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Michael Hayden, Privacy and Counterterrorism Frugality Champion

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Of 1,423 words in an article questioning whether deficit hawkery might cut the domestic spying budget, Scott Shane devotes over a sixth–roughly 260–describing what former NSA and CIA Director Michael Hayden thinks about the balances between funding and security.

Remarkably, none of those 260 words disclose that Hayden works for Michael Chertoff’s consulting group, which profits off of big domestic spying. This, in an article that cites Chertoff’s electronic border fence among the expensive counterterrorism duds that were subsequently shut down (Shane mentions “puffer” machines as well, but not the Rapiscan machines that Chertoff’s group lobbied for, which are now being withdrawn as well).

And then there’s a passage of Shane’s article that touches on topics in which Hayden’s own past actions deserve disclosure.

Like other intelligence officials after 2001, Mr. Hayden was whipsawed by public wrath: first, for failing to prevent the Sept. 11 attacks, and then, a few years later, for having permitted the National Security Agency to eavesdrop on terrorism suspects in the United States without court approval.

Perhaps, as a result, he often says that the American people need to instruct the government on where to draw the line. He told an audience at the University of Michigan last month, for instance, that while a plot on the scale of the Sept. 11 attacks was highly unlikely, smaller terrorist strikes, like the shootings by an Army psychiatrist at Fort Hood in Texas in 2009, could not always be stopped.

“I can actually work to make this less likely than it is today,” Mr. Hayden said. “But the question I have for you is: What of your privacy, what of your convenience, what of your commerce do you want to give up?”

To be fair, Shane counters Hayden’s claims by noting that “secrecy … makes it tough for any citizen to assess counterterrorism programs.”

But he doesn’t mention one of the biggest examples where Hayden–where anyone–chose both the most expensive and most privacy invasive technology: the wiretap program Hayden outsourced to SAIC rather than use in-house solutions.

As Thomas Drake has made clear, by outsourcing to SAIC, Hayden spent 300 times as much as he would have with the in-house solution.

One of them was Lieutenant General Michael Hayden, the head of the agency: he wanted to transform the agency and launched a massive modernization program, code named: “Trailblazer.” It was supposed to do what Thin Thread did, and more.

Trailblazer would be the NSA’s biggest project. Hayden’s philosophy was to let private industry do the job. Enormous deals were signed with defense contractors. [Bill] Binney’s Thin Thread program cost $3 million; Trailblazer would run more than $1 billion and take years to develop.

“Do you have any idea why General Hayden decided to go with Trailblazer as opposed to Thin Thread, which already existed?” Pelley asked.

[snip]

Asked to elaborate, Drake said, “Careers are built on projects and programs. The bigger, the better their career.” [my emphasis]

Along the way, Hayden repeatedly blew off Congressional staffer Diane Roark’s inquiries about privacy protection.

When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of ThinThread: a bastardized version, stripped of privacy controls. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”

[snip]

[Former HPSCI staffer Diane Roark] asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not. [my emphasis]

So it’s not just disclosure of all the ways Hayden has and does profit off of continued bloated domestic surveillance that Shane owes his readers: he also should refute Hayden’s claims about the relationship between cost, privacy, and efficacy.

Michael Hayden’s SAIC-NSA boondoggle is one case where secrecy no longer hides how much money was wasted for unnecessary privacy violations.

Yet somehow, that spectacular example of the unnecessary waste in domestic spying doesn’t make it into the 260 words granted to Hayden to argue we need continued inflated spending.

The Senate Report on Fusion Center Fails to Ask or Answer the Most Basic Question

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As I suggested the other day, there is a lot to recommend the Permanent Subcommittee on Investigations report on fusion centers.

But while it meticulously supports its claims about the waste and inefficacy of fusion centers, it seems to miss what all that evidence suggests. That is that there is no need for fusion centers. The report clearly shows we have spent somewhere between $289 million and $1.4 billion to build a bunch of data sharing centers in the name of terrorism; yet in spite of the investment, the centers appear to never actually have contributed to finding a terrorist.

