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Did Thomas Drake Include Privacy Concerns in His Complaints to DOD’s Inspector General?

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I’ve been reviewing the docket on Thomas Drake’s case to see whether it touches on the privacy concerns Drake had about NSA’s post-9/11 activities.

It appears it doesn’t, even while there was an ongoing dispute about whether or not Drake will have access to the materials he submitted to the DOD Inspector General in support of claims that the ThinThread program operated more effectively than the Trailblazer program that Michael Hayden chose to enrich SAIC with instead (the Judge ruled that material would be admissible, but not a formal whistleblower defense, which Drake wasn’t trying to do anyway).

There are a couple of reasons why the silence, in the legal filings, about privacy concerns is interesting (aside from the fact that it’s a focus of Jane Mayer’s article.

First, because the two-sentence summary of the conclusion of the DOD IG Report on Trailblazer and ThinThread that the defense provides in a filing doesn’t address privacy.

In 2004, after more than a year of fact-finding, the Inspector General issued its initial audit findings. In a report entitled, “Requirements for the Trailblazer and Thinthread Systems,” the auditors concluded that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network . . . (T)he NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.” The NSA continued to support the “less capable” program and its successor.

Which suggests the IG Report may not have addressed the claim that, in addition to being less efficient at “connecting the dots” than ThinThread, Trailblazer also offered none of the privacy protections ThinThread had.

That’s important because the government argued that Drake couldn’t claim to be a whistleblower because, by 2007, the issues at hand were resolved. They’re arguing both that any whistleblower claims would be mooted because Turbulence, Trailblazer’s successor, integrated “significant portions” of ThinThread, and that the debate was “over” by 2007, when Drake was (according to the indictment) serving as a source for Baltimore Sun reporter Siobhan Gorman.

In or about December 2004, the DOD IG completed its audit of [Trailblazer], including the allegations raised in the complaint letter. The NSA responded in August 2004 and February 2005, stating that based on the judgments of NSA’s experienced technical experts, the allegations were unfounded. Nonetheless, NSA agreed to incorporate significant portions of [ThinThread] into [Trailblazer] as a result of the DOD IG recommendations, thus largely mooting the issues raised in the complaint. In addition, starting in late 2005 and early 2006, the NSA transitioned away from [Trailblazer] to [Turbulence], another corporate architecture solution for Signals Intelligence collection.

[snip]

Just as importantly, by 2007, the timeframe of the charges in this case, there was no imminent harm faced by the defendant, because [Trailblazer] had incorporated elements of [ThinThread], and also because NSA had transitioned away from [Trailblazer] to [Turbulence].

[snip]

The defendant’s actions had no impact in the debate regarding the efficacy of [Trailblazer and ThinThread], because NSA had begun transitioning to [Turbulence] by 2006. Put simply, the debate was over.

There’s a lot going on in this passage. Obviously, the government is trying to claim that since Drake was allegedly collecting information for Gorman in 2007, he couldn’t claim he was whistleblowing.

Mind you he was not claiming he was whistleblowing, in the legal sense. He was only trying to get the IG materials to prove that’s why he collected three of the documents he’s accused of willingly keeping; basically, he’s arguing that if he overlooked three documents out of 5 boxes worth originally collected for the IG–and did not retain the really classified materials–that he basically just overlooked the three documents, rather than willfully retained them.

And the government is playing funny with dates. After all, they say Drake served as a source for Gorman from February 27, 2006, to November 28, 2007. The key story about ThinThread Drake served as a source for was dated May 18, 2006. And one of the charges accuses Drake of obstruction for shredding other documents. So not only is the 2007 date bogus because it igonores debates ongoing in 2006, but the government suggests that either Drake would be guilty for illegally retaining information, or obstructing an investigation. Moreover, Drake maintains he inadvertently included the three IG-related documents in the several boxes of unclassified materials, so the fact the debate was over is pointless.

