Walter Pincus’ Chummy Torture Apology

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This is the kind of lede you’d expect from a dirty hippie blogger, not from a septuagenarian TradMed journalist.

Who other than the acerbic John A. Rizzo, who served a long tenure as the CIA’s acting general counsel, would use his first talk after retiring from government to lay out a series of ironies that illustrate the frustration felt by older agency professionals, given the treatment of their activities during the past decade?

Rather than focusing on the details John Rizzo revealed that slightly advanced the story of the investigation into the John Adams Project, Pincus chooses to uncritically air Rizzo’s complaints about torture. Pincus doesn’t even challenge Rizzo’s claim that there is an irony to the way CIA has been treated.

Which is a pity, because Rizzo made some downright absurd comments. Take Rizzo’s complaint about the shock over the number of times Abu Zubaydah and Khalid Sheikh Mohammed were waterboarded.

He pointed out that while Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, and Khalid Sheik Mohammed were undergoing waterboarding in CIA detention, the United States was conducting lethal operations against terrorists. “There was never, ever, as far as I could discern, any debate, discussion, questioning on moral or legal grounds about the efficacy of the United States targeting and killing terrorists,” he said.

“A lot of attention, a lot of criticism was given about the number of waterboarding sessions they [Abu Zubaida and Mohammed] had,” Rizzo said, “but I don’t believe there would have been nearly as much similar discussion about the number of bullets that would have been pumped into them if they had been killed rather than captured.”

The shock over the revelation that Abu Zubaydah was waterboarded 83 times and Khalid Sheikh Mohammed 183 times in a month doesn’t just stem from the claims John Yoo made–based on representations from Rizzo–that waterboarding was not torture. The shock also stems from the divergence between CIA-sponsored disinformation that waterboarding worked immediately, after just one use, and the reality that CIA used it over and over and over. Which in turn leads to questions of efficacy–and to the inaptness of Rizzo’s comparison. You pump someone full of bullets and each bullet adds just one more piece of certainty that the objective–the neutralization or death of the target–is accomplished. But when you waterboard someone an 83rd time, does it advance the objective–purportedly collecting reliable information–in the least? In the case of Abu Zubaydah, whose 83 waterboardings seem to have yielded in just 10 pieces of useful intelligence, the answer appears to be no. Indeed, in a memo addressed to and based on information from John Rizzo, John Yoo wrote,

Moreover, you have also orally informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.

[snip]

You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.

There’s no irony here! John Rizzo (and the lawyers from the Counterterrrorism Center who contributed to this memo) either lied to John Yoo about the number of times waterboarding would be used, or CIA itself failed to meet the terms of this memo. And poor John Rizzo thinks the public is wrong to be shocked at the result.

All of which details might be appropriate to mention in an article about Rizzo’s self-indulgent claims of irony. But they don’t appear in this article.

Judge Rules Torture Doesn’t Violate Due Process

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In a ruling that anticipates how the government will ignore torture as it tries alleged detainees in civilian court, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s efforts to get his indictment for contributing to the 1998 embassy bombings dismissed because he was tortured while in US custody.

As Kaplan argues, Ghailani could only use the Due Process Clause to dismiss evidence collected as a result of his torture.

The Due Process Clause, so far as is relevant here, protects against deprivations of liberty absent due process of law. The deprivation of liberty that Ghailani claims may occur if this case goes forward is his imprisonment in the event of conviction. In seeking dismissal of the indictment, however, he does not deny that he is being afforded every protection guaranteed to all in the defense of criminal prosecutions. Rather, Ghailani in effect argues that the case should be dismissed to punish the government for its mistreatment of him before he was presented in this Court to face the pending indictment.

For a due process violation to result in consequences adverse to the government in a criminal case – for example, the suppression of evidence or the dismissal of an indictment – there must be a causal connection between the violation and the deprivation of the defendant’s life or liberty threatened by the prosecution. That is to say, relief against the government in a criminal case is appropriate if, and only if, a conviction otherwise would be a product of the government misconduct that violated the Due Process Clause. For only in such circumstances may it be said that the deprivation of life or liberty that follows from a criminal conviction flows from the denial of due process. This conclusion thus rests directly on the text of the Due Process Clause itself.