Fusion centers are supposed to be about counterterrorism

This is made clear in the way the report meticulously lays out the purported purpose of fusion centers, then measures how they fulfill that purpose.

The report notes two moments in DHS’ history when fusion centers were pointedly not authorized: the initial formation of DHS, the 9/11 Commission report. It notes that under Michael Chertoff, DHS aides were pushing for reasons to sell fusion centers to the Feds.

Mr. Riegle said that he did not believe that access to state and local information was really a principal reason for the federal government to support fusion centers, but it was part of the pitch. “It was a selling point to the Feds,” Mr. Riegle said. “I’ve got to tell them what the benefits are.”

Only in 2007, at a time when there were already 37 fusion centers, many in states not likely to be targeted by foreign terrorism, did Congress specifically authorize fusion centers. At that time, Congress emphasized the fusion centers’ counterterrorism function.

The law also directed DHS to detail intelligence personnel to the centers if the centers met certain criteria, several of which required a center to demonstrate a focus on and commitment to a counterterrorism mission. Among the criteria the law suggested were “whether the fusion center . . . focuses on a broad counterterror approach,” whether the center has sufficient personnel “to support a broad counterterrorism mission,” and whether the center is appropriately funded by non-federal sources “to support its counterterrorism mission.”

Fusion centers have not found any terrorists

And on that basis, fusion centers have failed.

The value of fusion centers to the federal government should be determined by tallying the cost of its investment, and the results obtained. Read more →

Steven Bradbury’s Revenge

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Since I noted in August 2011 that Mitt had named two torture architects to his legal advisory committee (Tim Flanigan and Steve Bradbury), I have had zero doubt that Mitt would embrace torture if he were President. So Charlie Savage’s story–reporting on a September 2011 memo confirming that fact–wasn’t surprising in the least to me. Here’s the key recommendation from the memo:

Governor Romney has consistently supported enhanced interrogation techniques. Governor Romney is also on record as stating that he does not believe it is wise for him, as a presidential candidate, to describe precisely which techniques he would use in interrogating detainees. The combination of these two positions, as well as the information presented above, leads to two principal options in this area for his campaign.

The first option is that Governor Romney could pledge that upon taking office, he will rescind and replace President Obama’ s Executive Order restricting government interrogators to the Army Field Manual. Consistent with the authority reserved for the President under the Military Commissions Act, he could commit his Administration to authorizing (classified) enhanced interrogation techniques against high-value detainees that are safe, legal, and effective in generating intelligence to save American lives. But because President Obama’s release of the OLC memos has reduced the number of available techniques that meet these criteria, Governor Romney should not commit in advance to a timetable for implementing this plan; it may well take time to identify potential techniques and analyze their effectiveness and legality.

[snip]

The Subcommittee recommends the first option. Governor Romney has recognized for years that the sounder policy outcome is the revival of the enhanced interrogation program. And a reluctance by the Governor to expressly endorse such an outcome during the campaign could become a self-fulfilling prophecy once he takes office by signaling to the bureaucracy that this is not a deeply-felt priority. [my emphasis]

Mitt is pro-torture. We knew that, and he hasn’t hidden that fact.

But there are a couple of details about this that are curious.

First, note the language here. The advisors worry that if Mitt doesn’t explicitly endorse getting back into the torture business during the election, he might not do so. They want to force his hand before he’s elected to make sure he’ll carry through.

That is not the language of advisors. It’s the language of puppet-masters (though I’m sure the equivalent memos from inside the Obama camp aren’t much different). That is, the legal advice here is designed not so much to provide the best advice (if it were, then the support used in the memo wouldn’t be such discredited propaganda). Rather, it is to force Mitt’s hand in the eventuality he becomes President.

The other interesting aspect of this are the people. Savage provides this list of the advisors, in addition to Steven Bradbury, in the loop on this memo (he notes that it’s unclear whether they have bought off on the advice).

