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Two-Fronted War in Defense of the Constitution in the House

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The AP reported on Steven Bradbury’s tortured logic about water-boarding.

”The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.

”There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said.

That is, waterboarding is not legal today, but it could be tomorrow if Bradbury made it so at the bidding of David Addington.

That tortured logic is part of Bradbury’s prepared statements for an appearance before HJC’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties (click here to follow along).

Meanwhile, Chairman Conyers is appearing before the Rules Committee (on CSPAN1) supporting his contempt resolution, describing the importance of the contempt resolution to the balance of powers.

Some have said we risk more if we lose this fight. If we countenance a process where our subpoenas can be readily ignored, where a witness doesn’t even have to bother to show up or tell us that they’re not coming, then we’ve already lost. This is not a matter of vindicating the Judiciary Committee.

Republicans are playing nasty–interrupting the Lantos memorial for stupid parliamentary tricks. Lamar Smith thinks we shouldn’t pass this rule because we won’t also allow the government broad powers to wiretap us.

And Bradbury is assuring "the committee that every opinion I sign represents my best judgment regardless of political currents."

I’ll try to follow both hearings.

Nadler: Is waterboarding a violation of the Federal torture statute?

Bradbury: I think it was reasonable to say that it didn’t violate the Federal torture statute. Your description of the procedure is not accurate description of procedure used by CIA.

Nadler: My description is one given to us by former interrogators.

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Mukasey Oversight: HJC Edition

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Coming in at the end of the opening statements. Conyers’ emphasis is on questions on torture and voting rights. Lamar Smith says crack dealers who have already served longer than coke dealers should stay in jail. And Mukasey says the telecoms need [ut oh, he’s got his talking points wrong] retroactive immunity and those crack dealers need to stay in jail.

Conyers

Any additional comments about waterboarding now that Hayden confirmed it?

MM: Do you have a particular question?

JC: Are you ready to start a criminal investigation?

MM: That’s a direct question. No, I am not. Whatever was done as part of the CIA program, was part of DOJ opinion, through OLC, permissible under law as it existed then. For me to use occasion of disclosure that that was once an authorized part of the CIA program would be for me to tell that they will now be subject to criminal investigation. That would put into question not only that opinion, but also any other opinion from DOJ. That’s not something that would be appropriate and not something I would do.

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Is This Why Rosenberg Recused?

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The AP reveals that prosecutors in the Alexandria US Attorney’s Office–including the lead prosecutor in the Moussaoui case–did know of the torture tapes in early 2006, before Moussaoui was sentenced.

The lead prosecutor in the terror case against Zacarias Moussaoui may have known the CIA destroyed tapes of its interrogations of an al-Qaida suspect more than a year before the government acknowledged it to the court, newly unsealed documents indicate.

The documents, which were declassified and released Wednesday by the 4th U.S. Circuit Court of Appeals, detail efforts by Moussaoui’s attorneys to send the case back to a lower federal court to find out whether the tapes should have been disclosed and whether they would have influenced his decision to plead guilty.

In a Dec. 18, 2007, letter to the appeals court’s chief judge, the Justice Department acknowledged that its lead prosecutor in the case had been informed about the CIA’s tapes of al-Qaida lieutenant Abu Zubaydah being interrogated.

The letter said the prosecutor, Robert A. Spencer, may have been told of the tapes’ destruction in late February or early March of 2006, just as the U.S. District Court in Alexandria, Va., was beginning its trial on whether Moussaoui would be eligible to face the death penalty.

Spencer, who was one of three prosecutors on the government’s team, "does not recall being told this information," U.S. Attorney Chuck Rosenberg wrote in the Dec. 18 letter to 4th U.S. Circuit Chief Judge Karen J. Williams.

Another prosecutor in Rosenberg’s office in Virginia’s eastern district who was not involved in the case "recalls telling (Spencer) on one occasion," the letter said.

That second, unnamed, prosecutor learned about the videotapes of Zubaydah "in connection with work he performed in a Department of Justice project unrelated to the Moussaoui case," the letter said.

It is unclear what that project was. [my emphasis]

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The Watchdog’s Watchdog

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Last month, just as CIA’s IG and Director learned of the DOJ investigation into the torture tape destruction, the CIA also announced that Helgerson and Hayden had agreed on some measures to make the IG process "more fair."

