The Terror–Or Maybe Something Else–Presidency

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I just finished Jack Goldsmith’s The Terror Presidency. As I’ve been reading, I’ve been focusing primarily on the insight it might offer onto the Terror Tape Destruction. I’ll come back to this, but the short version is that, from June 2004 to December 2004, the CIA had no legal cover for the water-boarding they had already done, which explains why they’d want to destroy the evidence they had been doing it; but that still doesn’t explain why they’d wait until November 2005 to destroy the tapes, which seems to be the really pressing question right now.

But I appreciated Goldsmith’s book, too, for the way that reading an intelligent and sincere conservative helps me to see my disagreements with conservatives more clearly.

While I was reading the book, I found myself repeatedly bugged by several of Goldsmith’s blind spots, not least for his explanation that the excesses of the Administration are attributable to the accountability a President has and the fear everyone had of another terrorist attack.

The main explanation is fear. When the original opinion [on torture] was written in the weeks before the first anniversary of 9/11, threat reports were pulsing as they hadn’t since 9/11. … "We were sure there would be bodies in the streets" on September 11, 2002, a high-level Justice Department official later told me. Counterterrorism officials were terrified by a possible follow-up attack on the 9/11 anniversary, and desperate to stop it.

[snip]

I have been critical of my predecessors’ actions in writing the interrogation opinions. But I was not there when they made the hard calls during the frightening summer of 2002. Instead, I surveyed the scene from the politically changed and always-more-lucid after-the-fact perspective. When I made tough calls in crisis situations under pressure and uncertainty, I realized that my decisions too would not be judged from the perspective of threat and danger in which they were taken. … Recognizing this, I often found myself praying that I would predict the future correctly.

Now, much as I respect Goldsmith’s intelligence, I’m convinced he conjures this explanation as a way to understand how someone like David Addington could be shredding the Constitution, but be doing it in good faith. It’s all understandable and desirable, Goldsmith seems to be saying, in that it will keep us safe in the long run. And David Addington means well, really he does. Read more →

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The “Other” Provision Of The Records Act

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It appears the fluid and constantly evolving rationalization of the Bush Administration for their destruction of the torture tapes may be starting to congeal in an operative theory relying, at least in significant part, on a provision of the Federal Records Act allowing destruction of certain records located outside of the United States during wartime. As EW pointed out in the last post, this defense was revealed in Isikoff’s December 21, 2007 Newsweek article:

But agency officials could be relying on another provision of the records law that permits an agency, during wartime, to destroy records outside the continental United States that are judged to be "prejudicial to the interests of the United States." The CIA has argued that one reason for destroying the tapes was that agency officials feared that if the videotapes were leaked they might compromise the identity of the CIA interrogators.

It is certainly a relief that we don’t have some sort of rogue Administration running around destroying evidence material to a whole plethora of cases and forums, and that their decision was fully in compliance with United States law. That law would be the Federal Records Act, and the pertinent provision, as codified in 36 CFR Part 1228, reads:

a) Destruction of records outside the territorial limits of the continental United States is authorized whenever, during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent, the head of the agency that has custody of the records determines that their retention would be prejudicial to the interest of the United States, or that they occupy space urgently needed for military purposes and are without sufficient administrative, legal, research, or other value to warrant their continued preservation (44 U.S.C. 3311).

(b) Within 6 months after the destruction of any records under this authorization, a written statement describing the character of the records and showing when and where the disposal was accomplished shall be submitted to NARA (NWML) by the agency official who directed the disposal. (ed. note: see also 44 U.S.C. 3311).

