Gravely Damaging Intelligence Gaps

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Just two or three more bits on this Panetta declaration and the related Vaughn Index (Part One, Part Two).

Before he insisted in his declaration, implausibly, that he wasn’t trying to hide embarrassing information that might show legal wrong-doing, Leon Panetta gave this general explanation for why he couldn’t release this information:

I want to emphasize to the Court that the operational documents currently at issue contained detailed intelligence information, to include: intelligence provided by captured terrorists; intelligence requirements that CIA prioritized at specific points in time; what the intelligence community did not know about enemies in certain time frames, i.e., intelligence gaps;

[snip]

Much information in the documents is intelligence that was being provided to the field and intelligence that was being gathered from the interrogations. This sensitive intelligence provides important insight into what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest. I have determined that the disclosure of intelligence about al Qai’da reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed.

Remember, earlier this year the ACLU and CIA agreed that the Agency could exclude raw intelligence cables from this FOIA response.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. [my empahsis]

Nevertheless, even before Panetta says he can’t turn over this material because it would reveal the identities of our counterintelligence officers and the location at which we conducted these interrogations, he says he can’t turn over this material because it’ll reveal the intelligence that went into and came out of the interrogations, even though this is not the primary record of intelligence gathered in the interrogations.

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Richard Clarke Reminds Cheney and Condi of Their Incompetence

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When I saw Condi saying, "unless you were there, in a position of responsibility, you cannot possibly imagine the dilemmas we faced in trying to protect Americans," to Stanford students, my instinct was to remind everyone that she was forced to admit, "I believe the title was ‘Bin Laden determined to attack inside the United States.’"

Richard Clarke, after listening to Cheney and Condi make similar statements for a month, has a similar instinct (and of course, he’s in a position to make the argument more strongly than I). Today, he’s got an op-ed reminding readers of how Cheney and Condi refused to take terrorism seriously until it was too late. And once they did, they overreacted.

He describes the panic with which Cheney responded on 9/11.

I remember that morning, too. Shortly after the second World Trade Center tower was hit, I burst in on Rice (then the president’s national security adviser) and Cheney in the vice president’s office and remember glimpsing horror on his face.

And then he catalogs how the excessiveness of Cheney’s and Condi’s response led to more failures (click through for his discussion of the Iraq debacle).

On detention, the Bush team leaped to the assumption that U.S. courts and prisons would not work. Before the terrorist attacks, the U.S. counterterrorism program of the 1990s had arrested al-Qaeda terrorists and others around the world and had a 100 percent conviction rate in the U.S. justice system. Yet the American system was abandoned, again as part of a pattern of immediately adopting the most extreme response available. Camps were established around the world, notably in Guantanamo Bay, where prisoners were held without being charged or tried. They became symbols of American overreach, held up as proof that al-Qaeda’s anti-American propaganda was right.

Similarly, with regard to interrogation, administration officials conducted no meaningful professional analysis of which techniques worked and which did not. The FBI, which had successfully questioned al-Qaeda terrorists, was effectively excluded from interrogations. Instead, there was the immediate and unwarranted assumption that extreme measures — such as waterboarding one detainee 183 times — would be the most effective.

Finally, on wiretapping, rather than beef up the procedures available under the Foreign Intelligence Surveillance Act (FISA), the administration again moved to the extreme, listening in on communications here at home without legal process. Read more →

Cheney’s So-Called Recidivists

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There’s a number of impressions I get from the DOD "report" on the number of Gitmo detainees who have joined terrorists groups, including al Qaeda, since being released. First, while it appears to be what ABC billed it as–the report showing 14% of the people freed from Gitmo purportedly returning to the fight, the one that was used to scare the Senate into refuse funding for Gitmo–it looks fairly laughable. This is a DOD document, mind you, that has no originator or tracking information, and not even headers and footers. It sure doesn’t look to me like a finished report–it looks like some guys’ notes.

Then, look at the dates. The list confirms a point Lawrence O’Donnell made when he was debating Liz Cheney. If anyone is responsible for freeing these guys, it’s Dick Cheney and his buddies. The sole 2009 date I see is this one:

Abu Sufyan al-Azdi al-Shihri–repatriated to Saudi Arabia in November 2007, and Mazin Salih Musaid al-Alawi al-Awfi–repatriated to Saudi Arabia in July 2007. On 24 January, a 19-minute video was released wherein al-Shihri and al-Awfi announced their leadership within the newly established al-Qaida in Arabian Peninsula.

Call me a cynic, but any video released just days after Obama became President and two days after he signed an order to close Gitmo ought to be treated with caution.We’ve seen way too much explicit propaganda in the last eight years to take this as face value.

Also note the standards involved. The report tries to refute a criticism made of it–that among the so-called recidivists included is a guy, Mohammed Ismail, who made a critical comment about the US. In its definitions section, the report says:

For the purposes of this definition, engagement in anti-U.S. propaganda alone does not qualify as terrorist activity.

