Posts

Why Is HPSCI’s Snowden Report So Inexcusably Shitty?

/11 Comments/in , /by

There’s now a growing list of things in the HPSCI report on Snowden that are either factually wrong, misleading, or spin.

One part of the spin the report admits itself: the committee assessed damage based on the 1.5 million documents Snowden touched — an approach the now discredited General Michael Flynn presented in briefings to the committee — rather than the far more limited set the Intelligence Community included in its damage assessment.

Over the past three years, the IC and the Department of Defense (DOD) have carried out separate reviews with differing methodologies of the damage Snowden caused. Out of an abundance of caution, DOD reviewed all 1.5 million documents Snowden removed. The IC, by contrast, has carried out a damage assessment for only a small subset of the documents. The Committee is concerned that the IC does not plan to assess the damage of the vast majority of documents Snowden removed.

Clearly, the IC wants a real assessment of the damage Snowden caused. HPSCI, however, appears to be interested in the most damning, which makes sense given that members of Congress actively solicited information they could use to damage Snowden.

Here are other problems with the report.

From Bart Gellman’s rebuttal:

  • HPSCI claimed the “bilateral tibial stress fractures” that led to Snowden’s discharge were “shin splints.”
  • HPSCI claimed he never got a GED. According to official Maryland records, Snowden got his equivalent degree on June 2, 2004.
  • HPSCI claimed Snowden was a computer technician at CIA. At the end he served as a “solutions referent/cyber referent” working on cyber contracts.
  • HPSCI claimed Snowden’s effort to show a security hole in CIA’s human resources intranet was an effort to doctor his performance evaluations.

From me:

HPSCI claimed Snowden failed the Section 702 training. According to an email from the SIGINT Compliance Chief, Snowden did pass it (the Chief had not checked whether or not Snowden had really failed it).“He said he had failed it multiple times (I’d have to check with ADET on that). He did pass the course at some point.”

The claim Snowden didn’t pass the test stems from an email written a year after an exchange between him and a Compliance training person. The training person wrote the email in direct response to Snowden’s claims that he had “contacted N.S.A. oversight and compliance bodies.” While it may be true Snowden failed the test before he passed it, there are enough irregularities with the email claim and related story it should not be credited without backup. When we asked NSA for specific answers about that email in conjunction with this story, they flipped out and went nuclear and preemptively released all the emails rather than provide the very easy answers to validate the email story.

From Patrick Eddington:

HPSCI claimed Snowden could have reported complaints to the committee, but HPSCI killed an effort to extend whistleblower protections to intelligence contractors in 2012.

Eddington and Steven Aftergood both suggest the shitty HPSCI report is good reason to embrace a set of reforms to improve HPSCI oversight.

But depending on the reason for the utter shittiness of the report, I think it might just warrant shutting the entire committee down and devolving oversight to real committees, like Judiciary, Homeland Security, and Armed Services. Remember, every single member of the committee, Democrat or Republican, signed this report. Every single one. For some reason, even fairly smart people like Adam Schiff and Jackie Speier signed off on something with inexcusable errors.

So I wanted to point to this passage on methodology.

The Committee’s review was careful not to disturb any criminal investigation or future prosecution of Snowden, who has remained in Russia since he fled there on June 23, 2013. Accordingly, the Committee did not interview individuals whom the Department of Justice identified as possible witnesses at Snowden’s trial, including Snowden himself, nor did the Committee request any matters that may have occurred before a grand jury. Instead, the IC provided the Committee with access to other individuals who possessed substantively similar knowledge as the possible witnesses. Similarly, rather than interview Snowden’s NSA coworkers and supervisors directly, Committee staff interviewed IC personnel who had reviewed reports of interviews with Snowden’s co-workers and supervisors.

So for this inexcusably shitty report, HPSCI did not interview:

  • Direct witnesses (presumably including the Compliance training woman whose email on 702 training is dodgy and probably also Booz and Dell contractors who might risk losing contracts)
  • Snowden’s co-workers
  • Snowden’s supervisors

They did interview:

  • People who possessed “substantively similar knowledge” as the people DOJ think might be witnesses at trial
  • People who reviewed reports of interviews with Snowden’s co-workers and supervisors

HPSCI spent two years but didn’t interview any of the direct witnesses.

Now, as a threshold matter, the publicly released emails provide good reason to doubt the adequacy of this indirect reporting on Snowden’s colleagues. Here’s how the Chief of NSA’s CI Division backed the conclusion that Snowden never talked about concerns about NSA surveillance with his colleagues.

Our findings are that we have found no evidence in the interviews, email, or chats reviewed that support his claims. Some coworkers reported discussing the Constitution with Snowden, specifically his interpretation of the Constitution as black and white, and others reported discussing general privacy issues as it relates to the Internet. Not one mentioned that Snowden mentioned a specific NSA program that he had a problem with. Actually, many of the people interviewed affirmed that he never complained about any NSA program. We also did not have any reflection that he asked anyone how he should/could report perceived wrongdoing.

