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Did Somebody Improperly Make Torture a Special Access Program?

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I wanted to take one last look at the Panetta declaration, this time with respect to what it says about classifying torture (also see Mary’s long comment and pmorlan’s comment on this topic).

NSC Officials Made This a Special Access Program, Not Director of CIA

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a "special access program" as "a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.

[snip]

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA "shall" "exercise" the function of creating special access programs pertaining to intelligence. But then the very next paragraph says "NSC officials established a special access program." One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it. 

Read more →

Leon Panetta: I’ve Got to Protect the Contractors from Unwarranted Invasion of Privacy

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Well here’s a really really telling passage from Leon Panetta’s declaration on why he can’t turn over the torture documents to the ACLU.

Information concerning the names and titles of CIA personnel, and information concerning CIA organization, functions, and filing information, has also been withheld from the documents at issue based on FOIA Exemptions b(1) and b(3). Names and identifying information of CIA personnel, and CIA contractors and employees of other federal agencies involved in clandestine counterterrorism operations, also has been withheld on the basis of FOIA Exemption b(6), as the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.1

1 As described in the attached Vaughn index, 62 of the 65 documents at issue contain names or identifying information of Agency employees or personnel involved in clandestine counterterrorism operations. [my empahsis]

And sure enough, every cable from the field includes this dual invocation of FOIA exemptions to protect the identities of those involved in torture.

Exemption b(3) … This document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949 … and thus is protected by Exemption b(3).

[snip]

Exemption b(6) – This document also contains information relating to the identities of personnel engaged in counterterrorism operations, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The public interest in disclosure of this information does not outweigh the harm to the individual whose privacy would be violated, and thus the information is protection from disclosure by Exemption b(6).

They can’t protect James Mitchell and his crowd by invoking the CIA Act of 1949, of course, becase the guys in charge of the torture weren’t employees of the CIA. So instead, they’re invoking privacy protection that even the CIA seems to think might be dodgy.

And curiously, this is not what they have done in the past. Compare what appears in this Vaughn Index with the FOIA exemptions invoked for this set of apparently similar documents from 2004. Like a lot of cables in this series, Document 55 is a clandestine cable from Field to HQ. Read more →

Gravely Damaging Intelligence Gaps

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Just two or three more bits on this Panetta declaration and the related Vaughn Index (Part One, Part Two).

Before he insisted in his declaration, implausibly, that he wasn’t trying to hide embarrassing information that might show legal wrong-doing, Leon Panetta gave this general explanation for why he couldn’t release this information:

I want to emphasize to the Court that the operational documents currently at issue contained detailed intelligence information, to include: intelligence provided by captured terrorists; intelligence requirements that CIA prioritized at specific points in time; what the intelligence community did not know about enemies in certain time frames, i.e., intelligence gaps;

[snip]

Much information in the documents is intelligence that was being provided to the field and intelligence that was being gathered from the interrogations. This sensitive intelligence provides important insight into what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest. I have determined that the disclosure of intelligence about al Qai’da reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed.

Remember, earlier this year the ACLU and CIA agreed that the Agency could exclude raw intelligence cables from this FOIA response.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. [my empahsis]

Nevertheless, even before Panetta says he can’t turn over this material because it would reveal the identities of our counterintelligence officers and the location at which we conducted these interrogations, he says he can’t turn over this material because it’ll reveal the intelligence that went into and came out of the interrogations, even though this is not the primary record of intelligence gathered in the interrogations.

Read more →

The CIA’s Cherry Pick, Two

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Update, July 21: As this post describes, the CIA explains that the timelines and outlines are derivative records, and therefore permissibly withheld from the Vaughn Index.

In my last post, I noted that the CIA’s selection of materials for the Vaughn Index (Part One, Part Two) just happened to avoid any deliberative discussions from April and May, when interrogators were reportedly getting approval for techniques on a regular basis.

In this post, I will look at what the CIA has included and excluded from the later part of its Vaughn Index–the materials in which the torture tapes and their destruction were discussed. I’ve taken the timelines I did in this post and added in what we learn from the Vaughn Index–the additions are bolded.

Once again, the CIA’s selection of materials for Hellerstein’s reviews appear very careful. While the materials include specific details on waterboarding, they appear to exclude the main investigative records surrounding both the torture and the destruction of the tapes.

