CIA’s Self-Authorization for Ice-Drowning Human Beings

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The WaPo has a story that repeats what I’ve been harping on for over a year (and in some cases, has been clear even longer): the Senate Torture Report shows that CIA repeatedly lied to Congress.

There are, however, ugly new details about the torture (though it’s not clear whether they show up in the report): particularly regarding the treatment of Ammar al-Baluchi.

If declassified, the report could reveal new information on the treatment of a high-value detainee named Ali Abdul Aziz Ali, the nephew of Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. The Pakistanis captured Ali, known more commonly as Ammar al-Baluchi, on April, 30, 2003, in Karachi and turned him over to the CIA about a week later. He was taken to a CIA black site called “Salt Pit” near Kabul.

At the secret prison, Baluchi endured a regime that included being dunked in a tub filled with ice water. CIA interrogators forcibly kept his head under the water while he struggled to breathe and beat him repeatedly, hitting him with a truncheon-like object and smashing his head against a wall, officials said.

As with Zubaida and even Nashiri, officials said, CIA interrogators continued the harsh treatment even after it appeared that Baluchi was cooperating.

The report notes that two other prisoners — members of the Libyan Islamic Fighting Group — were subjected to similar treatment at the same time.

Two other terrorism suspects, from Libya — Mohammed al-Shoroeiya and Khalid al-Sharif — endured similar treatment at Salt Pit, according to Human Rights Watch. One of the men said CIA interrogators “would pour buckets of very cold water over his nose and mouth to the point that he felt he would suffocate. Icy cold water was also poured over his body. He said it happened over and over again,” the report says. CIA doctors monitored their body temperatures so they wouldn’t suffer hypothermia.

Ultimately, CIA got DOJ to authorize “water dousing” — in the manner that CIA always got DOJ to approve mere shadows of what they actually did, and the approval more closely matches the description of the LIFG prisoners — in the Bradbury Techniques Memo (see page 10). But not before it got used over and over at the Salt Pit (the same place where water dousing had already contributed to Gul Rahman’s death).

Which is, I’m quite certain, one thing that CIA was doing with the Legal Principles document, a set of legal guidelines the CIA wrote for itself (with John Yoo’s freelance help) as the CIA’s legal problems started to mount. As I’ve noted, the first draft of the memos got hand-carried to John Yoo on April 28, 2003, just as these detainees were in the Salt Pit. There were several more discussions internally at CIA in anticipation of litigation before they tried (unsuccessfully) to create a fait accompli with Pat Philbin on June 16, 2003. At that point, the document only generally approved techniques equivalent to those already approved. As CIA would later explain,

We rely on the applicable law and OLC guidance to assess the lawfulness of detention and interrogation techniques. For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique. Similarly, in addition to the sitting and kneeling stress positions discussed earlier with OLC, the Agency has added to its list of approved interrogation techniques two standing stress positions involving the detainee leaning against a wall.

I guess, in similar fashion, John Yoo and his CIA buddies believe ice-drowning is equivalent, as another kind of simulated drowning, to waterboarding, which had been approved?

Then the next year, when Scott Muller tried the same trick with Jack Goldsmith — trying to get him to sign off on the techniques CIA had freelanced its own legal opinion — he asked to include water dousing (and another water-based technique and one still-redacted technique) explicitly. Of course, the description of water dousing fell far short of what the CIA was actually doing — dunking men in ice-water repeatedly — though the outlines, especially the concern about detainees ingesting water and hypothermia — show the outlines of the torture such language was meant to gloss.

To understand the CIA’s torture program, you have to understand what these bureaucratic maneuvers were meant to cover.

Now we know they were intended to authorize controlled drowning of men in ice water.

In Describing CIA’s Attempted Intimidiation of Senate Intelligence Committee, Harry Reid Uses the Word “Unprecedented” Too

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Back when Mark Udall first hinted about the CIA’s efforts to intimidate the Senate Intelligence Committee, he said CIA had taken “unprecedented action.”

That’s language Harry Reid repeats in a letter to John Brennan informing him that the Senate Sergeant-at-Arms will conduct a forensic review of the SSCI computers.

You are no doubt aware of the grave and unprecedented concerns with regards to constitutional separation of powers this action raises.

The language Reid uses in a letter to Eric Holder is even stronger.

As Majority Leader of the Senate, I have a responsibility to protect the independence and effectiveness of our institution. The CIA’s decision to access the resources and work product of the legislative branch without permission is absolutely indefensible, regardless of the context. This action has serious separation of powers implications. It is immaterial whether this action was taken in response to concerns about the Committee’s possession of a disputed document; this stands as a categorically different and more serious breach.

