Horowitz

Crossfire Hurricane Glossary

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Even before it went live yesterday, I was looking through Marcy’s incredibly awesome timeline on Crossfire Hurricane. It is a stunningly important and good thing, not only for those here, but those everywhere. I read things day and night, and have seen many timelines on this subject, but none that approach that which Marcy has produced. That said, if even I have to do double takes on what some of the names and acronyms are, I thought a guide was in order.

So, I thought an enduring glossary would help not even now, but going forward. What follows will be what appears appropriate now, and this post may be supplemented lated as necessary. I hope it helps. Maybe at some point I’ll come back an make it alphabetical, but for now I am just going from front to back in order of appearance.

Some are patently obvious and need no explanation, e.g. “CIA” for instance. As to the rest though, away we go:

ASAC: Assistant Agent In Charge, typically of an FBI Field Office.

Zainab Ahmad: Is a seriously kick ass former member of DOJ. Ahmad was a prosecutor with the DOJ who long specialized in investigating and prosecuting terrorism. She served as an AUSA in the Eastern District of New York until 2017, successfully prosecuting several high-profile terrorism cases. In 2017, she was reassigned to the Special Counsel for the United States Department of Justice team. After Mueller closed up shop, Zainab landed as a white collar and cyber security specialist at the NY office of Gibson Dunn.

Evgeny Burykov: A convicted Russian spy. He was arrested on January 26, 2015, charged with, and pleading guilty to, spying on the United States for the Russian Foreign Intelligence Service (SVR). Buryakov was a New York-based Deputy Representative of Vnesheconombank, Russia’s state-owned national development bank.

CHS-3: In addition to Steele (CHS-1) and Halper (CHS-2) there was another FBI informant who spoken on a number of occasions with George Papadopoulos. The person’s identity is unknown. Papadopoulos told him a version of the Joseph Mifsud in fall 2016.

Anne Conway: Conway is a GHW Bush nominated judge to the Middle District of Florida, and who serves on the FISC, since being do designated by John Roberts in 2016. Judge Conway approved a 2017 FISA Court warrant for Carter Page, a former adviser to the 2016 Trump Campaign.

Raymond Dearie: Is a well respected Senior United States District Court Judge from EDNY originally nominated by Reagan, and served on FISX between July 2012 and July 2019, after appointment by Chief Justice John Roberts.

Oleg Deripaska (Oligarch 1): Paul Manafort’s one-time paymaster, and also the client of a lawyer employing Christopher Steele in 2016. In that role, Steele repeatedly offered to broker a meeting at which Deripaska could provide derogatory information on Manafort. FBI belatedly considered whether Deripaska was a source of disinformation for the dossier.

Alexander Downer: Former Australian High Commissioner (ambassador) to the UK (2014-18), former leader of the Australian Liberal Party (1994-95), and former Australian Minister for Foreign Affairs (1996-2007). Definitely not a coffee boy, but met with one over a few drinks in London.

For bmaz, I note that he is a fan of V8 motor racing and has a CMAS racing license. (h/t EH)

Stu Evans: Stuart Evans, deputy assistant attorney general of DOJ’s National Security Division. He’s the person who insisted on adding a footnote alerting the FISC of Steele’s potential bias.

FIFA: The international governing body of soccer. A body Chris Steele gave work and information on to not just US authorities but worldwide ones too.

Michael Gaeta (Handling Agent 1): An FBI agent, previously an attache in Rome and one time handler of Christopher Steele. A specialist in Eastern European organized crime including in the Republic of Georgia, Russia, and Ukraine.

Taushina Gauhar: Is a (former) Deputy Assistant Attorney General (DAAG) in the Department of Justice National Security Division (NSD) and FISA lawyer specialist.

JD Gordan: Gordan is an American communications and foreign policy advisor, who served as a Pentagon spokesman during the Bush Administration and later a National Security Advisor to Donald Trump. He is also a crackpot gadabout on forums such as One America News Network, Fox News, Sky News, The Daily Caller, The Hill, and The Washington Times. He’s the guy who ensured that the Republican platform did not incorporate lethal aid to Ukraine.