Moreover, the successor to Trailblazer, Turbulence, was suffering from the same management problems Trailblazer had, as the defense notes just after citing the IG Report. The government wants to pretend the shift from Trailblazer to Turbulence ended the complaints about management problems, but it didn’t.

But then there’s the way the government portrays the IG complaint: efficacy. As I laid out the other day, there are four ways, Gorman’s sources claim, that ThinThread was better than Trailblazer:

The program the NSA rejected, called ThinThread, was developed to handle greater volumes of information, partly in expectation of threats surrounding the millennium celebrations. Sources say it bundled together four cutting-edge surveillance tools. ThinThread would have:

* Used more sophisticated methods of sorting through massive phone and e-mail data to identify suspect communications.

* Identified U.S. phone numbers and other communications data and encrypted them to ensure caller privacy.

* Employed an automated auditing system to monitor how analysts handled the information, in order to prevent misuse and improve efficiency.

* Analyzed the data to identify relationships between callers and chronicle their contacts. Only when evidence of a potential threat had been developed would analysts be able to request decryption of the records.

In other words, privacy was just one of three ways ThinThread was better than Trailblazer, according to Gorman’s sources.

But that’s not the aspect the government seems to address. That is, the government seems to be saying that, because Turbulence adopted some of the approaches of ThinThread that made it more efficient at analysis, Drake can’t complain. The suggestion is (though we can’t know because of the secrecy) privacy is not, like efficacy, an adequate reason to blow the whistle. Neither privacy, nor the Constitution.

And that’s interesting for two more reasons. First, because the government references a notebook of documents Drake provided that had nothing to do with the IG Report.

There was, for example, a notebook of documents provided by the defendant, many of which had nothing to do with the IG’s audit, but this notebook was destroyed before the case began, and after the IG completed its audit.

Is it playing games with the scope of the audit? That is, did Drake provide materials on privacy, which the IG didn’t include within the scope of its report? If so, the IG’s destruction of the notebook, in violation of DOD’s document retention policy, is all the more interesting.

Then, finally, the debates about privacy continued into 2007 and 2008. In August 2007, specifically, Mike McConnell nixed a Democratic version of the Protect America Act because it required the government to tell FISA judges what the plan for minimizing US person data is and allowed the judges to review for compliance. Debates on how to fix PAA continued throughout the fall and into the following year, with Russ Feingold and Sheldon Whitehouse both trying to make real improvements on the minimization requirements.

The government seems to want to say that Drake’s privacy concerns aren’t a valid whistleblowing concern. Because, I guess, government officials aren’t allowed to whistleblow about citizens’ rights.

Congress’ 30-Day Deadline for Rubber-Stamping Exploration Plans

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The other day, when Sheldon Whitehouse asked Secretary of Interior Ken Salazar why BP had gotten an exemption from the full-blown NEPA process from which it presumably should have been categorically excluded, Salazar referenced a 30-day deadline from Congress to approve exploration plans.

Senator, there has been significant environmental review, including Environmental Impact Statements that has been conducted with respect to this activity in the Gulf of Mexico. It is an area where we know a lot about the environment, we know a lot about the infrastructure that is there. The question of the categorical exclusion in part relates to the Congressional 30-day requirement that MMS has to approve or disapprove an exploration plan. [my emphasis]

Mineral Management Service Director Elizabeth Birnbaum elaborated on this 30-day deadline on Wednesday.

Under the National Environmental Policy Act we’re required to examine the environmental impacts of any major federal actions, certainly the oil and gas leasing is a major federal action. We have conducted many Environmental Impact Statements before we get to the point of an individual well drilling decision. We conduct an EIS on the full 5-Year Plan for oil and gas drilling, We have conducted EIS on the lease sales in the Gulf and then separately in Alaska. We also conducted some separate Environmental Impact Reviews on leasing in the particular area–drilling in the particular area in the Mississippi Canyon here in the Gulf. When we get to the point of deciding on an individual exploration plan for a particular permit, we are under a statutory obligation under the Outer Continental Shelf Lands Act to make a decision within 30 days. That very much limits our ability to conduct environmental reviews. Many of our environmental reviews are categorical exclusions. We review that to determine whether there’s a trigger for us to do a full Environmental Assessment, which we did actually on exploration plans for Arctic drilling. But we’re still limited to that 30-day decision, and we have to still make a decision on whether to go forward with an exploration plan within 30 days, which limits the amount of environmental review we can conduct. In the package that the Administration sent up to provide additional appropriations, we also asked to lift that limit in the Outer Continental Shelf Lands Act to allow 90 days or more to provide more full analysis of exploration plans before drilling.