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

Right on schedule, yesterday the CIA announced those "procedural changes." The IG’s office will have an ombudsman to act as a watchdog on the watchdog.

The CIA’s inspector general has agreed to tighter controls over its investigative procedures, agency officials revealed yesterday, in what appeared to be an attempt to soften resentments among agency officials over the watchdog’s aggressive probes into the legality and effectiveness of the CIA’s counterterrorism efforts and detention programs.

The revisions, which include the appointment of a special ombudsman to oversee the IG’s work, were disclosed by CIA Director Michael V. Hayden in an e-mail sent to employees, announcing the end of an unusual inquiry into the performance of Inspector General John L. Helgerson, a 36-year CIA veteran and the man chiefly responsible for the spy agency’s internal oversight.

Most interesting–or troubling, depending on how you look at it–is the requirement that the IG’s office keep senior CIA officers informed of the status of investigations.

The changes include measures intended to speed up investigations and require the watchdog to keep CIA employees and managers informed about both the process and results of investigations.

Call me crazy, but I would imagine that if you tell the CIA Director that you’re about to report that the "enhanced interrogation techniques" the CIA has been doing probably violate international law, then you’re never going to be able to write a report to that effect. And certainly never going to be able to circulate to anyone who can do something about the violations of international law.

Judge Hellerstein Calls the CIA on its BS

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Wow. Judge Hellerstein is not amused with the CIA’s assertion that the torture tapes–which IG staffers flew to Thailand to view as part of their investigation into CIA interrogation methods–were not part of their investigation. Nor does he buy the assertion that the "special review" is not an investigation. He basically called Bull on the CIA’s assertions in about six different ways.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

In fact, Judge Hellerstein even suggested what I did: that the CIA intentionally did not put any mention of the torture tapes in their IG report as a way to shield them from FOIA.

Judge Hellerstein raised the possibility that C.I.A. officials had intentionally not placed the tapes in the investigative files so as to avoid a freedom of information request.

“It seems to me that you were gulled,” he told Mr. Skinner, “and that the court was gulled.”

Gotta love a good skeptical judge. Read more →

“It Smells Like a Cover-Up”

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So sayeth one of Pincus and Warrick’s two sources describing the content of John Rizzo’s testimony. Mind you, that source remains anonymous, because "those in attendance were pledged to secrecy about the session." Of course, that didn’t prevent Crazy Pete Hoekstra from blabbing to the NYT and others about it, but he’s never believed that laws on secrecy should apply to him as well as staffers. Though, since I beat up Pincus yesterday for helping Bennett tamper with this investigation, let me just say that he offers, by far, the most interesting tidbit about Rizzo’s testimony.

Two of those at the hearing said that Rizzo said that after the tapes were made in 2002, lawyers at the CIA discussed the possibility that the FBI and the 9/11 Commission might want to see them.

If Rizzo has testified that lawyers at the CIA knew the 9/11 Commission might want to see the terror tapes, it strongly reinforces Tom Kean and Lee Hamilton’s claim that,

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

In fact, lawyers at the CIA knew that the 9/11 Commission would want to see these specific tapes. Which I guess is why George Tenet has lawyered up.

Meanwhile, the battle between Rodriguez, Rizzo, and Goss seems to be heating up. Bob Bennett specifically named Rizzo and Goss to the NYT as those who should have told Rodriguez to retain the tapes.

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Shorter Rizzo to Rodriguez: Well, If You’re Not Going to Testify, I Will Screw You

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Remember how I suggested that this passage from Pincus’ love letter to Bob Bennett and his client Jose Rodriguez might be targeted to (among others) Porter Goss and John Rizzo?

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover."

Well, here’s what Rizzo had to say to that.

 "I told the truth," Rizzo said in a brief appearance before reporters.

Which doesn’t sound like it was all too helpful for Rodriguez’ little story. Read more →

The Dubious Timeline from Pincus’ Love Letter to Bob Bennett

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I’ve already ranted about how irresponsible it was for Walter Pincus and Joby Warrick to publish Bob Bennett’s statement on behalf of Jose Rodriguez–a statement that Rodriguez refused to give under oath without immunity–on the same day that John Rizzo testifies before Congress. Nothing like assisting the obstruction of an ongoing investigation. But now that I’ve done my ranting (and enjoyed the sun), here is another rant about the dubious timeline offered in Pincus and Warrick’s article.