Oh, okay. In the case of Ismail, the report claims he engaged in an attack on US forces in Afghanistan and was carrying a letter "confirming his status as a Taliban member in good standing."

Which brings us to another point. A number of these so-called recidivists joined not al Qaeda, but the Taliban, upon their return. That’s different than al Qaeda membership, and I challenge it as a designation of "terrorist" membership. Anti-US, certainly (at least before we entered into talks with the Taliban), but strictly speaking not a terrorist organization.

Finally, there’s the question of how these classifications of confirmed and suspected were collected. Read more →

Preventative Detention and Our Crimes

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I guess the news that came out of yesterday’s great chat (if I do say so myself) with Sheldon Whitehouse is his analogy on preventative detention.

To argue by analogy, one can go to court and to a civil standard of proof show that someone is a danger to themselves or others, and obtain a civil commitment restricting their freedom. If we can do this with Americans, it seems logical that we could also do it with foreign terrorists. The question is, what checks and balances should surround the initial determination of danger, and what safeguards should stay with the person through the period of confinement? I look forward to hearing more from the Obama Administration about what schedule of rule of law safeguards they intend to apply, but I think that the example of civil commitment shows that it is not categorically forbidden to restrict someone’s freedom based on a finding of danger.

I was already thinking of what it means to use the analogy from psychiatric detention, but reading Digby talk about issues has a way of bringing them into focus. 

I think that may be even scarier than Gitmo. It implies use of psychiatric hospitals for political prisoners, a la the Soviet Union. It’s a terrible analogy.

Whitehouse is a good guy and I don’t mean to pick on him, but this just won’t do, even to make a point. Involuntary committment cannot be used for criminals, who everyone knows may very well re-offend when they are released, so it certainly cannot be used for terrorist suspects who are accused of being at war with America. (Unless, of course, you think it is insane to be at war with America.) The history of involuntary commitment is hideous throughout world history and it remains controversial to this day, even when it is used for people who are truly mentally ill. To even think of it as a way to argue that such policies are analogous to the indefinite detention of terrorist suspects is really dangerous.

You see, while I know this whole preventative detention thing is being proposed for a range of detainees, having read two recent filings from Abu Zubaydah’s lawyers and TheraP’s take on those filings, I’m mostly thinking of Abu Zubaydah, whom our government has been calling one of the 9/11 plotters for years, but who did not get charged when KSM and the others got charged. I can’t help to shake the notion that this preventative detention stuff is supposed to solve what we do with Abu Zubaydah. Read more →

Gitmo as OUR Recruitment Tool

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The NYT is out with another report of the Pentagon stat that 14% of those released after being held in Gitmo subsequently engaged in terrorism.

An unreleased Pentagon report concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials. 

[snip]

The report, a copy of which was made available to The New York Times, says the Pentagon believes that 74 prisoners released from Guantánamo have returned to terrorism or militant activity, making for a recidivism rate of nearly 14 percent.

There’s something that all of the discussion on so-called "recidivism" from Gitmo never considers.

What are the chances that some, or even most, of these "recidivist" terrorists are actually men we recruited to spy for us? That is, they may have "returned to terrorism or militant activity," but did so with our blessing, with the understanding they’d send back information on what those militant groups were doing.

We do know the US and its allies were using those captured as spies of a sort. Just last weekend, for example, newspapers in the UK reported that an "Informant A" was used by the Brits and Morrocco to try to get Binyam Mohamed to "cooperate" with his captives. 

Mohamed, 31, says that in September 2002, after his ‘extraordinary rendition’ to North Africa, an agent known only as Informant A told him the torture would stop if he gave intelligence to the British.

The offer from the agent, a UK citizen of Moroccan descent, suggests that British security forces had the power to end his treatment, Mohamed’s lawyer claims.

Mohamed already knew the agent from London.

[snip]

Clive Stafford Smith said: ‘The Moroccans told Mr Mohamed that Informant A was working with the British Government and pressed Mr Mohamed to do the same if he wanted to end his torture.

[snip]

Informant A is said to have fought alongside Osama Bin Laden in the caves of Tora Bora.

He was said to have been captured and held at a U.S. base in Afghanistan in 2002, when he agreed to turn informant.

Terek Dergoul, held at the same base, said: ‘One of the guards was saying, "We’ve got another 007".’

The language here is particularly interesting: the reference to Informant A as "another 007" and the suggestions that Mohamed should "work with the British Government." Read more →

Levin: Send Those Terrorists to My Backyard

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Carl Levin (Senator Levin–congrats for casting your 11,000th vote yesterday!) has come up with a sound suggestion to help close Gitmo: send them to MI.