Here’s a history of the OCSLA. The 30-day requirement itself is described in the plan approval process of the OCSLA.

(1) Except as otherwise provided in this subchapter, prior to commencing exploration pursuant to any oil and gas lease issued or maintained under this subchapter, the holder thereof shall submit an exploration plan to the Secretary for approval. Such plan may apply to more than one lease held by a lessee in any one region of the outer Continental Shelf, or by a group of lessees acting under a unitization, pooling, or drilling agreement, and shall be approved by the Secretary if he finds that such plan is consistent with the provisions of this subchapter, regulations prescribed under this subchapter, including regulations prescribed by the Secretary pursuant to paragraph (8) of section 1334 (a) of this title, and the provisions of such lease. The Secretary shall require such modifications of such plan as are necessary to achieve such consistency. The Secretary shall approve such plan, as submitted or modified, within thirty days of its submission, except that the Secretary shall disapprove such plan if he determines that

(A) any proposed activity under such plan would result in any condition described in section 1334 (a)(2)(A)(i) of this title, and

(B) such proposed activity cannot be modified to avoid such condition. If the Secretary disapproves a plan under the preceding sentence, he may, subject to section 1334 (a)(2)(B) of this title, cancel such lease and the lessee shall be entitled to compensation in accordance with the regulations prescribed under section 1334 (a)(2)(C)(i) or (ii) of this title. [my emphasis]

And that sets the standard for rejecting an application in 1334 (a)(2)(A)(i) this way:

(i) continued activity pursuant to such lease or permit would probably cause serious harm or damage to life (including fish and other aquatic life), to property, to any mineral (in areas leased or not leased), to the national security or defense, or to the marine, coastal, or human environment;

Now, I would have to do a lot more review of legislative history of the OCSLA to see where that 30-day deadline came from, though so many of the deadlines in the OCSLA are set at 30 days, it might just have been arbitrary (or, it might have been what appeared to be a reasonable deadline to make sure the process kept moving forward–you gotta Drill Baby Drill, dontcha know).

But given Salazar’s and Birnbaum’s statements, the effect appears to be clear. That 30-day deadline appears to ensure that the MMS only looks closely at these exploration plans if there’s a blinking red flag in the plan, and not something trivial like drilling in extremely deep waters and/or innovative drilling plans–the things Whitehouse noted that should have prevented this exploration plan from being exempted from an individual assessment, the things that are causing such acute problems now.

And of course, to actually change this 30-day rubber stamp process, the legislation is going to have to get by industry shills like Lisa Murkowski and James Inhofe. Something to look forward to, I guess.

Oh, one more thing. The Congressman who raised concerns about the Arctic drilling? That’s the normally loathsome Heath Shuler. Just an indication of how a giant disaster can turn even the bluest of dogs into hippie environmentalists.

Sheldon Whitehouse Lists the NEPA Exclusions

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At yesterday’s Environment and Public Works hearing on the BP disaster, Sheldon Whitehouse asked Interior Secretary Ken Salazar and Council on Environmental Quality Chair Helen Sutley why BP had been exempted from doing an Environmental Impact Study on the Macondo drilling site. He listed a number of things that should categorically exclude a project from receiving such an exemption. Two of those almost certainly applied to this well.

  • Areas of high seismic risk or seismicity, relatively untested deep water, or remote areas
  • Utilizing new or unusual technology

In response, Salazar spoke about how much we know about that area.