So colleagues — who would presumably be in great fear of association with Snowden, especially in interviews with NSA’s Counterintelligence people — nevertheless revealed that they discussed the Constitution (and Snowden’s black and white interpretation of it) and general privacy issues about the Internet. “Many” of the interviewees said he never complained about any NSA program, which raises questions about what those excluded from this “many” said.

But it appears that NSA’s CI investigators only considered mention of specific programs to be a complaint, not general discussions about privacy and the Constitution.

We should assume the interview reports back to HPSCI members and staffers were similarly scoped.

There’s another reason I’m interested in this methodology section. That’s the implication from Spencer Ackerman’s series on SSCI’s Torture Report that CIA successfully used the John Durham investigation to undermine the SSCI investigation.

In August 2009, US attorney general Eric Holder expanded the remit of the prosecutor looking at the tapes destruction, John Durham, to include the torture program, much as the Senate committee had. The justice department’s new mandate was not as broad as the Senate’s. It would only concern itself with torture that exceeded the boundaries set for the CIA by the Bush-era justice department. Still, for all of Obama’s emphasis on looking forward and not backward, now the CIA had to face its greatest fear since launching the torture program: possible prosecution.

Holder’s decision, ironically, would ultimately hinder the committee more than the CIA, and lead to a criticism that the agency would later use as a cudgel against the Senate.

Typically, when the justice department and congressional inquiries coincide, the two will communicate in order to deconflict their tasks and their access. In the case of the dual torture investigations, it should have been easy: Durham’s team accessed CIA documents in the exact same building that Jones’s team did.

But every effort Jones made to talk with Durham failed. “Even later, he refused to meet with us,” Jones said.

Through a spokesman, Durham, an assistant US attorney in Connecticut, declined to be interviewed for this story.

The lack of communication had serious consequences. Without Durham specifying who at CIA he did and did not need to interview, Jones could interview no one, as the CIA would not make available for congressional interview people potentially subject to criminal penalty. Jones could not even get Durham to confirm which agency officials prosecutors had no interest in interviewing. “Regrettably, that made it difficult for our committee to do interviews. So the judgment was, use the record,” said Wyden, the Oregon Democrat on the panel.

[snip]

The CIA stopped compiling the Panetta Review in 2010 after Durham told Preston that CIA risked complicating any prosecution if it “made different judgments than the prosecutors had reached”, Charlie Savage reported in his 2015 book Power Wars.

Not only did CIA’s General Counsel Stephen Preston (who later served as DOD General Counsel from October 2013 until June 2015) use the Durham investigation to halt the CIA’s own internal investigation into the worthlessness of their torture, but it served as the excuse to withhold cooperation from SSCI. That, in turn, gave Republicans an excuse to disavow the report.

With the HPSCI report, an FBI investigation has again been used as an excuse to limit congressional oversight.

HPSCI’s failure to interview any of the relevant people directly is all the weirder given that there should be no problem for a witness to appear before both the grand jury and the committee. Certainly, House Oversight had no problem interviewing some of the subjects of the Hillary email investigation! And unlike the email investigation, with the Snowden one, few if any of the people who might serve as witnesses at any Snowden trial would be subjects of the investigation; they’d have no legal risk in also testifying to the committee. Snowden is the one at legal risk, and he has already been charged. And curiously, we’re hearing no squawking from Republicans about the necessity of direct interviews for the integrity of an investigation, like we heard with the Senate Torture Report.

One thing is certain: the public is owed an explanation for how HPSCI came to report knowably false information. The public is owed an explanation for why HPSCI is effectively serving as NSA’s propaganda wing.

And if we don’t get one, we should shut down the entire charade of post-Church Committee oversight committee.

Obama Bypassed OLC on Bin Laden Killing

/15 Comments/in /by

Obama_and_Biden_await_updates_on_bin_LadenThere’s a name missing from Charlie Savage’s latest — a description of the legal analysis behind Osama bin Laden’s killing: Caroline Krass, who served as Acting Head of DOJ’s Office of Legal Counsel from January to September 2011. She’s not mentioned, apparently, because she was not among the four lawyers who collaborated on five memos deeming the raid to be legal.

Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.

[snip]

Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.

[snip]

This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid.

The account makes it quite clear that Eric Holder was excluded from discussions.

On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.

This means that on the OBL raid, Donilon excluded the Attorney General in the same way Dick Cheney excluded John Ashcroft from key information about torture and wiretapping. I find that interesting enough, given hints that Holder raised concerns about the legal authority to kill Anwar al-Awlaki in the weeks after we missed him on December 24, 2009, which led to OLC writing two crappy memos authorizing that killing in ways that have never been all that convincing.