[snip]

In my capacity as the leader of the U.S. Senate, the CIA’s actions cause me great concern. The CIA has not only interfered with the lawful congressional oversight of its activities, but has also seemingly attempted to intimidate its overseers by subjecting them to criminal investigation. These developments strike at the heart of the constitutional separation of powers between the legislative and executive branches. Left unchallenged, they call into question Congress’s ability to carry out its core constitutional duties and risk the possibility of an unaccountable Intelligence Community run amok. The CIA cannot be permitted to undermine Congress’s ability to serve as an effective check on executive power as our nation’s Founders intended.

For all the talk of interbranch conflict, however, the letter to Brennan includes hints of partisan conflict. He asks Brennan to keep his staffers away from Senate staffers except the Sergeant-at-Arms.

To ensure its [the Sergeant-at-Arms review] independence, I ask that you take whatever steps necessary to ensure that CIA personnel refrain from further interaction relating to this issue with Senate staff other than the Segeant-at-Arms staff conducting the examination while the examination is underway.

This suggests there has been such contact. And there’s no reason to believe anyone from the Democratic side would be working back channel with Brennan’s spooks.

As I noted last week, the Republicans — especially Richard Burr, who would become Intelligence Chair if Republicans retake the Senate — have been going after Mark Udall aggressively. In the interim we’ve seen fairly obvious hit jobs that use the CIA-SSCI dispute to focus on Udall’s electoral prospects in November.

So while I believe everything Reid says about separation of powers — while I believe he regards this as an unprecedented threat to separation of powers — this also reeks of an attempt to prevent the collaboration of Republicans and the CIA.

We’ll see whether it has the other probable goal: giving DOJ an easy way to back out of any entanglement in this dispute.

Sitting Across from KSM: KSM’s Abu Ghaith Answers

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Earlier today I noted that torture defender Philip Mudd argued the benefits of sitting across from top al Qaeda figures to learn more about them.

Now you can have that opportunity.

In the Suleiman Abu Ghaith trial, his lawyers have just posted the 14-pages of answers Khalid Sheikh Mohammed gave to their questions.

He was not a friendly witness. He said he suspected the US government had a hand in the questions, and used the opportunity to voice his suspicions as an opportunity to air what had been done to him.

I received the set of questions from the lawyer for Sulaiman Abu Ghayth (Allah preserve him) consisting of 24 pages and 451 questions. It reminded me of the interrogations at the Black Sites and the questions from the dirty team at Guantanamo.

[snip]

I want to inform Sheikh Sulaiman Abu Ghayth’s lawyer that I suspect the U.S. government has a hand in the questions because they correspond precisely with the way the CIA and FBI posed questions. I may be right or wrong in this assumption, but I feel that most of the questions do not serve the interests of his client or anyone for that matter; yet they are primary directed to me.

And there are several other places where KSM clearly engages in craft (which I’ll post in updates).

Nevertheless, this is a fairly uncensored view of that which Mudd insisted was so instructive — instructive enough to torture to get.

On camps

KSM claims that the camps the US has used as a sign of terrorism aren’t the best measure.

I don not have any information on [the training camps] during this period because I was appointed by Sheikh Osama bin Laden (Allah have mercy upon him) as head of operations abroad, meaning all the jihadist operations conducted outside of Afghanistan.

[snip]

The candidates were sent to me and I had other means of training them apart from the well-known camps. I did not need the camps to prepare my men because of the nature of the special operations that were conducted outside Afghanistan.

This is presumably true: shooting guns in the desert isn’t going to train one to live in the US inconspicuously and case out plane hijacking. But it’s also a taunt that all the attention the US pays to people who’ve trained at generalized camps isn’t going to find the people most apt to attack the US.

This claim to limited knowledge also allows him to claim Abu Ghaith did not train militarily, based on his limited knowledge.

On fighting Russia

This passage makes me wonder how recent of news coverage KSM gets.