Senator, there has been significant environmental review, including Environmental Impact Statements that has been conducted with respect to this activity in the Gulf of Mexico. It is an area where we know a lot about the environment, we know a lot about the infrastructure that is there. The question of the categorical exclusion in part relates to the Congressional 30-day requirement that MMS has to approve or disapprove an exploration plan.

You think Salazar knows he’s going to be held responsible for all the exemptions approved since this disaster?

In any case, here’s how much BP knows about the area:

An emergency response plan prepared by BP shows the British energy giant never anticipated an oil spill as large as the one seeping through the Gulf of Mexico.The 582-page document, titled “Regional Oil Spill Response Plan — Gulf of Mexico,” was approved in July by the federal Minerals Management Service (MMS). It offers technical details on how to use chemical dispersants and provides instructions on what to say to the news media, but it does not mention how to react if a deep-water well spews oil uncontrollably.

[snip]

In a section titled “Sensitive Biological & Human-Use Resources,” the plan lists “seals, sea otters and walruses” as animals that could be impacted by a Gulf of Mexico spill — even though no such animals live in the Gulf. [emphasis]

Sure, we know a lot about the environment. We just have some crazy belief that the walruses have decided to vacation on the Gulf of Mexico.

OPR Report Timeline

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In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer of transparency–deserves further scrutiny in this report. When she presented the report to Holder in August, she apparently recommended that he reopen investigations into torture.

Also, I still think the timing suggests DOJ delayed its release to protect Yoo in the Padilla suit.

January 4, 2008: Padilla sues Yoo.

February 12, 2008: Senators Durbin and Whitehouse request that OPR investigate torture authorizations

February 18, 2008: Marshall Jarrett informs Durbin and Whitehouse that torture authorizations included in OPR investigation of OLC, agrees to share report with them and–possibly–release an unclassified public version

Late December 2008: Draft of OPR submitted, Michael Mukasey and Mark Filip demand that Yoo, Bybee, and Bradbury get to respond

February 14, 2009: Isikoff reports that OPR report came to harsh conclusions of OLC lawyers’ work; reports Mukasey and Filip allowance for lawyer response

February 16, 2009: Whitehouse and Durbin inquire about process used with OPR report

March 6, 2009: Hearing in Padilla-Yoo law suit

March 25, 2009: OPR response (signed by M. Faith Burton, Acting AAG) to Whitehouse and Durbin states Mukasey/Filip comments already integrated, OLC lawyer counsel in process of reviewing report; it doesn’t mention “career prosecutor” review:

When the review and comment [from Yoo, Bybee, and Bradbury’s lawyers] is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the department will determine what disclosures should be made.

The letter backs off Jarrett’s earlier promise to release the report:

In determining appropriate disclosures, we will be mindful of the considerable interest that Congress has previously expressed in connection with this matter and will seek to accommodate the information needs of our oversight committees in response to requests from their chairmen. While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed. We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review.

March 31, 2009: Durbin and Whitehouse reply to OPR letter

April 8, 2009: Holder names Mary Patrice Brown to replace former OPR head, Marshall Jarrett

April 29, 2009: Leahy invites Bybee to testify to Senate Judiciary Committee; Bybee panics in response

May 4, 2009: According to AAG Ronald Welch, deadline for Yoo, Bybee, and Bradbury response to OPR report; on that day, Welch responds to Durbin and Whitehouse laying out the following as “normal” process for OPR reports:

In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings.

The May 4 letter also informed the Senators of the CIA review.