Most lawmakers view the prospect of moving prisoners from Guantánamo Bay, Cuba, to their districts as a negative proposition. But at least one Democratic senator is open to the idea as a potential economic boost to his struggling state.

Carl Levin , chairman of the Armed Services Committee, said that construction and staffing at a new maximum-security prison in Michigan could help his cash-starved state.

“If the governor and the local officials are open to it, that’s something that should be considered,” said Levin, making the point that each state should make its own determination.

Former Michigan Gov. John Engler, a Republican, suggested this month that creating a “Guantánamo North” in the Upper Peninsula could net the state upward of $1 billion per year, according to reports.

While I’m not a fan of turning prisons into profit centers, I’m with these men. If you need to, build a maximum security prison in MI, in the U-P if you want. We need the jobs, and if it’d help to close Gitmo, I’m all for it.

The Terrorism Intelligence and the Briefing Schedule

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I suggested yesterday that one of the explanations for the CIA’s unreliable record of briefings on torture and terrorism in 2002 and 2003 might reflect an attempt to hide certain information.

Did CIA not reveal they were torturing detainees to dodge any question about the accuracy of claims about Iraq intelligence? 

While we don’t know the full schedule of briefings on Iraq intelligence, the schedule of intelligence documents pertaining to Iraqi ties to terrorism suggests that might be possible. Significantly, according to Bob Graham and Nancy Pelosi, they were not briefed that Abu Zubaydah had been tortured before the NIE appeared integrating his August 2002 interrogation reports. And Jane Harman was not informed he had been tortured until after the last major report on Iraqi links to terrorism came out in January 2003.

Here are the intelligence documents mentioned in the SSCI Report on Iraq, interspersed with the torture briefings.

September 21, 2001: Document written by Cofer Black (then Director of CounterTerrorism) and Near East and South Asia Directorate. Distributed only to President’s Daily Brief principals, and not revealed to Congress until June 2004. The document is described as "taking a ‘Q&A’ approach to the issue of Iraq’s possible links" to 9/11.

October 2001:  NESA document discussing Iraq’s overall ties to terrorism.CIA refused to share the document with SSCI, explaining its dissemination was limited to PDB readers.

December 18, 2001: Ibn Sheikh al-Libi captured.

February 22, 2002: First report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

March 28, 2002: Abu Zubaydah captured.

June 21, 2002, Iraq and al-Qaida: Interpreting a Murky Relationship: Ostensibly a joint project between CTC and NESA, the report was a subject of a CIA Ombud invsetigation into a complaint from a NESA analyst alleging that the document did not adequately reflect the views of NESA. The document was intentionally expansive, as described by Jamie Miscik: "If you were going to stretch to the maximum the evidence you had, what could you come up with?"

July 26, 2002: OLC orally authorized waterboarding.

July 31, 2002: Second report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

Summer 2002, Dougie Feith’s Propaganda: This led to a series of briefings in August 2002 apparently designed to reinsert previously discredited claims into the CIA stream of intelligence. In particular, George Tenet agreed to hold up the production of Iraqi Support for Terrorism until CIA could attend a meeting with Feith’s people; the meeting took place on August 20, 2002. Read more →

Breaking News! CIA’s Spooks Lie and Deceive!

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I shouldn’t be snarky, because this NYT article describing how John Kiriakou managed to frame the entire debate on torture with his false claims about waterboarding on ABC is quite good.

His ABC interview came at an especially delicate juncture in the debate over the use of torture. Weeks earlier, the nomination of Michael Mukasey as attorney general was nearly derailed by his refusal to comment on the legality of waterboarding, and one day later, the C.I.A. director testified about the destruction of interrogation videotapes. Mr. Kiriakou told MSNBC that he was willing to talk in part because he thought the C.I.A. had “gotten a bum rap on waterboarding.”

At the time, Mr. Kiriakou appeared to lend credibility to the prior press reports that quoted anonymous former government employees who had implied that waterboarding was used sparingly. In late 2007, Mr. Ross began pursuing Mr. Kiriakou for an interview, “leaning on him pretty hard,” he recounted.

On Dec. 10, in the subsequent interview, Mr. Kiriakou told Mr. Ross that he believed the waterboarding was necessary in the months after the 9/11 attacks. “At the time I was so angry,” he told Mr. Ross. “I wanted so much to help disrupt future attacks on the United States that I felt it was the only thing we could do.”

My favorite part is the quotes from Brian Ross, admitting he didn’t ask the most obvious follow-ups.

Mr. Kiriakou was the only on-the-record source cited by ABC. In the televised portion of the interview, Mr. Ross did not ask Mr. Kiriakou specifically about what kind of reports he was privy to or how long he had access to the information. “It didn’t even occur to me that they’d keep doing” the waterboarding, Mr. Ross said last week. “It doesn’t make any sense to me.”