At that time, during that particular war, the U.S. government was against the Russian forces for political and strategic reasons of their own. Thus they gave their proxies in the Arabian Peninsula countries the green light to flood the Afghan Mujahideen with money, resources, and Arab fighters; they also opened the doors for merchants and businessmen to donate money without conditions or restrictions. The selfishness and stubbornness of Uncle Sam pushed the U.S. government to flood their agent, the Paksitani Inter-Services Intelligence (ISI), with millions or billions of dollars in order to defeat the Russian Army by supporting the Afghan Mujahideen. This indirect support was the principle cause of the development of the non-Afghan groups and organizations in Afghanistan and their ability to achieve what they desired withotu any security pressures imposed by U.S. allies such as Pakistan, Saudi Arabia, and other countries around the world. They never supported the non-Afghan groups directly with money or weapons, but by allowing absolute freedom for young people to spend their own money and take advantage of the open land contributed to attaining these achievements. In the end, Uncle Sam destroyed his own country by his own hand with his stupid foreign policy.

it was in this climate of complete inattention from the West that the groups in Afghanistan were able to develop their capabilities. The countries in the West were busy settling scores with the Russians and licking their chops over Mujahideen victories, and for the most part remained completely blind to what was happening in the camps and on the non-Afghan Mujahideen front.

[snip]

The American media had not yet used terms such as “foreign fighters” or “Afghan Arabs” or “terrorists” or even “the Afghan resistance”, rather the fixed term in the Western media policy at that time was “Mujahideen”. CNN, BBC, Reuters, France Press were all united in using the term “Jihad” to describe the Afghan resistance and “Mujahideen[“] to describe the fighters, whether Afghan or Arab, and the term “martyrs” for those among them who were killed.

All this was to impart international legitimacy on the Western and Islamic support for the Mujahideen in an effort to limit the expansion of the Red Bear and prevent it from obtaining a warm water port.

KSM is totally trolling here. But given events in Russia (especially concerning its warm weather port in Crimea) or — even moreso — Syria, his trolling should carry some weight (but won’t).

On Lists of Names

One of the key pieces of evidence the government used against many Gitmo detainees — and Abu Ghaith — was the list of names found on various computers captured in raids (I believe, though have not confirmed, that Abu Ghaith’s name appeared on the same computer list that Adnan Latif’s did, for example).

But KSM says they shouldn’t be used in that way.

[T]here was not a single, fixed system for dispersing funds, especially the expenses and financial guarantees distributed by Al-Qaeda and its beneficiaries. It did not limit its embers, families, and sympathizers, rather it gave freely to all needy families, regardless of their loyalties or affiliation, for two reasons: one, because it was a religious obligation ordering them to consider all the needy equally and fairly and without discriminating between them; and two, because it was a requirement for many donors to not limit funding to any particular category of people but to give to all those who needed it. There were tables and charts and lists of names of the families who received aid and these lists did not delineate the affiliation of the person on record.

I suspect KSM is partly blowing smoke here, and he’s not talking about the specific list at issue in this trial. But I also suspect there’s some truth to what he says, and that the government has been overstating the value of these lists in large numbers of terrorism trials and, more importantly, Gitmo habeas cases. Philip Mudd says we learn from KSM; is this a fact (or partial truth) we should have learned but refused to?

On bayat

KSM similarly challenges the way the government treats bayat — swearing loyalty to the Taliban or al Qaeda — pointing out that swearing bayat to Mullah Omar but swearing bayat to Osama bin Laden was not (and he did not swear bayat to OBL for years).

That said, his claim here does not entirely rebut US claims.

The United States tries to fabricate charges against innocent people, saying they swore bayat or incited others to do so. Swearing bayat does not mean that a person is placed on a list to carry out an operation; even the cook has sworn bayat.

This, of course, is not the way US law currently works. You swear loyalty to al Qaeda, you’re materially supporting them. For Abu Ghaith, the issue is somewhat different as material support laws changed with his involvement. But KSM’s rebuttal here doesn’t address the key issue of bayat.

Philip Mudd: Sitting Across from KSM Was Useful So Waterboarding Him 183 Times Was Too

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Philip Mudd — who was a top CIA analytical official until 2005 and then became a Deputy Director of FBI — has written a defense of torture in anticipation of the release of the Senate Torture Report.

The argument is actually fairly crafty. He acknowledges he probably will “question [the Report’s] merits” once it comes out.

I don’t know what’s in the report, and I wasn’t approached during its preparation. I can only guess that I would be among those who question its merits once it enters the public domain.

Given that he effectively admitted to Steven Colbert back in September, above, he was responsible for inserting the tortured claim from Ibn Sheikh al-Libi that Iraq had ties to al Qaeda, and given that he left government after being denied a promotion because his analysts pushed for more torture [correction from Nada Bakos: the claim his analysts pushed for more torture floated when he retired is not accurate], what he likely means is that the Report is going to show very damning evidence about his actions.