May 6, 2009: WaPo reports OPR report still recommends sanctions against Yoo and Bybee

June 12, 2009: Judge rules Padilla suit can move forward

June 17, 2009: Whitehouse reveals that CIA conducting “substantive comment and classification review”

July 9, 2009: Yoo appeals decision on Padilla suit–and DOJ stops representing Yoo; Miguel Estrada would take on that role

July 12, 2009: Scott Horton reports that reading OPR Report was one thing that convinced Eric Holder to launch criminal review of torture

Prior to August 24, 2009: OPR submits report to Holder, recommends reopening criminal investigation into torture

August 24, 2009: Holder announces criminal investigation, citing (among other things) OPR report

November 16, 2009: Yoo submits opening brief in Padilla suit appeal

November 18, 2009: Holder announces OPR report due out “this month;” Court grants government extension to December 3 to submit amicus brief

November 20, 2009: Padilla requests extension–because of delay in government brief–until January 15

December: Margolis, purportedly reviewing OPR report, out sick (though reports say Yoo’s lawyer making last appeal for changes)

December 3, 2009: DOJ submits amicus brief claiming that OPR can address Padilla’s concerns

December 29, 2009: Yoo starts book publicity

January 18, 2010: Padilla submits response to appeal

January 29, 2010: Klaidman and Isikoff report OPR conclusions have been altered

What’s Missing from the EFF Document Dump: Whitehouse’s Declassification Requests

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I’m still plugging away on the EFF Document Dump. But before I delve into the next chunk of emails, I want to note something that hasn’t, thus far, shown up in the document dump (and almost certainly should have been included in the communications between Congress and OLC): Two separate requests (or one extended one) on the part of Sheldon Whitehouse to declassify some of the underlying legal authorities for Bush’s illegal surveillance program.

On December 7, 2007, Whitehouse revealed three paraphrases of OLC opinions that Bush had relied on to authorize his surveillance program.

  • An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
  • The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
  • The Department of Justice is bound by the President’s legal determinations.

Whitehouse made it clear–between the time SSCI approved its version of FAA on October 26, 2007 and the time the full Senate approved it on February 12, 2008–that these three OLC opinions authorized at least one earlier incarnation of Bush’s surveillance program (though it’s not clear whether they authorized the PAA or the totally illegal programs).

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified.

These are the opinions, then, that the SSCI got to review as part of the negotiations over the PAA and FAA.

Then, on April 30, 2008, Whitehouse revealed he was still trying to get language from one OLC opinion similarly declassified, this one on exclusivity.

I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

This effort took place before the ultimate compromise bill was introduced on June 19, 2008 (it passed the Senate on July 9, 2008).

In other words, Whitehouse’s efforts–which surely include the OLC (though the OLC would almost certainly not have had final declassification authority)–were part of DOJ discussions with Congress about passing FAA. But they don’t show up in the OLC documents, or (as far as I have seen) in the EFF documents more generally.

Though there may be reasonable explanations (I’m going to do some follow-up on this point), it does seem a curious omission. Not least, because these four opinions (and therefore, presumably the discussions about declassifying some summary of them) are really keys to understanding much of the discussion in the emails. They explain both the discussions about 12333 and “2.5” authority, specifically regarding whether the government could wiretap Americans overseas. As well as some of the discussion about the debate over the exclusivity provision.

Whitehouse: Talk Shows Shouldn’t Make Prosecutorial Decisions

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Not like it’ll matter to Republicans who are attacking Eric Holder’s decision. But Sheldon Whitehouse slammed Republicans for beating up on federal prosecutors.

And then he got really steamed, accusing the Republicans of politicizing prosecutorial opinions.

From my perspective, popular opinion is a very dangerous bellwether to hold prosecutors to. … I think it gets worse when you move from popular opinion to legislative opinion. … And if there’s any way to make, it worse it’d be to allow it to be influenced by talk show opinion.

The Total Nail Polish Remover Awareness Program, Brought to You by the Democratic Party

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tia.pngI wanted to pull together the discussion in Thursday’s PATRIOT Act Hearing regarding the use of authorities within it–particularly Section 215–in existing investigations. DiFi initiates this discussion by referring to the "biggest investigation we’ve had since 9/11" (note, contrary to my earlier post, this reference is only implicitly related to the Zazi arrest.