The IG Report materials

One chunk of material pertains to the IG Report on interrogation eventually published in 2004. The materials in the index include:

January 9, 2003: Review of Interrogation Videotapes. A 5-page memorandum for the record written by a CIA attorney. The document contains information relating to the contents of the destroyed videotapes, pre-decisional information pertaining to policy and legal guidance, confidential communications between the attorney and CIA personnel, and attorney work-product.
February 3, 2003: Interview report
February 10, 2003: Interview report
May 9, 2003: Notes from Tape Review. A 47-page handwritten document of notes from a review of the videotapes that was written in the field with a one-page email enclosed. The notes and email include information concerning the destroyed videotapes that was incorporated into a final report.
May 22, 2003: Trip Report. A 4-page memorandum for the record written by a CIA employee. The document contains information regarding the destroyed videotapes, and recommendations and opinions of CIA employees.
June 17, 2003: Notes of CIA Attorney Discussion. A 6-page record of handwritten notes from a CIA employee discussing the interrogation videotapes with a CIA attorney. The notes include details concerning the destroyed videotapes, communications between the attorney and Agency management, and attorney work-product.
June 18, 2003: Email
June 18, 2003: Interview report

A few interesting details about these materials. Read more →

Leon Panetta Kisses His Credibility Goodbye

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Well, that didn’t take long, for a Director of Central Intelligence to totally lose his credibility in the servitude of the institution. What has it been? Three, four months?

I’ll have more to say about Panetta’s declaration in the ACLU FOIA case tomorrow.  But for now, a little unsolicited advice for the spook-in-chief.

When you say, 

I also want to emphasize that my determinations expressed above, and in my classified declaration, are in no way driven by a desire to prevent embarrassment for the U.S. Government or the CIA, or to suppress evidence of unlawful conduct,

Yet the entire world knows–and the CIA has itself acknowledged–that the materials in question do, in fact, show evidence of unlawful conduct, and when you sort of kind of pretend that no one else knows what they all know–that the materials show evidence of unlawful conduct…

Then you look like a fool. 

A chump.

Like George Tenet, maybe, when he boasted of "slam dunk."

And then when you go on to say,

As the Court knows, some of the operational documents currently at issue contain descriptions of EITs being applied during specific overseas interrogations. These descriptions, however, are EITs as applied in actual operations, and are of qualitatively different nature than the EIT descriptions in the abstract contained in the OLC memoranda.

Then you’re just hoping we’re all bigger idiots than we really are.

Let me say this plainly. According to the CIA–the CIA itself–there’s a reason why the interrogations don’t resemble the "EIT descriptions in the abstract contained in the OLC memoranda." That’s because some cowboy probably named James Mitchell who was getting rich off of torture thought things would be more poignant–yes, the fucker actually said "poignant"–if he drowned Abu Zubaydah in gallons of water rather than sprinkling him like a daisy. There’s a reason why the descriptions of torture as it was applied is such a problem–and yes, is evidence of unlawful conduct.  And that’s because we know–we all know!!!!–that the torture began before the memos authorized it, and the torture exceeded what few guidelines John Yoo placed on it.

So don’t give me this crap about not trying to avoid embarrassment–unless you start admitting how damning this shit is. 

We know you’re trying to hide the evidence of criminal torture. Insisting, over and over, under oath, that that’s not what you’re doing isn’t convincing anyone. 

Pincus and CIA Panic

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On Saturday, I wrote this about Leon Panetta’s statement to the CIA.

This is a statement reflecting not just the worries at CIA that they’ve been sold out again, asked to break the law, but then hung out to dry after the fact. This is a statement given at a time when the very people being investigated (probably)–Rodriguez and Goss–are two of the three key players in the briefing at the time.And this is a statement that narrowly affirms the accuracy of the briefing (given the briefing notes), while admitting that Congress should determine the full story. Yes, Panetta gives that narrow defense of CIA’s statement. But the bulk of Panetta’s statement implores the rest of CIA not to get hung up on the circus happening around them. 

Panetta is doing two things. First, affirming that CIA has not misrepresented what got recorded in the briefing notes and that the language of the briefing notes is accurate–as far as that goes. And, at the same time, casting doubt on the full meaning of the statement while imploring the rest of CIA not to get distracted by yet another challenge to CIA’s credibility.

This morning, Walter Pincus makes precisely the same point.

Battered by recriminations over waterboarding and other harsh techniques sanctioned by the Bush administration, the CIA is girding itself for more public scrutiny and is questioning whether agency personnel can conduct interrogations effectively under rules set out for the U.S. military, according to senior intelligence officials.

[snip]

The agency’s defensiveness in part reflects a conviction that it is being forced to take the blame for actions approved by elected officials that have since fallen into disfavor. Former CIA director Michael V. Hayden said in an interview that CIA managers and operations officers have again been put "in a horrible position." Hayden recalled an officer asking, "Will I be in trouble five years from now for what I agree to do today?"

