian trials. The proposal failed on a 54-45 vote in November, but Graham and other senators held a news conference last week vowing to introduce the measure again in the near future.

So among all the other reporting on Rahm’s central position on issues best left to the Attorney General, it appears he’s trying to craft a deal with Lindsey Graham on where and how to try Khalid Sheikh Mohammed.

Remind me. Didn’t Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

Obama Prepares to Sacrifice Justice and National Security for Political Expediency

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Check out the way the WaPo reports the news–based on three anonymous Administration sources–that Obama will be personally involved in choosing the location of the Khalid Sheikh Mohammed trial.

President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001, attacks, three administration officials said Thursday, signaling a recognition that the administration had mishandled the process and triggered a political backlash.

Obama initially had asked Attorney General Eric H. Holder Jr. to choose the site of the trial in an effort to maintain an independent Justice Department. But the White House has been taken aback by the intense criticism from political opponents and local officials of Holder’s decision to try Khalid Sheik Mohammed in a civilian courtroom in New York.

Administration officials acknowledge that Holder and Obama advisers were unable to build political support for the trial. And Holder, in an interview Thursday, left open the possibility that Mohammed’s trial could be switched to a military commission, although he said that is not his personal and legal preference.

“At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it’s done as transparently as possible and with adherence to all the rules,” Holder said. “If we do that, I’m not sure the location or even the forum is as important as what the world sees in that proceeding.” [my emphasis]

The WaPo’s sources say this “triggered a political backlash” and that they’re involving Obama because they’re “taken aback by the intense criticism.”

It’s not until the 16th paragraph of the article that the WaPo reports the big reason why Holder originally chose a civilian trial (and therefore, for security reasons, NY): because it stands the best chance of success.

In his interview, Holder reiterated his belief that a civilian trial would be the best legal option for Mohammed. “Trying the case in an article III court is best for the case and best for our overall fight against al-Qaeda,” he said. “The decision ultimately will be driven by: How can we maximize our chances for success and bring justice to the people responsible for 9/11, and also to survivors?”

Instead of focusing on what the best policy decision is–the many reasons why an Article III court is more likely to lead to an uncontested verdict and closure–the WaPo focuses instead on who bears the blame for not dealing with the politics of the decision.

Managing the politics of terrorism has not been assigned to one person at the White House. Many people are dealing with the issue of the trial, including Chief of Staff Rahm Emanuel, National Security Council Chief of Staff Denis McDonough, deputy national security adviser Thomas E. Donilon, senior adviser David Axelrod and White House press secretary Robert Gibbs. Increasingly, Phil Schiliro, the head of White House legislative affairs, has worked on building support in Congress. The new White House counsel, Bob Bauer, is also managing “a central piece of it,” one senior White House adviser said.

Now, I don’t necessarily fault the WaPo for this focus. After all, horserace is what it does. But the story itself is just one piece of evidence that the Obama Administration continues to mishandle this issue.

This is a question not only of justice, but really, of whether military commissions will work. There’s little evidence they will, and much reason to doubt it. But instead of telling that story, the Obama Administration has now turned this into another example of back-room deal-making rather than the most effective solution.

A Trial Showing Torture Was Unnecessary

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I’m not amused that the Wall Street Journal solicited an op-ed attacking the decision to try KSM in civilian court from one of the people–John Yoo–with the biggest conflict on such a decision. It’s yet more proof that Rupert Murdoch is engaged in a partisan pursuit, even with the WSJ.

But I am amused at the way John Yoo dismantles his own argument. Take these two claims, for example:

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

[snip]

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

The first claim suggests the prosecutors will have to reveal all the information they’ve got against KSM. That’s a lie, one that presumably Professor Yoo knows is a lie. Eric Holder has made it quite clear that there is some set of evidence–much of it not public yet–that should be enough to prove KSM’s guilt, independent of all the information they collected pursuant to Yoo’s opinions authorizing torturing KSM.

And I highly doubt that Yoo’s really worried about revealing the details of other al Qaeda figures. We’ve already worked our way through about seven new generations of “al Qaeda Number Threes” since we captured KSM, so I doubt the network looks anything like it did when KSM had first-hand knowledge of it. Besides, if after eight years of waging full-scale war against al Qaeda we haven’t captured these people, then chances are we either won’t or can’t.

You know–can’t. Like Osama bin Laden.

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About KSM’s Lies

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I’ve been meaning to return to this post for some time.  But with the torture apologists teeing up for another attempt at self-justification and with Ali Soufan’s recent op-ed, now is as good a time as any.

As I suggested in that earlier post, in March 2003, the CIA subjected Khalid Sheikh Mohammed to brutal torture, including waterboarding him 183 times. Then, after that month of torture concluded, they did an assessment of what he had told him.