But since the government is trying Ghailani for his involvement in the 1998 bombings, rather than for any actions about which they asked him under torture, the alleged torture is irrelevant to this indictment (remember, Ghailani was picked up in 2004 in the pre-election scare about terror). So long as the government relies only on evidence untainted by the torture, Kaplan argues, then it is irrelevant to this trial.

Of course, the government did hedge, somewhat, about whether they were going to rely exclusively on untainted evidence.

The government has identified one possible exception: a percipient witness whose identity remains classified and whose testimony may constitute fruit derived from statements made by the defendant in response to interrogations while in CIA custody. The government maintains that there is no basis for suppressing this potential witness’s testimony, and the issue is sub judice before this Court.

But that’s not enough to get this indictment dismissed.

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They Used Threat of Prison Rape to Scare Omar Khadr

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As Spencer reports from Gitmo, the first interrogator to question Omar Khadr at Bagram told him a story suggesting that if he lied, he’d be sent to an American prison where he’d be likely to get raped.

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” — meaning, presumably, Guantanamo Bay — but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day — he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up — and it’s terrible something would happen — but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. “It’s all a fictitious story.”

It may have been a fictitious story, but it was an implicit threat, and a very plausible one when you consider it was told to a Canadian likely to be aware of America’s atrocious record of prison rape of both men and women.

The fate of Khadr–whose further interrogations all followed this implicit threat–is one issue. But the fate of American prisoners exposed to rape is equally timely. There are just four days left to a comment period on new standards that would mitigate many of the underlying problems that allow prison rape to happen.

The U.S. Attorney General is currently reviewing national standards aimed at preventing and addressing this type of abuse. Until May 10, these measures are open for public comments.If fully implemented, the national standards will spare countless Americans the horror of sexual abuse. But the standards are under threat. The reason: Prison officials claim that it will be too expensive to implement them – too expensive to prevent staff from raping detainees.

[snip]

In 2003, Congress recognized that the victimization of inmates constitutes a national crisis and so it unanimously passed the U.S. Prison Rape Elimination Act.

The national standards currently under review by Attorney General Eric Holder were developed by a bipartisan federal commission through extensive consultation with corrections officials, criminal justice experts, advocates and prisoner rape survivors. They are basic, common-sense measures, highlighting the need to train staff, identify likely rape victims and likely predators and ensure that prisons are subjected to independent audits.

By law, Attorney General Eric Holder has until June to review the standards and codify them as federal regulations, making them binding on detention facilities nationwide.

Sadly, it now looks like Holder will not meet his deadline. The delay is due, in large part, to a problematic cost projection study commissioned by the Justice Department in response to pressure from corrections leaders.

In addition, there’s a petition calling on Holder to implement the new measures quickly.

It’s really appalling they used such a threat to scare Khadr. But it’s equally appalling that the threat is so plausible because rape is so common in our prisons.

And we may be a lot closer to doing something about the latter than we seem to be able to do about the former.

ACLU Better Spooks than the Torturers

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Apparently, the ACLU (or rather, private investigators hired by the John Adams Project) are better spooks than the torturers. I say that because John Rizzo has now confirmed what had not been certain before: that when ACLU asked the PIs to figure out who had tortured the men it represented at Gitmo, the PIs actually got the right men–or at the least covert CIA people. (h/t MD)

“These were pictures of undercover people who were involved in the interrogations program given for identification purposes to the 9/11 [terrorists].”

[snip]

Mr. Rizzo said the photos “were pictures of agency people, some of which were captured paparazzi-style, clearly taken in a kind of surveillance mode.”

[snip]

“These were undercover people, the pictures taken surreptitiously found in the cell of one of the 9/11 suspects. I think they found it under the guy’s blanket,” he said.

[snip]

But he said that he could think of two types of crimes that may have been committed by the attorneys giving the photos to the detainees.

One possible crime would be the “disclosure of classified information, being the faces of these people, to an enemy foreign power,” Mr. Rizzo said.

Hey ACLU? You got the right people. John Rizzo–who was closely involved with the torturers–has now confirmed it for you in print.

