9th Circuit: The Government Can Kidnap and Torture You and Then Hide It Under State Secrets

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This–a decision in the Jeppesen Dataplan suit upholding the government’s invocation of state secrets–is really bad news.

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.

So basically, the government can kidnap you and send you to be tortured–as they did with Binyam Mohamed–yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can.

Update: The ACLU’s Ben Wizner on the decision:

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

More Torturers Coming Back to CIA as Contractors

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Adam Goldman has another in his series of articles fleshing out the details of the torture that John Durham is investigating. Today’s story describes the former FBI-turned CIA guy, “Albert” threatened Rahim al-Nashiri with a drill–with the approval of Albert’s boss, “Mike.” (Though the AP story says this threat would be less than a felony assault, recall that John Yoo specifically forbade CIA to use death threats, so while it might not be assault it would–according even to John Yoo–constitute torture.)

I assume you’ll go read that in its entirety.

While you’re there, note this emerging pattern in Goldman’s reporting on torture: the return of torturers as CIA contractors. He reports that “Albert” left the CIA then returned to train CIA officers as a contractor.

After leaving the CIA, Albert returned at some point as a contractor, training CIA officers at a facility in northern Virginia to handle different scenarios they might face in the field, according to former officials. Albert hasn’t been involved in training CIA employees for at least two years, but a current U.S. official says he continues to work as an intelligence contractor.

A message left with Albert was not returned. It’s not clear when he left the agency and became an intelligence contractor.

Recall that, in a story from a few weeks ago, Goldman reported that Jose Rodriguez (who gave the order to destroy the torture tapes, among other things) regularly lurks around CIA and ODNI as the head of Edge Consulting.

Rodriguez, now an executive with contractor Edge Consulting, a job that regularly gives him access to the national intelligence director’s office and CIA headquarters, still hasn’t received an official retirement party.

KSM Asked after His Sons in December 2006

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Terry McDermott will have a 9/11-timed biography of Khalid Sheikh Mohammed in the New Yorker this week. But in the interim, he has posted a few of the letters he got in Pakistan as part of his research. In a letter sent December 15, 2006 to his brother–sent just months after KSM first became accessible to the Red Cross at Gitmo and described as the first his family received from him–KSM includes a request for photos of his sons:

If my wife [Umm] Hamza is living with her family in Iran Bluchistan then let her to be [in contact] with me through the Iran[ian] Red Crescent Society, but please [to write only] social and family news [not political or] Mujahideen news and to send the pictures of all sons plus [Halima] with Big Smile plus their education[‘s] grades & news. [my transcription–with your corrections/suggestions in brackets]

The passage is followed by nine lines of redaction, in turn followed by directions for the family and friends to pray.

Now, perhaps McDermott covers this in his article (I’ll chase that down, but it’s not available online yet). And there is much that I was unable to understand, either because it is illegible or seems designed to be opaque.

But the request is particular important given reports that the US captured two of KSM’s sons–then aged around 6 or 7 and 8 or 9–and interrogated them to get information on KSM.

Two young sons of Khalid Sheikh Mohammed, the suspected mastermind of the September 11 attacks, are being used by the CIA to force their father to talk.

Yousef al-Khalid, nine, and his brother, Abed al-Khalid, seven, were taken into custody in Pakistan last September when intelligence officers raided a flat in Karachi where their father had been hiding.

He fled just hours before the raid but his two young sons, along with another senior al-Qa’eda member, were found cowering behind a wardrobe in the apartment.

The boys have been held by the Pakistani authorities but this weekend they were flown to America where they will be questioned about their father.

Last night CIA interrogators confirmed that the boys were staying at a secret address where they were being encouraged to talk about their father’s activities.

“We are handling them with kid gloves. After all, they are only little children,” said one official, “but we need to know as much about their father’s recent activities as possible. We have child psychologists on hand at all times

and they are given the best of care.”

The sons were reportedly captured in September 2002. From this letter, it appears that one of the first things KSM asked once he got contact with the outside world again through the Red Cross was proof that they–and their mother–were safe.

But I’m not entirely convinced the letter is as transparent as that. KSM names his wife, where her family lives, and then uses the name Haluma (I think). Why would KSM’s brothers need all these details? It seems that KSM may be writing in such a way that his brother can identify precisely what KSM is after.