The list also included Michael Chertoff, the former homeland security secretary; Cully Stimson, the Pentagon’s detainee policy chief; and many other Bush-era executive branch veterans: Bradford Berenson, Elliot S. Berke, Todd F. Braunstein, Gus P. Coldebella, Jimmy Gurule, Richard D. Klingler, Ramon Martinez, Brent J. McIntosh, John C. O’Quinn, John J. Sullivan, Michael Sullivan and Alex Wong. Three others — Lee A. Casey, Maureen E. Mahoney and David B. Rivkin Jr. — served in earlier Republican administrations.

First, note where Savage starts this list: Michael Chertoff, who as Criminal Division head in 2002 refused to give Bush’s torturers an advance declination on prosecution. That refusal ultimately led to the contorted form of the original Yoo memos authorizing torture. If Chertoff supports this policy (Savage’s caveat noted), then it’s a pretty clear indication that Chertoff was cautious in 2002 because people like Ali Soufan were running around saying mock burial was torture, and not because he had any qualms about torture himself. That’s not surprising in the least, but still worth noting.

Maureen Mahoney (who defended Jay Bybee in the OPR investigation) and David Rivkin (who defended Rumsfeld in civil suits for torture) have also backed their earlier legal representation with their own reputation (or lack thereof).

Finally, note who’s not on this list: Tim Flanigan, who with Alberto Gonzales, Dick Cheney, and David Addington, was one of the most central architects of torture and other illegal counterterrorism approaches.

It’s sort of odd that Mitt advisor Tim Flanigan, one of the original architects of torture, wasn’t the one leading this effort last year.

It Takes an Attempted Terrorist Attack to Actually Test Backscatter Machines

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Long after rolling out backscatter machines without proving their efficacy and safety, it looks like the machines will finally be tested. As the AP reports, the government is now testing the underwear bomb Al Qaeda in the Arabian Peninsula planned to use to conduct an Osama bin Laden death anniversary attack to see whether it would have gotten by airport security.

The FBI is examining the latest bomb to see whether it could have passed through airport security and brought down an airplane, officials said. They said the device did not contain metal, meaning it probably could have passed through an airport metal detector. But it was not clear whether new body scanners used in many airports would have detected it.

If the machines wouldn’t have stopped the attack (note, the terrorist had not yet bought a ticket, so it’s not even clear which airports they’d be testing), then we can just take solace in the fact that Michael Chertoff will have a nice comfy retirement. If they would have, then the TSA will feel justified in all the gate grope they’ve been engaging in for years.

Of course, the real lesson is that we’d be better off relying on good intelligence to stop an attack–as it stopped this one–long before a terrorist gets caught at the gate.

George Tenet’s Bureaucratic CYA

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Let me divert from my obsession on the CIA’s efforts to hide references to what I believe is the September 17, 2001 Memorandum of Notification authorizing torture and a whole lot else to talk about what a neat bureaucratic trick George Tenet pulled. As I’ve confirmed, what the CIA is going to some length to hide is the second half of the title of the document George Tenet drew up to try to impose some kind of controls on the CIA’s torture program in January 2003. The title reads, “Guidelines on Interrogations Conducted Pursuant to the” with the authorities that authorize such interrogations redacted.

But let’s take a step back and put that document–with its now highly sensitive invocation of the authorities on which the torture program rested–in context.

As far as I’m aware, unlike Michael Hayden and John Rizzo, Tenet has not publicly confirmed a Presidential Memorandum of Notification authorized the torture program. In his memoir, he describes a briefing he conducted on September 15, 2001, two days before Bush signed the MON. He describes asking for authority to detain al Qaeda figures.

We raised the importance of being able to detain unilaterally al-Qa’ida operatives around the world.

He also pitched using drones to kill al Qaeda operatives.

We suggested using armed Predator UAVs to kill Bin Laden’s key lieutenants, and using our contacts around the world to pursue al-Qa’ida’s sources of funding, through identifying non-governmental organizations (NGOs) and individuals who funded terrorist operations.

And he describes a whole bunch of other asks, like partnering with the Uzbekistan and–as part of another ask–with Syria and Libya. In short, Tenet describes asking for authorization to do the things we know are included in that MON.

Then, he describes watching Bush kick off the war on September 20, reflecting,

By then, as I remember, the president had already granted us the broad operational authority I had asked for.

