Posts

Did Jello Jay Rockefeller Endorse Torture Based on a Fabrication?

/14 Comments/in /by

Over at Al Jazeera, I have a piece about ASSET Y, a CIA source whose fabricated claimed served as one excuse to restart both the torture and the Internet dragnet (ASSET Y’s intelligence was the excuse to restart torture).

Buried amid details of “rectal rehydration” and waterboarding that dominated the headlines over last week’s Senate Intelligence Committee findings was an alarming detail: Both the committee’s summary report and its rebuttal by the CIA admit that a source whose claims were central to the July 2004 resumption of the torture program  — and, almost certainly, to authorizing the Internet dragnet collecting massive amounts of Americans’ email metadata — fabricated claims about an election year plot.

[snip]

The CIA in March 2004 received reporting from a source the torture report calls “Asset Y,” who said a known Al-Qaeda associate in Pakistan, Janat Gul — whom CIA at the time believed was a key facilitator — had set up a meeting between Asset Y and Al-Qaeda’s finance chief, and was helping plan attacks inside the United States timed to coincide with the November 2004 elections. According to the report, CIA officers immediately expressed doubts about the veracity of the information they’d been given by Asset Y. A senior CIA officer called the report “vague” and “worthless in terms of actionable intelligence.” He noted that Al Qaeda had already issued a statement “emphasizing a lack of desire to strike before the U.S. election” and suggested that since Al-Qaeda was aware that “threat reporting causes panic in Washington” and inevitably results in leaks, planting a false claim of an election season attack would be a good way for the network to test whether Asset Y was working for its enemies. Another officer, assigned to the group hunting Osama bin Laden, also expressed doubts.

[snip]

Soon after the reauthorization of the torture and the Internet dragnet, the CIA realized ASSET Y’s story wasn’t true. By September, an officer involved in Janat Gul’s interrogation observed, “we lack credible information that ties him to pre-election threat information or direct operational planning against the United States, at home or abroad.” In October, CIA reassessed ASSET Y, and found him to be deceptive. When pressured, ASSET Y admitted had had made up the story of a meeting set up by Gul. ASSET Y blamed his CIA handler for pressuring him for intelligence, leading him to lie about the meeting.

Like the Iraq War before then, then, the torture and the dragnet were in part justified by a fabricator, one who, when caught in his lie, complained his handler had pressured him into telling this story. CIA obtained this intelligence in March 2004, after it became clear the counterterrorism programs were in trouble.

The CIA used the claim Janat Gul was involved in an election year plot to get the Principals Committee to reauthorize torture after Jack Goldsmith and George Tenet had halted it.

But there’s also this detail not included in the AJAM piece, which may explain quite a bit about why Senate Democrats have been so aggressive on oversight here where they usually aren’t.

On July 15, 2004, based on the reporting of ASSET Y, the CIA represented to the chairman and vice chairman of the Committee that Janat Gul was associated with a pre-election plot to conduct an attack in the United States.

 According to handwritten notes of the briefing, CIA briefers described Janat Gul as “senior AQ” and a “key facilitator” with “proximity” to a suspected pre-election plot. Committee records indicate that CIA briefers told the chairman and vice chairman [Jay Rockefeller] that, given the pre-election threat, it was “incumbent” on the CIA to “review [the] need for EITs,” following the suspension of”EITs.” (See Handwritten notes ofAndrew Johnson (DTS #2009-2077) CIA notes (DTS #2009-2024 pp. 92-95); CIA notes (DTS #2009-2024, pp. 110-121).) [redacted] CTC Legal [redacted] later wrote that the “only reason” for the chairman and vice chairman briefing on Janat Gul was the “potential gain for us” as “the vehicle for briefing the committees on our need for renewed legal and policy support for the CT detention and interrogation program.” See email from:mmil;to: [REDACTED]; subject: Re: Priority: congressional notification on Janat Gul; date: July 29, 2004. (Senate Report, 345)

That is, not only did CIA use this fabricated single source story to get the Principals Committee to reauthorize torture (as well as a series of OLC memos and, ultimately 2 of the May 2005 memos), but they used it as an opportunity to get at least two members of Congress, SSCI Chair Pat Roberts and SSCI Vice Chair Jay Rockefeller, to reauthorize it as well (it’s unclear whether Porter Goss and Jane Harman got an equivalent briefing; in what appears unredacted from the released record of their briefing, they did not, but the CTC lawyer talks about briefing the “committees,” plural, so I assume they did).

This July 2004 briefing would have been the only known briefing for the Gang of Four about the use of torture on a particular detainee before that detainee was tortured (while 3 of 4 Gang of Four members had been briefed that CIA was using torture in February 2003, I know of no briefing where they signed off on torturing Khalid Sheikh Mohammed or those rounded up around that time). And the briefing happened even as Pat Roberts was releasing a whitewash on the Iraq War intelligence and the fabricators who went into that.

In his own narratives about torture, Jello Jay never explained what went on in this briefing — that CIA told a story based on a fabrication and based on that, he gave at least tacit approval, after which the CIA tortured someone so badly the detainee asked to be killed. But I can imagine how that might lead him to have a particular interest in exposing all the lies that CIA told Congress about torture.