The article alternates between vague and specific in curious fashion. For example, the article specifies that the taping started in August and ended in December 2002.

According to interviews with more than two dozen current and former U.S. officials familiar with the debate, the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.

That detail directly contradicts the date offered in the CIA’s previous attempt to straighten out its story on the terror tapes, which claimed the taping started in spring 2002.

If Abu Zubaydah, a senior operative of Al Qaeda, died in American hands, Central Intelligence Agency officers pursuing the terrorist group knew that much of the world would believe they had killed him.

So in the spring of 2002, … they set up video cameras to record his every moment: asleep in his cell, having his bandages changed, being interrogated.

Now, there are two big reasons why the CIA might want to change that date. First, the CIA wasn’t authorized to torture until August 2002–so the later date magically makes any torture that happened legal, at least according to OLC. In addition, we know that Abu Zubaydah identified Padilla in the first several weeks of his captivity. By claiming no tapes were taken before August, the CIA pretends that any claim from Padilla regarding the tapes is irrelevant, since (if they really weren’t taken until August), the tapes would have no evidence relevant to Padilla’s case.

But here’s the problem with the new dates, beyond just the contradiction with the CIA’s earlier story: the CIA still wants you to believe they took the tapes to prove they weren’t killing Abu Zubaydah. But by August, he had already been under medical treatment for four months, presumably well beyond the time they needed to prove they weren’t killing Zubaydah.

And the changing date is all the more suspicious since Zubaydah’s health remains one of the chief reasons the WaPo’s sources give for stopping the taping.

By December 2002, the taping was no longer needed, according to three former intelligence officials. "Zubaida’s health was better, and he was providing information that we could check out," one said.

If the tapes were precipitated on Zubaydah’s health, then why didn’t they start until August, according to this latest iteration of the CIA story? Read more →

A Cheap Ploy to Avoid Giving Testimony, Jose Rodriguez

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Today’s article from Joby Warrick and Walter Pincus answers a lot of questions we’ve been asking about the torture tapes–the biggest being that the tapes were stored and destroyed in Thailand. And it has a lot of interesting details I’ll return to in a follow-up post, after I enjoy some rare MI sun with my dog. But the most important detail readers should take away is its function, as suggested by the following two passages. First, the recognition that John Rizzo will testify before HPSCI today.

John A. Rizzo, the CIA’s acting general counsel, is scheduled to discuss the matter in a closed House intelligence committee hearing scheduled for today.

And second, the incorporation of long excerpts from a written statement from Bob Bennett to present Jose Rodriguez’ justifications for his actions.

Those three circumstances pushed the CIA’s then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved. Rodriguez consulted CIA lawyers and officials, who told him that he had the legal right to order the destruction. In his view, he received their implicit support to do so, according to his attorney, Robert S. Bennett.

[snip]

Rodriguez, whom the CIA honored with a medal in August for "Extraordinary Fidelity and Essential Service," declined requests for an interview. But his attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover." [my emphasis] Read more →

No Immunity, Yet, for Rodriguez

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Well, Crazy Pete Hoekstra hasn’t managed to slip a little immunity deal to Jose Rodriguez–at least not yet.

The former CIA official who destroyed videotapes showing harsh interrogation tactics has been granted a temporary reprieve by the House intelligence committee, officials said last night.

The committee had demanded that Jose Rodriguez Jr. testify before it on Wednesday, but after being told that he would not answer questions without a grant of legal immunity for his testimony, the panel withdrew its demand, according to officials familiar with the arrangement.

[snip]

Officials said that a subpoena for Rodriguez will remain in effect and that talks between lawmakers, Justice Department officials and Rodriguez’s attorney, Robert S. Bennett, will continue.

I’m not sure what to make of the description of on-going talks. Hopefully, HPSCI has agreed not to do anything to impede the criminal investigation. But I’d be a lot more comfortable if HPSCI said it would hold off entirely on Rodriguez testimony until DOJ gave the okay.