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Rice and Goss Turn on Cheney

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Keep in mind that this article seems to be at least partly the product of two entities–the Bellinger/Condi- and the Goss-reputation protection entities–that have been working overtime lately. (h/t Loo Hoo) In fact, the article references the YouTube of Condi proclaiming, "By definition, if it was authorized by the President, it did not violate our obligations in the Convention Against Torture," without explicitly telling NYT’s readers what Condi said. I guess that part–the part where Condi continues to defend the program by channeling Nixon–isn’t important.

Nevertheless, the article provides a few more data points on the torture plan.

June 2003 Statement of Support Was a Response to Shrub’s Speech

First, the article explains why CIA chose June 2003–of all times–to insist the White House write up a policy statement supporting torture with Bush’s name on it. 

The proclamation that President George W. Bush issued on June 26, 2003, to mark the United Nations International Day in Support of Victims of Torture seemed innocuous, one of dozens of high-minded statements published and duly ignored each year.

The United States is “committed to the worldwide elimination of torture and we are leading this fight by example,” Mr. Bush declared, vowing to prosecute torture and to prevent “other cruel and unusual punishment.”

Uh, yeah, I can see why that would make the CIA squirmy about doing Bush’s cruel and unusual punishment for him.

If this were a just world, the statement CIA forced Bush to write after he proclaimed we will prosecute torture and prevent cruel and unusual punishment, the statement basically endorsing torture as our country’s policy, will be the piece of evidence that leads to his prosecution. Alas, this is not usually a just world. 

Porter Goss CYAed Himself in December 2005

And then there’s the bit where Porter Goss protects himself by saying White House was pushing for torture at the end of 2005, but Goss was refusing without further cover from DOJ.

Acutely aware that the agency would be blamed if the policies lost political support, nervous C.I.A. officials began to curb its practices much earlier than most Americans know: no one was waterboarded after March 2003, and coercive interrogation methods were shelved altogether in 2005.

[snip]

Provoked by the abuse scandal at the Abu Ghraib prison in Iraq and pushed by Senator John McCain of Arizona, who had been tortured by the North Vietnamese, the 2005 bill banned cruel, inhuman and degrading treatment.

Top C.I.A. officials then feared that the agency’s methods could actually be illegal. Read more →

Zelikow’s Dissent and Rockefeller’s Question

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Dalybean made an important point in EPU-land of the Gestation of Bradbury’s Torture Memos thread. As I pointed out in that thread, the May 30 Bradbury memo was a response–at least in part–to Congress’ demand that the Administration assess whether their torture program complied with the Fifth, Eighth, and Fourteenth Amendments as they fulfilled the US obligation under the Convention Against Torture.

Well, that was one of the biggest points Phillip Zelikow made in his dissent to the May 30, 2005 torture memo.

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

  • the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA’s methods;
  • the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
  • the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law — whatever the alleged gain. [my emphasis]

Zelikow, with a background in this area of law, wrote a dissent to the torture memo ripping its legal analysis. Significantly, Zelikow hit on one point that Congress was hitting on too: the importance of the Eighth Amendment in our compliance with the Convention Against Torture. As Zelikow apparently pointed out, the case law surrounding the Eighth Amendment said that even these detainees were entitled to protection from cruel and unusual punishment.

Read more →

Bradbury’s Bellybutton

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I want to highlight two paragraphs of Bradbury’s May 30 torture memo to show how self-referential his argument is. The paragraphs (on pages 6 and 7) use Abu Zubaydah and Khalid Sheikh Mohammed as examples of the type of people that have been–or might be–waterboarded, so Bradbury is trying to fluff up their importance and danger. My comments are interspersed with his idiocy.