 [snip]

Although President Obama has said no CIA officers will be prosecuted for their roles in harsh interrogations if they remained within Justice Department guidelines in effect at the time, agency personnel still face subpoenas and testimony under oath before criminal, civil and congressional bodies.

As part of an ongoing criminal inquiry into the CIA’s destruction of videotapes depicting waterboarding, CIA personnel will appear before a grand jury this week, according to two sources familiar with the matter who spoke on the condition of anonymity because the case is continuing. Read more →

WaPo’s Partisan Press Release Service

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The front page of the WaPo website features what amounts to a press release from John Boehner, attempting to continue blaming Nancy Pelosi because Dick Cheney tortured.

House Minority Leader John A. Boehner (R-Ohio) said that House Speaker Nancy Pelosi (D-Calif.) "ought to either present the evidence or apologize’" in the wake of her comments that CIA officials misled her about the use of controversial interrogation techniques on terrorist suspects.

"Lying to the Congress of the United States is a crime," Boehner said yesterday on CNN’s "State of the Union." "And if the speaker is accusing the CIA and other intelligence officials of lying or misleading the Congress, then she should come forward with evidence and turn that over to the Justice Department so they can be prosecuted."

He added: "And if that’s not the case, I think she ought to apologize to our intelligence professionals around the world."

The story doesn’t report that two out of three of the other members of Congress who were "briefed" in September 2002 (including the hyper-anal Bob Graham) back Pelosi’s claim. Here’s Graham:

The CIA when I asked them, what were the dates these briefings took place, gave me four dates. And I went back to my spiral notebooks and a daily schedule that I keep and found, and the CIA concurred, that in three of those four dates, there was no briefing held. That raises some questions about the bookkeeping of the CIA. Under the rules of clandestine information, I was prohibited from keeping notes of what was actually said during that briefing other than a brief summation that it had to do with the interrogation of detainees.

And here’s Goss, speaking of the torture techniques prospectively (and therefore revealing that he was not briefed they had already been used, which is precisely what Pelosi has claimed):

the techniques on which they were briefed were to actually be employed

And for good measure, here’s Jello Jay, pointing out that the CIA also got its briefing schedule wrong with him, as they did with Graham.

Read more →

The Two Torture Tape Suspects, the Pelosi Briefing, and the Panetta Statement

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A number of people are panicking about Leon Panetta’s statement to CIA employees, believing it rebuts Nancy Pelosi’s statement.

There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress.

Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

My advice — indeed, my direction — to you is straightforward: ignore the noise and stay focused on your mission. We have too much work to do to be distracted from our job of protecting this country.

We are an Agency of high integrity, professionalism, and dedication. Our task is to tell it like it is—even if that’s not what people always want to hear. Keep it up. Our national security depends on it.

But there’s a better way to understand this. 

First, look at Panetta’s statement about the briefings themselves.

As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

Panetta is stating two things:

  1. The contemporaneous records (that is, the CIA briefer’s own notes on the briefing) show that the briefers "briefed truthfully … describing ‘the enhanced techniques that had been employed’" on Zubaydah.
  2. It is up to Congress to evaluate this evidence and "reach its own conclusions about what happened."

Now, first of all, Panetta is not saying (nor has anyone said, not even Porter Goss) that the briefers briefed Congress that these techniques had been used. I know this sounds weasely, but until someone says, in plain language, that the CIA told Congress those techniques had already been used on Abu Zubaydah, we should assume that’s not what the notes reflect, because if they did, you can be sure both the briefing list and the public statements would say so. Read more →

Panetta: Contractors Not Allowed to Interrogate (Anymore)

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Leon Panetta just wrote a letter to Congress assuring them that contractors will not be used for interrogations.

The Central Intelligence Agency has banned contractors from conducting interrogations, CIA Director Leon Panetta told lawmakers in a letter Thursday outlining the agency’s dismantling of several Bush-era policies.

The letter and an accompanying memo to CIA employees were the fullest explanation to date of how the agency is carrying out President Barack Obama’s executive order of Jan. 22 ending the CIA’s "black site" program that detained terror suspects.

One flashpoint in that program was the use of outside contractors to interrogate suspects. Under congressional pressure, Director of National Intelligence Dennis Blair recently said he was reviewing that policy and added that government employees should handle the most important detainees.

Mr. Panetta went further, saying flatly: "No CIA contractors will conduct interrogations."

[anip]

An intelligence official said the contractor ban doesn’t extend to support of interrogations. "If a contractor has, say, special language skills, it’s conceivable that he or she could be asked to support a debriefing," the official said.

Read the whole argument, as it includes easily parsed reassurances that the CIA is out of the black site business as well.

Panetta did not mention, apparently, whether or not the contractors who designed our torture system were still on contract.