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The Issues Thomas Drake and Others Whistleblew On Remain Urgent

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I’ve been looking at one of the Siobhan Gorman articles that accused whistleblower Thomas Drake served as a source for. I’ll have more later, but I wanted to point out one main thrust of the story: the NSA had no way of measuring efficacy and controlling costs.

At the NSA, and throughout the government, the Sept. 11 attacks created a crisis atmosphere. Congress responded by pouring money into anti-terrorism efforts, while intelligence agencies scrambled to put new programs in place – often without the planning and oversight needed to succeed, intelligence professionals said.

At an agency-wide meeting at the NSA not long after the Sept. 11 attacks, Michael V. Hayden, then the NSA director, announced a $1 billion budget increase.

But the top-secret agency, based at Fort Meade between Baltimore and Washington, has no mechanism to systematically assess whether it is spending its money effectively and getting what it has paid for, NSA veterans said. One former employee likened it to a neighborhood with no police to enforce the traffic laws.

While this is not necessarily the core of what–per Jane Mayer–the government is prosecuting Drake for, it’s important for this reason. The NSA has been claiming–falsely–to have fixed its clusterfuck accounting system.

In June 2009, the Director of NSA wrote to the Chairman and Vice Chairman, claiming that the NSA was now ―fully compliant with the laws, regulations, and manuals referenced in the U.S. Army Finance Command report and the Federal Financial Managers Integrity Act. The NSA Director‘s letter also stated that the NSA had been able to reconcile its fiscal year 2008 financial records. In July 2009, the Chairman and Vice Chairman wrote to the Secretary of Defense concerning the NSA Director‘s letter. They stated that in light of the NSA‘s past difficulties in producing auditable financial statements, the Committee believed the progress claimed by the NSA should be independently confirmed by the DoD Inspector General. Specifically, the letter requested that the DoD IG conduct a form and content review of the NSA‘s fiscal year 2009 financial statements to determine whether they were supported by reliable and accounting data and supporting information.

The Committee received the results of the DoD IG‘s review in November 2009, which was very critical of NSA‘s claims. Overall, the IG found that the NSA‘s financial statements were not adequately supported by reliable accounting data and supporting information. An even more disturbing finding was that the NSA‘s ―remediation plans do not fully address audit impediments. Specific findings included an inability to reconcile critical general ledger balances, failure to perform required accounting processes, and inconsistencies between the information contained in the notes to the financial statements and the information provided to the IG. The IG‘s findings raised serious questions about the assertions made by the NSA Director in his June 2009 letter and the support he is receiving from the administrative staff involved. [my emphasis]

This is just one reason why the government’s prosecution of Thomas Drake is so outrageous. While his charges pertain to the way in which contracts get picked (rather than to the accounting clusterfuck itself), the prosecution of him–effectively, if Mayer is right, because he refused to falsely claim close allies sourced the illegal wiretap story–serves primarily to intimidate whistleblowers.

It took intelligence oversight committees seven years to prove that NSA wasn’t fixing problems first exposed eight years ago. Yet people were trying–in 2006–to expose the ongoing problems.

And yet the most transparent President seems to be doing everything he can to make sure no one makes similar efforts in the future.

Thomas Drake: The Unclassified Documents the Government Wants to Claim Were Classified

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Jane Mayer, who did such crucial work showing how the Bush Administration chose torture in preference to a more effective, legal interrogation approach, now does similar work explaining that a similar choice of an illegal and ineffective approach over a legal one lies behind the Thomas Drake leak.

As she describes–relying largely on interviews with Thomas Drake, former Congressional staffer Diane Roark, and others with ties to the issue–that Drake and others were targeted because they championed a program called ThinThread over the expensive and ineffective SAIC version, Trailblazer. Both were data mining programs, but ThinThread automatically encrypted US person data. Trailerblazer did not, probably deliberately so. Between championing the wrong (but probably more effective) program, and submitting an Inspector General’s complaint about Trailblazer in 2002, Drake, Roark, and the others were targeted as potential leakers of the warrantless wiretap program.

Ultimately, in an effort to pressure Drake to testify falsely against they others and using evidence collected ostensibly in search of leads on the warrantless wiretap case, they cobbled together a charge based on five documents of disputed classification.

For four months, Drake continued coöperating. He admitted that he had given Gorman information that he had cut and pasted from secret documents, but stressed that he had not included anything classified. He acknowledged sending Gorman hundreds of e-mails. Then, in April, 2008, the F.B.I. told him that someone important wanted to meet with him, at a secure building in Calverton, Maryland. Drake agreed to the appointment. Soon after he showed up, he says, Steven Tyrrell, the prosecutor, walked in and told him, “You’re screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life.”