Stefan Halper (Source 2): Ooof, this could go on even longer, but per Wiki, Halper is an American foreign policy spy and Senior Fellow at the University of Cambridge where he is a Life Fellow at Magdalene College. He served as a White House official in the Nixon, Ford, and Reagan administrations, and was reportedly in charge of the spying operation by the 1980 Ronald Reagan presidential campaign that became known as “Debategate”. Through his decades of work for the CIA, Halper has had extensive ties to the Bush family. Through his work with Sir Richard Dearlove he also has ties to the British Secret Intelligence Service MI6. For purposes here, Halper acted as an FBI informant for its investigation into Russian interference in the 2016 United States elections.

Kathleen Kavalec: Former Deputy Assistant Secretary of State who met with Chris Steele in October 2016.

Mary McCord: McCord was the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017 and Principal Deputy Assistant Attorney General for the National Security Division from 2014 to 2016. She now teaches at Georgetown and contributes at Lawfare.

Sergei Millian (Person 1): A Belarus born businessman knee deep in everything Russia and a putative source for Chris Steele. He was also the subject of a counterintelligence investigation during 2016-17. Much still not necessarily clear about Millian.

NYFO: New York Field Office of the FBI.

OGC: Office Of General Counsel at the Department of Justice.

OI: The Office of Intelligence at DOJ. They’re in charge of writing FISA applications.

Bruce and Nellie Ohr: Bruce Ohr is a United States Department of Justice official. A former Associate Deputy Attorney General and former director of the Organized Crime Drug Enforcement Task Force (OCDETF). He is an expert on transnational organized crime and has spent most of his career overseeing gang and racketeering-related prosecutions, including Russian organized crime. Nellie is Bruce’s wife, and a longtime expert on all things Russian. She worked at one point for Fusion GPS as a contractor between October 2015 and September 2016.

Victor Podobnyy: An Russian SVR (foreign intelligence) officer worked under the cover as a banker who was recruiting Carter Page in 2013.

SSA: Supervisory Special Agent.

Scott Schools: Scott Schools was the “highest-ranking career civil servant at the United States Department of Justice”, serving as Associate Deputy Attorney General. For those who have been around long enough, he was, for a while, the “new” David Margolis. Schools, a putatively decent chap, is gone now, having been replaces by a Jeff Sessions designated mope named Bradley Weinsheimer.

Glenn Simpson: Former journalist for the Wall Street Journal and co-founder of Fusion GPS.

Paul Singer: An American billionaire hedge fund manager, activist, investor, vulture capitalist, and philanthropist. A hard line Republican promoter and shill, but also a longtime supporter of LGBTQ rights.

Bruce Swartz: Deputy Assistant Attorney General for International Affairs. Key to the story because of a purported effort by Kurt Volker to get Swartz to officially ask Ukraine to investigate the Bidens. He would have been in the loop in any normal requests between the US and Ukraine. Still a lot of questions open as to Swartz.

UCE: An FBI employee working undercover. A woman working under the pseudonym Azra Turk accompanied Stefan Halper on his interviews with George Papadopoulos.

Sally Yates: Former US Attorney for Northern District of Georgia, Deputy Attorney General, and Acting AG.

The Discussion of White Supremacist Terror Ignores the Transnational Nature of It

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Betsy Woodruff has the scoop that, last year, the National Counterterrorism Center set up a small group focusing on what the article calls “domestic terror.”

In early 2018, the official said, the head of the NCTC directed lawyers from the intelligence community to revisit its understanding of the law that governs it. A Democratic official on the House Intelligence Committee said Congress urged the Center to conduct the analysis—and fast.

By the summer of 2018, the lawyers concluded that NCTC could use its considerable resources to analyze purely domestic threats, as long as it did so to help the FBI and the Department of Homeland Security (DHS). NCTC officials shared that view with senior officials in the Office of the Director of National Intelligence that oversees the NCTC, and they didn’t get any pushback, per the official. Then the battleship started to turn—just a tad.