He added, “I didn’t give enough credit to the fiendishness of the C.I.A.”

Golly gee! Brian Ross seems to say, whodathunk that those professional liars at the CIA would lie to me?

And, in a throwback to the Pulitzer-prize winning story on the Rent-a-General program that no one wants to talk about, Stelter goes onto note that ABC hired this guy who lied his ass off* provided false information to them. (More recently, John Kerry’s Senate Foreign Relations Committee has hired this trained liar.)

But here’s the thing. Read more →

Convertino Gets His Source

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On Wednesday, TPMM reported that the team under investigation for botching the Stevens prosecution has itself investigated a DOJ lawyer.

As we’ve reported, six federal prosecutors from the Stevens case — members of DOJ’s Public Integrity unit, including its head, William Welch — are now being investigated for knowingly withholding evidence, a potential criminal act.

Prosecutions for this offense — known as a Brady violation — are exceedingly rare. But it turns out that in 2006, an Assistant US Attorney was tried on the charge — and acquitted amid allegations that his prosecution was over-zealous.

[snip]

The ironies here begin to mount:

First, Convertino was being tried for an overly aggressive approach to prosecution. But his trial raised questions as to whether the Public Integrity unit was itself overly aggressive in going after him. One former federal prosecutor told the Detroit News after Convertino was acquitted: "The claim was overzealousness by Convertino, but was the government itself overzealous in prosecuting Convertino?"

Then, of course, it’s surprising, to say the least, that having tried this high-profile case focused on a prosecutor withholding evidence, the Public Integrity unit would allow itself to be accused of the very same crime in prosecuting another case. Especially given that Welch, who took over the unit in 2006, was involved in both efforts.

[snip]

There’s also this. Convertino’s lawyers argued that he was overworked and given inadequate resources during the terrorism prosecution. That line echoes this paragraph from a recent New York Times story on the Stevens Six:

One specific issue is whether the department was at fault for failing to pick up on the struggles of a trial team of five principal lawyers that may have been overwhelmed, struggling in the face of tight deadlines and an aggressive defense team from Williams & Connolly, a law firm known for its combativeness, according to current and former Justice Department officials.

As it happens, Convertino was back in the news this week. You see, he’s suing DOJ for privacy violations going back before the PIN investigation case against him. He alleges that DOJ leaked both news of an Office of Public Responsibility investigation into him and the identity of a confidential informant to the Detroit Free Press as part of a campaign of retaliation against him for perceived cooperation with Senate inquiries into DOJ mismanagement of financial investigations. A judge has ordered the reporter in that story to answer questions about who leaked that information to him. And on Thursday, the Appeals Court refused the Free Press’ attempt to halt the reporter’s deposition. 

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The AIPAC Prosecution Suffers A Crippling Blow

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images5.thumbnail.jpegMost of you know about the AIPAC criminal case that has been simmering below the main media radar since it was filed in May, 2005. In a nutshell, the indictment alleges that Lawrence Franklin, a DOD/Pentagon official working in Defense Secretary Rumsfeld’s office (with everyone’s favorite public servants Doug Feith and Paul Wolfowitz), passed top-secret information relating to Iran and Iraq to Steve Rosen, AIPAC’s then-policy director, and Keith Weissman, a senior Iran analyst with AIPAC. Franklin pled guilty and was sentenced in January, 2006.

In the three, count em three, years since Franklin’s plea, the government has pressed on with the prosecution of Franklin’s co-defendants Rosen and Weissman. That may be nearing an end though with a critical decision issued by the trial judge in the case, Judge Thomas Ellis of the Eastern District of Virginia (EDVA) on February 17. The opinion is not only important for the AIPAC case, but for many, if not all, of the secrecy cases that are currently in play in Federal courts across the country.

A little background is in order. The defendants, Rosen and Weissman, sought to introduce the expert testimony of Bill Leonard, a retired United States government official with substantial experience and expertise in the field of information classification, as part of their defense at trial. Leonard, who retired last year, was formerly the director of the government’s Information Security Office responsible for oversight of the entire U.S. classification system.

Leonard, from all appearances, was willing to testify, however, fearing prosecution himself, he insisted on a subpoena and then personally moved to quash the subpoena on the ground that his testimony might be barred by 18 USC 207, which restricts the activities of former executive branch officers and employees. The government, not wanting to be crucified by their own former guy, through the Department of Justice joined in Leonard’s motion to quash. Defendants Rosen and Weissman’s attorneys, obviously, opposed the motion to quash and argued that section 207 did not preclude Leonard’s testimony, and asserted that the court should enter an order directing Leonard to give said testimony at trial. Effectively, Leonard was seeking cover from the court so he could not get jerked around by the government for being wiling to testify. Very smart move by a very smart man, especially since the Bush/Cheney DOJ prosecutors were threatening that he might be liable for up to a year in jail if he testified.

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