Prosecutors informed Drake that they had found classified documents in the boxes in his basement—the indictment cites three—and discovered two more in his e-mail archive. They also accused him of shredding other documents, and of deleting e-mails in the months before he was raided, in an attempt to obstruct justice. Further, they said that he had lied when he told federal agents that he hadn’t given Gorman classified information.

“They had made me into an enemy of the state just by saying I was,” Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General’s Trailblazer investigation. The Inspector General’s Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn’t realize it. (The indictment emphasizes that he “willfully” retained documents.) The two documents that the government says it extracted from his e-mail archive were even less sensitive, Drake says. Both pertained to a successor to Trailblazer, code-named Turbulence. One document listed a schedule of meetings about Turbulence. It was marked “unclassified/for official use only” and posted on the N.S.A.’s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of Turbulence, was officially declassified in July, 2010, three months after Drake was indicted.

In other words, after targeting Drake in the warrantless wiretap leak but not having any evidence to make a case, they charged him with espionage for having followed protocol on submitting an Inspector General complaint and keeping one email marked unclassified and another that has since been declassified. For that they want to send him to prison for 35 years.

As I laid out the other day, the government is claiming it can treat the parts of these five documents that even its expert has determined to be unclassified as they would treat classified information in CIPA.

In other words, it seems the defense planned to (and did not object to the evidence in the binder based on that plan) to cross-examine [the government’s expert] on the substance of her decisions about what was and was not classified in the documents Drake is alleged to have illegally retained and copied. It goes to the heart of the case against Drake. But the government wants to hinder the defense efforts by making sure that even things Murray decided were unclassified can’t be revealed in raw form to the jury.

And of course, as Drake points out in his interview with Mayer, the bigger thing the government is trying to hide is the cheaper, more effective program that preserved privacy rights they ignored in favor of the illegal wiretap program.

There’s lots more in the story–including Michael Hayden explaining to Roark that the government chose not to protect Americans’ privacy in the warrantless program because they “had the power” not to.

She 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.

Go read the whole thing.

One Good Reason the WaPo Should NOT Get Kudos for Its “Top Secret” Series

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The WaPo has an article out that’s causing quite a stir. It bemoans the fact that the CIA has lost much of its top managers since 9/11.

More than 90 of the agency’s upper-level managers have left for the private sector in the past 10 years, according to data compiled by The Washington Post. In addition to three directors, the CIA has lost four of its deputy directors for operations, three directors of its counterterrorism center and all five of the division chiefs who were in place the day of the Sept. 11 attacks and responsible for monitoring terrorism and instability across the world.

Let’s name some of the people they’re talking about, shall we?

  • George “Slam Dunk” Tenet
  • Porter Goss
  • Michael Hayden
  • John McLaughlin
  • Stephen Kappes
  • Jose Rodriguez
  • Cofer Black
  • Robert Grenier

Several of these people were instrumental in trumping up propaganda to justify a war of choice. Several others implemented a system of rendition and torture. One of them helped the Vice President set up an illegal domestic wiretap program. The least compromised, legally (Grenier), probably was less than forthcoming under oath in the CIA Leak Case.

Really?!?! We’re bemoaning the fact that this parade of criminally and morally compromised people are no longer in a position of top leadership (though a number of them are still on the federal gravy train as contractors)?

There’s also little consideration of why and where Black went when they left: the urge to have mercenaries as a way to evade legal limits drove some of this exodus as much as money.

Two (digital) pages later, the WaPo finally gets around to the real problem with the exodus of more junior level officers: the loss of functional expertise.

In 2009, after a double-agent blew himself up at a CIA base in Afghanistan, killing seven of the agency’s officers, many former officials suggested that the tragedy might have been prevented had the CIA retained more senior personnel at the outpost.

Some officials questioned why the agency had given one of the top assignments there to an officer who had never served in a war zone. Other former officials raised concerns about how intelligence assets were being handled in the field.

“The tradecraft that was developed over many years is passe,” a recently retired senior intelligence official said at the time. “Now it’s a military tempo, where you don’t have time for validating and vetting sources. . . . All that seems to have gone by the board. It shows there are not a lot of people with a great deal of experience in this field.”

