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Helgerson’s Hints

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JasonLeopold linked to two interviews with John Helgerson, who as the CIA’s former Inspector General, oversaw its investigation into torture. (Fox, Spiegel)

Helgerson and Cheney

The Fox one, perhaps predictably, focuses on Helgerson’s reported interactions with Cheney, providing a counterpoint to Jane Mayer’s portrayal of discussions between the two men as heated.

"The VP (whom I had long known reasonably well, as, in a non-IG capacity, I used to brief the House Intelligence Committee on a weekly basis when he was an active Member) received me graciously and asked a number of good and appropriate questions. Despite what you may have read elsewhere, he did not attempt in any way whatsoever to intimidate me or influence what we were finding, concluding and recommending," Helgerson wrote in an e-mail to FOX News. 

Of course, if Helgerson was briefing the committee regularly during this period, it is likely he was interacting with Addington, then a Counsel on the committee. Also at that time, one of CIA’s young lawyers, John Rizzo, was "the Agency’s focal point in dealing with the joint congressional committee investigating the Iran-Contra Affair." So, curiously, Cheney, Addington, Rizzo, and Helgerson were probably all involved with the House Intelligence Committee during the Iran-Contra issues.

Given the description he gives of his relationship with Cheney, I’m particularly interested in Helgerson’s description of how and why Cheney got a briefing.

"Only infrequently do IG reports take on such significance that they need to be briefed to the VP, and when this is the case, normally White House or NSC Counsel, or the VP’s own staff, receive the material first and then inform the VP as they see fit," he wrote.

Helgerson said that at the time the review had been completed, he and others in the spy agency briefed a number of key parties about the program and the IG’s findings. They included members of the White House, the National Security Council, Congress and the Department of Justice.

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The “Legal Principles” Timeline

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I wanted to do a "Legal Principles" timeline to better understand why the document was developed and what more we might learn from it.

As a reminder, the "Legal Principles" document is a set of bullet points CIA’s Counterterrorism Center developed with the participation of John Yoo. Though the document was undated and unsigned, CIA tried to claim it counted as "DOJ agreement" an official OLC opinion authorizing key parts of their torture program.

It appears the "Legal Principles" document claimed to do three things:

  • Authorize the use of torture with other "al Qaeda" detainees, even those not described as "High Value"
  • Legally excuse crimes, potentially up to and including murder
  • Dismiss CAT’s Article 16 prohibition on cruel and inhuman treatment

As such, the document formed a critical legal fig leaf leading up to the release of the IG Report (at which point OLC clarified in writing that it was not a valid OLC opinion). I suspect the need to replace this explains some of the urgency surrounding the May 2005 OLC opinions.

John Yoo’s Original Approvals

The early approvals for torture focus largely on the torture statute to the detriment of other laws. Furthermore, the specific approval for torture–the Bybee Two memo–only covered Abu Zubaydah.

July 13, 2002: John Yoo writes Rizzo a letter outlining "what is necessary to establish the crime of torture."

August 1, 2002: Bybee memos establish organ failure standard and support necessity defense, state that interrogation would not be subject to ICC, and approve ten techniques for use with Abu Zubaydah.

Crimes Create the Need for New Approvals

It appears that the deaths in custody in November and December 2002 may have been the impetus for the "Legal Principles," in which case they can be understood as a way to dismiss crimes–including murder–committed on detainees.

November, December 2002: Deaths in CIA custody, (probably) abuse of al-Nashiri.

December 2002: Scott Muller meets with OLC (and Criminal Division) and briefed them on scope and breadth of program.  

April 28, 2003: Muller has draft of Legal Principles hand-carried to John Yoo. It states:

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

CIA Delivers "Legal Principles" to Philbin as Final Document after Yoo Leaves

In 2003, John Yoo left the OLC, which appears to have created legal exposure for CIA because they had the understanding that his authorizations were carte blanche authorizations. CIA tried to deal with this by presenting Yoo’s carte blanche to his replacement, Pat Philbin, as a fait accompli.

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More on CIA’s Fictions about Executive Branch and Congressional Briefings

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I’ve been promising to return to the way that the CIA IG Report discusses the Congressional and Executive Branch approvals for the torture program. Particularly given John McCain’s complaint that CIA misrepresented what he said in a torture briefing, I thought it time to do so.