Well, hold on a minute here. Is that their final answer? Of course it’s not their final answer; there is never a final answer, on anything, with the Bush Administration; just a continuing series of intentionally disingenuous obfuscations. It takes no more than a cursory inspection of the foreign war records exception to expect Read more →

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The Wheels Of Justice

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Top of the morning to one and all. As Marcy and family hit the road on their much delayed Christmas expedition, it occurs to me that it is time to grease the wheels of justice and get them rolling down the road of accountability. EW and Mad Dog are right about the implications of the new AP article. The collective insight and wisdom of the community are doing a wonderful job of dissecting the situation. I would like to highlight a couple of the angles that have been raised, and ask that you consider them, and the torture tape situation as a whole, in a broader context.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?
….
No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

These are not mere "administration officials"; with the exception of Cheney and Bush, they are as high as you go. Negroponte is DNI and Addington, despite his putative position as Cheney’s counsel/chief of staff, is the legal heart and soul of the Bush Administration. Toss in Gonzales, Miers and Bellinger, and there is simply no viable way to argue that "the White House", did not know about, and was not involved in, the intentional spoiling and destruction of material evidence; which, of course, means direct obstruction of justice.

“CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be “cautious” about destroying the tapes, according to sources familiar with his classified testimony.”

To me, that sounds like they were briefed and urged the agency to be careful about destroying the tapes. In other words, destroy them, but be really careful how you do it. JMHO

LS’s take here is just about right I should think. Ralphbon’s response is dead on the money too.

For those who didn’t see it, ther (almost) consensus from the panel was:
1) that there was no way Mukasey could avoid conflict of interest because he had signed the material witness warrant for Jose Padilla that Read more →

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“Aspirational Terrorism” Won’t Send You to Jail, But It’ll Lead the News

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The St. Petersburg Times has a good review not just of the mistrial for the Liberty City Seven, but of the larger context of failed terrorist prosecutions.

Another highly touted federal terrorism case ended in a mistrial Thursday.

After listening to more than two months of testimony and deliberating for nine days, a Miami jury deadlocked on charges against six men accused of pledging allegiance to al-Qaida in a plot to blow up the Sears Tower in Chicago. A seventh man was acquitted.

[snip]

With no guilty verdicts, the Liberty City Seven join about a dozen other terrorism defendants around the country who have been prosecuted since the Sept. 11 attacks in costly cases that resulted in acquittals and mistrials.

Joshua Dratel asks what I consider the money question: is this really the way we should be spending our time? Read more →

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Does this Sound Familiar?

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Where have we seen this before: a Bush Administration gives vague guidance to our favored military dictator in a turbulent neighborhood, and the dictator takes a step that might destabilize the whole region.

The Bush Administration knew that Pakistani strongman PervezMusharraf planned to institute emergency rule but did not act or speakout about the plan, according to officials with knowledge of thediscussion who spoke anonymously in Friday’s Wall Street Journal.

"In the days before the Nov. 3 announcement, the general’s aides andadvisers forewarned U.S. diplomats in a series of meetings inIslamabad, according to Pakistani and U.S. officials," the paper said.

Because the US response was "muted," Pakistan interpreted Americansilence as a green light to instituting martial law, quickly deposingan intransigent Supreme Court, which had ruled against the general inthe past.

"One of Gen. Musharraf’s closest advisers said U.S. criticism wasmuted, which some senior Pakistanis interpreted as a sign they couldproceed," the Journal said. "’You don’t like that option? Yougive us one,’ the adviser says he told his American interlocutors.’There were no good options.’"

A U.S. official "familiar with the discussions" told the paper thetalks were part of "’intensive efforts’ to dissuade Gen. Musharraf fromdeclaring a state of emergency."

"There was never a green light," the U.S. official told the New York daily. [my emphasis]

Of course, when we offered such vague guidance to Saddam Hussein in July Read more →

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Will Luis Posada Face Justice?

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Back in May, a judge dismissed immigration charges against Cuban terrorist Luis Posada Carriles, arguing he had been tricked in the interview that led to his indictment. At the time, it looked like BushCo threw the case, not wanting to convict one of their favored terrorists.

But now, two of his associates have pled guilty to charges of obstruction of justice in connection with his case.

Two associates of Cuban exile Luis Posada Carriles have pleadedguilty in the Western District of Texas to charges of obstruction of justice inconnection with the U.S. government�s investigation of Posada Carriles, MichaelJ. Mullaney, Acting U.S. Attorney for the Western District of Texas announcedtoday.