Also note the odd detail that KSM technically asks for social news on the Mujahadeen before he asks for pictures of his sons. Update: With the correction, he’s specifically directing his brother not to forward news on the Mujahadeen.

And finally, note the long redaction, which the US presumably did before the letter was sent to KSM’s brother. Given that the passage just after the redaction is an exhortation for the family and friends to pray–precisely the topic preceding the redaction, it appears that KSM wrote things that the US found too sensitive (or deemed a coded message) to pass along.

[Thanks for the help on transcribing this.]

Who We Are: Zeitoun and Camp Greyhound Five Years On

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In a country founded on “self evident truths” such as life, liberty, equality, and due process of law, the timeless quote from Ben Franklin speaks to the peril imposed when the founding principles are discarded or compromised:

Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.

Yet, of course, since 9/11 that is exactly what the United States has done and what has resulted in return. Fareed Zakaria has a piece up at Newsweek speaking to the senseless and destructive madness that has consumed the US since the 9/11 attacks:

The error this time is more damaging. September 11 was a shock to the American psyche and the American system. As a result, we overreacted.

….

Some 30,000 people are now employed exclusively to listen in on phone conversations and other communications in the United States. And yet no one in Army intelligence noticed that Maj. Nidal Malik Hasan had been making a series of strange threats at the Walter Reed Army Medical Center, where he trained. The father of the Nigerian “Christmas bomber” reported his son’s radicalism to the U.S. Embassy. But that message never made its way to the right people in this vast security apparatus. The plot was foiled only by the bomber’s own incompetence and some alert passengers.

Such mistakes might be excusable. But the rise of this national-security state has entailed a vast expansion in the government’s powers that now touches every aspect of American life, even when seemingly unrelated to terrorism.

…..

In the past, the U.S. government has built up for wars, assumed emergency authority, and sometimes abused that power, yet always demobilized after the war. But this is a war without end. When do we declare victory? When do the emergency powers cease?

Conservatives are worried about the growing power of the state. Surely this usurpation is more worrisome than a few federal stimulus programs. When James Madison pondered this issue, he came to a simple conclusion: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germs of every other … In war, too, the discretionary power of the executive is extended?.?.?.?and all the means of seducing the minds, are added to those of subduing the force, of the people.

“No nation could preserve its freedom in the midst of continual war,” Madison concluded.

Indeed it is a chilling picture we have allowed our political “leaders” to paint us into, and Zakaria does not even hit some of the most disturbing impingements on due process and the rule of law such as the government arrogating itself the right to summarily execute American citizens with no judicial trial or due process whatsoever and the legal black hole that is Guantanamo and the Obama Military Commission and indefinite detention program. That is, as a nation, who and what we are today and it has bought us nothing except world scorn, geometrically more enemies, a plundered treasury, ignored and dilapidated domestic infrastructure, swelling joblessness and exploding income inequality.

But, hey, at least we have increased security and all those oppressive terrorist modalities are only for al-Qaida and the bad foreigners, right? No. The rot is now who we are, towards ourselves in addition to “them”. And that is where we finally get to the subject of the title of this post. Nothing demonstrates the deadly rot virus that has been injected into the blood of the American ethos than the story of Zeitoun. (more after jump) Read more →

“I Think the Critical Term Here Is” Littering Prolonged Mental Harm

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Here’s how our crack 9th Circuit Judge Jay Bybee played word games so as to consider bottles of water left for migrants traversing the Arizona desert “litter” even if they weren’t “garbage.” (h/t Balkinization)

1The regulation suffers from several grammatical challenges. The regulation begins with three gerunds listed in series—“littering, disposing, or dumping”—followed by an object introduced by a preposition—“of garbage, refuse sewage, sludge, earth, rocks or other debris.” 50 C.F.R. § 27.94(a). “Littering,” however, does not really match the phrase that follows—it makes little sense to say “the littering . . . of garbage, refuse sewage, sludge, earth, rocks, or other debris.” We don’t ordinarily think of littering in terms of sewage, sludge, or rocks. Moreover, the “of” before “garbage” doesn’t make sense; neither “littering” nor “dumping” requires it. The regulation was probably intended to read: “[L]ittering, or disposing of or dumping garbage, refuse sewage, [etc.] . . . is prohibited.”