In the year since then, the official said, analysts in an NCTC entity that focuses on the radicalization and mobilization of potential foreign terrorists have been working on matters related to domestic terrorism.

NCTC officials have also begun setting up “a small element” in the Center’s Directorate of Intelligence focused on the domestic terror threat, the official said. The official noted that these efforts are not large-scale, and that they have had “to beg and borrow from different areas” to corral resources for the new domestic terrorism work.

She goes on to quote former national security officials applauding the move and civil libertarians raising cautions. But she herself admits the bigger issue: what has always been bracketed off (including in early NCTC documents, Woodruff notes) as “domestic” is not.

To be sure, there’s a nomenclature problem when it comes to domestic and international terrorism, as hateful ideology can cross-pollinate between the U.S. and other countries. For instance, the New Zealander who murdered 51 people at two mosques cited American white supremacist Dylann Roof as an inspiration. Then the terrorist who allegedly murdered a worshiper at a synagogue in Poway, California cited the Christchurch shooter. When it comes to hate, Western nations have open borders.

The really awkward thing, which Woodruff implicitly acknowledges, is that the US exports white supremacist ideology and funding — whether through the networking of Steve Bannon or the Twitter feed of Donald Trump — in much the same way Saudi Arabia enabled Islamic terrorism before 9/11.

I agree with Hina Shamsi, quoted in Woodruff’s piece, that we need transparency about this more than anything. But the goal should be to understand what actually occurring in the government’s efforts to combat terrorism, and from that to learn what is necessary to protecting against terrorism.

Since 9/11, the government has used the existence of an international network — at first a network of internationally deployed operatives and money, and then a network existing in the vacuum created in Iraq and Syria in the wake of the Iraq war interacting with people in the US via social media — behind Islamic extremism as justification to treat brown terrorists differently than it treats white terrorists. Through that period — a period when white supremacist terrorism wasn’t being encouraged by the President — the FBI did a pretty good job of finding white supremacist terrorists.

The lesson from that fact should have been that all this infrastructure targeting brown terrorists was likely unnecessary, though it may have been a crutch for a time, because the government was (and may still be) culturally unable to bring the same nuance to investigations of terrorism by non-white non-Christians.

In recent years, some things have changed, even beyond Trump. The FBI has started playing games with its numbers (first inventing a category, Black Identity Extremism, to justify treating brown non-terrorists as terrorists, then eliminating that category and subsuming it under a racially motivated extremism category that hides the growth of white supremacist terrorism). Trump has eliminated some efforts to pursue white supremacist terrorism. Twitter has struggled with applying its standards equally when that would mean eliminating elected officials, including Trump, from the platform.

Given the normalization under Trump of white supremacist terrorism, it’s not clear whether the FBI can stay ahead of the danger anymore, as they were able to before Trump and his allies normalized all this.

But that suggests the problem is not about intelligence gathering, but is instead about the cultural factors that permit some kind of terrorism to thrive.

We’re only going to understand that, however, if we have real data to make the case.

Exigent Letters Timeline

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July 2002: CAU formed

March 14, 2003: First exigent letter issued in NY

May 2003: First contract with telecom for onsite exigent assistance

March 2004: Last contract with telecom for onsite exigent assistance

February 2, 2005: Operation W NSL signed; Tracker database attempted

February 2006: Procedures to verify factual accuracy of FISA applications

March 9, 2006: Bush signs PATRIOT extension with new Section 215 guidelines

May 12, 2006: First blanket NSL (for Company B)

May 17, 2006: Assistant General Counsel sends email regarding exigent letters (leads to OGC “learning” of practice)

May 24, 2006: First Section 215 order approved by FISC

July 5, 2006: Second blanket NSL

August 2, 2006: AGC sends follow-up on exigent letters blanket NSL for Company B

September 18, 2006: Youssef cancels hot number service from Company C

September 21, 2006: Third blanket NSL

October 10, 2006: Company B changes policy on exigent letters to require SSA to say it is emergency involving death or serious injury.

