Saifullah Paracha’s Gitmo File Contains Suspect Details, but His Defense Attorney Can’t Point Them Out

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I’m going to be in transit for another half day yet, but I wanted to comment on this motion David Remes, Gitmo detainee Saifullah Paracha’s attorney, filed to request emergency access to the Detainee Assessment Brief on his client released by WikiLeaks on Monday. (h/t Benjamin Wittes)  Remes describes the implications of the protection order he works under, noting specifically the warning DOJ sent out the other day.

For example, because the government considers the documents classified, and counsel holds a “secret” security clearance, he is concerned that if he views the documents online, the government might revoke his clearance. Losing his clearance will disable him from continuing to represent his current or future detainee clients and jeopardize his ability to obtain further clearances. Counsel is concerned that the government may even prosecute him. To avoid any potential sanctions, undersigned counsel errs on the side of extreme caution and refrains from viewing the documents.

The only place undersigned counsel can view these documents and fear no potential sanctions is at a Secure Facility the Justice Department has provided in the Washington area for counsel with “secret” level clearances. To the best of counsel’s knowledge, the Secure Facility contains no secure computer onto which the Wikileaks documents can be downloaded. Moreover, counsel is confident that the Justice Department will not ferry the documents to the Secure Facility for viewing and use by counsel. Even if the leaked documents were made available for viewing and use by counsel at the Secure Facility, counsel located far from the Facility – some thousands of miles away – would have to journey to the Facility to view and use them. [my emphasis]

That is, Remes could view the documents in just one place without risking losing his clearance and his ability to defend his client, or even criminal sanctions–a DOJ Secure Facility. Yet DOJ is not going to make the documents accessible there. So he’s SOL; he can’t see them.

Remes goes on to describe how this prevents him from defending his client publicly, specifically because he can’t comment for a big article the NYT did which (IMO) offered a credulous reading of Paracha’s file. While that article contains a quote from ACLU National Security Project Director Hina Shamsi noting that the information in the files is uncorroborated, and while NYT admits much of the evidence derives from KSM whom they note was waterboarded, rather than point out obvious suspect details in Paracha’s file, it simply repeats those details uncritically.

Here’s just one reason why Remes needs to have access to the file to adequately represent his client and refute credulous readings of Paracha’s file:

(S//NF) The plan called for shipping explosives in containers that detainee used to ship women’s and children’s clothing to the US. Detainee agreed to this plan. KU-10024 [Khalid Sheikh Mohammed] claimed in early March 2003, PK-10020 and PK-10018 [Ammar al-Baluchi, KSM’s nephew] were arranging the details with detainee and his son Uzair. KU-10024 stated detainee knew all the details of the plan. Uzair understood PK-10018 and PK-10020 were al-Qaida, but KU-10024 was unsure how much Uzair [Paracha’s son] knew about the actual smuggling plan.8 [my emphasis]

There are, in general, just two kinds of evidence offered by KSM in March 2003: evidence the CIA itself claims was disinformation offered by KSM in his early days of captivity while he was still successfully resisting interrogation, and evidence offered up under torture, potentially one of the 183 waterboarding sessions KSM survived in March 2003.

It’s unclear which category this piece of intelligence falls into, but the use of the verb “claimed” suggests there’s something about the intelligence that may have led even the briefer on Paracha’s file to doubt it.

The intelligence report cited for this detail (and therefore collected in March 2003), TD-314/16519-03, is cited three more times in Paracha’s file, only one of which is corroborated by reports dated 2004 and 2005.

In other words, one of the claims against Paracha can be traced back to a March 2003 interrogation of KSM that no one should consider credible. The entire case against Paracha builds off this early interrogation.

There are a number of other reasons to doubt the “facts” laid out in Paracha’s file. Notably, references to Aafia Siddiqui make no mention of her earlier reported detention by the US in Afghanistan, and instead claims “Siddiqui was detained in Afghanistan in mid-July 2008,” thereby hiding a key detail as to the credibility of any intelligence Siddiqui may have offered (or, just as likely, making no mention of intelligence Siddiqui refuted during years of interrogation in US custody in Afghanistan).

Parts of Paracha’s file reveal real weaknesses in the government’s case against him. These are all very basic details Remes needs to point out, particularly if NYT reporters aren’t going to read the file critically themselves. But given the way the protection order works, he can’t do that.