[snip]

Largely ignoring the term “littering,” the majority focuses instead on the term “garbage,” which it defines as “food waste” or “discarded or useless material” Maj. Op. at 13296. The majority concludes that because the water in the bottles is “intended for human consumption,” the bottles have value, and, therefore, are not garbage. Maj. Op. at 13296. The majority holds that “given the common meaning of the term ‘garbage,’ . . . § 27.94(a) is sufficiently ambiguous in this context that the rule of lenity should apply.” Maj. Op. at 13298.

I think the critical term here is not “garbage,” but “littering.” Millis’s citation was not for dumping garbage but for “littering in a National Wildlife Refuge.”

Mind you, when the issue was whether waterboarding someone constituted prolonged mental harm, Bybee was not really a stickler for precise meanings.

Which I guess means Bybee is consistent: he has the remarkable ability to read a phrase with that meaning that will cause the utmost pain to brown people.

Working Thread: John Yoo’s Emails

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At Rosalind’s request, I’m putting up this working thread on the emails that OLC just turned over to CREW.

There’s nothing all that exciting there because this search did not include “paper or electronic documents of Mr. Yoo available elsewhere in the Department.” Like on the classified servers.

I’m actually on strike until I get a non-Scribd copy (you can download a zipped file–thanks to MadDog–here). Why do NGOs insist on putting stuff on the increasingly unworkable Scribd?

But if you happen to LIKE Scribd, here are the emails.

The Timing of the Ramzi bin al-Shibh Tapes

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I wanted to point out two details of timing on the Ramzi bin al-Shibh tapes:

  • The tapes were made after CIA started getting worried about making interrogation tapes
  • The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

The tapes were made after CIA already started getting worried about making interrogation tapes

The AP says the tapes were made while al-Shibh was in Morocco for the first time–sometime between September 17, 2002 and March 7, 2003.

When FBI agents finally had a chance to interview Binalshibh, they found him lethargic but physically unharmed. He projected an attitude suggesting he was unconcerned he had been caught.

Before the FBI made any real headway, the CIA flew Binalshibh on Sept. 17, 2002, to Morocco on a Gulfstream jet, according to flight records and interviews.

Current and former officials said this was the period when Binalshibh was taped. His revelations remain classified but the recordings, the officials said, made no mention of the 9/11 plot. It’s unclear who made the tapes or how they got to the agency’s Langley, Va., headquarters.

In March 2003, Binalshibh was moved to a Polish facility code-named Quartz soon after his mentor, Mohammed, was nabbed in Pakistan.

This would mean al-Shibh arrived in Morocco (and therefore the tapes were made) sometime after some people met at Langley and decided they should destroy the Zubaydah tapes.

On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.

[snip]

Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]

The CIA appears to have already been manipulating briefing records, possibly to give the appearance of Congressional support for either the program or the destruction of the tapes.

Note, too, that there are only two video tapes (plus the “audio” tape I’ve raised questions about here). If the audio tape were, in fact, just an audio tape, that would leave two video tapes. Which is how many tapes existed of Rahim al-Nashiri’s interrogations, at least by the time they did the inventory. That’s presumably because al-Nashiri was taken into CIA custody after the point when–on October 25, 2002–HQ told the Thai black site to record over tapes every day.

It is now HQS policy that [redacted] record one day’s worth of sessions on one videotape for operational considerations, utilize the tape within that same day for purposes of review and note taking, and record the next day’s sessions on the same tape. Thus, in effect, the single tape in use [redacted] will contain only one day’s worth of interrogation sessions.

Now we know they kept two (or maybe three) tapes for al-Nashiri (presumably taking notes off one day’s tape while the other was being used to record new interrogations) because the tape inventory shows the following:

Detainee #2

[Tape] 91 [Redacted]tape and rewind #2

[Tape] 92 3 [Redacted] use and rewind #3 [redacted] final

While obviously we have no such inventory showing the al-Shibh tapes, it is possible that they were used in the same manner as the al-Nashiri tapes were–to collect just one day’s worth of interrogation to assist in transcription or note-taking. (And remember, ultimately there were transcriptions made of the al-Shibh tapes, though we don’t know when that happened). It’s possible then–though this is just a wildarsed guess–that the existence of just three tapes suggests they were started after HQ decided to tape over tapes (so after October 25), or that they first implemented the policy for al-Shibh sometime before October 25.