But then Mudd appears to say nice things about democracy — as he did with Colbert.

This judgment, though, isn’t particularly relevant. In our system of checks and balances, there will often be times when overseers and officials from executive branch agencies don’t agree, and both parties have a right to speak on a matter that is of such interest to the public. We’re in a finger-pointing Beltway battle between two entities nobody much trusts. Let the people sort it out, after they see what both sides say; let the public decide where the pendulum rests.

There are key points that might get lost in this ugly rumble. Primary among them is the quality of the Senate report, which the CIA evidently argues is profoundly flawed and therefore misleading. This may well be true, but it’s not clear it should stand in the way of the report’s release. The agency has its perspective; the overseers have theirs.

[snip]

Time the release of the Senate report to coincide with the release of a CIA rebuttal. Give both sides their say, and then let the public weigh in. [my emphasis]

But in fact, Mudd’s defense of democracy — let the people sort it out! — is instead an appeal for a relativism in which there is no truth, only competing truths. Mudd suggests that since both sides get to have their say, we’ll come to an adequate outcome.

Of course, Mudd is full of shit on this point. FIrst, because Mudd, a torture defender, has for years been permitted by CIA to go on TV and write Daily Beast columns. He and other torturers have had opportunity to give uncontested rebuttals for years, even with the help of Hollywood. CIA’s torture critics, however, have been and even still are getting ominous warnings not to talk to the press. We’ve had 5 years in which only the torture fans get to defend torture, and that’s what Mudd considers a fair fight.

But also because while John Brennan’s CIA may argue the report is flawed, whoever drafted the Panetta Report actually agreed with the Senate Report. Let’s have that report as CIA’s rebuttal, what say you, Mudd?

The “CIA” doesn’t think the report was flawed; the CIA’s institutional defenders do.

Then, couched in another apparent nod to democracy, Mudd suggests that torture was useful.

Do Americans, and their representatives in lawmaking bodies, want their security services to interrogate prisoners using these tactics? Do they believe these tactics represent American values?

If the answer is “no,” the question of whether the tactics are successful becomes moot. Let’s assume, for the moment, that we all accepted as fact that the tactics were hugely successful in eliciting valuable intelligence. Would this then change the argument? I hope not: If you want to judge that these programs aren’t appropriate for a democratic society, that judgment shouldn’t come with a sliding scale. So why waste time on the question of the program’s utility? Why pretend that the answer would sway those who believe America should never again return to the tactics the CIA used?

As an intelligence officer who was at the CIA’s Counterterrorist Center during the early 2000s, and was once its deputy director, my views of this debate are not complex, and they won’t be changed by this report. The al Qaeda prisoners we held at CIA facilities helped us understand the adversary. A lot? A little? Somewhere in between? Outside observers can debate it, but it’s hard to argue that sitting across from the most senior leaders of your adversary, over a long period of time, isn’t helpful to understanding how they think and act. It is.

This judgment, though, is as irrelevant today as it will be the day this Senate report appears in public.

One of America’s top analysts lays out the defense for torture efficacy this way:

“Sitting across from the most senior leaders of your adversary [is] helpful to understanding how they think and act.”

Therefore,

Torture is useful.

This is what CIA considers crack analysis!!!! It’s useful to sit down with Khalid Sheikh Mohammed, and therefore it was useful to waterboard him 183 times!!!

Apparently one of CIA’s former top analysts doesn’t understand that one can sit down with someone — the FBi had a pretty good track record at doing this — without engaging in medieval torture first. This former top analyst feigns not understanding that “sitting across from” someone is different from “pretending you’re drowning” someone over and over and over and over.

Maybe instead of releasing the report we should just let CIA’s torturers continue to expose just how stupid they really are (or pretend to be). Because while Mudd’s pre-rebuttal was meant to sound all democratic and whatnot, when you look closely it just exposes the stupidity of those who defend torture.

Update: I’ve changed the title of this to match exactly how Mudd characterized the sitting with KSM.

Did CIA’s Handsomely Paid Contractors Doctor Its Log Books, Again?

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I wanted to return to one other detail of John Brennan’s (designed to be made public, I believe) January 27 letter to Dianne Feinstein explaining the urgent need to continue the “investigative, protective, or intelligence activity” targeted at CIA’s overseers.