Gitmo Detainee Files Working Thread

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Hi folks, HUGE document dump tonight from the New York Times, NPR, Guardian, El Pais and even the Washington Post tagging in. Heck, just about everybody has them; probably the only people who won’t be able to read the files are …. the detainees themselves who, of course, are currently effectively precluded from discussing such things with their lawyers.

At any rate, I am plowing through Charlie Savage’s material at the NYT, and there have been numerous individual filings by the Times tonight. I am going to give the various links in the order they came across the wire tonight and open the floor for discussion:

Initial NYT Article

Second NYT Article

Third NYT Article

Fourth NYT Article

Fifth NYT Article

Official Response From Us Govt.

Overall updated joint NYT/NPR Database

Feel free to link and quote into comments anything from any other sources you feel appropriate. Happy hunting!

As Expected, DOD Charges al-Nashiri; Will the US Also Charge His Torturer?

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DOD has filed charges against Abd al Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing. (h/t jl)

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia.

The chief prosecutor has recommended that the charges against Nashiri be referred as capital. Capital charges may only be pursued with the convening authority’s approval.

The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side. The charges also allege that Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000.

Now, aside from the question of whether it is illegal to target a series of military targets, I have no problem with the government finally charging al-Nashiri.

But I wonder whether the government is also, finally, going to charge the people who staged a mock execution using a power drill against al-Nashiri–basically doing the one thing even John Yoo said would be illegal? Last we heard, after all, Albert, who staged the mock execution, was training CIA officers. And Albert’s supervisor, Ron, now heads CIA’s European Division. And while the US told Spain back in March that they were still investigating, the 8 year statute of limitations on torture that occurred before January 28, 2003 would have already expired.

As with all their other torture cases, they’re just letting the statutes expire.

So congratulations, DOD, for finally charging one of the alleged worst of the worst. Now when will the government charge those who tortured al-Nashiri?

Have the Spooks Finally Admitted to Congress They’ve Been “Exploiting” Gitmo Detainees as Spies?

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Something funny happened yesterday.

The House Armed Services Committee had a hearing on Gitmo Detainee Transfer Policy. According to Carol Rosenberg’s tweeting, up to two hours of the hearing was conducted in closed session before the hearing opened to the public and the witnesses explained that the interesting details–like the “recidivists” names and the amount paid to other countries to accept detainees–are secret (meaning they presumably got reported in that secret session).

DIA’s Ed Mornston says names of ex-#Guantanamo captives who “re-engaged” after release are secret “to protect sources and methods.”

Rosenberg’s story on the hearing reports that fewer of the detainees released under Obama are “reengaging” than the detainees released under Bush.

U.S. intelligence agencies have concluded that three of the 68 Guantanamo detainees released since Barack Obama became president have engaged in terrorism or insurgency, a senior administration told Congress Wednesday.

[snip]

He declined to say, however, who the men were or where they were sent after Guantanamo. He also wouldn’t say when U.S. intelligence crunched its latest figure.

The rate of so-called return-to-battlefield detainees, however, is far less than what the Defense Intelligence Agency determined it was during the George W. Bush administration. In a report released in December, the DIA reported that 79 of 532 detainees released during the Bush administration had engaged in terrorism or insurgency.

All of which makes me wonder whether the spooks have finally stopped counting detainees whom we’ve recruited as spies to infiltrate al Qaeda as “recidivists.”

While no one ever talks about such things, it is safe to assume the government has been releasing some number of Gitmo detainees with the understanding that they’ll infiltrate (or return to, for the small percentage that actually had ties before Gitmo) al Qaeda and report back to the US on its operations. As Jeff Kaye and Jason Leopold has reported, the US abused detainees in order to get them to spy on others within Gitmo. There were quiet reports that the reason we used torture at Abu Ghraib was to recruit spies. And the example of Jabir al Fayfi, who was released to Saudi Arabia in 2007, underwent the Saudi retraining program, and then “fled” to Yemen, only to return and alert the Saudis of the toner cartridge plot last year, is most easily explained by assuming that Fayfi was a spy, either ours or Saudi Arabia’s.