All of which sort of highlights the problems with this witch hunt. To support it (in the Moonie Times before it goes under, I should note), Rizzo is arguing that faces are now classified. Not identities. Faces. Yet it didn’t have its torturers wandering around in burkas to hide those faces, which made them readily available for PIs to photograph. But the PIs presumably couldn’t be sure of the identities behind those faces until either the detainees at Gitmo confirmed them … or until someone like John Rizzo went and told a newspaper they were “undercover people who were involved in the interrogations program.”

And while we’re discussing John Rizzo, it’s rather important that Rizzo was the one who started this witch hunt in the first place, don’t you think?

John Rizzo, who was the agency’s top attorney until December, said in an interview that he initially requested the Justice Department and CIA investigation into the compromise of CIA interrogators’ identities after photographs of the officers were found in the cell of one al Qaeda terrorist in Cuba.

After all, if the full extent of individual torturers’ actions becomes public, it will be more likely they will be prosecuted for their actions. If that happens, it’s possible the torturers will expose the roles of those above them. And that would include John Rizzo, who almost certainly knew that the torturers were already exceeding the techniques approved by the Bybee Two memo as the memo was written. In other words, Rizzo has a very personal interest in hoping the names that belong with these faces don’t become named. Because if they do, the full extent of Rizzo’s complicity with torture might become exposed.

The Brits Refuse Secret Trials Even as Obama Doubles Down

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As bmaz reported last night, the Obama Administration has refused to accept Vaughn Walker’s ruling in al-Haramain–in fairly spectacular fashion (and yes, bmaz, Mary, MadDog and others did tell me this was going to happen).

Meanwhile, across the pond, the folks from whom we got our legal system are refusing the very concept that the government could avoid its legal liability by claiming its crimes were all a secret. The British Court of Appeals refused the British government’s attempt to respond to a suit from Binyam Mohamed and other former Gitmo detainees by claiming only the government and the judge could see the evidence–effectively the stance the Obama Administration has now doubled down on.

British residents held at Guantánamo Bay could be offered millions of pounds in compensation for wrongful imprisonment and abuse after the court of appeal today dismissed an attempt by MI5 and MI6 to suppress evidence of alleged complicity in torture.

The judges ruled that the unprecedented legal move by Britain’s security and intelligence agencies – which the attorney general and senior Whitehall officials backed – to suppress evidence in a civil trial undermined the principles of common law and open justice.

[snip]

In the appeal court ruling, Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan said that accepting the argument of the security and intelligence agencies would amount to “undermining one of [the common law’s] most fundamental principles”. One of those principles was that “trials should be conducted in public, and the judgments should be given in public”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

In other words, if the government refuses to share evidence of its own involvement in the torture of British residents and citizens, then they are going to have to settle with those men, rather than just dismissing the suit altogether by saying the plaintiffs can’t see the most crucial evidence in question. Had the government accepted Walker’s judgment in al-Haramain, they would have paid millions, but would have managed to keep evidence of their precious illegal wiretap program (a program both Obama and Holder have said was illegal) secret. (The Times has more, including some excellent quotes from the plaintiffs’ lawyer.)

How quaint the old country looks from this distance!

Breaking! Torture Is Illegal! Except when Consistent with the Interests of Justice!

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Thanks to BoxTurtle for linking to the manual for military commissions rushed out last night in time for the Omar Khadr hearing.

There are a number of interesting details in it, but since Khadr’s hearing today pertains to torture–whether statements he made after allegedly being tortured will be admissible–I thought I’d start with what the manual says about torture. And, ironically, there’s a big section on torture … in the section describing potential charges under military commissions. Here’s how the manual describes the crime of torture:

(11) TORTURE.
a. Text. “Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

The details for the most part track the analysis done by OLC on torture, including the language on intent:

(3) The accused intended to inflict such severe physical or mental pain or suffering;

But there’s also this, which appears to be a potential loophole:

(6) The conduct took place in the context of and was associated with hostilities.

Now, given that torture is laid out all nice and tidy like that in the military commission manual, you’d think that the discussion of whether evidence collected through the use of torture is admissible might also include some comment about what happens to the people who did the torture if evidence is deemed inadmissible because it was collected using torture. But it doesn’t.

Here’s what the manual says about statements collected using torture.