November 7, 2006: AGC sends email to Valerie Caproni on blanket NSL, heads up for IG investigation

February 22, 2007: AGC tells Youssef the blanket NSLs may be PIOBs, need to be reported within 14 days

March 1, 2007: FBI draws up new guidelines, requiring factual predicate and limiting people who can authorize exigent letters

March 9, 2007: IG Report on NSLs including “any illegal and improper use” in 2003 though 2005

June 1, 2007: FBI Guidance on who could sign NSLs

August 28, 2007: First OLC request to approve exigent letters.

October 31, 2007: FBI tells IOB it will send letter on blanket NSLs and purge all illegally acquired information.

November 2007: FBI issues draft guidance on Community of Interest requests.

December 2007 to January 2008: Telecom personnel move out of CAU.

January 11, 2008: FBI issues new protocol for requesting phone records.

February 29, 2008: Bush guts the Intelligence Advisory Board, stripping it of investigative ability and oversight over IGs. http://www.boston.com/news/nation/washington/articles/2008/03/14/president_weakens_espionage_oversight/?page=1

March 13, 2008: IG Report on NSLs, assessing corrective actions of FBI and describing NSL usage in 2006

November 5, 2008: OLC issues opinion in response to August 28, 2007 request

January 16, 2009: OLC issues a response on whether Acting DADs and other Acting officials could sign NSLs

March 31, 2009: FBI formally informs IAB of NSL problems

August 17, 2009: Obama appoints Chuck Hagel to IAB.

October 29, 2009: Obama restores investigative ability to Intelligence Advisory Board

January 20, 2010: IG Report on exigent letters

June 5, 2013: Guardian publishes Section 215 order to Verizon calling for all call metadata on all customers over 3 month period. Dianne Feinstein makes it clear this is part of program in place since 2006.

Zoe Lofgren Didn’t Vote to Let Presidents Wage Unlimited War, But John Yoo Did

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As a series of Presidents continue to claim the September 18, 2001 Authorization to Use Military Force authorizes fairly unlimited power on an unlimited battlefield, I keep coming back to this Tom Daschle op-ed, in which he described how Congress refused to extend the AUMF to US soil.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The op-ed is, as far as I know, the only public statement describing how Congress narrowed a breathtakingly broad claim for military force.

Until Wednesday’s drone hearing, that is.

In response to a comment from John Bellinger that it was appropriate for the Executive Branch to refuse to share its OLC memos with Congress, Zoe Lofgren suggested (1:36 and following) the President was exceeding the terms of the AUMF (she comes very close to saying the President broke the law, but stops herself). She refers to — as Daschle did — negotiations leading up to the AUMF that actually did get passed.

Lofgren: If you take a look at the Authorization to Use Military Force, which all of us voted for — those of us who were here (there was only one no vote in the House) — it says “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Now, are we to believe that everyone on this list was responsible for the 9/11 attack? I mean, is that the rationale?

Bellinger: No, your exactly right. All four of us agree with you that the 2001 AUMF, which was only about 60 words long — I was involved in drafting it literally almost on the back of an envelope while the World Trade Center was still smoldering — now is very long in the tooth. The good government solution, while extremely difficult and controversial, would be for Congress to work together with the Executive Branch to revise that AUMF. It’s completely unclear about what it covers, who it covers, where it covers.