While no one will ever talk about this, we can be sure that some of the Gitmo detainees who appear to “reengage” are doing so on orders from us.

So how are those former detainees counted? DIA would have a really big incentive to label them “recidivists,” because doing so would be important for their cover. They’re not going to stay alive very long if the US isn’t screaming bloody murder about them returning to the battlefield. But of course, so long as they don’t become double agents (which I would imagine happens a lot, if only because it’s a good way to stay alive for these guys), they aren’t really “recidivists;” rather, they are men who were coerced to become spies and are taking great risks to do so.

Which is why I find yesterday’s hush hush–and today’s lower “recidivism” news–so interesting. By not releasing the names of those who have “reengaged,” DIA presumably makes it easy for these men to sustain their cover. But given the lower numbers, it’s just possible that either we’ve run out of men at Gitmo who agree to spy for us (and so are counting fewer of them as “recidivists”), or we’re simply not counting them fraudulently as “recidivists.”

But consider what else has been going on with these “recidivism” claims: a central reason why we can’t close Gitmo, the fearmongers say, is because people keep “returning” to al Qaeda when we release them.

Well, now the Administration has capitulated on a key Gitmo issue, and voila! The recidivism numbers are lower!

You see why Gitmo is important to the government’s “exploitation” goals, not just for recruiting spies, but also for lying to the American people?

DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

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Update: Meanwhile, the Spanish judge threw out the case.

A SPANISH judge overnight dismissed a complaint filed against former top US officials over alleged torture at the Guantanamo Bay detention camp. Judge Eloy Velasco decided to throw out the case as he said the US justice system is competent to handle any such complaint.

The last time Spain considered investigating American torture, DOJ and Spain’s Chief Prosecutor Jose Zaragoza worked together to find a way for Spain to decline the case: shortly after Zaragoza told us that “if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain,” Eric Holder asked John Durham to investigate torture. There’s no visible sign in the least, mind you, that Durham has investigated the crimes in his mandate (which includes, among other things, the use of death threats against Abd al Rahim al-Nashiri and the manslaughter of Gul Rahman in Afghan’s Salt Pit). But his investigation serves as a convenient diplomatic stunt to shield American torture from Spanish law.

DOJ attempts to stave off Spanish investigations by claiming we investigate torture

DOJ’s back in the diplomatic stunt business with a letter attempting to convince Spain to drop its investigations of the lawyers who authorized torture.

We understand from Judge Velasco’s request that a criminal complaint has been made by the Association for the Dignity of Spanish Prisoners, claiming that the United States, as part of a strategy in its conflict with the Taliban and Al Qaeda and its affiliates, sanctioned a series of executive orders supported by legal memoranda drawn up by the above-listed persons and their legal counsel and advisors, authorizing interrogation techniques in violation of international conventions in force. We have also been advised that the complaint further alleges that U.S. government personnel used the memoranda as a legal basis to conduct interrogations using these illegal techniques upon persons suspected of acting in concert with Al Qaeda and the Taliban. In the request, Judge Velasco seeks information indicating whether any U.S. authority has instituted investigations or proceedings in connection with the facts describes in the above-referenced complaint, and, if so, the specific authority (administrative or judicial) that has dealt or is dealing with such matters. The request further notes that if the facts are currently being investigated by U.S. authorities, that the referenced complaint will be sent to the United States in order that the facts reported therein may be investigated by the United States.

There’s a lot that is misleading about DOJ’s response letter. But one of its key strategies is badly fraudulent: the centrality of its focus on David Passaro’s conviction for assault. The letter boasts:

In 2003 [EW: it was 2004], the U.S. Department of Justice brought criminal charges against Passaro, a CIA contractor accused of brutally assaulting a detainee in Afghanistan in 2003. The CIA described his conduct as “unlawful, reprehensible, and neither authorized nor condoned by the Agency.” The then Attorney General stated that “the United States will not tolerate criminal acts of brutality and violence against detainees….” And the U.S. Attorney noted that the extraterritorial jurisdiction exercised by the United States is “[n]ot only vital to investigating and prosecuting terrorists, but also it is instrumental in protecting the civil liberties of those on U.S. military installations and diplomatic missions overseas, regardless of their nationality.” See press release at http://www.justice.gov/opa/pr2004/June/04_crm_414.htm, a copy of which is annexed as Attachment A hereto. Following a jury trial, Passaro was convicted of felony assault. On August 10, 2009, the United States Court of Appeals for the Fourth Circuit upheld the conviction, holding that a U.S. federal court has jurisdiction over the trial of an American citizen for committing assaults on the premised of U.S. military missions abroad. The full opinion of the court is annexed as Attachment B hereto. In February 2010, the U.S. Supreme Court refused to hear an appeal by Passaro. Passaro was sentenced to 8 years and 4 months in prison. [EW: his sentence was reduced to 80 months on appeal.]