In the letter, Brennan describes the original basis for CIA’s claimed suspicion into SSCI this way:

CIA maintains a log of all materials provided to the Committee through established protocols, and these documents do not appear in that log, nor were they found in an audit of CIA’s side of the system for all materials provided to SSCI through established protocols. Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and review audit data to determine whether anyone had access the files. [my emphasis]

The original basis CIA used to justify investigating their overseers was a log purportedly recording which documents they had been given.

Recall that CIA worked with contractors — SAIC, as I understand it — to review and re-review each document before they turned it over to SSCI.

CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff.

This process accounts for much of the $44 million cost of the report.

The log must have come out of this process: contractors, being paid handsomely by the CIA to slow the investigation, recording each document that they claimed to hand over to investigators.

So at the base of Brennan’s claim is a log, made by self-interested contractors employed by CIA, about torture.

The CIA’s contractors don’t have a very reliable history recording issues relating to torture.

Recall that — contrary to much of the public reporting on the matter — the destruction of the torture tapes did not just destroy ugly images of torture inflicted on Abu Zubaydah.

In addition, by destroying the torture tapes, CIA destroyed evidence that:

  • The CIA’s contractors used torture on Abu Zubaydah that exceeded the guidelines provided by DOJ
  • The CIA’s contractors’ descriptions of those torture techniques — in written cables and logs — did not match what they had actually done to Abu Zubaydah
  • By the time CIA shut down the Thai black site and decided to stop taping their torture, someone (the CIA’s contractors?) had already destroyed or sabotaged a number of the torture tapes, including ones depicting waterboarding

That is, one of the likely reasons why CIA destroyed the torture tapes is that their handsomely paid self-interested contractors produced a substantively inaccurate log about torture.

And at the base of the CIA’s witch hunt into SSCI staffers is a log about torture presumably made by handsomely paid self-interested contractors.

John Brennan’s Parallel “Investigative, Protective, or Intelligence Activity”

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Yesterday, Jack Goldsmith defended CIA lawyer Robert Eatinger for referring Senate Intelligence Committee staffers for criminal investigation. Eatinger had no choice but to refer his Agency’s overseers, you see, because EO 12333 required it.

I knew Eatinger a bit when I was at OLC a decade ago, and based on that experience I agree with John Rizzo that “[h]e doesn’t have a political bone in his body” and “[i]f he made this referral, it’s because he felt it was the right and necessary thing to do.”

It might be useful to articulate the standard for the “right and necessary thing to do,” because I think that standard is at the bottom of this corner of the controversy.  The standard comes from Section 6.1(b) of E.O. 12,333, which imposes a duty on the CIA Director to:

Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;

I believe that the CIA Director delegates this duty to the CIA General Counsel.

Note how low the bar is for the referral—possible violations of federal law.  Think about what that low standard means.  It means that CIA often has a duty to refer a matter to DOJ that it is reasonably confident does not violate federal law, simply because the matter possibly violates federal law.  As John Radsan noted in his study of the CIA General Counsel’s Office, the low standard results in CIA making “several referrals to the Justice Department in a typical month.”  It might seem that these frequent referrals are signs of lawlessness, but in fact they are a mechanism of accountability. The very soft trigger of “possible” as opposed to “likely” or “actual” violations promotes significant over-reporting and allows another Agency, DOJ, to decide the appropriate action in the first instance.” [my emphasis]

Nice try.

But there’s a significant problem with that. In response to Ron Wyden’s question about whether CIA is subject to the Computer Fraud and Abuse Act — a polite way of suggesting CIA hacked the Committee server — John Brennan told Wyden,

The statute does apply. The Act, however, expressly “does not prohibit any lawfully authorized investigative, protective, or intelligence activity … of an intelligence agency of the United States.” 18 U.S.C. § 1030(f).

In other words, Brennan implicitly asserts the CIA snooping on SSCI was legal because CIA was engaged in lawfully authorized “investigative, protective, or intelligence activity.”

Side note: what are the chances that Brennan, who likes to remind that he’s not a lawyer when he gets legally dangerous questions, consulted with CIA’s Acting General Counsel Robert Eatinger in crafting this response to Wyden?

But let’s look at when and how Brennan chose to engage in what he claims is either “investigative, protective, or intelligence activity” and when and how Eatinger found SSCI’s oversight of CIA reached the “low bar” that merited referral.

Read more →

The CIA’s Excuse: Hiding the Double Agents

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Adam Goldman and Greg Miller offer the CIA’s excuse for removing documents from the SCIF where they had been made available to Senate Intelligence Committee staffers: they had to hide their double agents.