For its part, CIA is fairly circumspect about how they resumed torture based on a fabrication. Unlike the GOP response, they admit fairly readily this was a fabrication. Yet one of the key claims the SSCI Report challenges is that the torture of Gul, Sharif al-Masri, and Ahmed Ghailani, all of whom were tortured based on this claim, served to “validate” one of their sources — that it, the three together served to debunk Asset Y. Given how central Janat Gul’s torture was, both in 2004 and in Steven Bradbury’s retroactive authorizations in May 2005, I can see why they’d have to invent some purpose for this torture (and Gul did have associations with al Qaeda — just not very involved ones). But ultimately, this torture fell so far below the standards they had set for themselves, it may well explain a great deal about the tensions between CIA and those in Congress who reauthorized torture based on a fabrication.

Some Torture Facts

/3 Comments/in , /by

At the request of some on Twitter, I’m bringing together a Twitter rant of some facts on torture here.

1) Contrary to popular belief, torture was not authorized primarily by the OLC memos John Yoo wrote. It was first authorized by the September 17, 2001 Memorandum of Notification (that is, a Presidential Finding) crafted by Cofer Black. See details on the structure and intent of that Finding here. While the Intelligence Committees were briefed on that Finding, even Gang of Four members were not told that the Finding authorized torture or that the torture had been authorized by that Finding until 2004.

2) That means torture was authorized by the same Finding that authorized drone killing, heavily subsidizing the intelligence services of countries like Jordan and Egypt, cooperating with Syria and Libya, and the training of Afghan special forces (the last detail is part of why David Passaro wanted the Finding for his defense against abuse charges — because he had been directly authorized to kill terror suspects by the President as part of his role in training Afghan special forces).

3) Torture started by proxy (though with Americans present) at least as early as February 2002 and first-hand by April 2002, months before the August 2002 memos. During this period, the torturers were operating with close White House involvement.

4) Something happened — probably Ali Soufan’s concerns about seeing a coffin to be used with Abu Zubaydah — that led CIA to ask for more formal legal protection, which is why they got the OLC memos. CIA asked for, but never got approved, the mock burial that may have elicited their concern.

5) According to the OPR report, when CIA wrote up its own internal guidance, it did not rely on the August 1, 2002 techniques memo, but rather a July 13, 2002 fax that John Yoo had written that was more vague, which also happened to be written on the day Michael Chertoff refused to give advance declination on torture prosecutions.

6) Even after CIA got the August 1, 2002 memo, they did not adhere to it. When they got into trouble — such as when they froze Gul Rahman to death after hosing him down — they went to John Yoo and had him freelance another document, the Legal Principles, which pretend-authorized these techniques. Jack Goldsmith would later deem those Principles not an OLC product.

7) During both the August 1, 2002 and May 2005 OLC memo writing processes, CIA lied to DOJ (or provided false documentation) about what they had done and when they had done it. This was done, in part, to authorize the things Yoo had pretend-authorized in the Legal Principles.

8) In late 2002, then SSCI Chair Bob Graham made initial efforts to conduct oversight over torture (asking, for example, to send a staffer to observe interrogations). CIA got Pat Roberts, who became Chair in 2003, to quash these efforts, though even he claims CIA lied about how he did so.

9) CIA also lied, for years, to Congress. Here are some details of the lies told before 2004. Even after CIA briefed Congress in 2006, they kept lying. Here is Michael Hayden lying to Congress in 2007

10) We do know that some people in the White House were not fully briefed (and probably provided misleading information, particularly as to what CIA got from torture). But we also know that CIA withheld and/or stole back documents implicating the White House. So while it is true that CIA lied to the White House, it is also true that SSCI will not present the full extent of White House (read, David Addington’s) personal, sometimes daily, involvement in the torture.

11) The torturers are absolutely right to be pissed that these documents were withheld, basically hanging them out to dry while protecting Bush, Cheney, and Addington (and people like Tim Flanigan).

12) Obama’s role in covering up the Bush White House’s role in torture has received far too little attention. But Obama’s White House actually successfully intervened to reverse Judge Alvin Hellerstein’s attempt to release to ACLU a short phrase making it clear torture was done pursuant to a Presidential Finding. So while Obama was happy to have CIA’s role in torture exposed, he went to great lengths, both with that FOIA, with criminal discovery, and with the Torture Report, to hide how deeply implicated the Office of the President was in torture.

Bonus 13) John Brennan has admitted to using information from the torture program in declarations he wrote for the FISA Court. This means that information derived from torture was used to scare Colleen Kollar-Kotelly into approving the Internet dragnet in 2004.

CIA’s Own Records of CIA’s Lies to Congress

/12 Comments/in /by

Monday, WaPo made big news for reporting what Ron Wyden made clear 14 months ago: a key conclusion of the Senate Torture report is that CIA lied to Congress (and DOJ and the White House).

But much of this has been clear for even longer, having been exposed in some form in 2009-10.

Yet much of that got lost in CIA’s aggressive attack on Congress — one that anticipated what we’ve seen and will surely continue to see with the release of the Torture Report.  At the time, CIA attempted to claim Congress had been fully briefed on torture, and therefore shouldn’t criticize the agency. Yet it gradually became clear how laughable CIA’s claims were. Along the way details of the lies CIA told in briefings came out.