But there’s a lot that’s wrong with this boast, aside from the error of date and the representation that Passaro’s ultimate sentence was 20 months longer than it ultimately was.

There were irregularities with Passaro’s trial

As I’ve described, Passaro was charged and convicted with assault that led to the death of a suspect Afghan insurgent, Ahmed Wali, at Asadabad firebase on June 21, 2003. There’s a lot that’s funky about Passaro’s case: The military prevented any autopsy on Wali, making it impossible for Passaro to refute arguments the government made about cause of death. There was a Special Forces person with access to Wali whose role was never explored at trial, and the two guards who had custody (and unsupervised access) to Wali during the period leading up to his death were magically assigned to duty in Alaska during Passaro’s trial, making them unavailable to be cross-examined during the trial.

But the central problem with Passaro’s conviction is that the government withheld all the evidence he asked for that would have shown that, even if his treatment of Wali did lead to his death, it had been officially sanctioned under the CIA’s detention policy. And that evidence goes straight to John Yoo’s role in sanctioning torture.

Passaro was denied directly responsive evidence that goes to heart of Yoo’s role in torture

Passaro attempted to use a public authority defense, basically arguing he had been ordered to use any force he used with Wali. In addition to asking for evidence on SERE training–indicating that Passaro knew well the CIA, with John Yoo’s sanction, had used SERE as the basis for its interrogation program–Passaro asked for (in part):

  • All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
  • “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces“
  • “[A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
  • All information on Passaro’s training [my emphasis]

In response, the government gave Passaro an otherwise never-released guidance [see PDF 21] which the CIPA summary claimed was “an excerpt of guidance provided to the field on 03 December 2002 in support of ongoing CIA operations in Afghanistan and along the Pakistan border” which read,

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Note the date: December 3, 2002. But remember, Wali died on June 21, 2003. And in between the time that guidance was issued and the time when Wali died, CIA issued four more documents that were directly responsive to Passaro’s request but which the government didn’t turn over (and which weren’t released in this form until several weeks after the Appeals decision cited in DOJ’s letter):

  • CIA’s Guidelines on Confinement, dated January 28, 2003, signed by George Tenet (written after consultation with John Yoo)
  • CIA’s Guidelines on Interrogation, dated January 28, 2003, signed by George Tenet (written after consultation with John Yoo)
  • The Bullet Point document created by the CounterTerrorism Center with John Yoo’s involvement, delivered from CIA General Counsel Scott Muller to John Yoo on April 28, 2003
  • The Bullet Point document, described as a “final summary” sent from CTC to OLC’s Patrick Philbin on June 16, 2003

Between the Tenet Guidelines and the Bullet Points, a number of the actions for which Passaro was convicted were sanctioned by the CIA at the time Wali died.

Read more →

One Good Reason the WaPo Should NOT Get Kudos for Its “Top Secret” Series

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The WaPo has an article out that’s causing quite a stir. It bemoans the fact that the CIA has lost much of its top managers since 9/11.

More than 90 of the agency’s upper-level managers have left for the private sector in the past 10 years, according to data compiled by The Washington Post. In addition to three directors, the CIA has lost four of its deputy directors for operations, three directors of its counterterrorism center and all five of the division chiefs who were in place the day of the Sept. 11 attacks and responsible for monitoring terrorism and instability across the world.

Let’s name some of the people they’re talking about, shall we?

  • George “Slam Dunk” Tenet
  • Porter Goss
  • Michael Hayden
  • John McLaughlin
  • Stephen Kappes
  • Jose Rodriguez
  • Cofer Black
  • Robert Grenier

Several of these people were instrumental in trumping up propaganda to justify a war of choice. Several others implemented a system of rendition and torture. One of them helped the Vice President set up an illegal domestic wiretap program. The least compromised, legally (Grenier), probably was less than forthcoming under oath in the CIA Leak Case.