DiFi (47:00): My concern was that nothing we do here interfere adversely with an investigation that’s going ongoing. I happen to believe that the biggest investigation we’ve had since 9/11 is currently ongoing and do not want to do anything to disturb it. Second, I believe that finally, the intelligence in the transformation or transfiguration of the FBI is now taking hold and that we are developing an intelligence mechanism within the country that is now able to ferret out some of these proposed attacks before they might happen. And I think the arrest of Mr. Zazi is demonstration of that. It is not ended and the investigation continues on. I also believe that we continue to face the very real threat of international terrorism. There are people who would hurt us grievously if they have an opportunity to do so, so again, I think it’s vital that we not take any action, especially at this time that would hinder the government’s ability to detect, investigate, and prosecute those who are intent on killing innocent Americans. 

Note, too, DiFi’s reference to the "transfiguration" of FBI finally in place–is she suggesting that for the first time the FBI has used Total Information Awareness to support  terrorist busts?

Later, during the discussion of Durbin’s attempt to limit the use of 215 to those with some discernible tie to a terrorist suspect, DiFi claims that such changes would end several investigations.

DiFi (101:31): Secondly, the FBI does not support this amendment. And thirdly, in putting forward this higher standard, it would end several classified and critical investigations. This was one of the amendments that I submitted to you and you were gracious enough to accept it. Senator Sessions is correct. These are authorized investigations and it’s a use of the National Security Letter in an authorized investigation. So, as I said, a standard for me is that this not interfere in existing investigations, and in fact it would. 

Understand the implications of that comment. Read more →

Whitehouse and the Corpus Delicti Leading to Cheney

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A number of you have pointed to this article, where Sheldon Whitehouse speaks of the corpus delicti that justifies an investigation.

The prosecutor is often first presented with a case as a "corpus delicti" — a bullet-riddled body in the street, for instance. That ordinarily is enough to justify investigation. Through investigation, the evidence may prove that there was not in fact a crime (it was a suicide or an accident) or that the fatal acts were privileged or enjoy a legal defense (self-defense or justifiable shooting by an officer of the law). But one begins by investigation.

Here he is on KO tying the dead bodies of torture right to Dick Cheney.

As he says, 

If you don’t have anything to hide, you don’t often spend a great deal of time trying to hide it.

CIA Now Reviewing OPR Report on Yoo, Bybee, and Bradbury

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Sheldon Whitehouse revealed raised during today’s Department of Justice oversight hearing that the CIA is now reviewing the results of the Office of Professional Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in authorizing torture.

Whitehouse: CIA was given a opportunity for substantive comment and classification review. Is it now the CIA that is holding up the release of the report?

Eric Holder claimed that the CIA’s review was not holding up the report. But when asked whether or not DOJ was ensuring that those at CIA reviewing the document had clean hands on torture, Holder twice did not answer, and ultimately said he wasn’t worried whether those involved in torture get to make substantive comment on the OPR report.

Whitehouse: Role of CIA in substantive comment and in classification review, interesting conflicts of interest. What assurances from CIA that those who seek to influence OPR report through substantive comment or those who have effect of delaying report are not complicit or involved in underlying conduct. Have you got a clean scrub of those at CIA who are involved in program?

Holder: As complete a report as we can. Declassify as much as we can. Full feeling of what it is that OLC lawyers dealt with. Pushing to declassify as much as we can. 

Whitehouse: Doesnt’ address question of whatever assurances from CIA that in discharge of review role the people involved in that had clean hands WRT this program and are giving untainted advice.

Holder: We haven’t gotten anything yet. This may not be an issue at all.  Will interact with Panetta. Want to have as much declassified as possible.

Whitehouse: And on question of substantive comments? Is it not important that CIA should be doing so in manner that keeps agencies hands clean.

Holder: I’m actually less worried about substantive comments.

Whitehouse: Would they be likely to look at substantive comments differently if CIA had not kept report from people with clean hands.

Holder: Fact-driven. Conclusion that one draws from the facts, Justice Department’s view of facts that we have uncovered.

In other words, no, Holder doesn’t find it problematic that someone like John Rizzo–who remains the Acting General Counsel at CIA and who made apparently false declarations to OLC in 2002 when it first approved torture–gets a chance to review the OPR report.