Lofgren: If I may, I think it’s not as unclear as you suggest. There are — this was a limitation, and there were big arguments about it as you’re, I’m sure, aware, there was a prior draft that was  much more expansive. There was a prior draft that was much more expansive and it was narrowed so we could get bipartisan consensus and it was narrowed for an important reason. And I guess I — yes, the Executive has the ability to keep his legal advice confidential, that’s a long-standing principle, but since it looks like — at least, questions are raised — as to whether the executive is complying with the law, then if he feels he is, then I feel it would be a very positive thing for the Administration to share that legal advice with this committee and with the American people. Read more →

More on the Year-Long Pursuit of Mohamed Mohamud

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Teddy did a diary this morning on a newly-reported detail in the case of Mohamed Mohamud–the Portland man accused of attempting to set off a bomb. The FBI had contacted him a year earlier than originally disclosed. The first contact with Mohamud the complaint describes took place in June 2010, after Mohamud was prevented from boarding a flight to Alaska.

On June 14, 2010, MOHAMUD was contacted at Portland, Oregon International Airport after he attempted to board a flight to Kodiak, Alaska. MOHAMUD was not allowed to board the aircraft. Shortly thereafter, MOHAMUD was interviewed by the FBI.

Shortly thereafter, an undercover agent contacted Mohamud, leading up to the July 30, 2010 meeting that was not taped.

An FBI Undercover Employee (UCE1) contacted MOHAMUD in June 2010 under the guise of being affiliated with UA1 and UA1’s associates. MOHAMUD and UCE1 ultimately agreed to meet in Portland on July 30,2010.

But a filing submitted yesterday shows that the Oregon State Police got a report on him in November 2009, after which an FBI agent named Bill Smith started contacting Mohamud.

As noted above, the government seeks to characterize a November 2009 interaction withMohamed as “an unrelated matter.” Resp. at 17. While the direct contact with Mohamed appeared to involve only the Oregon State Police (OSP), the FBI was clearly involved behind the scene. As the government has only provided minimal discovery related to the FBI’s involvement, with much of it redacted, Mohamed cannot assess the extent of the information the FBI gathered andsubsequently used in crafting its sting operation.

What the discovery does show is that the OSP immediately notified the FBI upon receiving a complaint about Mohamed, despite the fact that the substance of the report would ordinarily not result in FBI involvement. Although the redactions in the FBI report prevent the defense from understanding the full scope of the FBI’s role, it appears that agents met with OSP officers prior to contact with Mohamed and were involved with the subsequent interview. OSP then requested consent to image Mohamed’s computer, which was provided to an FBI analyst within hours. Seven days later, agent Bill Smith began contacting Mohamed and soliciting his participation in violence against the West. A short time later, the FBI analyst copied specific information from Mohamed’scomputer and provided it to a fellow agent. The analyst did not write a report of his actions until ayear later.

Other filings make it clear that the OSP polygraphed Mohamud at this point and suggests the search of his computer was consensual.

At first, the government didn’t admit that “Bill Smith” worked for the government (and it remains unclear who he works for). Only after the defense confronted them with that fact did they concede he was, but they claimed these earlier contacts have no connection to this case.

The discovery provided up to [the discovery deadline of February 15] and after included no indication that Bill Smith was a government agent. The government must possess the paperwork and reports that are necessarily generated by a government agent who contacts a citizen for such investigative purposes. If not for fortunate defense work, this exculpatory fact would have continued to be suppressed. It was only by backtracking through voluminous emails, and clearing out hundreds of lines of distracting code, that the defense was able to understand Bill Smith’s apparent connection to the government. Once confronted with the defense conclusions,the government admitted Bill Smith acted as a government agent. However, the conscious determination by the agency that Bill Smith should not be disclosed to the defense as an agent,purportedly because the government does not believe the information is helpful to the defense,establishes that the government alone should not be permitted to determine what is exculpatory without this Court’s supervision and instruction.

While the government claims this contact was discontinued in May 2010 (a month before the contact they claim started this investigation), Mohamud continued to email “Smith” until August 2010.

Bill Smith had e-mail contact with defendant beginning in late 2009 and continuing through May 2010. The contact with Smith did not relate to the facts of this case, and was discontinued by the government. Defendant, however, on his own continued to contact Smith through August 2010, after the government had ceased contact with him, by forwarding Smith e-mails, including one that supported violent jihad.