The lies CIA told Congress in its first several years of the torture program include that it,

  • Refused, at first, to reveal that the CIA relied on the September 17, 2001 Finding and therefore hid that the President had personally authorized the torture.
  • Briefed on torture techniques that had happened months in the past, but claimed they had never yet been used.
  • Falsely claimed CIA had not tortured before the August 1 memos purportedly authorizing it.
  • Claimed Abd al Rahim al-Nashiri and Abu Zubaydah were not yet compliant as late as February 2003, even though they had been found compliant, after which CIA continued to use torture anyway.
  • Claimed the torture tapes were a perfect match with what had been recorded in the torture log when a CIA OGC lawyer reviewed them in December 2002.
  • Did not disclose the tapes had already been altered by the time CIA OGC reviewed them.
  • Claimed the torture tapes had shown the torturers followed DOJ’s guidance when in fact they showed the torturers exceeded DOJ guidance.
  • Misled regarding whether the detainees who had been killed had been tortured.
  • Oversold the value of information provided by Abu Zubaydah.
  • Lied about importance of torture in getting Abu Zubaydah to talk.

There are a number of claims CIA made that are almost certainly also false — most notably with regards to what intelligence came from torture — but most of that didn’t get recorded in the CIA’s records. I fully expect we’ll find details of those in the Senate Intelligence Committee report.

September 17, 2001: Bush signs “Gloves Come Off” Memorandum of Notification that authorizes capture and detention of top al Qaeda leaders, but leaves CIA to decide the details of that detention

Before I focus on the briefings, some background is in order.

Torture started as a covert operation authorized by the September 17, 2001 Memorandum of Notification. Under the National Security Act, the Intelligence Committees had to be briefed on that Finding and they were. However, the Finding was structured such that it laid out general ideas — in this case, the capture and detention of senior al Qaeda figures — and left the implementation up to CIA. As a result, key members of Congress (notably, Jane Harman, who was Ranking Member of the House Intelligence Committee for much of the period during which the program operated) apparently had no idea that the Finding they had been briefed on in timely fashion actually served as the Presidential authorization for torture until years later. Also, since that September 17, 2001 Finding authorized both torture and the outsourcing of nasty jobs to foreign intelligence partners, the earliest torture, such as that of Ibn Sheikh al-Libi in Egyptian custody starting in February 2002 and Binyam Mohamed in Pakistani custody starting in April 2002, should be considered part of the same covert op.

April to July 2002: CIA tortures Abu Zubaydah based solely on Presidential authorization

By now there is no dispute: the CIA started torturing Abu Zubaydah well before the August 1, 2002 memo that purportedly prospectively authorized that treatment. CIA even exceeded early verbal guidance on things like sleep deprivation, after which CIA unilaterally authorized what CIA had done retrospectively. The CIA appears to have gotten in real trouble when they moved to conduct mock burial with Abu Zubaydah, to which Ali Soufan objected; his objections appear to be the reason why mock burial (and by extension, mock execution) was the only technique John Yoo ultimately rejected. On July 13, after Michael Chertoff refused to give advance declination of prosecution to CIA for things they were ostensibly talking about prospectively but which had in fact already occurred, Yoo wrote a short memo, almost certainly coached by David Addington but not overseen by Yoo’s boss Jay Bybee, that actually served as the authorization CIA’s CTC would rely on for Abu Zubaydah’s torture, not the August 1 memos everyone talks about. As a result, CIA could point to a document that did not include limits on specific techniques and the precise implementation of those techniques as their authorization to torture.

CIA had, in internal documents, once claimed to have briefed the Gang of Four (then Porter Goss, Nancy Pelosi, Richard Shelby, and Bob Graham) in April 2002. But after being challenged, they agreed they did not conduct those briefings. This, then, created a problem, as CIA had not really briefed Congress — not even the Gang of Four — about this “covert op.”

Septmber 4, 2002: CIA provides initial trial balloon briefing to Pelosi and Goss, then starts destroying evidence

On September 4, 2002, 7 months after Egypt started torturing Ibn Sheikh al-Libi at America’s behest, almost 5 months after CIA started torturing Abu Zubaydah, and over a month after the OLC memo that purportedly started a month of torture for Abu Zubaydah, Jose Rodriguez, a CTC lawyer, and Office of Congressional Affairs head Stan Moskowitz first briefed Congress on torture techniques.

The record supports a claim that CIA provided some kind of description of torture to Nancy Pelosi and Porter Goss. It supports a claim that neither objected to the techniques briefed. Both Pelosi and Goss refer to this briefing, however, as a prospective briefing. Goss referred to the torture techniques as “techniques [that] were to actually be employed,” not that had already been employed, and when asked he did not claim they had been briefed on techniques that had been used. Pelosi claimed,

I was informed then that Department of Justice opinions had concluded that the use of enhanced interrogation techniques was legal. The only mention of waterboarding at that briefing was that it was not being employed.

Those conducting the briefing promised to inform the appropriate Members of Congress if that technique were to be used in the future.