Also note the content of the last three–presumably chronologically–tapes of Abu Zubaydah. Tapes 89 and 90 are “use and rewind” #1 and #2. But the tape just before that–tape 88–has “no video but there is sound.” Thus, the last three tapes from Abu Zubaydah consist of two video tapes and one “audio” tape, just like the three tapes from al-Shibh.

If in fact the 2-3 al-Shibh tapes only include the last days of his interrogation on which taping was used, then the AP source’s claim that they simply show him sitting in a room being interrogated doesn’t mean that the tapes contained no forensic evidence of something else–more abusive interrogations that happened on earlier days. After all, the tapes would no longer “show” what had happened during earlier interrogation sessions.

One more note about this early period. One question the AP raises is when and how the tapes were moved from Morocco to Langley.

It’s worth remembering that the Zubaydah and al-Nashiri tapes were also moved at one point. In a cable from HQ to the field (we know this from Vaughn Indices that described this cable before it was released) written on December 3, 2002, just days after John McPherson reviewed the torture tapes and presumably discovered they had been tampered with, someone says:

It was a mistake to move [redacted] tapes [redacted] in light of Ref C guidance.

Notably, given that this refers to tapes being moved in the past tense on December 3, this may suggest the tapes were moved from the black site before it was finally closed. Mind you, the detail may be completely irrelevant to al-Shibh’s tapes, but they do suggest people in the field were moving tapes without clear approval from HQ.

The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

As I noted here, the story the AP’s sources told (that a person stumbled across a box under a desk with all three al-Shibh tapes in it) and the story DOJ told Leonie Brinkema (that they learned first of one tape, and then, after asking CIA to make sure there were no more) differ in key ways.

But that difference gets all the more interesting given indications that CIA was trying to figure out what had happened to the Zubaydah tapes in precisely the same time period. Read more →

Were the Ramzi bin al-Shibh Tapes Altered Like the Abu Zubaydah Tapes Were?

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Given that the AP has filled in some details about the Ramzi bin al-Shibh tapes someone had hidden under a desk at CIA, I wanted to look back at the letter DOJ wrote to Leonie Brinkema in 2007, when the government first admitted it had been sitting on those tapes.

AP says the tapes were found all at once while DOJ only learned about them over a month’s time

As you recall, DOJ sent this letter on October 25, 2007, to tell Judge Leonie Brinkema (who had presided over the Zacarias Moussaoui trial) and a judge who had presided over appeals in that case that two CIA declarations DOJ had submitted–on May 9, 2003 and on November 14, 2005–“had factual errors.”

Here’s how the AP describes the tapes and their discovery:

The CIA has tapes of 9/11 plotter Ramzi Binalshibh being interrogated in a secret overseas prison. Discovered under a desk, the recordings could provide an unparalleled look at how foreign governments aided the U.S. in holding and questioning suspected terrorists.The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.

[snip]

When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

[snip]

The CIA first publicly hinted at the existence of the Binalshibh tapes in 2007 in a letter to U.S. District Judge Leonie M. Brinkema in Virginia. The government twice denied having such tapes, and recanted once they were discovered. But the government blacked out Binalshibh’s name from a public copy of the letter. [my emphasis]

The DOJ letter describes a slightly different (though not necessarily inconsistent) chronology. It claims the CIA informed DOJ first of one videotape, and then roughly a month later, of the second videotape and audiotape.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a video tape of the interrogation of [1.5 lines redacted] On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution. The evidence of the video tape, however, is at odds with the statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings.

At our request, CIA also provided us with intelligence cables pertaining to the interviews recorded on the two video tapes. Because we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations. Based on our comparison of the cables to the [redacted] videotapes, and keeping in mind that the cables were prepared for the purposes of disseminating intelligence, we found that the intelligence cables accurately summarized the substance of the interrogations in question. [my emphasis]

So the AP’s sources suggested that a staffer simply pulled out a box [Christmas in September!] and found all three tapes–presumably at the same time–whereas DOJ only found out about one tape at first, then sent CIA back to see if there were more. If, as the AP suggests, the CIA found the tapes all at once, then it suggests that the CIA withheld two of the tapes from DOJ until DOJ asked for them specifically. Given that DOJ reviewed the first tape on September 19 and the second and third on October 18, there seems to have been a delay in getting those second two tapes, which might either suggest the tapes weren’t found at the same time, or CIA was very slow in turning over tapes they already knew existed.