Osvaldo Mitat, age 65 and Santiago Alvarez, age 66, both natives of Cuba, eachentered pleas of guilty today to a one-count superseding criminal informationthat charged each defendant with obstruction of justice. The plea occurredbefore U.S. District Judge David Briones. Each defendant faces a maximumsentence of 10 years imprisonment, a fine of $250,000, three years supervisedrelease and a $100 special assessment. Sentencing for both has been scheduledfor Feb. 1, 2008.

According to the statement of facts agreed upon by each defendant, on or aboutDec. 18, 2006, a federal grand jury in the Western District of Read more →

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No, Pakistan Was the Last Big Test. And We Failed It.

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"Serious Person" Michael O’Hanlon and  escalation surge architect Fred Kagan end their op-ed with the following words.

There was a time when volatility in places like Pakistan was mostly ahumanitarian worry; today it is as much a threat to our basic securityas Soviet tanks once were. We must be militarily and diplomaticallyprepared to keep ourselves safe in such a world. Pakistan may be thenext big test. [my emphasis]

I’m just a DFH and not a "serious person" or anything. But I am certain they have this wrong–dead wrong. It highlights the problem of neoconservatism–an acute myopia that therefore cannot see a problem until we’re already in the thick of it and until they can make an argument–however specious–that the only solution is military.

The way in which O’Hanlon and Kagan conceive of Pakistan "becoming the next big test" is the perfect illustration of this. They describe the events that need to occur for them to take some action–and of course, action is exclusively military.

AS the government of Pakistan totters, we must face a fact: the UnitedStates simply could not stand by as a nuclear-armed Pakistan descendedinto the abyss. Nor would it be strategically prudent to withdraw ourforces from an improving situation in Iraq Read more →

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More on the FBI’s Own Falafel

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There’s a bit of a squabble over how important Nada Nadim Prouty, the FBI/CIA agent who got unauthorized access to Hezbollah information at the CIA, was to the agency. Via Laura, NBC reports that she was very important.

Current and former intelligence officials tellNBC News that Nada Nadim Prouty had a much bigger role than officialsat the FBI and CIA first acknowledged. In fact, Prouty was assigned tothe CIA’s most sensitive post, Baghdad, and participated in thedebriefings of high-ranking al-Qaida detainees.

Aformer colleague called Prouty “among the best and the brightest” CIAofficers in Baghdad. She was so exceptional, agree officials of bothagencies, the CIA recruited her from the FBI to work for the agency’sclandestine service at Langley, Va., in June 2003. She then went toIraq for the agency to work with the U.S. military on the debriefings.

“Early on, she was an active agent in the debriefings,” said one former intelligence official. “It was more than translation.”

But the same story has a senior official reporting that she wasn’t that important.

A senior U.S. official familiar with the casesays there is no evidence she was a spy and noted that the CIA and FBIhave a good record in prosecuting spies, particularly in their ownagencies. Read more →

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The Latest Terrorism Leak

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In his post on the latest Bush exposure of counter-terrorism resources, Noah Schachtman links to this long profile on the woman and firm exposed by BushCo. Two things stick out from the article:

Taking two staff members from the Investigative Project, Katz set upher own office. She got by on small government contracts. Some of thatwork, done for the Treasury Department, involved identifying Islamicgroups that might be sending money to terrorist organizations. She alsohad a contract with the Swiss government and with a group of relativesof 9/11 victims who were suing Saudi Arabian officials, businesses, andcharities. [my emphasis]

In other words, there is a small chance–admittedly remote–that this is the second leak of information provided by Katz’ firm to the government. After all, the best-known prosecution of Islamic charities is that of Holy Lands Foundation. The Foundation was tipped off to the impending raid on their office by a leak through the NYT (though the leak to the NYT was more than just the suspicion they provided support to terrorist groups–it included news of the impending raid). I don’t know what to make of that (admittedly outside) possibility, but it deserves note.