Read more →

The Scope of the SSCI Investigation and Where It Leads

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Honest. I was going to write this post today or yesterday or tomorrow even before Rachel Maddow said people would be parsing her interview last night with Sheldon Whitehouse closely (here’s the full interview).

Back in February, I was very skeptical whether a DiFi-led SSCI investigation into torture would be a rigorous investigation. I owe DiFi an apology, because by all appearances this investigation is time-consuming, demanding, and productive. The Senate Intelligence Committee has been maintaining an unbelieveable pace of closed hearings this year–often two a week–many of which must deal with this investigation (though some clearly deal with other intelligence issues such as the warrantless wiretapping program). At least per Rachel’s comments in her interview with Senator Whitehouse, the committee won its squabble with CIA to get unredacted cables from the field. And as a result of the hearings, Sheldon Whitehouse has come out and said "no further actionable intelligence" was gotten through waterboarding Abu Zubaydah. Thus far, this is not the weasely whitewash we’ve come to expect from SSCI (though it remains to be seen whether Kit Bond and friends can politicize whatever report we get out of it–and whether we get a report at all). So I apologize to DiFi for my doubts.

I wanted to look at the scope and the direction of this investigation–at least what we know. Both at the beginning, and now, SSCI has said the investigation covers three things:

  • Whether detentions and interrogations complied with DOJ authorizations
  • Whether the interrogations gained valuable intelligence or not
  • Whether SSCI was kept properly informed

Here’s how Whitehouse described the questions they’re asking in his Senate speech the other day:

I see three issues we need to grapple with. The first is the torture itself: What did Americans do? In what conditions of humanity and hygiene were the techniques applied? With what intensity and duration? Are our preconceptions about what was done based on the sanitized descriptions of techniques justified? Or was the actuality far worse?

Were the carefully described predicates for the torture techniques and the limitations on their use followed in practice? Or did the torture exceed the predicates and bounds of the Office of Legal Counsel opinions?

[snip–Whitehouse basically interjects the same argument I made here, that Panetta’s declaration makes it clear the torture did exceed OLC bounds]

The questions go on: What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done? Ultimately, was it successful? Did it generate the immediately actionable intelligence protecting America from immediate threats that it had been sold as producing? How did the torture techniques stack up against professional interrogation?

Well, that is a significant array of questions all on its own, and we intend to answer them in the Senate Intelligence Committee under the leadership of Chairman Feinstein, expanding on work already done, thanks to the previous leadership of Chairman Rockefeller.

As I noted, both Whitehouse and I have pointed out that Panetta’s declaration by itself makes clear that the torture exceeded the authorizations it had gotten from OLC–but we already knew that from the CIA itself. And as Whitehouse has made clear, and I have made clear, we already know the program was ineffective–but we already knew that from the CIA itself. And (though Whitehouse doesn’t focus on this aspect of the investigation), we know that CIA did not brief SSCI the way it said it did–nor in the manner it was legally obliged to do. We know that, too, from the CIA itself.

So where does that lead us? That’s why this exchange from Rachel’s interview with Whitehouse last night is so important.

Maddow: The way you’ve described that makes me want to ask a question that no one’s been able to tell me–and I’ve been asking a lot of people. The remit of what the intelligence committee is looking at right now–looking at what happened to High Value Detainees, millions of pages of documents, succeeded in getting agreements to get stuff completely unredacted. We know it’s going to be a big comprehensive look at what happened to those High Value Detainees. Does it only look at what the CIA did, or will it look at the chain of command, whether or not instruction came from the White House, the Office of the Vice President beyond the Intelligence Agency?

Whitehouse: We’re not at the stage yet, in the investigation, where those chain of command issues are yet raised. I hope very much that it will. I believe it implicates chain of command issues. And I think that that’s a critical question.

Maddow: But it’s not what the intelligence committee is looking at right now and we should not expect that will be in the intelligence committee’s report when it comes out in six months or so?

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