A close look at the claims the IG Report made about approvals shows it:

  • Repeats earlier CIA vagueness and outright lies about Congressional briefings and individual Members’ responses to those briefings
  • Emphasizes the centrality of DOJ to approvals, at times misleadingly 
  • May obscure the timing of and the participants in White House approval of the program

Now, remember, it’s not clear whether these fictions are the IG’s fiction, or whether John Helgerson’s team was given crappy information. One other thing to keep in mind, though, is that the IG Report appears to have been drafted as early as February 24, 2004–over two months before it was ultimately released. While Cheney had a chance to review the document, DOJ did not. And Congress was only given the document the week of June 18, 2004, when Ashcroft started balking at its content.

What follows is a paragraph by paragraph assessment of the CIA IG’s claims about Congressional and Executive Branch approvals for torture. 

45. At the same time that OLC was reviewing the legality of EITs in the summer of 2002, the Agency was consulting with NSC policy staff and senior Administration officials. The DCI briefed appropriate senior national security and legal officials on the proposed EITs. In the fall of 2002, the Agency briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard techniques and EITs.

To some degree the first sentence of the paragraph matches what appears in the SSCI Narrative, which shows the following "consultations:"

April 2002: OGC "began discussions with [Bellinger] and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. Bellinger briefed Condi Rice, Stephen Hadley, Alberto Gonzales, John Ashcroft, Michael Chertoff

Mid-May 2002: OGC meets with Ashcroft, Condi, Hadley, Bellinger, and Gonzales

July 13, 2002: OGC met with Bellinger, Yoo, Chertoff, Daniel Levin, Gonzales

July 17, 2002: George Tenet met with Condi, who okays torture program

Though of course, it uses a rather broad definition of "summer." I’m also curious about the "at the same time" description. The SSCI narrative notes that OGC didn’t talk to OLC until after the first consultations. And neither of these account for the alleged earlier approvals going back to at least May. Neither of these account for the meetings between the War Council (Addington, Yoo, Haynes, Rizzo, and Gonzales) going back much further. Furthermore, neither lists the July 13, 2002 letter from Yoo to Rizzo basically instructing him how to game the law. In other words, I wonder (as I have since the SSCI Narrative came out) whether the NSC-CIA discussions are really a distraction from the much earlier approvals involving other lawyers like Addington and Haynes?

Now onto the sentence describing the Congressional briefing. Read more →

Those Undated “Legal Principles”

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As I noted in an update to my post asking for the unsigned, undated document authorizing the expansion of the torture program from one applying just to Abu Zubaydah to one that could be exported around the world, I have found the document. Or rather the documents–they appear to have been revised over time. Here are three that were included in last night’s document dump.

April 28, 2003: Hand-carried from Scott Muller to John Yoo

June 16, 2003: Faxed from CTC to Patrick Philbin

March 2, 2004: Faxed from Scott Muller to Jack Goldsmith

The three are worth reading in sequence to see how the CIA’s gross rationalizations of patently illegal behavior evolved over time. The April document appears to be a draft developed with John Yoo. The second is a "final" version, apparently written by CIA, sent to Philbin for his files. And the last is a request from Scott Muller to get Jack Goldsmith to reaffirm the three August 1, 2002 memos, as well as the June 16, 2003 version of the legal principles, and add water flicking and water dousing to the approved techniques (which would not be done, ultimately, until the May 2005 memos).

The first copy includes one claim that was removed from the document entirely.

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

I guess we know where the culture that seemed to allow the raping of prisoners came from.

The June 16 document, in addition to shifting language about the US reservations on the Convention Against Torture and on whether international law imposes "no limitation" (April 28) or "no obligations" regarding the treatment of detainees, also had four paragraphs pertaining to the application of the Federal War Crimes statute, the torture statute, and the Fifth, Eighth, and Fourteenth amendments (note, those paragraphs appear in a second file included with the April 28 document, but must not have been part of it originally, because the fax cover sheet to Yoo noted only 3 pages).