After the CIA provided a massive cache of documents in 2009 to Senate staffers investigating the agency’s detention and interrogation program, the agency realized it might have a problem.

Within those documents, agency employees feared, were details that could lead to the exposure of CIA sources, former U.S intelligence officials said. Among them were top assets who had been recruited while being held at a secret CIA facility on Guantanamo Bay called “Penny Lane,” according to one of the officials.

So great was the concern that the sources’ identity would be disclosed that the CIA withdrew some of the documents from a special facility that had been set up for members of the Senate Select Committee on Intelligence.

[snip]

Two employees of the CIA’s Counterterrorism Center and a lawyer were assigned to scrub the documents for sensitive sources, including the asset who agreed to work for the CIA after his capture and transfer to Guantanamo, the official said.

The assets went through a recruitment program at Guantanamo that began in early 2003 and ended several years later. Some of those who took part in the program have provided key information to the CIA, helping the agency kill a number of top terrorists.

Let’s take the CIA at its word for a minute and consider the implications of this from the standpoint of oversight.

By removing the names of those the CIA had flipped while at Gitmo, the CIA permitted politically motivated people — including the guy who had a key role in “releasing” them — to call those detainees “recidivists.”  While it might be great cover to have Dick Cheney screaming about what dangerous people these people were, it was lethal for Obama’s effort to close Gitmo.

By hiding the names of the double agents, the CIA also hid the true details about the actions those double agents would go on to commit. Which may have permitted CIA to use those double agents in ways that weren’t just intelligence gathering.

Hiding double agents also hid how corrupt the entire military commission program was, because it hid the degree to which detainees had been implicated — and were still being held years after their capture — solely through the testimony of informants.

I wonder. Has CIA yet given its oversight committees a full list of all those CIA believes to have flipped? For a number of reasons, I doubt they have.

Removing details on the effort to flip detainees also hides evidence about the purpose of torture, which wasn’t really to obtain intelligence, but to exploit detainees, whether that involved propaganda (such as eliciting the justification for the Iraq War) or developing assets. Until we understand that that was one of the reasons we embraced torture and other kinds of humiliation, we won’t be able to account for the full human waste of it all.

One more detail: by claiming it took back evidence of flipping detainees, CIA can obscure what happened with Hassan Ghul, whose cooperation with the US Miller first broke. If this report ever comes out in any halfway revelatory form, Ghul’s treatment may well be one of the most unjustifiable (particularly since he had already given up Osama bin Laden by the time we started torturing him). How convenient, then, that CIA is prepping to claim SSCI doesn’t know everything about Ghul’s treatment.

Caroline Krass Confirmed as CIA General Counsel in Landslide Vote

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In the background of the fight between CIA and the Senate Intelligence Committee lurked the nomination of Caroline Krass.

Mark Udall had said that he would hold her nomination to get some answers on the Torture Report.

But she just got confirmed with just a few more no votes –4 — than the 2 she got from the Committee. Dianne Feinstein, Ron Wyden, Martin Heinrich, Mark Udall all voted yes.

This was predictable. As I pointed out the other day, the alternative to quickly confirming Krass was leaving Robert Eatinger — the guy who launched a witch hunt into Committee staffers — Acting Counsel at CIA. Even a mediocre candidate would be preferable to that, for Committee Democrats, and by all reports and appearances Krass is a very sharp and candid lawyer.

That said, in addition to seeking leverage over the Torture Report dispute, Committee members had expressed concern that Krass explicitly endorsed withholding privileged documents from the oversight Committee. So by rushing through Krass’ nomination, the Senate waived any opportunity to obtain some commitment for greater sharing with the Senate.

And thus it happens that, in response to an intolerable situation concocted by Article II, Article I pisses away even more of its authority.

Update: Here’s Udall’s statement on Krass.

Udall, a member of the U.S. Senate Select Committee on Intelligence, released his procedural hold today on the nomination of Caroline Krass to be the CIA’s general counsel, citing the conflict of interest of the acting-general counsel, as well as a firm and clear commitment by the president to declassify the committee’s landmark report on the CIA’s detention and interrogation program.

“We need to correct the record on the CIA’s coercive detention and interrogation program and declassify the Senate Intelligence Committee’s exhaustive study of it. I released my hold on Caroline Krass’s nomination today and voted for her to help change the direction of the agency,” Udall said. “The president has stated an unequivocal commitment to supporting the declassification of the Senate Intelligence Committee’s report. Coloradans expect me to hold him to his word.”