Really?!?! We’re bemoaning the fact that this parade of criminally and morally compromised people are no longer in a position of top leadership (though a number of them are still on the federal gravy train as contractors)?

There’s also little consideration of why and where Black went when they left: the urge to have mercenaries as a way to evade legal limits drove some of this exodus as much as money.

Two (digital) pages later, the WaPo finally gets around to the real problem with the exodus of more junior level officers: the loss of functional expertise.

In 2009, after a double-agent blew himself up at a CIA base in Afghanistan, killing seven of the agency’s officers, many former officials suggested that the tragedy might have been prevented had the CIA retained more senior personnel at the outpost.

Some officials questioned why the agency had given one of the top assignments there to an officer who had never served in a war zone. Other former officials raised concerns about how intelligence assets were being handled in the field.

“The tradecraft that was developed over many years is passe,” a recently retired senior intelligence official said at the time. “Now it’s a military tempo, where you don’t have time for validating and vetting sources. . . . All that seems to have gone by the board. It shows there are not a lot of people with a great deal of experience in this field.”

In other words, the problem with contracting is far more complex than the WaPo, in a fairly long article, was able to explain. And in the process, the WaPo never explained a lot of the nuances behind what it sold as its top line story: the departure of the top managers.

I’m not saying the WaPo hasn’t done a lot of work on this story overall. But telling a story–particularly one as complex and important as this one–is more than collecting data points.

The Abu Zubaydah Standard in Obama’s Miranda Memo

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Here are the claims the Bybee Two memo premised its authorization to torture Abu Zubaydah on:

As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization,

[snip]

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

Compare that with the description of an “operational terrorist” whose Miranda rights may be delayed under a memo issued by DOJ last October.

For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.

The two claimed preconditions for torturing AZ–that he was a high ranking member of an international terrorist group and knowledgeable about operational details of pending terrorist operations–are exactly the same as two possible premises (of three) for delaying an American detainee’s Miranda warning.

Only, with AZ, the CIA had to send John Yoo a bunch of information purportedly proving their claims before they got to torture AZ.

Here’s how such claims will be checked under the Miranda exception.

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval.

[snip]

As noted above, if there is time to consult with FBI-HQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the defendant his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed. [my emphasis]

In other words, while FBI says it’d be nice if the folks holding the detainee consult with the lawyers in DC before delaying a suspect’s Miranda warning, they provide a great big invitation–“the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public”–for them not to do so. And far be it for FBI Agents to refuse such a kind invitation!

So an FBI Agent in the field can decide on his own (for reasons of urgency, you understand) not to Mirandize a guy that he has decided, with no review, is a top ranking terrorist or knows about an upcoming terrorist attack. And a plain reading of the text doesn’t even require that the terrorist attack be related to international terrorism; it could be an environmental attack, for example. If an FBI Agent believes some vegan wants to free a bunch of pigs used in experimentation, he can declare it a planned terrorist attack and hold the vegan without Miranda warning. Since Main DOJ does not require that it oversee this process, it will be able to claim it has no responsibility for any abuses that result.

It will look like this in the eventual DOJ IG Report: “No one could have predicted that FBI Agents would abuse a policy written so broadly.”

Now, as it happens, when the government started making claims in court about AZ, in a venue in which both an independent judge and AZ’s lawyer could challenge what evidence the government actually turned over, the government chose not to claim that he was either a top-ranking al Qaeda member or aware of upcoming terrorist plots.

There’s good reason they didn’t make such claims. That’s because he wasn’t. As the government eventually admitted to AZ, after they waterboarded him 83 times. And after spending the better part of a summer chasing down the terrorist plots he invented to try to get the torture to stop.

The CIA IG Report explained how it was that the government came to have such a mistaken understanding of AZ and others.

The Agency lacked adequate knowledge of what particular Al-Qa’ida leaders–who later became detainees–knew. This lack of knowledge led analysts to speculate about what a detainee “should know,” vice information the analyst could objectively demonstrate the detainee did know.