Thus, at least as far as Goss and Pelosi are concerned, over a month after they first waterboarded Abu Zubaydah (and many more after Egypt had waterboarded al-Libi for us), CIA implied they had not yet done so with any detainee.

As striking as the evidence that CIA only briefed prospectively on torture that had been used for as many as 7 months, however, is what happened next. CIA moved to destroy evidence.

The day after that initial briefing in which CIA told Congress it might torture in the future, it “determined that the best alternative to eliminate those security and additional risks is to destroy these tapes.” Then, the following day, CTC altered its own notes on the substance of the briefing, taking out a sentence (it’s not clear what that sentence said). CIA’s Office of Congressional Affairs never finalized a description for this, and at one time even listed Jane Harman as the attendee rather than Pelosi. In fact, in a list of the briefings on torture compiled in July 2004, it did not treat this briefing as one covering torture at all.

In addition, for some reason a briefing for Bob Graham and Richard Shelby  initially scheduled for September 9 got rescheduled for the end of the month, September 27. According to available records, Jose Rodriguez did not attend. According to Bob Graham’s notoriously meticulous notes, the briefing was not conducted in a SCIF, but instead in Hart Office Building, meaning highly classified information could not have been discussed. Graham says it chiefly described the intelligence the CIA claimed to have gotten from their interrogation program. Graham insists waterboarding did not come up, but Shelby, working off memory, disputes that claim.

February 4 and 5, 2002: CIA gets Republican approval to destroy the torture tapes, kills SSCI’s nascent investigation, and refuses to explain torture’s Presidential authorization

By November 2002, Bob Graham had started to hear vague rumors about the torture program. He did not, he says, receive notice that CIA froze Gul Rahman to death after dousing him with water or even hear about it specifically. But because of those rumors, Graham moved to exercise more oversight over the torture program, asking to have another staffer read into the program, and asking that a staffer see a Black Site and observe interrogation. That effort was thwarted in the first full briefing CIA gave Congress on torture on February 4, 2002, when CIA told Pat Roberts (who had assumed Senate Intelligence Chair; newly Ranking Member Jay Rockefeller was not present at this briefing, though a staffer was) they would not meet Graham’s requests. CIA claims — but Roberts disputes — that he said he could think of “ten reasons right off why it is a terrible idea” to exercise such oversight.

In addition to getting Roberts to quash that nascent assessment, CIA gave Roberts the following false information:

  • CIA described Abu Zubaydah and Abd al Rahim al-Nashiri “as founts of useful information” about “on-going terrorist operations, information that might well have saved American lives.” While Abu Zubaydah provided some useful information, the “ongoing operations” were often invented. Moreover, of all the information Abu Zubaydah gave up under torture, just 10 bits of it were deemed important enough to appear in the 9/11 Report.
  • CIA told Roberts about the “difficulty of getting that information from [Nashiri and Zubaydah], and the importance of enhanced techniques in getting that information.” Public records show CIA repeatedly attributed to Abu Zubaydah either things FBI had elicited without torture or things CIA learned via other means.
  • CIA claimed Nashiri and Abu Zubaydah were not yet compliant. “[T]hey have not, even under enhanced techniques, revealed everything they know of importance.” Subsequent reports made clear that in both cases, they were fully compliant but people within CIA demanded more torture believing they were withholding information.
  • To get Roberts to buy off on the destruction of the torture tapes, CIA told Roberts “the match” between what appeared in the torture tapes and what got recorded in CIA logs “was perfect” and that the CIA OGC lawyer who had reviewed the tapes “was satisfied that the interrogations were carried out in full accordance with the guidance.” While it is in fact true that CIA OGC claimed the tapes were an exact match, in fact the tapes had already been significantly altered (and the taping system had been shut down for some torture sessions), and the tapes showed that the torturers had not followed DOJ’s guidelines on torture. CIA also appears to have neglected to tell Roberts that 2 of the tapes showed interrogations involved Nashiri.

The Memorandum of Understanding of this briefing appears to be one of only two that got finalized (it actually included a reference that Goss and Harman had been briefed on the torture tape, but not that Harman warned against destroying it).

The February 5, 2003 briefing involving Porter Goss and Jane Harman is just as interesting, though CIA has refused to release their notes from it.

Five days after the briefing, Harman wrote a letter questioning whether torture had been reviewed from a policy perspective and advising against destroying Abu Zubaydah’s torture tape. In addition, she asked if the President had signed off, revealing that she didn’t know that the Finding she had been briefed on included torture. The CIA and the White House met to decide how to respond. In the end, CIA General Counsel Scott Muller’s response didn’t really answer any of Harman’s questions, nor note her warning against destroying the torture tape.

Also note: in the month before these briefings, the CIA prepared what appears to be a tear-line document on Abu Zubaydah. While it’s not certain the document was prepared to brief the Gang of Four, it matches what we know to have been said to Roberts, especially as regards to the torture tapes. But it also reveals real discrepancies between the tear-line (Secret) claims and the Top Secret claims it was based on, notably inflating the value of Abu Zubaydah’s intelligence below the tear-line.