 

Aspiring Senate Intelligence Chair Richard Burr Goes After Mark Udall

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Yesterday, I predicted the CIA and its Republican apologists would try to use the torture crisis to knock off a few Democrats in an attempt to retake the Senate. If that happened, Richard Burr, who would become Senate Intelligence Chair, would surely kill the Torture Report as one of his first acts.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

It sure didn’t take long to be proven right.

Republicans say that not only has the committee’s chairwoman, Sen. Dianne Feinstein (D-Calif.), provided selective information to the public about improper CIA conduct, but they are also now pointing the finger at Sen. Mark Udall (D-Colo.).

The Colorado Democrat, Republicans say, shouldn’t have disclosed internal Senate proceedings over the CIA investigation — something that some Republicans privately say should warrant an ethics committee review.

[snip]

“I think Mark did make some public releases that were committee-sensitive information, but that’s for the committee internally to handle,” said Sen. Richard Burr (R-N.C.), a member of the committee. “That’s being reviewed right now.”

Udall said “No way” when asked Wednesday if he was involved in the leaking of sensitive information, saying he’s “done absolutely nothing wrong here.”

“If some of my colleagues on the Intelligence Committee really want to press the case that in referring to an executive branch abuse in my March 4 letter – what I called an ‘unprecedented action’ that the CIA had taken in relation to the internal CIA review – I have somehow violated Committee rules, I am more than happy to have that debate,” Udall said.

Udall added: “In fact, the only thing I’ve done is exercise vigorous oversight over senior intelligence officials who are all too often unwilling to cooperate with Congress.”

[snip]

Several Intelligence Committee Republicans also asserted that ethics charges should be filed against Udall for his public statements about the CIA’s interrogation program and about the agency’s reaction to the panel’s investigation into that program, including the March 4 letter.

But others on the panel, said the matter should be handled internally by the Intelligence Committee — not by the Ethics Committee.

Burr added: “If you look historically, the committee has cleaned up any mistakes that members have made. Members can do whatever they want to. My concern is that the release of information could potentially causes the losses of life to Americans. That to me, is a threshold that should be addressed.”

As I noted on Twitter, Burr is the distant relation of noted assassin Aaron Burr (which he joked about once when Treasury Secretary Jack Lew testified). He sure seems to take to the assassination role well. He’s now suggesting Mark Udall might potentially cause the loss of American life because he revealed that in 2009 the CIA agreed with what Senate Democrats (and John McCain) would ultimately conclude, that the CIA’s torture program was ineffective and they lied about it.

Right. Knowing the truth about CIA’s torture will kill us all.

In any case, this is all proceeding, very quickly, as I predicted. The Republicans will try to make this an election issue, helped in the background by CIA’s torturers, with the understanding that they will not only kill the Torture Report if Republicans take the Senate, but give CIA free rein.

But honest, the Intelligence Community has adequate oversight.

Robert Eatinger and CIA’s Counterterrorism Center Lawyers’ Lies about Torture: A Timeline

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The traditional media is catching up to my post the other day focusing on Robert Eatinger, the CIA lawyer who referred Senate Intelligence Committee staffers for criminal investigation. Welcome traditional media!!

Just to expand the discussion of how deeply involved CTC’s lawyers — including, but not limited to, Eatinger — have been in torture, I thought I’d expand on my post from the other day with a timeline of CTC documents and consultation, most from its legal team, that might be among the 1,600 mentions of Eatinger in the Senate Torture Report that Dianne Feinstein referred to the other day.

I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

Note, some of this information relies on the OPR report; at least three of CTC’s lawyers refused to cooperate with that report, two based on advice of counsel. Remember too that, just as happened with the SCIF CIA made the Senate Intelligence Committee use, between 10 and 61 torture documents disappeared from DOJ’s OLC SCIF during the period when OPR was working on its report.

April 2002: Months before the first torture memo, CTC’s lawyers, in consultation with NSC and DOJ, approved 24-48 hours of sleep deprivation for use with Abu Zubaydah (who, remember, was still recovering from life-threatening bullet wounds). The torturers promptly exceeded those limits. So CTC, on its own, approved the new amounts because, they claimed, Abu Zubaydah hadn’t suffered any adverse consequences. (See PDF 113-114)

After consulting with the NSC and DOJ, CTC[redacted] originally approved 24-48 hours of sleep deprivation.

In April 2002 CTC[redacted] learned that due to a misunderstanding, that time frame had been exceeded.