Well, sucks to be Tenet, because as it happens, Bush authorized those activities broadly, but never put in writing that the authorization to detain al Qaeda figures included the authorization to torture

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Read more →

Darrell Issa Complains that Janet Napolitano Took a Whole Year to Change Michael Chertoff’s Inefficient FOIA Process

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Darrell Issa has no credibility when it comes to matters of transparency. We’ve seen Issa’s rank hypocrisy in the past. He dismissed concerns about Karl Rove doing business on RNC emails as a political stunt. And he suggested that apparently deliberate attempts to dismantle email archives at the White House was all about technology.

So I’m not surprised his loud complaints that Department of Homeland Security politicized the FOIA process turned out to be oversold.

As it happens, both Issa’s and Elijah Cummings’ reports on this seem to miss the forest for the trees.

At issue is the process by which top DHS officials review–and are alerted to–sensitive FOIA releases. The policy in place up until July 2010 was put in place in 2006. That is, under Michael Chertoff. As I understand it, when certain high level issues were due to be released, the Secretary’s office (whether it be Chertoff or Janet Napolitano) would be emailed the materials for review. In some cases, that review identified additional information that, for legal FOIA reasons, needed to be redacted. In other case, this review process simply alerted the Secretary to something he or she would be asked about in the press.

In other words, Darrell Issa is complaining about a process–and a burdensome email review process–inherited from Michael Chertoff. Since then, DHS has introduced an intranet system that has gotten the Secretarial review time to one day.

In addition, Issa appears to ignore how DHS has gotten rid of the largest FOIA backlog in history. In 2006, according to Mary Ellen Callahan’s testimony, DHS had a backlog of 98,000 requests. When Napolitano took over, that backlog was 74,000 requests. The backlog is now 11,000.

This is the kind of thing Darrell Issa is bitching about.

Now I do have certain questions about what sparked all of this. Issa first latched onto the issue after this AP report–the most serious allegations of which the AP subsequently admitted they could not confirm. Call me crazy, but given the centrality of bad blood between a few career staffers here, I’d suggest the original article came right out of that bad blood. (And perhaps not coincidentally, the article came out in the same month as DHS switched to the more efficient Intranet process.)

But it also sounds like the Napolitano was particularly concerned about being alerted to sensitive requests in the early years of the Administration.

Unless I missed it, no one mentioned this debacle, Napolitano’s embarrassment with the release of a Bush-initiated report on right wing domestic extremism. Mind you, witnesses admitted that part of the concern arose from the release of information that had been generated under the Bush Administration, so it’s possible that this report was the reason for the sensitivity.

But I wonder whether part of the problem here all stems from the fact that the Bush DHS initiated a study on right wing extremists that was subsequently spun as a Napolitano project.

2005 Story: Chertoff Opposed Technique Threatening Imminent Death

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I’ve been poking DOJ’s version of the events leading up to the Bybee Memo and hope to elaborate on that at a further time. But for now, I want to point to this 2005 article, apparently attempting to scuttle Michael Chertoff’s nomination to be Secretary of Homeland Security by raising his role in approving torture (there are a couple of versions of this article, so if you’re having problems seeing what I’m looking at try this post). The article clearly states that Chertoff opposed the approval of a technique that involved the threat of immediate death.

But in other instances Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, he raised serious objections to methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a “threat of imminent death.” [my emphasis]

We now know, of course, that CIA was trying to get mock burial approved.

This revelation is interesting because it confirms what the documentary evidence suggests: that Chertoff was one, if not the major, source of trouble for David Addington’s plan to green light torture. And given the story’s report that Chertoff approved waterboarding even while he opposed what was probably mock burial, it suggests that the problem was not necessarily Chertoff’s squeamishness, but rather Ali Soufan’s reaction, when the torturers first threatened to use mock burial in May 2002, that it was torture. Furthermore, all of this accords with the work I’ve done on the role of the July 13 memo, which shows that CIA had an “issue arise” in response to which they got John Yoo write a memo excusing things like death threats (but also disruption of the senses) by invoking expert advice.