But Savage provides no explanation for why Krass was excluded, which is particularly interesting given that the month after OBL’s killing, Savage revealed that President Obama had blown off Krass’ advice on Libya (as I read it, the decision to blow off her advice would have happened after the OBL killing, though I am not certain on that point). The silence about Krass is also remarkable given that she was looped in on the initial Libya decision — and asked to write a really bizarre memo memorializing advice purportedly given after the fact.

On Libya, Krass was looped in on questions addressing precisely the same issues addressed in the OBL killing (indeed, we were assassinating Qaddafi’s family members in Libya, which should have presented many of the same legal questions) both before and (as I understand it) after the OBL killing, but she was apparently not read in at all on the OBL killing itself.

There’s one more reason I think the question of OBL’s killing was more uncertain than laid out here. Savage reveals that even though lawyers had authorized not telling Congress about the raid, Leon Panetta did so on his own anyway.

Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.

This is the action of someone — rightly — covering his ass, doing what the law actually requires rather than what his lawyer says it permits.

By the way, any bets on whether SSCI got a copy of that Preston memo, stating that they didn’t need to be informed on covert operations, contrary to the clear language of the National Security Act, before they approved his promotion from CIA General Counsel to DOD General Counsel (where he remains)? I bet no.

Ultimately, Savage depicts an Administration going even further than Cheney had on inventing legal authorizations for secret actions. Obama (and Donilon) will never catch heat for it like Cheney did, because everyone likes dancing on OBL’s watery grave. But make no mistake, this exhibits some of the same behaviors as we criticize Cheney for.

Update: I find this, from Savage’s June 2011 story on Krass, of particular interest given Savage’s description of the decision process on OBL.

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

In Telling of Brennan Fit, Panetta Somehow Forgets the Torture Documents Stolen Back for the White House

/6 Comments/in /by

As you likely know, I’m firmly of the belief that one should call DC memoirs — especially those written by National Security figures — autobiographical novels, because they tend to stray so far from the truth (that’s true of all autobiographies, but in DC it seems far more motivated). Turbo-Tax Timmy Geithner is about the only DC figure whose memoir has ever been treated with any of the skepticism it deserves.

With that in mind, I wanted to look at this detail from Leon Panetta’s book, which Katherine Hawkins alerted me to.

To illustrate how Obama’s micromanagement hurt relations with Congress, Panetta describes the negotiations with Dianne Feinstein over the cables that went into the torture report.

She requested access for her staff to every operational cable regarding the program, a database that had to be in the hundreds of thousands of documents. These were among the most sensitive documents the agency had. But Feinstein’s staff had the requisite clearances and we had no basis to refuse her. Still, I wanted to have some control over this material, so I proposed a deal: Instead of turning over the documents en masse to her staff, we would set up a secure room in Virginia. Her staff could come out to the secure facility and review documents one by one, and though they could take notes, the documents themselves would stay with CIA.

When the White House found out, they went apeshit, calling Panetta into the Situation Room for a spanking.

“The president wants to know who the fuck authorized this release to the committees,” Rahm said, slamming his hand down on the table. “I have a president with his hair on fire, and I want to know what the fuck you did to fuck this up so bad.”

I’d known Rahm a long time, and I was no stranger to his language or his temper, so I knew when to worry about an outburst and when it was mostly for show. On this occasion, my hunch was that Rahm wasn’t that perturbed but that Obama probably was and that others at the table, particularly Brennan and McDonough, were too. Rahm was sticking up for them by coming after me.

[snip]

It went back and forth like this for about fifteen minutes. Brennan and I even exchanged sharp words when I, unfairly, accused him of not sticking up for the agency in the debate over the interrogation memos. Finally, the White House team realized that whether they liked it or not, there was no way we could go back on our deal with the committee. And just like that, the whole matter was dropped.

Rahm and Brennan spanked Panetta, he claims, but then the whole thing blew over.

There are just three problems with this story.

First, according to the quotations Dianne Feinstein revealed from her agreement with Panetta, the CIA wasn’t supposed to “have … control over this material.”

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”

Far more significantly, Panetta doesn’t mention the documents that disappeared during Panetta’s tenure — ostensibly, on orders from the White House.

In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received.

In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.

After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.

And Panetta also doesn’t mention what may or may not be the same set of documents, those withheld by CIA on behalf of the White House, as described by Stephen Preston in response to Mark Udall.

With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.

In other words, CIA didn’t live up to its deal with Feinstein, not with respect to this set of documents, anyway. After turning over all the cables it believed SSCI had a right to obtain, it then took some back. As far as we know, it never did provide them.

We know that one of the Torture Report’s conclusions is that the CIA lied to the White House.