The fact that the government delayed admission of these earlier contacts also means the government has not disclosed the extent to which this earlier contact was used to tailor conversations with Mohamud.

[T]he undercover agents clearly used information from surveillance activities in approaching Mohamed. One obvious example is that agent Bill Smith attempted to ingratiate himself with Mohamed by recommending an online publication based on the government’s belief that Mohamed had connections to the publication.

While it appears that Mohamud was under surveillance before the first contact with the OSP (the complaint cites some emails he had with someone in Yemen August 2009), the earlier contact raises a whole bunch of questions about what led the government to pretend to follow-up on his emails in June 2010.

OPR Report Timeline

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In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer of transparency–deserves further scrutiny in this report. When she presented the report to Holder in August, she apparently recommended that he reopen investigations into torture.

Also, I still think the timing suggests DOJ delayed its release to protect Yoo in the Padilla suit.

January 4, 2008: Padilla sues Yoo.

February 12, 2008: Senators Durbin and Whitehouse request that OPR investigate torture authorizations

February 18, 2008: Marshall Jarrett informs Durbin and Whitehouse that torture authorizations included in OPR investigation of OLC, agrees to share report with them and–possibly–release an unclassified public version

Late December 2008: Draft of OPR submitted, Michael Mukasey and Mark Filip demand that Yoo, Bybee, and Bradbury get to respond

February 14, 2009: Isikoff reports that OPR report came to harsh conclusions of OLC lawyers’ work; reports Mukasey and Filip allowance for lawyer response

February 16, 2009: Whitehouse and Durbin inquire about process used with OPR report

March 6, 2009: Hearing in Padilla-Yoo law suit

March 25, 2009: OPR response (signed by M. Faith Burton, Acting AAG) to Whitehouse and Durbin states Mukasey/Filip comments already integrated, OLC lawyer counsel in process of reviewing report; it doesn’t mention “career prosecutor” review:

When the review and comment [from Yoo, Bybee, and Bradbury’s lawyers] is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the department will determine what disclosures should be made.

The letter backs off Jarrett’s earlier promise to release the report:

In determining appropriate disclosures, we will be mindful of the considerable interest that Congress has previously expressed in connection with this matter and will seek to accommodate the information needs of our oversight committees in response to requests from their chairmen. While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed. We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review.

March 31, 2009: Durbin and Whitehouse reply to OPR letter

April 8, 2009: Holder names Mary Patrice Brown to replace former OPR head, Marshall Jarrett

April 29, 2009: Leahy invites Bybee to testify to Senate Judiciary Committee; Bybee panics in response

May 4, 2009: According to AAG Ronald Welch, deadline for Yoo, Bybee, and Bradbury response to OPR report; on that day, Welch responds to Durbin and Whitehouse laying out the following as “normal” process for OPR reports:

In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings.

The May 4 letter also informed the Senators of the CIA review.

May 6, 2009: WaPo reports OPR report still recommends sanctions against Yoo and Bybee

June 12, 2009: Judge rules Padilla suit can move forward

June 17, 2009: Whitehouse reveals that CIA conducting “substantive comment and classification review”

July 9, 2009: Yoo appeals decision on Padilla suit–and DOJ stops representing Yoo; Miguel Estrada would take on that role

July 12, 2009: Scott Horton reports that reading OPR Report was one thing that convinced Eric Holder to launch criminal review of torture

Prior to August 24, 2009: OPR submits report to Holder, recommends reopening criminal investigation into torture

August 24, 2009: Holder announces criminal investigation, citing (among other things) OPR report

November 16, 2009: Yoo submits opening brief in Padilla suit appeal

November 18, 2009: Holder announces OPR report due out “this month;” Court grants government extension to December 3 to submit amicus brief

November 20, 2009: Padilla requests extension–because of delay in government brief–until January 15

December: Margolis, purportedly reviewing OPR report, out sick (though reports say Yoo’s lawyer making last appeal for changes)