September 4, 2003: An innocuous briefing left off some of the tracking

We don’t really know what happened in the September 4, 2003 briefings of both Goss and Harman and Roberts and Rockfeller, which is a shame because it would have covered Khalid Sheikh Mohammed’s treatment (and that of Ammar al-Baluchi, whom we now know may have been treated even worse than his uncle). In fact, it was left off lists of “sensitive” briefings at different times.

July 2004: CIA has to tell Congress even CIA(‘s IG) thinks they lied

On May 7, 2004, CIA’s IG John Helgerson completed his report finding that the torture had exceeded guidelines and questioning the value of the intelligence obtained using it. On June 23, the Roberts and Rockefeller got copies (it’s not clear whether Goss and Harman got advance copies). On July 13, 2004, CIA briefed Goss and Harman again.

The briefing did include some details from CIA IG John Helgerson’s report on the program — that it violated the Convention Against Torture and did not comply with the OLC memos. He also explained that both Abu Zubaydah and Khalid Sheikh Mohammed’s waterboarding was problematic, the first in execution and the second in number.

As part of that briefing (or by reading the IG Report), Harman learned that the Finding authorized this torture; in the briefing she pointed out the Finding had only authorized detention and capture, not interrogation.

But CIA persisted in a narrow dodge and two false claims:

  • CIA claimed that none of the at least 3 or 4 detainees who had died in CIA custody by that point were in the interrogation program; by that, it meant only that they weren’t part of the RDI program, but CIA did in fact torture them before they died.
  • CIA claimed we had not used any torture before the OLC memos, which is only true if you ignore that al-Libi and Mohamed’s torture was carried out by proxies.
  • CIA claimed it did not start torturing Abu Zubaydah until August 1; in reality, they had started torturing him earlier.

There are few details on the briefing CIA gave Roberts and Rockefeller on July 15.

These are just the details of the lies CIA itself has documented and released CIA telling Congress. There are other allegations of CIA lies in briefings, though those records were not released under FOIA. And things started getting really funky in 2005, as Dick Cheney started participating in CIA briefings to try to defeat the Detainee Treatment Act. In addition, CIA briefed Pete Hoekstra (who had become the Chair of the House Intelligence Committee) on the morning they destroyed the torture tapes; the content of that briefing has never been revealed.

None of this excuses Congress, of course: the knew enough to know this was problematic.

But it is clear that CIA lied to them both to boost the value of the torture they were doing and to diminish the problems and abuses.

Rizzo’s Brief with Nancy Pelosi: Bush Didn’t Include Torture in the Finding Authorizing Torture

/107 Comments/in , , /by

I’m going to deal with John Rizzo’s purported “mea culpa” in three posts, one each for each of his regrets.

Rizzo’s first regret is that the CIA did not push the White House to allow it to brief the entire intelligence committees so they could, as Rizzo said, “allow the committees—compel them, really—to take a stand on the merits to either endorse the program or stop it in its tracks.”

It’s an argument I totally agree with. But to make his argument, Rizzo mobilizes some of the same lies about the CIA’s briefing of the torture program, notably about Nancy Pelosi. He does so, however, with a really spooky move.

Shortly thereafter, almost seven years after CIA first informed her about its employment of waterboarding and the other EITs, the Speaker of the House of Representatives, Nancy Pelosi, stood before the cameras and claimed that all CIA ever told her was that waterboarding was being “considered” as an interrogation tactic, not that it would be ever employed. Confronted with evidence to the contrary, the Speaker subsequently conceded that she had been informed about EITs from the outset but insisted she was always opposed to them but powerless to do anything to stop them. None of which was true, but in hindsight the Speaker’s moonwalk was hardly unforeseeable.

It’s the same old story turning the question of whether Pelosi was briefed prospectively or historically into a claim that “she had been informed about EITs from the outset” without mentioning that even Porter Goss’ version of the briefing is consistent with Pelosi’s claim that CIA didn’t tell them in September 2002 that they had already started using torture. Rizzo’s use of this tired tactic is all the worse considering that 1) it appears that he was not at the briefing in question, and 2) the CIA changed its record of the briefing after the fact.

In other words, Rizzo’s attack on Pelosi is total bullshit. Furthermore, the attack falsely suggests that CIA briefed Congress before torture started.

But his use of Pelosi to make this point is rather intriguing. Rizzo makes no mention of Bob Graham’s attempt to exercise oversight over the torture program, which was discouraged by the CIA and thwarted by Pat Roberts.

More significantly, Rizzo makes no mention of Jane Harman, who did object to the program but proved unable to “stop it in its tracks.”

Rizzo’s silence about CIA’s briefing to Harman–and her objection to the torture program–is more significant given something else he asserts in this piece.

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. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.

Rizzo starts by invoking the September 17, 2001 Presidential Finding that authorized the CIA to capture and detain al Qaeda members. He tells us–this may be news, actually–that that Finding was briefed to the entire intelligence committees and to appropriations committees. But then he says that the torture part of that program “could only be shared” with the Gang of Eight.

The detail is interesting, by itself, for the way it contradicts Rizzo’s later (false) claim that “every other member of Congress” “would be kept in the dark” about the torture program. After all, the Leaders are also members of Congress, but if the CIA’s own error-ridden briefing list is to be believed, the only Leader who ever got briefed in that role was Bill Frist (while Appropriations Subcommittee Republicans Duncan Hunter, Ted Stevens, and Thad Cochran also got briefings, as well as John McCain).