While there’s good reason to believe CIA lied to Condi Rice, there’s also abundant reason to believe that Dick Cheney and David Addington knew precisely what was going on. If I had to guess, the documents CIA stole back probably make that clear.

Panetta would have us believe that, after his spanking by John Brennan and others, the whole matter was dropped. Which is a convenient tale, except that it obscures that the White House succeeded in clawing back documents CIA originally believed SSCI was entitled to.

Awlaki Really Seems to Have Been Drone-Killed Exclusively on Presidential Authority

/9 Comments/in /by

Jason Leopold liberated another White Paper — this one dated May 25, 2011 —  on drone killing.

Man. It’s just like they kept throwing legal arguments against the wall in hopes that one saying “You can kill Americans with no due process” would stick. And since this one is not signed, we may never know what lawyer gets rewarded with a lifetime judicial sinecure!

I’ll have a lot more to say on the logistics of all this in a later post.

But I want to comment briefly on a point that Kevin Jon Heller made in his post on the memo (remember, Heller’s the guy who forced David Barron to write more than 7 pages to authorize killing Awlaki by raising a statute Barron hadn’t considered).

Heller still sees absolutely no justification for CIA being granted public authority to kill Americans in this White Paper.

Like the earlier memorandum, the White Paper is largely devoted to establishing that the public-authority justification applies to the foreign-murder statute and that members of the US military would be entitled to the justification. (Two conclusions I agree with.) It then simply says this (pp. 14-15):

Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.

That’s it. That’s the sum total of the unredacted argument. But there is a reason to reach a different conclusion “for a CIA operation” — as pointed out above, the AUMF does not apply to the CIA. Which means that the source of the public-authority justification must lie elsewhere.

Now let me be clear: I am not saying the CIA cannot be entitled to the public-authority justification. I am simply pointing out that the AUMF does not provide the CIA with the necessary authority. Perhaps there is another source, such as Title 50 of the US Code, as my co-blogger Deb Pearlsteinhas suggested. Indeed, the redaction on page 16 of the new White Paper may well refer to that other source of authority, given that five or six lines of redacted text follow this statement:

Thus, just as Congress would not have intended section 1119 to bar a military attack on the sort of individual described above, neither would it have intended the provision to prohibit an attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, carried out by the CIA in accord with _____.

I don’t understand why the OLC would need to redact a reference to Title 50 (or to some other source of authority). The legal source of the CIA’s authorization to kill Americans overseas — if one exists — hardly seems like a state secret. Until the government reveals that source, however, we remain entitled to conclude that the CIA drone-strike that killed Anwar al-Awlaki violated 18 USC 1119.

I don’t think those redacted lines he points to are a reference directly to statute.

I think it’s a reference to the September 17, 2001 Gloves Come Off Memorandum of Notification which we know authorized killing high value al Qaeda figures with drones.

After all, that’s precisely where Stephen Preston — then CIA’s General Counsel before he moved onto bigger and better General Counseling at DOD — said he’d look to for the authority for CIA to carry out certain operations (and when he gave this speech, it was regarded to be part of the set of drone killing speeches Obama’s top officials gave in 2012, and he discusses assassination, which several of the drone authorizations also do, specifically).

Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding.

Preston would look to a Finding, and we know there was (still is, as far as we know!) a Finding authorizing precisely the thing the government claimed to have done, kill a top al Qaeda figure.

Remember, too, David Kris — who left DOJ not long before this White Paper explicitly authorizing CIA’s execution of the execution got written — issued this warning about the real secrets behind the National Security Act’s language prohibiting CIA from violating US statute.

For example, the covert action statute could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn. The statute defines covert action to exclude “traditional” military and law-enforcement activities, provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,” and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.” Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans. Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. [60; footnotes removed]

In killing Awlaki, CIA was acting in both a law enforcement (that’s where the Fourth Amendment argument derives from) and Traditional Military capacity (which is how these endless justifications apply the public authority to CIA, by claiming CIA officers are just like soldiers). Kris tells us the statute says CIA can’t, but that the NSA “could be interpreted and applied in ways [that] very few Members of Congress, let alone the American People, ever learn.”

It has to have in this case, because CIA acted as both law enforcement and military in violating a slew of statutes to carry out the drone killing of an American citizen as part of a covert op. Kris is basically saying that part of the NSA doesn’t mean what it says. That it means something far more horrible.

Which means he’s also saying — as was Preston — that the drone killing of Anwar al-Awlaki was done on Article II authority.

It is, admittedly, a guess. But I believe that behind that redaction, the White Paper makes it clear this killing was done on Presidential authorization.

If CIA Pwned SSCI’s Segregated Shared Drive, the Torture Report Should Be FOIA-able

/10 Comments/in , /by

As reader Tom has helpfully reminded me, both Mark Udall’s follow-up questions for Stephen Preston and the CIA’s declaration in ACLU’s FOIA to liberate the Torture Report describe the arrangements CIA required of the Senate Intelligence Committee staffers as they were working on the Torture Report.