We understand that Abu Zubaydah and KSM are representative of the types of detainees on whom the waterboard has been, or might be, used. Prior to his capture, Zubaydah was "one of Usama Bin Laden’s key lieutenants." CIA, Zayn al-Abidin Muhammad Husayn ABU ZUBAYDAH at 1 (Jan. 7, 2002) ("Zubaydah Biography")

Remember, Bradbury is writing this in 2005, even after the 9/11 Commission report came out referring to AZ with such descriptions as "a longtime ally of Bin Ladin," "worked closely with the al Qaeda leadership," "had an agreement with Bin Ladin," "associate," and twice, "lieutenant," but not "key lieutenant" and not "member of." But to make the case that waterboarding will only be used with the worst of the worst, Bradbury reverts back to a pre-capture biography of Zubadayah that was proven wrong by facts collected during Zubaydah’s capture to make the claim Zubaydah was a key al Qaeda figure.

Indeed, Zubaydah was al Qaeda’s third or fourth highest ranking member and had been involved "in every major terrorist operation carried out by al Qaeda." Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Interrogation of al Qaeda Operative at 7 (Aug. 1, 2002) ("Interrogation Memorandum:); Zubaydah Biography (noting Zubaydah’s involvement in the September 11 attacks). 

So once again, Bradbury cites a 2002 document that was proven to be erroneous by AZ’s own interrogation testimony. But to make things worse, Bradbury cites a passage of the Bybee Two memo.  That passage was almost certainly known to be false when Rizzo made it to Yoo in 2002. But Bradbury, as if wallowing gleefully in the fraudulent representations of that prior memo, cites it again, in 2005, when it was definitely known to be false.

Upon his capture on March 27, 2002, Zubaydah became the most senior member of al-Qaeda in United States custody. 

Seeing how Sheikh al-Libi ran the Khaldan camp for which AZ served as tour guide, even this is an arguably false claim. Read more →

OLC + CIA = CYA

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I wanted to make two points about Spencer’s important story at the Windy, identifying a previously unknown 2007 Bradbury torture memo.

A former senior intelligence official, who would not speak for the record, said that in 2007, the head of the Justice Department’s Office of Legal Counsel, Steven Bradbury, issued a still-secret memorandum authorizing an updated CIA interrogation regimen. The Justice Department issued the document after months of internal Bush administration debate, a Supreme Court decision in 2006 that extended protections from Common Article 3 of the Geneva Conventions to enemy combatants in U.S. custody, a piece of new legislation responding to the Court’s decision and a presidential executive order on interrogations.

[snip]

The still-unreleased Office of Legal Counsel memo spelled out for the CIA what interrogation practices were considered lawful after President Bush issued an executive order on July 20, 2007 that sought to reconcile the CIA’s interrogation program with the Geneva Conventions’ Common Article 3, which prohibits inflicting “outrages upon personal dignity, in particular humiliating and degrading treatment” upon wartime detainees.” The Supreme Court, in 2006’s Hamdan v. Rumsfeld decision, ruled that Common Article 3 protections applied to enemy combatants in U.S. custody, a determination that the Bush administration had resisted since creating its post-9/11 detention and interrogation policies. Congress in 2006 responded by passing the Military Commissions Act, which reserved for the president the right to define the applicability of Common Article 3 protections for detainees in the war on terrorism. Bush’s order, known as Executive Order 13440, determined that the the CIA’s interrogation program fit within Common Article 3, provided that it met certain criteria, such as the exclusion of practices like “murder, torture, cruel or inhuman treatment, mutilation or maiming.”

But the order did not define which interrogation techniques it now considered legal. Anonymous Bush administration officials told reporters on the day of the order’s release, “it would be very wrong to assume that the program of the past would move into the future unchanged.” As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program. [my emphasis]

Note the timing. Read more →

McCain on the Torture Memos

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When asked about his feelings about the release of the torture memos, McCain recalled his efforts in 2005 to make torture (more) illegal.

As you know it was my legislation, the Detainee Treatment Act, that prohibited torture, that said we had to abide by the Geneva Convention for treatment of enemy combatants and wish that we had done that. But release of these memo helps no one, doesn’t help America’s image, does not help us address the issue, and I think it was a serious mistake.