And the CIA itself, after torturing KSM for a month, concluded he had lied (this is from footnote 4, Chapter 7 of the 9/11 Report).

In an assessment of KSM’s reporting, the CIA concluded that protecting operatives in the United States appeared to be a "major part" of KSM’s resistance efforts. For example, in response to questions about U.S. zip codes found in his notebooks, KSM provided the less than satisfactory explanation that he was planning to use the zip code to open new email accounts. CIA report, Intelligence Community Terrorist Threat Assessment, "Khalid Shaykh Muhammed’s Threat Reporting–Precious Truths, Surrounded by a Bodyguard of Lies," April 3, 2003, pp 4-5.[my emphasis]

Compare that to what Cheney’s hagiographer’s source now claims:

"Almost all of the good information came from waterboarding and the other EITs," says a former senior U.S. intelligence official. "Once they broke, they broke for good. And then they talked forever."

Hayes’ article is (plausibly or not) entirely sourced to former and current CIA officials; presumably, they’ve seen this report. They know that as soon as CIA finished waterboarding KSM, they judged that he was lying particularly about anything that would expose US operations. Yet they are out still trying to claim information KSM gave them after that point–in July and September and the following years–was tied directly to the waterboarding they did before they concluded KSM was lying to them. 

And while we’re on the subject of lying, let’s return to what KSM has said he lied about while being tortured during his 2007 Combatant Status Review Tribunal.

… I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area of this is al Qaida which I don’t him.

So in addition to the information about US operatives that CIA believed KSM was lying about while he was being tortured, KSM himself maintains he lied about where Osama bin Laden was.

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What al-Nashiri and KSM Didn’t Tell Us

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You know how we’ve been trying to figure out why PapaDick and BabyDick never claim waterboarding worked with Rahim al-Nashiri? Ali Soufan tells us what we didn’t learn from him using torture: details of his operation on the Arabian peninsula.

A third top suspected terrorist who was subjected to enhanced interrogation, in 2002, was Abd al-Rahim al-Nashiri, the man charged with plotting the 2000 bombing of the Navy destroyer Cole. I was the lead agent on a team that worked with the Yemenis to thwart a series of plots by Mr. Nashiri’s operatives in the Arabian Peninsula — including planned attacks on Western embassies. In 2004, we helped prosecute 15 of these operatives in a Yemeni court. Not a single piece of evidence that helped us apprehend or convict them came from Mr. Nashiri.

And what we didn’t learn from Khalid Sheikh Mohammed–the location of Osama bin Laden and Ayman al-Zawahiri–is even more incendiary.

Mr. Mohammed knew the location of most, if not all, of the members of Al Qaeda’s leadership council, and possibly of every covert cell around the world. One can only imagine who else we could have captured, or what attacks we might have disrupted, if Mr. Mohammed had been questioned by the experts who knew the most about him.

Some of this, btw, is almost certainly explained in Soufan’s interview with the 9/11 Commission, which has been imminently pending to be declassified since April.

So how long until PapaDick and BabyDick and their apologists start getting asked about how torture may have prevented us from finding Osama bin Laden?

The WaPo Declares Itself Unable to Find the Truth

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The WaPo wants you to know that it–one of the most storied newspapers in American history–is absolutely incapable of sorting through the facts about whether Khalid Sheikh Mohammed’s torture turned him into a helpful college professor of terror.

The debate over the effectiveness of subjecting detainees to psychological and physical pressure is in some ways irresolvable, because it is impossible to know whether less coercive methods would have achieved the same result.

So, throwing up its institutional hands and declaring itself unable to find the truth, let’s look at what it does instead.

First, in a 1,400 word article written with the assistance of both of WaPo’s spook reporters, they neglect to mention that, after KSM’s most intense torture ended, the CIA started to use rapport-based interrogation with him. I guess they didn’t think that little detail–that the treatment of KSM immediately preceding the time when he was so cooperative and helpful actually adopted a different approach to interrogation–was worthy of mention.

And that is particularly remarkable considering the most detailed story of that rapport-based interrogation also includes the details about KSM’s helpful lecturing that–the WaPo now claims–have previously not been publicized. Call me crazy, but I’m betting the same CIA sources that told the NYT about how successful rapport was with KSM are among those boasting to WaPo about KSM’s little lecture circuit. But I guess the WaPo, faced with this "irresolvable" problem, doesn’t want to muddy its confusion by mentioning, even once, the use of rapport-based interrogation with KSM.