Udall described how the CIA insisted on an “unnecessary multi-layered” process that added significantly to the time and cost of the report.

The CIA declined to provide the Senate Select Committee on Intelligence with access to CIA records at the Committee’s secure office space in the Hart Senate Office Building. Instead, the CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff. What role did you play in the decision to employ these unnecessary multi-layered review steps that delayed CIA document production to the Committee at significant governmental expense?

And the CIA declaration emphasizes how SSCI retained complete control over the materials in the Sensitive Compartmented Information Facility in which its staffers had been required to work.

One key principle necessary to this inter-branch accommodation, and a condition upon which SSCI insisted, was that the materials created by SSCI personnel on this segregated shared drive would not become “agency records” even though this work product was being created and stored on a CIA computer system. Specifically, in a 2 June 2009 letter from the SSCI Chairman and Vice Chairman to the CIA Director, the Committee expressly stated that the SSCI’s work product, including “draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee” and “remain congressional records in their entirety.” The SSCI further provided that the “disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee.”

[snip]

Based on this inter-branch accommodation, SSCI personnel used the segregated shared drive to draft the document that is the subject of this litigation. As sections of the report reached a certain stage, the SSCI worked with the CIA information technology and security personnel to transfer these drafts from the segregated shared drive to the SSCI’s secure facilities at the U.S. Capitol complex so that the Committee could complete the drafting process in its workspaces.

Here’s the thing. The purported control SSCI had over the materials in this SCIF is central to CIA’s claim that the Torture Report is not an Agency document and therefore is immune from FOIA.

If SSCI did not have complete control over this material — if CIA could spy on SSCI at will (if, as seems to be the case when viewed in retrospect) — then it guts their argument that the Torture Report is a Congressional document.

If CIA pwned SSCI in that SCIF, then it should make this material (at least the draft reports, before they got moved over to SSCI’s own SCIF) FOIA-able.

So either CIA should be prosecuted for hacking SSCI. Or it should hand over the last draft of the report that resided on servers it felt free to hack into.

Did CIA Lie to DOJ about When They Tortured Hassan Ghul?

/6 Comments/in /by

As I noted in January, comments Mark Udall made in the course of confirming Stephen Preston to be DOD General Counsel make it clear that CIA’s lies about a detainee generally believed to be Hassan Ghul are one of the new revelations in the Torture Report. For a number of reasons, I believe one thing CIA lied to DOJ about is when they tortured Ghul.

As I’ll show in a follow-up post, the question of when they tortured Hassan Ghul may reflect not just on the torture program, but also on the dragnet.

The public record claiming Ghul was tortured in July and August, 2004

We can lay out a rough timeline of the torture of the detainee believed to be Ghul based on several data points. First, Jay Bybee’s response to the Office of Professional Responsibility report (see page 22) makes it clear a July 2, 2004 Principals Committee meeting pertained to detainee “Janat Gul,” custody of whom CIA had reportedly (see PDF 59) just obtained (Bybee would not have been at the meeting — he had become a Circuit Court Judge over a year earlier — so he must be relying on what the OPR report says).

In addition, we can trace back the documents leading up to a reference to “Gul” in the May 30, 2005 CAT memo (see page 7). That reference describes an August 25, 2004 letter that asked for permission to use — among other things — water dousing and abdominal slaps. The approval to that request, dated August 26, 2004, cites the August 25 letter, an August 2, 2004 letter from John Rizzo, and a July 30, 2004 letter. An August 6, 2004 letter approving waterboarding also cites the August 2 Rizzo letter.

In the August 10, 2005 Techniques memo, some of these same documents are cited; the memo also reveals its subject was obese and had heart problems. Although the Techniques memo approved waterbaording, it said it was not used with the subject of the memo because of a medical contraindication.

All of this would seem to give the following chronology for Hassan Ghul’s torture (assuming he is the detainee referred to as Gul):

July 2, 2004: CIA obtains custody and in a Principals Committee meeting discusses his torture

July 7, 2004: Goldsmith provides guidance on acceptable techniques

July 22, 2004 (5 days after Goldsmith’s departure): John Ashcroft approves the use of all Bybee Memo techniques, except for waterboarding

July 30, 2004: Letter to Daniel Levin including description of torture techniques

August 1, 2004: Government raises threat level in advance of election year threats, announces surveillance of financial institutions, though reports are years old

August 2, 2004: Letter from John Rizzo to Levin, including details on when the CIA would use waterboarding and a medical and psychological assessment of Ghul

August 6, 2004: Daniel Levin advises that subject to reservations, CIA’s use of waterboarding not illegal