In other words, the problem with contracting is far more complex than the WaPo, in a fairly long article, was able to explain. And in the process, the WaPo never explained a lot of the nuances behind what it sold as its top line story: the departure of the top managers.

I’m not saying the WaPo hasn’t done a lot of work on this story overall. But telling a story–particularly one as complex and important as this one–is more than collecting data points.

Colombia Refuses to “Look Forward”

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In Colombia, apparently, you get arrested when you oversee illegal domestic wiretapping.

Colombia’s Prosecutor General ordered the arrest of Jorge Noguera, a former director of Colombia’s state intelligence agency DAS, for the his alleged involvement in the illegal spying on government opponents.

Noguera, who was director of the DAS between 2002 and 2006, is suspected of having set up the illegal activities of the DAS that included wiretapping supreme court magistrates, journalists, human rights organizations and opposition politicians.

Imagine if Michael Hayden (who oversaw the NSA when Cheney set up his illegal wiretap program) or John Brennan (who was in charge of the departments that chose whom to target with the system) got arrested for their role in the program?

Hell, imagine if Cheney himself were arrested (President Alvaro Uribe’s Chief of Staff is reportedly one target of this investigation)?

Pretty crazy, isn’t it, imagining what it would be like to live in a country with a functioning rule of law … like Colombia?

Erik Prince’s Long Form Graymail

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Remember that Vanity Fair tell all in which Erik Prince offered new details about Blackwater ops? Though Michael Hayden has suggested Prince made up some of the details, it seemed to be a form of graymail targeted at those who approved Blackwater ops now under criminal investigation. Apparently, there’s a long form version.

Erik Prince, chairman of the private security firm once known as Blackwater, is writing a memoir that says Democratic officials in two administrations approved of his most sensitive and controversial operations, sources close to the company, now known as XE Services, said. [snip] But two sources, speaking independently, said that Prince will name Democratic officials in both the Clinton and Obama administrations who allegedly approved of clandestine intelligence operations carried out by Blackwater on behalf of the CIA and other government agencies. “He’s going to drop the names of people who, before, were saying, ‘Yeah, go kill Osama Bin Laden’ and stuff like that, but went sideways on him when the investigations began,” said one of the sources, who spoke only on condition of anonymity in order to maintain relations with the company.

Now, I’m all in favor of Erik Prince, safe in his haven in UAE, telling the details of what he’s been doing in our name. I’d sure like to know about them. But Prince is nuts to think that anything he’ll reveal by the election will affect the success or failures of the Democrats.

“They think this will destroy the Democratic Party in the elections,” he said of Prince and his friends.

Even supposing Prince provides proof that people in the Obama Administration signed off on assassination … the response to Obama’s targeting of an American citizen for assassination has been a giant, collective yawn. And if Prince were to reveal that Clinton asked Blackwater to assassinate Osama bin Laden before 9/11? Wouldn’t that suggest, first of all, that Blackwater failed to accomplish the task? And wouldn’t it suggest, secondly, that Clinton was more of a bad ass about bin Laden than the Bushies up until the time when it was too late? Furthermore, we know that the Obama Administration continues to employ Blackwater.

Sure, learning that Obama employed Blackwater for tasks that should be limited to government employees would piss someone like me off. But the rest of the country would go back to watching Koran burnings and football.

The Spy Talk article on Prince’s memoir offers one more curious detail: that Parsons is the leading bidder to buy the company formerly known as Blackwater. Parsons is notable because it was almost certainly the most corrupt, incompetent construction contractor wasting reconstruction dollars in Iraq. Not only that, but it had ties every bit as close as Halliburton did to top members of the Administration.

I’d like to connect that news with another of yesterday’s big stories, the news that the Police Academy Parsons built in Iraq has shit raining from the ceiling.

The Baghdad Police College, hailed as crucial to U.S. efforts to prepare Iraqis to take control of the country’s security, was so poorly constructed that feces and urine rained from the ceilings in student barracks. Floors heaved inches off the ground and cracked apart. Water dripped so profusely in one room that it was dubbed “the rain forest.”

They’re related, you see, because Parsons also had extraordinary access to Karl Rove. When Parsons signed this contract in 2004, its lobbyist was a woman named Karen Johnson. And in addition to being the business partner of Dick Cheney’s hunting buddy, Katharine Armstrong, Karen Johnson is known to be close to Karl Rove. So close, in fact, that it is rumored they’re lovers. At one point, Karen Johnson was not entirely forthcoming about her ties to the White House. When she first filled out her lobbying disclosure forms for 2004, the year in which she helped Parsons get a contract to build a shit shower instead of a police academy, Johnson forgot that she had been, um, lobbying the White House.