The story is interesting for other reasons, including its fairly early reference to SERE’s role in the torture techniques.

Many of the interrogation techniques in the C.I.A.’s list were adopted from the Air Force’s Survival, Evasion, Rescue, and Escape training program.

But for the moment, I’m just noting it because it does seem to confirm the narrative we’re seeing in the documentary evidence.

How CIA Avoided Negligent Homicide Charges in the Salt Pit Killing

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Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

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How John Yoo Negated the Mental Suffering of Death Threats in the Bybee Two Memo

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It’s time to read the Bybee Two memo again.

Since the OPR Report came out, we’ve learned the following (some of it was already out there, but I, at least, hadn’t noticed it):

  • After his 63rd interrogation session, Abu Zubaydah experienced what his torturers call “hard dislocation”
  • An “issue arose” during the interrogation of Abu Zubaydah that two CIA lawyers discussed via email on July 10, 2002
  • In the days following CIA lawyers’ discussion of that issue, Criminal Division Chief Michael Chertoff got his own briefing on the torture memo (July 11), followed the next day by a meeting with Alberto Gonzales and probably David Addington (July 12), followed the next day by a larger briefing including Gonzales, Chertoff, John Rizzo and FBI Chief of Staff Daniel Levin that covered both the planned torture techniques and the torture memo (July 13)
  • After Chertoff told CIA at that July 13 meeting that he would not issue an advance declination of prosecution for torture, Rizzo asked for and received a memo laying out “the elements of the torture statute;” the July 13 memo focused closely on the definition of intent to cause mental suffering; Yoo’s supervisors John Ashcroft and Jay Bybee claim to be unaware of the memo
  • In his cable to AZ’s torture team written after both Bybee Memos were completed, Counterterrorism Center lawyer Jonathan Fredman relied on the language on intent from the July 13 memo, not the Bybee One memo
  • Also after the meeting at which Chertoff refused an advance declination, David Addington appears to have directed John Yoo to include several affirmative defenses in the Bybee One memo
  • The next draft of the memo–dated July 23 and for the first time addressed to Alberto Gonzales–included the affirmative defenses Addington had asked for as well as language on intent to cause mental harm adopted from the July 13 memo
  • In the days following that draft, several things happened to change the approach to torture authorization
  • CIA removed mock burial on its list of torture techniques because approving it would hold up the overall memo
  • CIA asked for a separate letter addressing specific techniques–what would become the Bybee Two memo
  • As part of several packets of information they received from CIA on the long term mental effects of torture, Yoo and Jennifer Koester almost certainly received a draft psychological evaluation noting that AZ had experienced “hard dislocation” after session 63, though we can’t prove that they saw that phrase because the copy of the document they received has been altered before being released in FOIA
  • A large packet of information received on the same day as one of the draft psychological evaluations disappeared from the OLC SCIF

All those details make it fairly clear that the Bybee Two memo was designed to respond to the July 13 memo. But they also help to prove that it failed to do what it was intended to do.

How John Yoo told the CIA to “negate” their specific intent to torture

Yoo’s July 13 memo stated that several things were necessary to prosecute torture for the infliction of mental suffering:

  • The commission of certain kinds of predicate acts, that included but were not limited to the use of procedures designed to profoundly disrupt the senses and/or the threat of imminent death
  • The infliction of prolonged mental harm as a result of those predicate acts
  • The specific intent to inflict the severe mental suffering from those predicate acts

But even if someone had the specific intent to commit those predicate acts and prolonged mental harm resulted, Yoo included an escape hatch. He basically said that if a person had conducted studies and based on those studies had concluded that prolonged mental harm would not result, then he could claim to have been operating with a good faith belief that those actions did not cause prolonged mental harm.

Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

In other words, to “negate” the specific intent to cause prolonged mental harm that constituted torture, you could do a bunch of study and if that study showed no prolonged mental harm had resulted from these actions in the past, you could then claim that you had no idea that those actions might cause prolonged mental harm in the future, and therefore any deliberate actions that ended up causing prolonged mental harm weren’t really torture.