August 19, 2004: Letter to Daniel Levin detailing new limits on waterboarding

August 25, 2004: In letter to Daniel Levin asking to water douse Ghul, CIA claims the CIA believed (when it got custody) Ghul had actionable intelligence on “pre-election” threat to United States, had extensive connections to various al Qaeda leaders, members of the Taliban, and Zarqawi, and had tried to set up a meeting “at which elements of the pre-election threat were discussed”

August 26, 2004: Levin approves four new techniques with Ghul, including water dousing

This chronology suggests DOJ repeatedly told CIA waterboarding was not permissible in the weeks after Jack Goldsmith withdrew the Bybee Memo, but after the National Security establishment raised the threat level on August 1 because of years-old surveillance in the US, DOJ relented and approved waterboarding with Ghul. Subsequently, it appears, CIA decided Ghul was not healthy enough — either because of his heart condition or his obesity — to undergo waterboarding, so they instead water doused him in near-freezing temperatures.

The problem with this chronology

There is just one problem with that chronology: the CAT memo discusses two detainees (see page 6). The description of the first detainee — someone involved in the alleged 2004 pre-election threat — mentions the August 25 letter which elsewhere in the memo ties to Gul by name.

Read more →

The Senate Torture Report and CIA’s Lies about Hassan Ghul’s 2004 Torture

/9 Comments/in , , /by

Update, March 12, 2015: We know from the Torture Report that the detainees treated in July and August 2004 were not Hasan Ghul, but Janat Gul and two others.
Screen shot 2014-01-09 at 10.36.56 AM

In my last post, I noted that in his report that Hassan Ghul served as a double agent before we offed him with a drone, Aram Roston stated, without confirming via sources, that Ghul is the person whose name was not entirely redacted on the bottom of page 7 in the May 2005 Convention Against Torture (CAT) torture memo. I noted that if Ghul is the detainee (and I do think he is, contrary to what sources told AP when the CIA was hunting Ghul down with drones in 2011), then we’re going to be hearing about him — and arguing about his treatment — quite a bit more in the coming weeks.

That’s because, according to information released by Mark Udall, the detainee named in the CAT memo is one of the detainees about whose treatment the CIA lied most egregiously to DOJ. This is apparently one of the key findings from the Senate Intelligence Committee Torture Report that CIA is fighting so hard to suppress.

Mark Udall’s list of torture lies

Back in August, Mark Udall posed a set of follow-up questions to then CIA and now DOD General Counsel Stephen Preston. Udall was trying to get Preston to endorse findings that appeared in the Torture Report that hadn’t appeared elsewhere (in his first set of responses about CIA’s lies to DOJ, Preston had focused on CIA’s lies about the number of waterboardings, which the CIA IG Report had first revealed). Udall noted that that lie (“discrepancy”) was known prior to the Torture Report, and asked Preston to review the “Representations” section of the Torture Report again to see whether he thought the lies (“discrepancies”) described there — and not described elsewhere — would have been material to OLC’s judgements on torture.

Udall gave Preston this list of OLC judgements that might have been different had CIA not lied to DOJ. (links added)

The 2002 memo is the original Abu Zubaydah memo, the lies in which (pertaining to who AZ was, what the torture consisted of, what had already been done to him, and whether it worked) I’ve explicated in depth elsewhere. The 2006 memo authorizes torture in the name of keeping order in confinement and the 2007 memo authorizes torture (especially sleep deprivation); both of these later memos not only rely on the 2005 memos, but on the false claims about efficacy CIA made in 2005 in their support. The lies in them pertain largely to the purpose CIA wanted to use the techniques for.

Which leaves the claims behind the 2004 letters and the 2005 memos as the key lies CIA told DOJ that remain unexplored.

The 2004 and 2005 lies to reauthorize and expand torture

I’m going to save some of these details for a post on what I think the lies told to DOJ might be, but there are two pieces of evidence showing that the 2005 memos were written to retrospectively codify authorizations given in 2004, many of them in the 2004 letters cited by Udall.

We know the 2005 memos served to retroactively authorize the treatment given to what are described as two detainees in 2004, purportedly in the months after July 2004 (though this may be part of the lie, in Ghul’s case) when DOJ and CIA were trying to draw new lines on torture in the wake of the completion of the CIA IG Report and Jack Goldsmith’s withdrawal of the Bybee Memo.

We know the May 10 Combined Memo was retroactive because Jim Comey made that clear in emails raising alarm about it.

I just finished a long call from Ted Ullyot. He said he was calling to tell me that “circumstances” were likely to require that the second opinion “be sent over tomorrow.” He said Pat had shared my concerns, which he understood to be concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.

[snip]

He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

This memo probably, though not definitely, refers to a detainee captured in August 2004 in anticipation of what the Administration claimed (almost certainly falsely) were election-related plots in the US.