But don’t worry–I’m sure a couple of FBI Agents from, say, Iowa, working alone their first terrorism case with no required review from Main DOJ won’t make the same kind of assumptions about what a detainee should know. Really.

Now, don’t get me wrong. I’m not saying FBI Agents would use a Miranda delay to waterboard a detainee (waterboarding is CIA turf, after all). The CIA system clearly provided the opportunity for much more abuse.

But consider the one detainee known to be treated in such a fashion: Faisal Shahzad. The government claimed a central reason why they had to hold him without charge is that they needed unfettered access to him, 24/7, so they could immediately verify any new intelligence they picked up. Call me crazy, but interrupting a detainee repeatedly, 24/7, to ask a question sounds like a great way–even better than the Frequent Flier program used at Gitmo–to sleep deprive someone under the guise of doing something else. Since Shahzad eventually plead guilty (remember that Pakistan basically detained his family members, perhaps including his wife and kids, while he was being questioned), the judge never really challenged whether his confession was coerced.

So we only have to look at the one prior case where such a delay was used to understand what kind of abuse can be done during the time before a detainee gets a lawyer.

So perhaps I am justified to be horrified by the parallel structure used in this memo and that used in John Yoo’s notoriously problematic Bybee Memo.

8 Years Ago Today, KSM Was Probably Being Waterboarded for the 179th Time

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I don’t really know precisely what days in March 2003 the CIA’s contractors waterboarded Khalid Sheikh Mohammed a total of 183 times.

But I thought about the rough timing when Dafna Linzer tweeted about this Steven Aftergood post, noting the report in the Senate Intelligence Committee’s review of what they did last Congress said they still weren’t done with their torture review.

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public.

It seems to me we’re never going to see that report until after the 8 year statute of limitations on torture expire for everything described in the report that clearly exceeded John Yoo’s expansive interpretation of what constitutes torture. And we’re sure as hell not going to get a report on the death threats they illegally used with Abd al Rahim al-Nashiri just as DOD is about to charge him in a military commission.

But they might have to “keep working” on it for a couple more years: I’m betting the government used water “dousing” in 2004 in an illegal manner, too.

It’s a brand new kind of job security for government workers, the kind of “work” they have to do to make sure the statutes of limitation expire on the crimes they’re investigating while they’re investigating them.

How to Ensure You’ll Always Have War Powers to Fight Eastasia

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As we’ve known for years, the May 6, 2004 OLC opinion authorizing the warrantless wiretap program shifted the claimed basis for the program from inherent Article II power to a claim the Afghanistan AUMF trumped FISA.

But one problem with that argument (hard to fathom now that Afghanistan has once again become our main forever war) is to sustain the claim that we were still at war in 2004, given that so many of the troops had been redeployed to Iraq. And to sustain the claim that the threat to the US from al Qaeda was sufficiently serious to justify eviscerating the Fourth Amendment.

So, they used politicized intelligence and (accidentally) propaganda to support it.

Use of the Pat Tillman Propaganda to Support Case of Ongoing War

As I’ve noted, Jack Goldsmith made the unfortunate choice to use an article reporting Pat Tillman’s death as his evidence that the war in Afghanistan was still going on.

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

That article was not really about the ongoing war in Afghanistan; rather, it told a lie, the lie that war hero Pat Tillman had died in combat, rather than in a friendly fire incident.

Pat Tillman, the Arizona Cardinals safety who forfeited a multimillion dollar contract and the celebrity of the National Football League to become a U.S. Army Ranger, was killed in Afghanistan during a firefight near the Pakistan border on Thursday, U.S. officials said yesterday.

Tillman, 27, was killed when the combat patrol unit he was serving in was ambushed by militia forces near the village of Spera, about 90 miles south of Kabul, the Afghan capital. Tillman was hit when his unit returned fire, according to officials at the Pentagon. He was medically evacuated from the scene and pronounced dead by U.S. officials at approximately 11:45 a.m. Thursday. Two other U.S. soldiers were injured and one Afghan solider fighting alongside the U.S. troops was killed.

The death of Tillman, the first prominent U.S. athlete to be killed in combat since Vietnam, cast a spotlight on a war that has receded in the American public consciousness. As Iraq has come into the foreground with daily casualty updates, the military campaign in Afghanistan has not garnered the same attention, though there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda.