And then there’s this.

One afternoon early last fall, Katz came across a new thread. It was about her. A jihadi had posted a link to the SITE Institute’s Web site. “The SITEis lurking,” he wrote. Its people were on the boards, using false namesand acting as spies. He urged his brothers to ferret them out and expelthem.

But another poster responded that SITEmight be providing a valuable service. He wrote, “They translate thestatements into English on our behalf, and they do not analyze them.Why do we not grab the opportunity?” Eventually, a moderator on thesite weighed in: “All right, men, do not argue. We will carry out anelection, and then we will see if we should keep them or expelthem—what do you think? I am a democratic operative, don’t you think?”He ended with a smiley-face emoticon. By the time attention shifted toa new thread, opinion was running fifty-fifty as to whether SITE was, on balance, good for jihad.

In other words, back in fall 2005, someone went onto a jihadi site and exposed SITE’s presence. While that exposure could have come from any number of sources (SITE’s clients include members of the media and corporations, as well as the government), whoever exposed SITE had current and detailed information on SITE’s work. (I also love how we never learn whether the jihadis identified SITE’s lurkers or not.) So regardless of whether SITE’s info from Treasury got leaked, their work has been compromised at least once before.

Now couple those two details with this detail, offered by a SITE competitor in the WaPo article.

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Banana Cream Pie

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Remember that banana scandal, where a high-powered Republican lawyer advised Chiquita to go on paying right wing terrorists even though it was a felony? Where said high-powered Republican lawyer alleged that Michael Chertoff–the guy now in charge of protecting our country–told him that he could go on funding terrorists so long as he also cooperated with Administration investigations of the terrorists? And where, just last week, DOJ said the high-powered Republican lawyer would not be charged?

Now, if I told you that there were weapons and cocaine involved, would you start looking for those acid washed jeans you put away a couple of decades ago and make an appointment for a Fawn Hall doo?

I asked him about the drugs-for-weapons exchange and the Chiquitafreighters. “Look, for every kilo of drugs they put in, they had to pay500,000 pesos. If you’re a drug trafficker, and I’m in control, you’dhave to pay me. You have 20 kilos of coca, or you have some othercargo, and I own that region—you understand me? You pay me 500,000pesos for me to ship those drugs as if they were mine, in the boats.You understand? Chiquita’s boats. That’s what the Bananero Block hadgoing on here.” Lorenzo watched the AUC load drugs onto Chiquita boats;he knew about it because he was there when it happened. “Look, therewere drugs, and there were times that they sent drugs for weapons. Theysent the kilos of drugs, and from out there, those duros said we are going to send this many kilos of drugs and I need this many rifles,” Lorenzo said.

What Lorenzo described was a successful scheme that allowed the AUCto act as a contraband-freight consolidator. The AUC could ship theirown cocaine on the company freighters or they could ship productbelonging to someone else for a tax of roughly $250 per kilo, whichworks out to a quarter of the Colombian value of the brick. And thesmuggling scheme was a direct side effect of gaining access to theport. Lorenzo insisted more than once that Chiquita employees knewabout the cocaine: everyone in the chain was paid a percentage to keepquiet, including the freighter captains.

If Lorenzo–and the two other people in this story who describe drugs being transported on banana freighters–are telling the truth, then it suggests the cooperation between Chiquita and the AUC extended far beyond payments in exchange for security. And it sure makes me wonder about the passage in the proffer that refers to additional details revealed in December 2003.

On or about December 4, 2003, Individual B and Individual C providedthe Board of Directors additional details concerning defendantCHIQUITA’S payments to the AUC that had not previously been disclosedto the Board. A member of defendant CHIQUITA’S Board of Directorsresponded to this additional information by stating: "I reiterate mystrong opinion–stronger now–to sell our operations in Colombia.

Did the Board discover their little cocaine sideline before they stopped funding the terrorists?

In any case, go read the article. It’s a great background for the longer history of US banana companies in Colombia. And a testament to how little things have changed–since the 1980s or the 1890s.

 

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