And we know the May 10 Techniques and May 30 CAT memos are retroactive because we can trace back the citations about the treatment of one detainee, the detainee who appears to be Ghul, to the earlier letters from 2004.

Just as an example, the August 26 letter cited in Udall’s list relies on the August 25 CIA letter that is also cited in the CAT Memo using the name Gul (the July 22 and August 6 letters are also references, at least in part, to the same detainee).

So we know the 2005 memos served to codify the authorizations for torture that had happened in 2004, during a volatile time for the torture program.

The description of Hassan Ghul in the lying memo

There are still some very funky things about these memos’ tie to Hassan Ghul (again, that’s going to be in a later post), notably that Bush figures referred to the Ghul of the August letters as Janat Gul, including in a Principals meeting discussing his torture on July 2, 2004; sources told the AP after OBL’s killing that this Janat was different than Hassan and different than the very skinny Janat Gul who had been a Gitmo detainee.

But this description — the timing of the initial references and the description of his mission to reestablish contact with Abu Musab al-Zarqawi — should allay any doubts that Ghul is one of two detainees referenced in the CAT memo.

Intelligence indicated that prior to his capture, [redacted] “perform[ed] critical facilitation and finance activities for al-Qa’ida,” including “transporting people, funds, and documents.” Fax for Jack Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted] Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [redacted] played an active part in planning attacks against United States forces [redacted] had extensive contacts with key members of al Qaeda, including, prior to their captures, Khalid Sheikh Mohammed (“KSM”) and Abu Zubaydah. See id. [redacted] was captured while on a mission from [redacted] to reestablish contact with al-Zarqawi. See CIA Directorate of Intelligence, US Efforts Grinding Down al-Qa’ida 2 (Feb 21, 2004).

Ghul was captured by Kurds around January 23, 2004, carrying a letter from Zarqawi to Osama bin Laden.

So while there are a lot of details that the Senate Torture Report presumably sorts out in detail, it seems fairly clear that Ghul is the subject of some of the documents in question, and that, therefore, there are aspects of the treatment he endured at CIA’s hands that CIA felt the need to lie to DOJ about.

We’ve known for years that CIA lied to DOJ about what they had done and planned to do with Abu Zubaydah. But a great deal of evidence suggests that CIA lied to DOJ about what they did to Hassan Ghul, a detainee (the Senate Report also shows) who provided the key clue to finding Osama bin Laden before he was tortured.

If that’s the case, then I find the release of a story that, after that treatment, he turned double agent either directly or indirectly in our service to be awfully curious timing given the increasing chance we’re about to learn more about these lies and this treatment with any release of the Torture Report.

Intelligence Committees: Not Informed about Torture, Not Informed about Drone Casualties, Not Informed about US Person Spying

/8 Comments/in , , /by

Amnesty International and Human Rights Watch released reports on US drone killings today. For the moment, I’m going to outsource reading the reports to Sarah Knuckey’s excellent post.

Both reports (per Knuckey) point to individual drone strikes on civilians that may or probably violate international law.

Specific US strikes killed civilians in violation of the law and US policy.  These are the first major reports by each organization detailing field investigations into specific strikes.  HRW reviewed six strikes in Yemen (occurring between December 2009 and April 2013). HRW concluded that two of the strikes violated international law (pp. 54, 67), four may have (pp. 30, 39, 43, 60), and none of the six appeared to have complied with Obama’s May 2013 Presidential Policy Guidance (p. 89).  AI reviewed all 45 reported Pakistan strikes between January 2012-August 2013, and investigated nine in detail.  AI’s legal findings include that “evidence indicates” that an October 2012 strike unlawfully killed a grandmother and injured eight children (p. 23), and AI had “serious concerns” that a July 2012 strike that killed 18 and injured 22 (p. 24) may have been a war crime or extrajudicial execution (p. 27).  AI also investigated a number of strikes on apparent rescuers (those who came to the scene of a first strike to help the wounded), which it concluded may have been illegal (pp. 28-30).  Neither report seeks to assess the total number or rate of civilian casualties for all strikes.

[snip]

Investigations and accountability obligations. AI states that the US has legal obligations to investigate any cases where there are “reasonable grounds to indicate that unlawful killings have occurred,” and to prosecute, and remedy where appropriate (pp. 35-37).  HRW similarly states that the US has a duty to investigate violations of the laws of war, and that government secrecy effectively denies victims’ right to redress (p. 87).  Both reports also state the US should provide compensation or condolence payments for any civilian harm, but that neither organization is aware of the US having done this (AI, p. 39; HRW, p. 88).

This documentation of civilian casualties, of course, provides further evidence Dianne Feinstein and Mike Rogers’ claims about civilian casualties are false.

But we knew that.

Which means, in addition to the fact that we’re violating international law with some of our drone killings, we also are seeing a recurrent trend.