Now, I say the choice was unfortunate because, in spite of the fact that Tillman’s commanding officers knew within 24 hours of his death on April 22 that it was a friendly fire incident, in spite of the fact that General Stanley McChrystal sent an urgent memo within DOD on April 29 that the death was probably friendly fire, and in spite of the fact that the White House learned enough about the real circumstances of Tillman’s death by May 1 to make no claims about how he died in a Bush speech, there’s no reason to believe that Jack Goldsmith would have learned how Tillman died until it was publicly announced on May 29, 2004.

In other words, it was just bad luck that Goldsmith happened to use what ultimately became an ugly propaganda stunt as his evidence that the Afghan war was still a going concern.

Producing Scary Memos to Justify Domestic Surveillance

I’m less impressed with the description of the role of threat assessments that we’re beginning to get.

Goldsmith’s memo includes an odd redaction in its description of the threat assessment process.

As the period of each reauthorization nears an end, the Director of Central Intelligence (DCI) prepares a memorandum for the President outlining selected current information concerning the continuing threat that al Qaeda poses for conducting attacks in the United States, as well as information describing the broader context of al Qaeda plans to attack U.S. interests around the world. Both the DCI and the [redacted] review that memorandum and sign a recommendation that the President should reauthorize [redacted name of program] based on the continuing threat posed by potential terrorist attacks within the United States. That recommendation is then reviewed by this Office. Based upon the information provided in the recommendation, and also taking into account information available to the President from all sources, this Office assess whether there is a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to authorize the warrantless involved in [redacted, probably name of program]. [my emphasis]

Now, there are any number of possibilities for the person who, in addition to the DCI, reviewed the threat assessment: John Brennan and others who oversaw the threat assessment are one possibility, David Addington or Dick Cheney are another.

But the IG Report provides another possibility or two that makes this whole passage that much more interesting:

The CIA initially prepared the threat assessment memoranda that were used to support the Presidential Authorization and periodic reauthorizations of the PSP. The memoranda documented intelligence assessments of the terrorist threats to the United States and to U.S. interests abroad from al Qaeda and affiliated terrorist organizations. These assessments were prepared approximately every 45 days to correspond with the President’s Authorizations of the PSP.

The Director of the Central Intelligence’s (DCI) Chief of Staff was the initial focus point for preparing the threat assessment memoranda. According to the former DCI Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP and did not know how the threat assessments would be used. CIA’s terrorism analysts drew upon all sources of intelligence in preparing these threat assessments.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revisions to the draft memoranda.

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Why Won’t Jeh Johnson Answer Hank Johnson’s Question about Forced Nudity?

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The House Armed Services Committee is having a hearing on Law of War Detention. Much of it has focused on Jeh Johnson affirming that military commissions line up with American values. (In other words, it is fairly depressing.)

But an interesting exchange happened when Hank Johnson had his turn. He set up his question by talking about a recent trip to Gitmo. He described the good treatment he saw the detainees being subject to. Jeh Johnson said that we’re following the Geneva Conventions.

Then he said (working from memory), so why is Bradley Manning being subject to worse treatment.

Frankly, Hank Johnson got a few details incorrect (for example, he said that Manning had to wear shackles in his cell). But he went through Manning’s treatment reasonably well.

In response, Jeh Johnson reverted immediately to the importance of pretrial detention. He used the same old lie about Manning being able to talk to others in his cell block. Here’s a rough liveblog:

not in solitary confinement. Public misinformation. It is public that he is currently in classification status called Maximum security. Someone in Max occupies same type of cell that a medium security pretrial detainee. Same time of cell. You could have Max security and medium confinee in the same row of cells and they could converse with one another.

(That would be true if anyone was in a cell close enough to him to be able to talk to, but there isn’t.)

But perhaps most tellingly, Jeh Johnson didn’t address Hank Johnson’s question about the forced nudity Manning is being subject to.

Ultimately, Buck McKeon cut off Hank Johnson, saying that Jeh Johnson could answer him “off the record.” (?) I hope he meant for the record; we shall see.)

But for now, at least, it appears that Jeh Johnson really doesn’t want to talk about why Manning is being subject to a policy implemented–and then rejected–at Gitmo.