If Parsons were to take over the company formerly known as Blackwater, it would single source all the worst in contracting: cowboys with guns immune from the law, contractors who do shitty (literally) work for inflated amounts of taxpayer dollars, and influence peddling. What a perfect next chapter for Blackwater!

Update: Jeremy Scahill suggests there are Democrats worried about this. I guess this may be more about embarrassing those Democrats–like those currently or formerly on the intelligence committees, presumably–who signed off on Blackwater activities.

The Gray Lady Waited Three Years to Quote People Calling Torture Torture

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In this post, I described the Harvard study that showed that US’ largest newspapers stopped calling waterboarding torture once it became clear the US was doing it.I wanted to look more closely at an odd time lapse in the NYT’s Orwellian treatment of waterboarding.

In a seeming defense of their refusal to call torture torture given to Michael Calderone, the NYT admitted they had responded to pressure from the Administration, but claimed that they balanced that by admitting that others consider it torture–classic “on the one side, on the other side cowardice.”

However, the Times acknowledged that political circumstances did play a role in the paper’s usage calls. “As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture,” a Times spokesman said in a statement. “When using a word amounts to taking sides in a political dispute, our general practice is to supply the readers with the information to decide for themselves. Thus we describe the practice vividly, and we point out that it is denounced by international covenants and in American tradition as a form of torture.” [my emphasis]

But if they were doing so, you’d think they’d be giving voice to people actually calling waterboarding torture.

At least according to the study, that’s not what they did at first. Not until 2007 did the NYT regularly (45.5% of the time) start quoting people calling waterboarding torture.

Except for a brief spate of articles in 1902‐1903 in the NY Times which quoted mostly military officials and senators, almost all of the articles that quote others calling it torture appeared in 2007 and 2008.

[snip]

Before 2007, the NY Times had only scattered articles quoting others. However, beginning in 2007, there is a marked increase in articles quoting others, primarily human rights groups and lawmakers. Human rights representatives predominate during the first half of the year. However, beginning in October, politicians were cited more frequently labeling waterboarding torture. Senator John McCain is the most common source, but other lawmakers also begin to be cited. By 2008, the articles’ references are more general such as “by many,” or “many legal authorities.” Stronger phrases such as “most of the civilized world” also begin to appear.

In other words, NYT’s “defense” of its actions appears to ignore a three year period during which they didn’t call torture torture, but during which they offered no counterbalance correcting that spin (which among other things means we can add it to the list of things–warrantless wiretapping, the leak of Plame’s identity Judy Miller received from OVP, and now calling torture torture–that the NYT did in the lead up to the 2004 election).

Which is all the more troubling given that NYT claimed they were watching their spin closely. One of the first NYT articles to report on waterboarding included this paragraph.

Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees. Interrogators were trying to find out whether there might be another attack planned against the United States.

As they pointed out in response to this study, FAIR immediately pounced on the Orwellianism.

The New York Times, revealing the interrogation techniques the CIA is using against Al-Qaeda suspects, seemed unable to find a source who would call torture by its proper name.

[snip]

The article took pains to explain why, according to U.S. officials, such techniques do not constitute torture: “Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees.”

The article seemed to accept that the techniques described are something other than torture: “The tactics simulate torture, but officials say they are supposed to stop short of serious injury.” The implication is that only interrogation methods that cause serious physical harm would be real and not simulated torture.

The article quoted no one who said that the CIA methods described were, in fact, torture. Yet it would have been easy to find human rights experts who would describe them as such. The website of Human Rights Watch (www.hrw.org) reports that “the prohibition against torture under international law applies to many measures,” including “near drowning through submersion in water.” Amnesty International U.S.A. (www.amnestyusa.org) names “submersion into water almost to the point of suffocation” as a form of torture, and emphasizes that torture “can be psychological, including threats, deceit, humiliation, insults, sleep deprivation, blindfolding, isolation, mock executions…and the withholding of medication or personal items.”

[snip]

If the Times had included independent human rights or international law experts in the article, this information could have been available to readers.

[snip]

In fact, the Times might have looked back to its own archives on the subject to find critics of U.S. detention policies. Some of the information included in the May 13, 2004 article was first reported on March 9, 2003— except the original story quoted Holly Burkhalter of Physicians for Human Rights, who decried the lack of a “specific policy that eschews torture.”