Even the CIA’s own lawyer agreed that CIA didn’t properly inform Congress, including the Intelligence Committees, about torture.

We’re learning that vast parts of the NSA’s spying — including spying that collects US person data — remains largely hidden from the Intelligence Committees.

And we have yet more proof they have been misinformed about drone killings.

Is there some dubiously legal program the Intelligence Community has fully informed Congress on?

CIA and the President: The Warm Embrace of Mutual Incrimination

/10 Comments/in , /by

Brennan with TortureAndrew Sullivan is newly convinced — but surprised and confused — that President Obama is permitting John Brennan to hold up the release of the Senate Torture Report.

It is becoming clearer and clearer that one major power-broker in Washington is resisting the release of the Senate Intelligence Committee’s allegedly devastating report on the torture program run by the Bush-Cheney CIA. That major power-broker is the Obama administration.

You might be surprised by this, given the president’s opposition to torture and abolition of it. But the evidence is at this point irrefutable

[snip]

Brennan answers to the president, who has urged the release of the report.

So why the hold-up? That is the question.

Why is Obama allowing Brennan to undermine Obama’s own position? Why is the president allowing the CIA to prevent the very transparency he once pledged to uphold? I don’t know. But what I do know is that it is now Obama who is the main obstacle to releasing the Senate Report on Torture.

Mind you, the evidence was pretty irrefutable back in May, too, and became more so in July. Moreover, I’m not sure Obama has “urged the release of the report” — though Joe Biden has.

The explanation for Obama’s silence on this report seems pretty obvious if you read both Stephen Preston’s answers to Mark Udall’s questions and Obama’s past actions on torture. In short:

  • Torture was authorized by a Presidential Finding — a fact Obama has already gone to extraordinary lengths to hide
  • CIA has implied that its actions got sanction from that Finding, not the shoddy OLC memos or even the limits placed in those memos, and so the only measure of legality is President Bush’s (and the Presidency generally) continued approval of them
  • CIA helped the (Obama) White House withhold documents implicating the White House from the Senate (Sully does not note this fact, but Katherine Hawkins, whom Sully cited, did)

With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.

Indeed, I wonder whether the evidence in the Senate report showing CIA lied to the White House is not, in fact, cover for things some in the White House ordered CIA to do.

This is, I imagine, how Presidential Findings are supposed to work: by implicating both parties in outright crimes, it builds mutual complicity. And Obama’s claimed opposition to torture doesn’t offer him an out, because within days of his inauguration, CIA was killing civilians in Presidentially authorized drone strikes that clearly violate international law.

Again, I think this is the way Presidential Findings are supposed to work: to implicate the President deeply enough to ensure he’ll protect the CIA for the crimes he asks it to commit.

But it’s not the way a democracy is supposed to work.

Barb Mikulski and Stephen Preston Seem to Disagree Over Whether David Petraeus “Jerked Around” Congress

/1 Comment/in , , /by

A big part of Stephen Preston’s response to Mark Udall’s questions about whether he supports adequate disclosure to Congress consists of insisting the CIA Directors he worked with — Leon Panetta, David Petraeus, presumably Mike Morell as Acting Director, and John Brennan — have supported full disclosure to Congress.

Doing a better job of congressional notification and ensuring the proper provision of information concerning covert action and other intelligence activities to the Intelligence Committees has been a top priority of the Directors under which I have served, starting with Director Panetta, and one that I have fully supported.

[snip]

What we regard as proper practice today is driven by faithful application of the National Security Act of 1947. It is also informed by the very high priority the Directors under which I have served have placed on doing a better job of congressional notification and ensuring the proper provision of information concerning covert action and other intelligence activities to the Intelligence Committees. To repeat, I have fully supported these efforts and, if confirmed, will be fully committed to such efforts with respect to the Armed Services Committees.

While it may or may not be true that the Directors under whom Preston has served have not engaged in the kind of manipulative briefings that characterized the torture program, every time I read these assurances from Preston I remembered what Barb Mikulski said at John Brennan’s confirmation hearing.

Now, I want to get to the job of the CIA director. I’m going to be blunt — and this would be no surprise to you, sir.

But I’ve been on this committee for more than 10 years. And with the exception of Mr. Panetta, I feel I’ve been jerked around by every CIA director.

I’ve either been misled, misrepresented, had to pull information out, often at the most minimal kind of way, from Tenet, with his little aluminum rods to tell us that we had weapons of mass destruction in Iraq to Porter Goss, not worth coming.

You know the problems we’ve had with torture. The chair has spoken eloquently about it all the way.

And, quite frankly, during those questions, they were evaded, they were distorted, et cetera.

While she didn’t name him as she did Tenet and Goss, neither did she except David Petraeus, like she did Leon Panetta.

This would seem to suggest that Mikulski has a very different understanding of Petraeus’ commitment to briefing Congress than Preston claims to have.