In other words, sometime between April and June of 2003, some decided to replace Yoo’s broad "US criminal statutes do not apply" with a discussion of specific statutes that, for some pretty bogus reasons, they claimed did not apply. Read more →

John Durham’s Torture Tape Documents

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Jason Leopold reported on and posted a late update to the ongoing torture tape FOIA exchange. If I read the latest exchange correctly, Special Prosecutor John Durham is at least preparing to identify–and potentially make available through FOIA–a number of older documents on the torture tape destruction, as well as admitting that some more recent documents on the torture tape destruction exist.

Today’s letter does two things. First, it withdraws John Durham’s objection to Judge Hellerstein’s order that:

The government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002. I find that the period for such production should be April 1, 2002 through June 30, 2003. If this longer period imposes an unreasonable burden, the Government should show why, and whether a reasonably shorter period would provide sufficient disclosure.

Today’s letter states:

For the reasons stated in the enclosed ex parte letter from John H. Durham provided for the Court’s in camera review, we write to advise the Court that Mr. Durham withdraws his objection to paragraph 4 of the Court’s April 20, 2009 Order.

In addition, the letter admits that the CIA has documents pertaining to the torture tape destruction,

that fall outside the date range provided in the Order; namely, April 1, 2002 through June 30, 2003. Mr. Durham may have objections to the production of documents created outside the date range specified in the Order.

This news is not surprising–it had always bugged me that the otherwise thorough Hellerstein hadn’t demanded documents for the period right up until the destruction of the torture tapes in November 2005. Now, Durham is admitting such documents exist–which we knew, because among other things, we knew that John Negroponte sent Porter Goss a memo in 2005 telling him not to destroy the tapes. But it’s nice to know that Durham is willing to go out of his way to admit that such documents exist.

If I had to guess, I’d say that Durham has finished his investigation of the earlier period–through June 30, 2003–so is now willing to produce at least a Vaughn Index of what documentation exists for the period (note, this should include the documents surrounding the Jane Harman briefing from February 5, 2003, including her letter telling the CIA not to destroy the tapes, and any paper response Scott Muller made internally at CIA). Read more →

Remember the Torture Tapes?

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Just about everyone is talking about ABC’s confirmation of what we already knew: the torture was approved–in excruciating detail–by the most senior members of the Bush Administration.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Now, the article is actually incredibly vague about which of the high-value detainees the Principals discussed interrogating. For example, it suggests that Abu Zubaydah’s torture was planned by the Principals. But then–where elsewhere it asserts that all of the Principals approved the torture–it backs off that claim specifically with regards to Zubaydah.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand, he was uncooperative.

[snip]

The CIA wanted to use more aggressive — and physical — methods to get information.

The agency briefed high-level officials in the National Security Council’s Principals Committee, led by then-National Security Advisor Rice and including then-Attorney General Ashcroft, which then signed off on the plan, sources said. It is unclear whether anyone on the committee objected to the CIA’s plans for Zubaydah.

Read more →

Harman’s Letter

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TPMM has a copy of Jane Harman’s letter to then CIA General Counsel Scott Muller and his reply (h/t BayStateLiberal). As Paul Kiel notes, Muller blows off Harman’s warning not to dispose of the Zubaydah tape.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

Muller simply doesn’t acknowledge her advice in his return letter.

But even without a response, Harman’s advice is instructive. It reveals that–at least in February 2003–CIA premised the destruction of the torture tapes on the completion of Helgerson’s IG inquiry into interrogation methods. That confirms my earlier suspicions that the torture tapes were intimately connected with the IG inquiry–and makes the May 2004 White House discussion of whether or not to destroy the tapes all the more damning. After all, they can’t very well deny that the IG reported that the tapes showed methods that may have been illegal if they claimed the torture tape destruction tied to the inquiry itself? So once the report came out, they would be bound to keep the tapes since they would have verified or refuted the IG report.

Also note, Harman mentions only Zubaydah, not al-Nashiri. Did Muller just neglect to mention the latter AQ detainee? Or are we getting a somewhat fickle depiction of what tapes were kept?

Just as interesting is the partial blow-off that Muller gives Harman on the issue of the policy wisdom of torturing detainees, as distinct from the legal implications. She asks, Read more →