In response to that and a bunch of complaints about the NYT’s coverage of Abu Ghraib, NYT ombud replied,

The specific issue is the use of “abuse” rather than “torture” to describe certain actions of American military personnel, intelligence officers, and private subcontractors. I asked assistant managing editors Craig Whitney and Allan M. Siegal for comment as they are, respectively, in charge of the news desk (where front page headlines get written) and all matters of language and style. Both were surprised when I raised the issue; both noted some substantive definitional distinctions between “abuse” and “torture”; both asserted that there is no Times policy one way or another; and both acknowledged that readers may be right.

Wrote Whitney in an e-mail message, “Now that you tell me people are reading things into our not using ‘torture’ in headlines, I’ll pay closer attention.”

Read more →

House Intelligence Staffer Tried to Intervene on Illegal Wiretap Program

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Scott Shane and Eric Lichtblau tell a sort of weird story of how a House Intelligence Committee staffer, Diane Roark, tried to reach out to William Rehnquist to get him to review Dick Cheney’s illegal wiretapping program.

Within months of the beginning of the eavesdropping program in October 2001, a staff member of the House Intelligence Committee, alerted to the possibility of illegal spying by N.S.A. insiders and hoping to prompt a high-level legal review, wrote to Chief Justice Rehnquist asking for a meeting, according to several people familiar with the episode.

The Congressional staff member, Diane S. Roark, routed the letter through the chief justice’s daughter, Janet Rehnquist, then the inspector general of the Department of Health and Human Services; Ms. Rehnquist was a high school acquaintance of one of Ms. Roark’s N.S.A. contacts.

There was no response, and it is not known whether the letter was seen by the chief justice or prompted him to make inquiries.

What’s weird about the story, first of all, is the method of approach. Are you telling me there are Congressional staffers who think Rehnquist could have legally reviewed this program in response to a request sent via his daughter (though it sounds like something Arlen “no longer Haggis or Scrapple” Specter might try)?

But then there’s a detail that Shane and Lichtblau don’t mention: Roark left HPSCI just after this attempt to have Rehnquist review the illegal wiretap program, ostensibly retiring. Read more →

Who Is Lying? The Torturers? Or John Yoo?

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One of the potential bombshells in last week’s FOIA dump appears in a CIA discussion about a potential statement in response to NYT’s breaking of the torture tape story (PDF 86). The document notes that the videotapes would have shown the sheer number of times the torturers waterboarded Abu Zubaydah, and suggests that that may have presented legal problems. The document continues that someone (it appears to be the torturers) informed DOJ of the real number of times they waterboarded AZ, but CIA had no proof.

Jay Bybee’s 1 Aug 2002 memo to John Rizzo stated, in part, “Moreover, you have also 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.” (p. 2) and again, “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.” (p.11). The OIG review determined that Abu Zubaydah was subjected to [redaction] waterboard sessions, consisting of at least 83 separate exposures [half line redacted] assured us that he gave regular updates to DoJ (i.e., John Yoo [few words redacted] at OLC) during this time frame, and DoJ was aware of the real numbers, but we were never able to verify this with DoJ, as INV management at the time elected not to interview witnesses outside the building. In addition to the disparity in numbers, the method of water application as recorded in the tapes was at odds with the Bybee opinion. [my emphasis]

That is, one problem with the videotapes is that, unless the torturers really did inform Yoo (and, I’m guessing, Jennifer Koester) about how and how many times they really used waterboarding then they would have been in violation of guidelines from DOJ.

The statement, by itself, is inflammatory enough. But particularly in light of what Yoo said to OPR in interviews conducted during the summer of 2005.

He told us during his interview: “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.” He added:

[T]he waterboarding as it’s described in that memo, is very different than the waterboarding that was described in the press. And when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.

Now, granted, Yoo is not addressing the number of repetitions of waterboardings. And he points to the depiction of waterboarding in the press, not the depictions of waterboarding that appeared in the CIA IG Report (which, as it happens, matches the descriptions in the press with regards to volume of water and forced ingestion of it). So Yoo, as is his wont, has left some wiggle room here.

But he seems to suggest surprise that he had actually authorized the use of waterboarding.

As implausible as that is, assuming he simply forgot the phone call he made to John Rizzo on July 26, 2002 personally authorizing waterboarding and then forgot reviewing the extensive descriptions Koester wrote into the Bybee Two memo, it strains credulity if Yoo was actually receiving updates from Thailand. Imagine how such an exchange might play out:

“Oh, by the way, John. We set a new record for ‘pours’ during one waterboard session! We drowned that motherfucker 27 times in today’s session!”