I wonder what McCain thinks about this footnote from the May 10, 2005 "Techniques" memo? Though it reflects an earlier Congressional effort than McCain’s attempt to make torture (more) illegal passed later that year, the bill Bradbury mentions was part of the effort in 2005 to bring interrogation under the rule of law.

Finally, we note that section 6057(a) of H.R. 1268 (109th Cong. 1st Sess.), if it becomes law, would forbid expending or obligating funds made available by that bill to "subject any person in the custody or under the physical control of the United States to torture," but because the bill would define "torture" to have "the meaning given that term in section 2340(1) of title 18, United States Code, 6057(b)(1), the provision (to the extent it might apply here at all) would merely reaffirm the preexisting prohibitions on torture in sections 2340-2340A.

Maybe McCain doesn’t like having these memos released because they demonstrate the disdain with which the Bush Administration treated Congressional attempts to end the torture program?

Sign the petition telling Attorney General Eric Holder to appoint a special prosecutor to investigate torture here. 

The CIA IG Report: Is Waterboarding KSM 183 Times Really Effective?

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picture-97.thumbnail.pngI think I’ve finally gotten some folks to to pay attention to the OLC Memo revelation that KSM was waterboarded 183 times in a month.

In that post, I suggested that if it took 183 uses of waterboarding to make KSM comply with interrogators wishes, then waterboarding is far less effective than the CIA would like us to believe. It appears the CIA IG was raising the number of times KSM was waterboarded in the same context I am–to question the efficacy of waterboarding someone that many times. 

As I described last night, Steven Bradbury spends four pages of the May 30, 2005 memo trying to prove that enhanced interrogation is effective. He appears to be responding to a six-page passage in the CIA IG Report addressing the efficacy of enhanced interrogation.

I dealt with that section in some detail last night.  But by reconstructing that section best as we can from the fragments Bradbury gives us (see my work below), we see the IG Report was tying the number of times KSM and Abu Zubaydah were waterboarded with its judgment of waterboarding’s (in)efficacy.

Bradbury doesn’t reveal how the IG Report begins the discussion of the efficacy of the enhanced interrogation program. But shortly after the beginning, the IG Report seems to refute claims that individual, high value detainees are the key to collecting information on al Qaeda. It points out that CTC relies on the information from lower-level detainees–presumably collected without enhanced methods since CIA claims it only uses enhanced methods on high value detainees–to round out its understanding of information collected from high value detainees.

CTC frequently uses the information from one detainee, as well as other sources, to vet the information from another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further. … [T]he triangulation of intelligence provides a fuller knowledge of Al-Qa’ida activities than would be possible from a single detainee.

Bradbury leaves out the next part of the IG Report’s discussion. But from there, the IG Report says we can’t conclusively determine whether enhanced interrogations have provided information that has prevented specific attacks (note, the wording of this discussion is very vague, perhaps intentionally so; it could mean any number of things, including that we have zero evidence that torture has prevented attacks, or that we just don’t have evidence one way or another). Then, the IG Report appears to elaborate on this difficulty, noting that, "there is limited data on which to assess their individual effectiveness." Again, this quotation is unclear, but it appears to refer to the effectiveness of one enhanced interrogation method over another. That is, the IG Report appears to be saying it has no way of assessing whether waterboarding is more effective than sleep deprivation than persuasion. Finally, the IG Report admits that enhanced interrogation–or perhaps just waterboarding–is tied to an increase in the number of reports (though it appears to have already dismissed any possibility of assessing the quality of these reports). And it is in that context in which the IG Report discusses the sheer number of times that Abu Zubaydah and KSM were waterboarded. 

In other words, at the tail end of an extended discussion explaining all the reasons we can’t say enhanced interrogation prevented any specific attacks and why it may be a mistake to focus exclusively on individual high value detainees, the IG Report connects the sheer number of reports CIA has gotten when using waterboarding with the sheer number of times it was used on Abu Zubaydah and KSM.

And significantly, 12 pages later the IG Report notes that CIA was using waterboarding more than it had said it had been using it.