The comment is more interesting for what it says about the Finding itself. The CIA has long suggested (and reporting has repeated) that that Finding authorized the torture program. But Rizzo is making it clear here that that Finding did not include authorization for the torture program. The oral briefings the Gang of Four got were the only way the way the President informed Congress about the torture program.

While it’s significant that Rizzo is here admitting that fact, we already knew it. We knew it because Jane Harman twice asked about a Finding on torture, once implicitly in 2003 when she asked “Have enhanced techniques been authorized and approved by the President?” and once in the briefing CIA gave her on July 13, 2004, when she,”noted that the [redacted–almost certainly the Finding] did not specify interrogations and only authorized capture and detention.”

In other words, Rizzo basically admits that the point Jane Harman appears to have made repeatedly was correct: the torture program had not been formally included in a Finding briefed to Congress.

Rizzo’s lies about briefing Congress don’t appear to be the issue here. Rather, the problem is that the Administration did not issue the legally required Finding to Congress.

Did the White House Review CIA’s Records on Congressional Briefings?

/107 Comments/in /by

A month ago, I wrote a post noting that CIA had never finished its Memos for the Record of several key Congressional briefings. But as I’ve been reviewing old Vaughn Indices to get a better sense of what we received yesterday, I’ve seen some details that raise new questions about CIA’s use of Congressional briefings.

That post from last month was based on this FOIA dump, including a collection of materials on whether or not Congress was briefed on the tapes. Those materials include:

  • A 2-page MFR of Pat Roberts’ February, 4 2003 briefing on torture and the tapes printed out on November 19, 2008. It noted that Roberts named “10 reasons right off” for Congress not to exercise any oversight over torture. It also recorded these details about what CIA told Roberts about the torture tapes:

[Deputy Director of Operations Jim] Pavitt and [CIA General Counsel Scott] Muller described the circumstances surrounding the existence of tapes of the Zubayda debriefing, the inspection of those tapes by OGC lawyers, the comparison of the tapes with the cables describing the same interrogations. According to Muller, the match was perfect and the lawyer who did the review was satisfied that the interrogations were carried out in full accordance with the guidance. Muller indicated that it was our intention to destroy these tapes, which were created in any case as but an aide to the interrogations, as soon as the Inspector General had completed his report. (In a subsequent briefing to Congressmen Goss and Harman, Muller said that the interrogators themselves were greatly concerned that the tapes might leak one day and put themselves and their families at risk.) Senator Roberts listened carefully and gave his assent. [my emphasis]

  • A two-page MFR by Office of Congressional Affairs head Stanley Moskowitz prepared on July 11, 2004, presumably in advance of the 2004 Congressional briefings on (among other things) the IG Report. It lists 4 relevant briefings (the February 4, 2003 briefing for Roberts; the February 5, 2003 briefing for Goss and Harman; the September 4, 2003 briefing for Goss and Harman; the September 4, 2003 briefing for Roberts and Rockefeller). Moskowitz attached the February 4, 2003 Roberts briefing to that memo, noting that “the remainder of the sessions are being finalized.”
  • A one-page MFR for the February 5, 2003 Goss and Harman briefing printed out on April 27, 2009 (so not long before CIA released its torture briefing list on May 7, 2009). The MFR states, “Pls see attached notes.” It also records that the “MFR never completed. Closed in FELIX 10/3/07 by OCA IMO.”
  • An earlier version of that same one-page MFR of the February 5, 2003 Goss and Harman briefing. The print date on it is not shown, though it shows no record of being closed out and/or never completed. There is a post-it on the document labeling it for the “AZ FILE.”
  • A stub noting that “Pages 3-5 withheld in full,” which suggests the two previous pages–the two copies of the Goss and Harman MFRs–were considered part of a package with these withheld pages. This suggests these withheld pages may be the actual notes from the briefing.
  • Read more →

Senator Bob Graham: Majority on Senate Intelligence Committee Supported Interrogation Oversight in 2002

/71 Comments/in , /by

A couple of weeks ago, I noted that the CIA Memorandum for the Record from their February 4, 2003 briefing of Pat Roberts revealed that Bob Graham, Roberts’ predecessor as Chair of the Senate Intelligence Committee, had attempted to institute some oversight over the CIA’s interrogation program in November 2002. After CIA discouraged the idea in the briefing, Roberts immediately backed off the idea of doing any oversight.

Roberts’ [redacted; staffer?] asked me whether I had “taken up the line” the Committee’s, actually Senator Graham’s, late November request to undertake its own “assessment” of the enhanced interrogation. I [Stan Moskowitz, head of Congressional Affairs] explained to Senator Roberts the dialogue I had had with [redacted], and our responce [sic] that we would not support reading another staffer into the program nor allow any staffer to review the interrogations in real time or visit the clandestine site where the interrogations were taking place. Quickly, the Senator interjected that he saw no reason for the Committee to pursue such a request and could think of “ten reasons right off why it is a terrible idea” for the Committee to do any such thing as had been proposed. Turning to [redacted], he asked whether they thought otherwise and they indicated that they agreed with the Senator.