“Wha–What? I thought we told you not to use that medieval torture technique!”

John Yoo was playing (or actually was) dumb about the use of waterboarding in the months before CIA destroyed the torture tapes. Yet someone–perhaps Bruce Jessen or James Mitchell–claim they kept DOJ generally and Yoo specifically in the loop of what they were doing.

Someone is not telling the truth. Who is it?

The Timeline of Torture Tape Destruction in John Durham’s Documents

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As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

Read more →

Michael Hayden Lied to SSCI on April 12, 2007

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The latest Ghost Detainee FOIA materials [long pdf] (for a general overview see this post) prove that Michael Hayden lied to the Senate on April 12, 2007.

One of the things included in this packet is a heavily redacted transcript of Hayden’s classified briefing to the Senate Intelligence Committee (SSCI) on April 12, 2007. There’s a lot that is dubious in this briefing, but these five paragraphs are key:

While FBI and CIA continued unsuccessfully to try to glean information from Abu Zubaydah using established US Government interrogation techniques, all of those involved were mindful that the perpetrators of the 11 September attacks were still at large and, according to available intelligence reportedly, were actively working to attack the US Homeland again. CIA also knew from its intelligence holdings that Abu Zubaydah was withholding information that could help us track down al-Qa’ida leaders and prevent attacks. As a result, CIA began to develop its own interrogation program, keeping in mind at all times that any new interrogation techniques must comply with US law and US international obligations under the 1984 UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

A handful of techniques were developed for potential use; these techniques are effective, safe, and do not violate applicable US laws or treaty obligations. In August 2002, CIA began using these few and lawful interrogation techniques in the interrogation of Abu Zubaydah. As stated by the President in his speech on 6 September 2006, “It became clear that he (Abu Zubaydah) had received training on how to resist interrogation. And so the CIA used an alternative set of procedures … the procedures were tough, and thy were safe, and lawful, and necessary.”

Prior to using any new technique on Abu Zubaydah, CIA sought and obtained from the Department of Justice an opinion confirming that none of these new techniques violated US statutes prohibiting torture or US obligations under the UN Convention Against Torture.

As CIA’s efforts to implement these authorities got underway in 2002, the majority and minority leaders of the Senate, the Speaker and the minority leader of the House, and the chairs and ranking members of the intelligence committees were fully briefed on the interrogation procedures.

After the use of these techniques, Abu Zubaydah became one of our most important sources of intelligence on al-Qa’ida. [my emphasis]

There’s plenty to dispute in this statement.We know FBI had success in gathering information from Abu Zubaydah. We know CIA turned out to be wrong about the purported troves of information Abu Zubaydah had. We know that Mitchell and Jessen had already been engaged to develop their torture program before CIA declared traditional interrogation to be unusable. We know OLC really didn’t consider whether CIA’s torture program violated CAT for the Bybee Memos.  It is indefensible to argue that Abu Zubaydah “became one of our most important sources of intelligence on al-Qa’ida” given that only 10 pieces of intelligence from Abu Zubaydah proved useful enough to appear in the 9/11 report.

By April 12, 2007, Michael Hayden had to have known that. But I can’t prove that.

It’s even harder to fathom that he didn’t know his assertion that “In August 2002, CIA began using these [torture] techniques” to be false. Or his claim that “prior to using any new technique on Abu Zubaydah, CIA sought and obtained … an opinion confirming that none of these new techniques violated [the law and treaty obligations].” After all, even if he didn’t review the cables and the FBI discussions making it clear that the torture started long before August 1, in February 2007, Hayden received the ICRC report making it clear that Abu Zubaydah’s torture began weeks, not months, after he was captured.

But who knows? Maybe CIA kept Hayden completely in the dark about the many falsehoods he was telling Congress. Maybe he really didn’t know that CIA tortured for a few months (reportedly, with the okay from the White House), and only then got the written approval from OLC.

But this assertion … this assertion we know Michael Hayden knew to be false.

As CIA’s efforts to implement these authorities got underway in 2002, the majority and minority leaders of the Senate, the Speaker and the minority leader of the House, and the chairs and ranking members of the intelligence committees were fully briefed on the interrogation procedures.

That’s because the day before Hayden testified at the SSCI hearing, in a memo addressed to him entitled “Information for 12 April SSCI Hearing,” CIA laid out all the briefings they had done on torture and rendition. Read more →