Now all of this is obviously very fragmentary, and Bradbury seems to have deliberately obscured the IG Report’s language in key passages. As it happens, though, both the White House and SSCI are in the middle of attempts to assess the efficacy of waterboarding. 

In response to those efforts, the CIA has begun assembling thousands of classified cables that contain daily reports from the agency’s secret prisons, tracking the interrogation methods used on high-value detainees and how much information was obtained as a result.

Let’s hope this inquiry–unlike the memos sent to Steven Bradbury tailored to allow him to claim that torture was effective–do more than track the number of reports gathered under torture. And heck, while they’re at it, perhaps the White House and the SSCI could release this part of the IG Report, which seems to conclude–after having watched thousands of hours of torture videos–that it was not effective.

Sign the petition telling Attorney General Eric Holder to appoint a special prosecutor to investigate torture here.

As Bradbury notes on page 10 of is memo, the IG Report discusses the efficacy of enhanced interrogation from page 85 though 91. Here are the topics that discussion covers, in order, with the Bradbury description of the reference:

Page 85: No direct reference

Page 86: A description of an increase in intelligence reports attributable to enhanced methods and a discussion arguing that you can’t measure the efficacy of interrogation by pointing to just the reports from one detainee..

See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). 

According to the CIA Inspector General:

CTC frequently uses the information from one detainee, as well as other sources, to vet the information from another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further. … [T]he triangulation of intelligence provides a fuller knowledge of Al-Qa’ida activities than would be possible from a single detainee.

IG Report at 86.

Page 87: No direct reference

Page 88: A statement that it is difficult to determine whether interrogations have stopped specific attacks.

As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks. See id. at 88.

Page 89: A statement noting that there is limited data on whether enhanced methods are effective (note–Bradbury pitches this as an observation that the Read more →

Debunking the Torture Apologists’ “Half the Intelligence” Claim

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prometheus

image courtesy of quapan

In another thread, Bob Schacht wrote,

BTW, according to CNN, Haynes and Mukasey are claiming that “half” of what we “know” about Al Qaeda came from torture sessions. Did they really write that, and if so, I’m wondering if its puffery or true.

Using the May 30, 2005 Bradbury memo, I think I can show where it comes from–and show why it’s a totally useless claim.

Bradbury Needed to Appeal to Efficacy to Claim These Techniques Didn’t Violate the Convention Against Torture

In the May 30, 2005 Memo, Steven Bradbury spends four pages recording the effectiveness of enhanced interrogation. He does this, at least partially, to make sure he can claim that the techniques at issue don’t "shock the conscience" and therefore don’t violate the Fifth Amendment (and therefore don’t violate CAT, which is the whole point of this memo) . In particular, Bradbury resorts to efficacy when trying to distinguish between torture condemned by the State Department and that practiced by the US. Speaking of torture practiced by other countries, Bradbury claims it simply doesn’t serve the same purpose as our torture.

There is no indication that techniques are used only as necessary to protect against grave terrorist threats or for any similarly vital government interests.

And when Bradbury is trying to distinguish enhanced interrogation from SERE, he again appeals to efficacy and necessity.

… the interrogation program we consider here furthers the paramount interest of the United States in the security of the Nation more immediately and directly than SERE training.

[snip]

It follows that use of these techniques will not shock the conscience in at least some circumstances. We believe that such circumstances exist here, where the techniques are used against unlawful combatants who deliberately and secretly attack civlians in an untraditional armed conflict in which intelligence is difficult or impossible to collect by other means and is essential to the protection of the United States and its interests, where the techniques are used only when necessary and only in the interrogations of key terrorist leaders reasonably thought to have acionable intelligence, and where every effort is made to minimize unnecessary suffering and to avoid inflicting significant or lasting harm.

It bears noting that this rant goes far beyond what Bradbury elsewhere carefully laid out as the premise of his memo. But both this claim and the one dismissing State Department concerns about torture rely on his argument that the program was necessary to protect the US. 