Read more →

CIA Stores Their Torture Tape the Same Place Judy Miller Does!

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Remember how Judy Miller stored the notes showing that the Vice President’s lackey had leaked Valerie Plame’s identity to her under her desk in a shopping bag? Remember how we mocked that kind of record keeping? Well, the AP reports that the CIA uses the same archival system as Judy:

The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.

The tapes depict Binalshibh’s interrogation sessions at a Moroccan-run facility the CIA used near Rabat in 2002, several current and former U.S. officials told The Associated Press. They spoke on the condition of anonymity because the recordings remain a closely guarded secret.

When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

I look forward to learning whether this particular box of torture tapes once belonged to Jose Rodriguez, who when the tapes were discovered had just retired as head of Clandestine Services but who was head of CTC when the tapes were made, or whether someone else is a Judy Miller-style packrat.

Now, elsewhere in the AP story they make it clear that–as I have suspected–the tapes first revealed to Leonie Brinkema in 2007 were of Ramzi bin al-Shibh. That’s particularly significant because Brinkema had specifically given Zacarias Moussaoui permission to question al-Shibh in January 2003. So when the government told Brinkema they had no tapes (the AP says that since Morocco maintained control of the prison at which al-Shibh was held, CIA claimed it wasn’t “part” of the CIA program), they were denying evidence she had permitted to Moussaoui by name.

And this discovery has implications not just for Moussaoui, and for al-Shibh himself (the AP suggests the tapes may show that al-Shibh’s mental state declined very quickly after he was taken into custody; he had a pending competence assessment order in military commissions that–when al-Shibh was slotted for civilian trial–was thus negated), but also for Binyam Mohamed.

Mohamed, after all, has long claimed that the worst torture he suffered–the scalpels to his genitals–occurred while in that same Morocco prison in roughly the same time frame (though Mohamed was in Morocco longer). Mohamed made it clear the British were feeding questions to the US to ask while in Morocco (in interrogations, remember, they claim they weren’t running). Subsequently, documents showed that a member of MI5 visited Morocco while Mohamed was there. So Mohamed’s evidence refutes US claims that they–and their ally the UK–weren’t in charge of the interrogations. But at the same time, the videos may provide video evidence of the kind of treatment used in Morocco.

Now, the AP’s sources these tapes show “no harsh methods … like waterboarding.”

But current and former U.S. officials say no harsh interrogation methods, like the simulated drowning tactic called waterboarding, were used in Morocco. In the CIA’s secret network of undisclosed “black prisons,” Morocco was just way station of sorts, a place to hold detainees for a few months at a time.

“The tapes record a guy sitting in a room just answering questions,” according to a U.S. official familiar with the program.

But as I noted, al-Shibh would have been in Morocco at the same time that Mohamed was, during which time he was cut and beaten. What are the chances that the Moroccans acting as our proxy treated al-Shibh much differently than they treated Mohamed?

These tapes may well undo at least three of the lies the government told to cover up its torture and its counterterrorism mistakes. If John Durham–who the AP notes has expanded his investigation to include possible obstruction tied to these tapes–does anything with the tapes.

Update: All you timeline aficianados should check out this cool timeline/map of where Ramzi bin al-Shibh was when.

The US Believes It’s Okay to Threaten Teenagers with Rape

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Carol Rosenberg tweets:

Omar Khadr’s military judge just ruled that ALL of his confessions from Afghanistan to #Guantanamo will go to trial. None suppressed.

The Toronto-born captive’s defense had wanted his interrogations excluded on grounds they were not voluntary. Col. Patrick Parrish disagreed

#Khadr‘s war court judge also agreed to use at trial a homemade video of the 15-year-old allegedly building, planting mines in Afghanistan

So in spite of the fact that Joshua Claus threatened Omar Khadr with rape and potentially death, our military “justice” system does not believe that taints Khadr’s confession.

So nice to see our Kangaroo Court is living up to billing. It shames the US terribly in the process.

Update: it sounds like Khadr’s lawyer takes the same lesson from this I do:

Omar #Khadr‘s Canadian lawyer, Edney, calls Army judge “a disgrace” for admitting the Canadian’s admissions as a 15-year-old at trial.