December 3, 2009: DOJ submits amicus brief claiming that OPR can address Padilla’s concerns

December 29, 2009: Yoo starts book publicity

January 18, 2010: Padilla submits response to appeal

January 29, 2010: Klaidman and Isikoff report OPR conclusions have been altered

Hassan Ghul Timeline

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The known dates pertaining to Hassan Ghul’s capture and subsequent OLC memos authorizing his torture. The interesting things about this timeline are:

  • The Abu Ghraib scandal and IG Report come after they’ve detained Ghul but before they start torturing him in earnest
  • The claims to what Ghul knew changed over time
  • The approvals for his torture take place after Tenet is gone but before Goss arrives
  • Between the Cheney briefing of the Gang of Four, the CIA lie to HPSCI about torture, and Rockefeller’s requests for CIA IG materials, BushCo really was under pressure from Congress
  • Two documents to prove efficacy were created during the drafting of the Bradbury memos–but they don’t appear to claim Ghul’s torture was useful

March 16, 2003: Detainee testifies that Ghul took intended 9/11 participant, Mushabib al Hamlan, to Abu Zubaydah guest house in March 2000

January 19, 2004: General Sanchez requests investigation of Abu Ghraib abuse

January 22 or 23, 2004: Hassan Ghul detained by Kurds

January 31, 2004: Taguba appointed to conduct investigation

February 2 to 29, 2004: Taguba’s team investigating in Iraq

February 21, 2004: Directorate of Intelligence document, "US Efforts Grinding Down al-Qa’ida," says Ghul was captured while on a mission "to establish contact" with Zarqawi

February 24, 2004: Tenet mentions Ghul–along with top al Qaeda members–in hearing before SSCI

March 9, 2004: Taguba submits report

March 12, 2004: Letter to Goldsmith (possibly in support of GC opinion) claims Ghul "perform[ed] critical facilitation and finance activities for al-Qa’ida," including "transporting people, funds, and documents," and says CIA suspected Ghul of playing an active part in planning attacks against United States forces 

March 18, 2004: Jack Goldsmith concludes non-Iraqi members of al-Qaeda not "protected persons" under Geneva Convention

March 19, 2004: Jack Goldsmith drafts memo finding that US can remove some people of Iraq

April 28, 2004: Hamdi and Padilla argued before SCOTUS; Paul Clement assures the Court that we don’t torture; 60 Minutes breaks Abu Ghraib story and proves he’s wrong

May 7, 2004: CIA IG report finds torture program cruel and inhuman

June 3, 2004: Tenet announces resignation–seeks explicit approval of torture

June 15, 2004:Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns

June 17, 2004:Jack Goldsmith announces his resignation.

July 2004: Scott Muller resigns as General Counsel of CIA

July 11, 2004: Tenet resignation effective

July 20, 2004: CIA requests new legal advice from OLC (13 page letter)

July 22, 2004: Ashcroft confirms to Acting DCI (McLaughlin?) that all techniques except waterboarding legal under CAT

July 23, 2004: Muhammad Naeem Noor Khan arrested by Pakistani authorities

July 25, 2004: Capture of Ahmed Khalifan Ghailani

July 26, 2004: DNC begins

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

August 1, 2004: Government raises threat level, announces surveillance of financial institutions, though reports are years old; NYT publishes Khan’s name

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

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

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

Read more →

The April 22, 2005 Fax on Torture

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I’m working on a series of posts about the 2005 Bradbury Memos and Hassan Ghul. But first, I want to make a couple of points about a document that plays a key role in them–particularly in the Combined Memo: an April 22, 2005 fax from the CIA’s Assistant General Counsel (the name is always redacted) to Steven Bradbury.