Then there’s the WaPo’s chronological muddying. It treats several different kinds of sources–the IG Report, the Pre-Eminent Source document written in the wake of and almost certainly as a response to the IG Report, and the human sources boasting of KSM’s lecture series–as if there were no temporal or reliability distinction between the them. Which means they use events that happened in 2005 and 2006, the lecture series, to reinforce claims made by a propagandistic document produced on July 13, 2004. Both of which, of course, happened long after KSM’s torture. But that doesn’t stop the WaPo from implying a causal effect between the torture and the cooperation that happened years later.

This reversal occurred after Mohammed was subjected to simulated drowning and prolonged sleep deprivation, among other harsh interrogation techniques. 

And, while we’re on chronological muddying, it bears mentioning that the WaPo doesn’t note that KSM went from capture to torture in a matter of weeks, so any claim that he was uncooperative–weighed against two years of rapport-based interrogation–is completely  bogus.

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The CIA IG Report on the Inefficacy of Torture

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Much of the focus on the now-delayed but upcoming release of the CIA IG Report on torture has been on whether the six page section on "Effectiveness"–the section that most challenges Dick Cheney’s claims–would be released.

What people seem to be oblivious to, however, is that much of this section has already been released–in two of the Bradbury Memos declassified in April. I first reported on the IG Report’s comments about efficacy here and a week later, McClatchy did effectively the same report. I’ve replicated the section describing the page-by-page contents, as revealed by the Bradbury memos, below. But here’s basically what the IG Report appears to have concluded about torture’s inefficacy.

  • It could not be conclusively determined whether or not torture had prevented any attacks
  • There is limited data on whether torture is effective or not
  • Torture leads to an increased number of intelligence reports–it’s not clear whether the IG Report comments on the quality of those reports
  • But you can’t learn everything form one detainee–even someone like Khalid Sheikh Mohammed; the information from more minor figures is important to challenge High Value Detainees
  • The CIA waterboarded Abu Zubaydah and KSM a whole bunch of times

Note that last bullet: the report on the sheer number of times AZ and KSM were waterboarded shows up in the section on efficacy–suggesting that the number itself says something about the inefficacy of the technique.

So that’s it–that’s much what the Effectiveness section will show. And given the stinginess of the CIA of late, I expect we might just get exactly what was revealed in the Bradbury memos, and nothing more, once the IG Report is actually released.

I’m actually more interested in some other sections of the IG Report–which we also know of thanks to Steven Bradbury. But I’ll explain those in a follow-up post.

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In April 2003, after Waterboarding Him 183 Times, the CIA Admitted KSM Was Lying to Them

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In March 2003, the CIA subjected Khalid Sheikh Mohammed to the most brutal of its torture techniques. Over the course of that month, we know, the CIA waterboarded Khalid Shaikh Mohammed 183 times.

Then, three days into April, the CIA wrote an analytical report admitting that KSM lied during those interrogations. 

A footnote in the 9/11 Report provides some detail on this analytical report (footnote 4 in Chapter 7).

In an assessment of KSM’s reporting, the CIA concluded that protecting operatives in the United States appeared to be a "major part" of KSM’s resistance efforts. For example, in response to questions about U.S. zip codes found in his notebooks, KSM provided the less than satisfactory explanation that he was planning to use the zip code to open new email accounts. CIA report, Intelligence Community Terrorist Threat Assessment, "Khalid Shaykh Muhammed’s Threat Reporting–Precious Truths, Surrounded by a Bodyguard of Lies," April 3, 2003, pp 4-5.[my emphasis]

Admittedly, CIA was bemoaning the perceived lies KSM was telling to protect operatives the Agency assumed he had planted around the United States (the footnote serves to explain why the 9/11 Commission did not believe KSM’s claims that there were no al Qaeda operatives in Southern California to assist two of the hijackers). At least from this description, we don’t know whether the Agency also admitted that KSM was lying about knowing where Osama bin Laden was–as was declassified the other day. But we do know that CIA acknowledged he was lying about precisely the subject–threat reporting–that the torture apologists claim waterboarding was so successful in eliciting.

I present this not as proof that KSM was lying about who al Qaeda had stationed in the US. Rather, it is a document written contemporaneously with the torture. And it shows what role torture-induced knowledge played for the CIA. Where KSM didn’t confirm CIA’s preconceptions, they assumed he was lying. Where he gave them stories of scary attacks, they wasted resources tracking them down. But, partly because they were torturing him, they had no easy way to sort through the crap to find any real intelligence.

There are a number of outlets that believe KSM’s admissions of lying at his CSRT are the big takeaway, even though equally damning admissions in the CSRTs have long been unclassified and KSM’s CSRT already had unclassified claims of lying.

But why take KSM’s word for it? Read more →