Abracadabra!!!

As I’ll show below, the Bybee Two memo was designed to show that CIA had done that kind of study. (Note, this is not an original observation; I’m fairly certain both Jeff Kaye and William Ockham have made this observation in the past.) But, as I’ll show in a follow-up post, it fails in what it was designed to do.

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CIA Lawyers Were Discussing “Issue that Arose” Three Days Before July 13 Fax

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My focus on the multiple versions of Abu Zubaydah’s psychological assessment led me to review the CIA OIG Vaughn Declaration from last August, and one document that was withheld caught my eye.

The document strongly suggests that the July 13, 2002 John Yoo fax that appears to have been used as CIA’s general authorization for torture was written in response to a specific issue that had already arisen with Abu Zubaydah.

The Vaughn Index was written in response to ACLU’s FOIA for documents relating to what would have been shown on the 92 destroyed torture tapes. From the descriptions in the Vaughn, it’s clear that most of the documents include things like plans for torture techniques written both before after after Abu Zubaaydah’s torture, plans for black sites, communication about the investigation into detainee treatment (I presume that treatment of al-Nashiri would be included, since his interrogations were also on the destroyed tapes, but not the Salt Pit death of Gul Rahman, which wasn’t taped), and interviews from the investigation.

And though there are a few documents that clearly are efforts to improve on the techniques used against AZ (including pictures), there are relatively few documents in CIA IG custody from the period of AZ’s most intense interrogation. There are:

  • “4-pages of handwritten notes, dated April 3, 2002, by a CIA officer regarding the interrogation of Abu Zubaydah.”
  • “A 1-page email,” dated April 5, 2002, “with an attached two page cable from a CIA attorney to a CIA officer regarding the interrogation of Abu Zubaydah.”
  • A “four page cable from the field to CIA Headquarters,” dated April 11, 2002, containing “information relating to the CIA’s terrorist detention and interrogation program” (note, this was the day Yoo officially started on the Bybee Memo).
  • A May 15, 2002 “two page memo from one CIA officer to another CIA officer discussing information, provided by Abu Zubaydah, relating to a classified counter-terrorism operation.”
  • A “1-page of handwritten notes dated July 24, 2002 from a CIA officer describing proposed interrogation techniques that could be considered for use on detainees.”
  • A “two page cable from the field to CIA Headquarters,” dated August 12, 2002, and “a 6-page cable from the field to CIA Headquarters,” dated August 24, 2002, both containing “information relating to the interrogation of Abu Zubaydah.”

(There’s also a cable listed with the date July 26, 2006, which given its place in the Vaughn Index might actually have been dated July 26, 2002, discussing AZ’s status.) There are also a few documents that pertain to discussions in DC (for example, a Memorandum of Understanding recording CIA’s version of an early meeting on the Bybee Memo).

Then there’s the email that sparked my interest, labeled Email-591, dated July 10, 2002, and classified as Top Secret.

This document is a 2-page email chain between CIA attorneys. The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation.

In other words, on July 10, 2002, two of CIA’s lawyers were discussing something that came up–almost certainly (given the scope of the FOIA response) during Abu Zubaydah’s interrogation–in anticipation of litigation. And three days later, CIA lawyer John Rizzo would attend a meeting at which DOJ Criminal Division head Michael Chertoff refused to give CIA an advance declination for any crimes committed during Abu Zubaydah’s interrogation and FBI Chief of Staff Daniel Levin announced that the FBI would no longer have anything to do with the CIA’s interrogation program. Ostensibly, those responses came partly in response to Rizzo’s description of purportedly proposed torture techniques. Yet after that meeting, Rizzo asked John Yoo for a letter “setting forth the elements of the torture statute.” And the fax Yoo wrote in response–rather than the formal Bybee One opinion–would serve as CIA’s internal guide for the role of intent in the torture statute, particularly the way intent purportedly played into torture having to do with the infliction of several mental suffering.

All of which suggests the torturers did something to inflict severe mental suffering on Abu Zubaydah–one the CIA’s own lawyers recognized might result in litigation–just before July 10, 2002.

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