So to accomplish his apparent task–which was to find a way to declare the CIA interrogation program did not violate CAT (after CIA’s own IG had already concluded it did), Bradbury needed to be able to say it was effective.

Read more →

The Torture Memos and the FBI-CIA Dispute

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I wanted to revisit this David Johnston article from September 10, 2006, written shortly after Bush brought the High Value Detainees to Gitmo (the second time, for some of them). At the time, the article served to challenge Bush’s portrayal of a fine-tuned interrogation system and pretty obviously aired the two sides of the FBI-CIA dispute over torture.

But rather than the smooth process depicted by Mr. Bush, interviews with nearly a dozen current and former law enforcement and intelligence officials briefed on the process show, the interrogation of Mr. Zubaydah was fraught with sharp disputes, debates about the legality and utility of harsh interrogation methods, and a rupture between the Federal Bureau of Investigation and the C.I.A. that has yet to heal.

Read now, the article provides a lot of background to details that have been confirmed since the release of the memos–and as such it helps elucidate the information coming from the memos. And, by reading it in conjunction with the torture memos, it shows why the dispute between FBI and CIA has remained so intractable. 

Background Details for the Memos

For example, the article appears to report on something Michael Hayden blurted out the other day (and which Steven Aftergood picked up); the interrogation program started as a covert operation.

For the C.I.A., Mr. Zubaydah was a test case for an evolving new role, conceived after Sept. 11, in which the agency was to act as jailer and interrogator for terrorism suspects.

According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system.

That 2001 directive did not spell out specific guidelines for interrogations, however, and senior C.I.A. officials began in late 2001 and early 2002 to draw up a list of aggressive interrogation procedures that might be used against terrorism suspects. They consulted agency psychiatrists and foreign governments to identify effective techniques beyond standard interview practices.

A memorandum of notification is closely related to a finding. Which, as Aftergood pointed out, should mean that Congress’ intelligence committees were informed.

That timing is important for another reason. As Valtin first pointed out, the Administration was researching how to torture at least as early as December 2001. This article suggests the "research" went back even further, to just days after 9/11. Read more →

The CIA IG Report and the Bradbury Memos

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In May 2004, CIA’s Inspector General, John Helgerson, completed a report that found that the CIA’s interrogation program violated the Convention Against Torture. By understanding the role of that report in the May 2005 Bradbury memos, we see just how weak Bradbury’s memos are. 

As Jane Mayer described, the report strongly influenced Jack Goldsmith shortly before he withdrew the August 1, 2002 Bybee memo in June 2004.

The 2004 Inspector General’s report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, "You couldn’t read the documents without wondering, "Why didn’t someone say, ‘Stop!’"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith declined to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was "horrible."

After Goldsmith withdrew the Bybee memoranda, Dan Levin wrote a new more restrictive memo in December 2004. But by spring 2005, the CIA wanted to use torture with some more high value detainees (including Hassan Ghul). So they had Steven Bradbury (in what was basically an audition to head OLC) write new torture memos–not only to reauthorize waterboarding (though it was not used on Ghul, according to reports), but also to dismiss all the concerns about the CAT raised by CIA’s IG.

Read more →

The OLC Memos, “Erroneous and Inflammatory Assumptions,” and John Rizzo’s Lies

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In his statement on the torture memos today, Obama suggested that some of the "assumptions" about what Americans had done were wrong, and that releasing the memos would correct these "assumptions."

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.[my emphasis]

This suggests (though weakly) that the OLC memos–and not other evidence–should be taken as authoritative on the events surrounding our interrogation program.

Though, on several counts, this is not true.

The most troubling example pertains to Abu Zubaydah’s mental state before he was tortured. John Yoo (writing under Jay Bybee’s name) goes to some lengths to establish Abu Zubaydah’s sanity. After five paragraphs that basically make Abu Zubaydah out to be a self-confident stud, here’s what Yoo says about AZ’s psychological health.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,] … enduring mood or mental health problems." He is in fact "remarkably resilient and confident that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufiicient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled., and deliberate." He has maintained tius demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Read more →