I wanted to know what kind of oversight Graham had had in mind, so I asked Senator Graham for an explanation of the reference. According to Graham, a majority of Committee members in November 2002–including a few Republicans–supported conducting oversight of the program. And it seems that CIA mischaracterized to Roberts what Graham had planned, perhaps in an effort to dissuade Roberts from conducting that oversight.

Graham reminded me (as I reported last May) that he was never briefed on the abusive techniques the CIA was using. So he didn’t decide to do more oversight of the program because of concerns about the techniques.

Rather, there was “a lot of smoke” that made it clear “something out of the norm was occurring.” There were “rumors that something was occurring out of the ordinary.” (I asked specifically whether he had heard any rumors about the November 2002 Salt Pit death, but he said he had not.)

But contrary to what the CIA represented to Roberts, Graham wasn’t asking to “review the interrogations in real time.” He was planning initial oversight of the interrogation program. He wanted to ask basic questions about what was going on:

  • What’s going on?
  • Who authorized the program?
  • What [intelligence] are we getting out of it?

Graham told me that “well over a majority” of the committee supported doing such oversight. When I asked, he said Jay Rockefeller, who replaced him as the Ranking Democrat on the Committee, supported the effort. Though Graham didn’t remember precisely who was on the Committee at the time (here’s the list), he named Richard Lugar and Mike DeWine as two of the Republicans who were probably in the majority supporting this kind of oversight over the program.

But between CIA’s apparent misrepresentations to Roberts and Roberts’ own disinterest in asking even the most basic questions about the CIA’s interrogation programs, those efforts ended when Graham left the committee and Roberts took over as Chair.

And that’s how Pat Roberts and CIA agreed to avoid asking or answering even the most basic questions about the Bush Administration’s torture program.

Pat Roberts' "10 Reasons Right Off" Not to Exercise Oversight Over Torture

/in /by

Practically the first thing Pat Roberts did after he became Chair of the Senate Intelligence Committee was to back down off nascent efforts Bob Graham had made as SSCI Chair to exercise real oversight over the torture program. That’s one of the most important details revealed in the Memo for the Record [big PDF] of the briefing Pat Roberts received on the torture program on February 4, 2003. (For more background on this FOIA dump see this post; for the evidence in it that Michael Hayden knowingly lied to Congress see this post.)

Roberts’ “ten reasons right off” not to exercise oversight over torture program

In addition to Roberts’ accession to the destruction of the torture tapes, he appears to have spiked an effort, started by Bob Graham (who had been SSCI Chair), to exercise more oversight over the torture program.

Roberts’ [redacted; staffer?] asked me whether I had “taken up the line” the Committee’s, actually Senator Graham’s, late November request to undertake its own “assessment” of the enhanced interrogation. I [Stan Moskowitz, head of Congressional Affairs] explained to Senator Roberts the dialogue I had had with [redacted], and our responce [sic] that we would not support reading another staffer into the program nor allow any staffer to review the interrogations in real time or visit the clandestine site where the interrogations were taking place. Quickly, the Senator interjected that he saw no reason for the Committee to pursue such a request and could think of “ten reasons right off why it is a terrible idea” for the Committee to do any such thing as had been proposed. Turning to [redacted], he asked whether they thought otherwise and they indicated that they agreed with the Senator. [my emphasis]

And so it was that Pat Roberts, in one of his first actions as SSCI Chair, squelched an effort that might have prevented the torture program from metastasizing across our counter-terrorist (and Iraqi) efforts.

Read more →

SSCI Investigating Its Torture Briefings

/30 Comments/in /by

I’m all in favor of an unrelenting focus on Dick Cheney’s role in torture, but I think David Corn’s focus on the possibility that Cheney’s briefing of Pat Roberts and Jello Jay on March 8 (and possibly March 7), 2005 is too narrowly focused. (h/t fatster via RawStory)

"The Senate intelligence committee’s study includes an examination  of how the committee was briefed on the CIA’s detention and interrogation program,"  says Phil LaVelle, a Feinstein spokesperson. "This includes briefings of committee leadership, and is not limited by who conducted the briefing." The committee has restricted this part of its review and is not examining briefings provided to other committees–such as the House intelligence committee–according to a congressional source familiar with the probe. But given that Cheney briefed two senior members of the Senate intelligence panel, the committee can review what Cheney told Roberts and Rockefeller about the interrogation program and evaluate whether his assertions were supported by the facts. That is, the Cheney briefing is fair game for the Senate investigators.

[snip]

So did Cheney make an honest presentation during the behind-closed-doors meetings with congressional leaders when he was veep? Feinstein can find out–if she wants to.

The Senate intelligence committee’s investigation is not wide-ranging–which may be good news for Cheney. According to a press release it issued, the committee is mainly focusing on what the CIA did, whether it remained in compliance with guidance it received from the Justice Department, and what was the value of the intelligence it obtained through the use of "enhanced and standard interrogation techniques."  That press release makes it seem unlikely that the committee is investigating whether the White House–with or without Cheney’s involvement–pressured the Justice Department to cook up legal cover for the CIA’s use of so-called enhanced interrogation techniques.