The Chronology

Before I get into the significance of the fax, here’s the chronology of it:

December 30, 2004: Background Paper on CIA’s Combined Use of Interrogation Techniques; Daniel Levin torture memo published

February 2005: Daniel Levin leaves DOJ

April 8, 2005: Draft "Techniques" and "Combined" OLC Memos (at that point, 57 pages in length) sent to CIA

"Several weeks" before April 27, 2005: Pat Philbin alerts Jim Comey to problems with "Combined" draft 

April 20, 2005: DOJ announces Jim Comey’s resignation

April 22, 2005: Meeting between Pat Philbin, Jim Comey, Steven Bradbury, Alberto Gonzales about May 10 torture memos

April 22, 2005: Fax to Steven Bradbury from Assistant General Counsel, CIA

April 26, 2005: Comey gets latest draft of Combined memo (no mention of Techniques draft), meets with Gonzales to express concerns, concurs with Techniques memo

April 27, 2005: White House tells Gonzales memos must be finalized by Friday, April 29

April 28, 2005: Gonzales’ Chief of Staff, Ted Ullyot, tells Comey the memo will have to be "sent over" tomorrow

May 10, 2005: Techniques and Combined memos (totaling 67 pages in length) finalized and sent to CIA

Note a few points. The May 10, 2005 memos were drafted by April 8, 2005. Apparently not long after CIA received that draft, Pat Philbin notified Jim Comey of problems with the "Combined" memo and (though there’s no reason to believe they’re related events) Comey resigned. 

And then, on Friday April 22, two things happened. Comey and Philbin tried to talk Gonzales and Bradbury into fixing the "Combined" memo. And Bradbury received the April 22 fax from the Assistant General Counsel of the CIA. Also note, while it’s clear Comey saw a draft of the "Combined" memo after April 22 (the one he describes as being worse than the previous draft he had seen), it’s not clear he saw another draft of the "Techniques" memo before he concurs with it on April 26–though we know the memo would have changed in the interim, since it cites the April 22 fax.

We don’t know what happened after that point. Read more →

Vaughn Walker’s Chess Game: Sue the Telecoms Part One

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In two earlier posts I laid out where Vaughn Walker seems to be going with the warrantless wiretapping cases. In this post, I’m going to consider his suggestion–made in his ruling rejecting a challenge to retroactive immunity–that the plaintiffs could sue the telecoms for activities after January 17, 2007 (note, Walker said January 7, but it’s almost certain he meant January 17).

Because, however, section 802’s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice. On May 15, 2009, plaintiffs submitted a “notice of new factual authorities in support of
plaintiffs’ opposition to motion of the United States” to dismiss. Doc #627. In the notice, plaintiffs cite news articles published in 2009 reporting post-FISAAA warrantless electronic surveillance activities by the NSA. Plaintiffs argue that these articles constitute “proof that the certification of former Attorney General Michael Mukasey that is the sole basis for the government’s pending motion to dismiss is not supported by ‘substantial evidence.’” Doc #627 at 3. The court disagrees. The court believes that the Attorney General has adequately and properly invoked section 802’s immunity to the extent that the allegations of the master
consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-morestringent pleading standards applicable in federal courts (see, e g, Ashcroft v Iqbal, ___ US ___, 129 S Ct 1937 (2009)), to allege causes of action not affected by the Attorney General’s successful invocation of section 802’s immunity.

EFF had submitted the recent Lichtblau and Risen article in support of their argument that they could sue for past abuses, and in response, Walker said, "Well, why don’t you sue for more recent abuses?" 

Is Walker serious? Does he really think there is means to do that?

The Recent History of the Wiretap Program and the Immunities

Let’s start by looking at the recent history of the mass wiretap program along with the immunities offered by Congress in 2007 and 2008.

January 10, 2007: FISA Court issues first order covering the program

January 17, 2007: Alberto Gonzales informs Congress FISA Court will now approve wiretap program

May 2007: FISA Court judge rejects Administration’s order for a basket warrant

May 15, 2007, 10 AM: Jim Comey testifies before Senate Judiciary Committee, describes Hospital confrontation

May 15, 2007, 10 AM: US Intelligence meets to discuss collecting more intelligence in case of kidnapped soldiers in Iraq

Read more →

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 →