However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucinations (thereby disrupting profoundly Abu Zubaydah’s senses or personality) it was within legal parameters.

After August 1, 2002: After the Bybee Memos laid out which torture techniques were permitted, then, CTC chief lawyer Jonathan Fredman sent out legal guidance to the torturers in Thailand. Rather than relying on the Bybee Memos, he relied on a July 13, 2002 John Yoo memo, purportedly prepared without the knowledge of Bybee (but, given the timing, probably written in response to Chertoff’s refusal to provide pre-declination andwith coaching from David Addington). The earlier memo lacked some of the key caveats of the later ones.

September 6, 2002: On September 4, 2002, Jose Rodriguez and a lawyer from CTC briefed Nancy Pelosi and Porter Goss on torture. The following day, CIA started discussing destroying the torture tapes. Then, on September 6, a lawyer from CTC altered the record of the briefing to Pelosi and Goss. (see PDF 84 and PDF 11-12)

October 2, 2002: CTC top lawyer Jonathan Fredman briefs Gitmo about torture and says a number of inflammatory things about detainee treatment.

December 24, 2002: CTC completes memo advocating for destruction of torture tapes.

Early 2003: After DOJ told CIA’s Inspector General to develop its own set of facts for review of any criminal liability in torture, John Yoo and Jennifer Koester start freelancing with CTC’s lawyers to develop the “Legal Principles” or “Bullet Points” document which expanded on the analysis officially approved by OLC. Koester told DOJ’s Office of Professional Responsibility the document would be used to assess the legality of the torture.

She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.

June 16, 2003: In her review, Koester took out language CIA had included saying that “comparable, approved techniques” to those approved in the Bybee Memo did not violate law or the Constitution. But when CTC’s lawyers sent the “Bullet Points” back to OLC in 2003 as an attempted fait accompli, that language had been inserted back into the memo.

April 2004: Eatinger takes over as top CTC lawyer.

Unknown date: CTC’s lawyers write a declination memo recommending against charges for Salt Pit manager Matt Zirbel in the murder of Gul Rahman based on (according to Jay Bybee’s characterization) an entirely intent-based exoneration. (see footnote 28)

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

May 11, 2004: White House meeting, possibly attended by Eatinger, at which White House lawyers tell CIA not to destroy torture tapes.

June 2004: According to John Rizzo, Eatinger attends White House meeting at which White House lawyers instruct not to destroy torture tapes.

August 4-5, 2004: CTC lawyers provide Daniel Levin additional information on waterboarding; the Torture Report found this information to be inaccurate.

August 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 5, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture report found to be inaccurate.

February 2, 2005: A CTC lawyer worked closely with Daniel Levin to try to finish the Combined Memo before Levin moved to NSC. At that point, the Memo did not include waterboarding. Nevertheless, Levin did not complete it, and Steve Bradbury would add waterboarding back in when he completed the memo that April.

Febraury 14, 2005: CTC panics because Congress might hold hearings into detainee treatment.

March 1, 2005: Steven Bradbury’s main contact for Combined and other torture memos is a CTC attorney. The Torture Report found information used in these memos to be inaccurate.

March 2, 2005: CTC sends Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. John Rizzo says CTC lawyers were involved in drafting this document.

April 15, 2005: CTC sends Briefing Notes on the Value of Detainee Reporting to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. Rizzo says CTC lawyers were involved in drafting this document.

May 10, 2005: Steven Bradbury completes two OLC memos — the Techniques Memo and Combined Memo — that the Torture Report found are based on inaccurate information.

May 30, 2005: Bradbury completes a third OLC memo — the CAT Memo — that the Torture Report found is based on inaccurate information.

November 8, 2005: The day CIA destroyed the torture tapes, someone from CTC/LGL gave HPSCI Chair Pete Hoekstra a briefing with no staffers present. (see page 32) The briefing was included in a summary of all Congressional briefings completed that day.

November 8, 2005: Eatinger and another CTC lawyer claim there is no legal reason to retain the torture tapes, in spite of several pending legal requests covering the videos. Jose Rodriguez orders their destruction.

January 25, 2006: Another letter from a lawyer other than John Rizzo that Torture Report may have found to be inaccurate.

April 19, 2006: Fax from a lawyer other than Rizzo that Torture Report may have found to be inaccurate.

May 18, 2006: Letter from a lawyer other than Rizzo, claiming torture techniques would be used for safety reasons, the Torture Report may have found to be inaccurate.

Update: h/t to DocEx blog for some additions to this timeline.