When I asked LaVelle whether the committee was examining the 2005 Cheney briefing, he declined to comment. The committee is not confirming or denying any specific aspects of its inquiry, including the witnessess it has or will be interviewing. But the committee has granted itself the authority to investigate what Cheney told committee members about the CIA interrogations. If it chooses not to do so, its probe will be incomplete. [my emphasis]

That is, I think Cheney’s role in persuading the SSCI not to investigate the torture program in 2005 may be one of the least interesting things the SSCI might be investigating wrt its CIA briefings. Consider two other items of interest:

CIA Claims to Have Briefed Democrats When It Didn’t

Read more →

Why Is Pat Roberts So Quiet?

/50 Comments/in /by

Virtually every report treating the CIA list of torture briefings seems either blissfully ignorant of or totally unconcerned with two significant conflicts between that list and the SSCI Narrative released earlier last month. The conflicts are:

  • CIA says Jello Jay attended the February 4, 2003 briefing on torture; SSCI says he did not (though note CIA’s asterisked comment admitting "later individual briefing to Rockefeller" and Rockefeller’s recent statement about being briefed, which suggests they may be reaching consensus that he had a later, "incomplete" briefing).
  • CIA does not say it briefed the Senate on "legal/policy issues" nor that "CIA [was] currently seeking reaffirmation from DOJ on use of EITs as well as renewed policy approval from NSC principals to continue using EITs" on July 15, 2004–it says it did brief the House intell leaders on this; SSCI says CIA did say it "was seeking OLC’s legal analysis on whether the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture."

The conflicts are important because, if the SSCI narrative is correct, it would show key conclusions reporters are making about the briefings are false, it would clearly undermine the validity of the rest of the CIA briefing list, and it would show that CIA’s version left out key aspects of Congressional oversight (or lack thereof). If the CIA version is correct, it would mean CIA avoided at least one discussion about legal issues that pertained directly to the Senate’s role in approving treaties.

The conflict, however, is not just a he-said-he-said conflict between Bush’s CIA leadership and one key Democrat. The CIA and the SSCI agree that Pat Roberts attended both of these briefings (though not the individual briefing Jello Jay had). Now, Pat Roberts was not on SSCI when it developed its narrative, so he may or may not have had input into the narrative. But it has been public for weeks, and Pat Roberts remains mum about its accuracy (or not; also, he has not yet weighed in on the CIA version, either). 

But we do know there has been an extended process between CIA and SSCI on these issues. 

As Jello Jay explains, discussions about the SSCI narrative started last August–and the CIA, as well as key members of the Bush Administration–got input.

In August 2008, I asked Attorney General Michael B. Mukasey to join the effort to create such an unclassified narrative. Read more →

About Democratic Complicity: the Early Briefings on Torture

/105 Comments/in /by

Leen links to two articles suggesting the Democrats are reluctant to have a truth commission because of their own complicity in torture.

Now, I don’t mean to be an apologist for Democrats on torture–because I do believe the Constitutional Speech and Debate clause must take precedence over national security guidelines that limit briefings to the Gang of Four or Eight. But before we start attacking Democrats, let’s establish what we know about briefings that happened before the waterboarding of detainees. Between the public spat between Porter Goss and Nancy Pelosi, Jane Harman’s letter to Scott Muller, and the SSCI Narrative, we can establish that the only Democrat who was briefed in time to prevent waterboarding and told it had been and was going to be used–Jane Harman–wrote a letter raising concerns about the techniques.

Fall 2002: The CIA first briefed the Gang of Four (then comprising Richard Shelby, Porter Goss, Bob Graham, and Nancy Pelosi) after the waterboarding of Abu Zubaydah had already ended–and possibly after the waterboarding of al-Nashiri had, too. Furthermore, even Porter Goss appears to confirm Nancy Pelosi’s assertion that the CIA spoke of enhanced techniques (whether or not they mentioned waterboarding specifically) as a prospective activity. That is, in fall 2002, CIA did not reveal that it had already waterboarded Abu Zubaydah (and possibly al-Nashiri).

January/February 2003: Three of four leaders in the intelligence committees changed in 2003. Jello Jay replaced Graham (who was running for President), Pat Roberts replaced Shelby (who had been ousted for leaking classified information), and Jane Harman replaced Pelosi (who had become Minority Leader). The SSCI Narrative notes that Roberts–but not Jello Jay–got a briefing in "early 2003" (though Jello Jay’s staffer did attend).

After the change in leadership of the Committee in January of 2003, CIA records indicate that the new Chairman of the Committee was briefed on the CIA’s program in early 2003. Although the new Vice-Chairman did not attend that briefing, it was attended by both the staff director and minority staff director of the Committee.

In addition, Scott Muller refers to briefing Goss and Harman on February 5, 2003.

Thank you for your letter of 10 February following up on the briefing we gave you and Congressman Goss on 5 February concerning the Central Intelligence Agency’s limited use of the handful of specially approved interrogation techniques we described.

Muller’s reference to Goss and Harman–but not Roberts–suggests it’s possible that Roberts received a separate briefing, potentially with different content. Read more →