(1) Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.

Which would seem to say no evidence collected using torture will be admissible in these military commissions, unless it’s to try to someone for torture.

Except there’s this loophole:

(5) Derivative Evidence.

(A) Evidence Derived from Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. Evidence derived from a statement that would be excluded under section (a)(1) of this rule may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection, unless the military judge determines by a preponderance of the evidence that—

(i) the evidence would have been obtained even if the statement had not been made; or

(ii) use of such evidence would otherwise be consistent with the interests of justice. [my emphasis]

That is, to exclude evidence collected using torture, the defendant has to make a timely motion to suppress that evidence. Fair enough.

But the military commission can still use the evidence if it decides the evidence would have been obtained anyway (this seems to be a giant wall of protection for evidence collected using a clean team, meaning that evidence that matches tortured confessions but was collected using other means can still be used even if the evidence also came out in a tortured confession).

Or, more troubling, if the military judge decides that using evidence collected using torture “would otherwise be consistent with the interests of justice.”

Here’s what the manual has to say about “interests of justice:”

The intention of Mil. Comm. R. Evid. 304(a)(5) is that the “interests of justice” standard generally will restrict the admission of evidence derived from statements obtained by torture or cruel, inhuman, or degrading treatment (other than where the evidence would have been obtained even if the statement had not been made). The admission of evidence derived from a statement that was made incident to lawful conduct during military or intelligence operations and that would not be excluded under section (a)(1) of this rule generally should be regarded as consistent with the interests of justice for purposes of section (a)(5)(B) of this rule.

So torture is illegal. Except when it consists of “lawful conduct during military or intelligence operations,” in which case torture can be regarded as “consistent with the interests of justice.”

Here’s what the manual says about statements made by others under torture (I originally didn’t find this section–this is an update):

(3) Statements from persons other than the accused allegedly produced by coercion. When the degree of coercion inherent in the production of a statement from a person other than the accused offered by either party is disputed, such statement may only be admitted if the military judge finds that—

(A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

(B) the interests of justice would best be served by admission of the statement into evidence; and

(C) the statement was not obtained through the use of torture or cruel, inhuman, or degrading treatment as defined in section 1003(d) of the Detainee Treatment Act, Pub. L. 109-148 (2005) (codified at 42 U.S.C. 2000dd(d)).

Since this section requires that the coerced statement both serve the interest of justice and that it not be obtained through use of torture, it seems that self-incrimination through torture is allowed, when consistent with the interests of justice, but not the incrimination of others.

David Iglesias: Obama’s Used Car Salesman For Gitmo Show Trials

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In January of 2009, right after Obama’s inauguration, there was a swell feel good buzz about the fact David Iglesias, the media darling face of Bush US Attorney Purgegate victimology, had been tapped to be part of a special team of prosecutors to bring sanity to the detention and prosecution of Guantanamo detainees. Iglesias said:

We want to make sure that those terrorists that did commit acts will be brought to justice — and those that did not will be released.

As with so many other facets of the nascent Obama Administration’s promise on the interests of justice, it appears to have been shiny window dressing for the same old story, same old song and dance. A year and change later the same duplicity, bad faith, and specious claims based on vapor and evidence from torture permeates the Obama handling of Gitmo detainees as it did under Bush and Cheney. That is not my conclusion, not that of the “far left progressives”, but that of impartial Federal judges like Henry H. Kennedy.

And today we have yet another reminder that nothing has changed. Iglesias, the photogenic exemplar of A Few Good Men is being walked out once more to shill for the return of Gitmo Show Trials. From Carol Rosenberg:

For hearings on whether U.S. forces tortured confessions out of a Canadian teenager accused of killing an American soldier in Afghanistan, the Pentagon Monday unveiled a new face to advocate military commissions:
Fired former Bush-era prosecutor David Iglesias, a key figure in the so-called Attorney-Gate scandal. He was mobilized last year to the war court as a U.S. Navy Reserves captain.
…..
Monday, Capt. Iglesias was part of a Pentagon prosecution team going to Guantánamo for up to two weeks of hearings on which, if any, of Omar Khadr’s confessions cannot be presented to a jury at his summertime trial.
….
The chief war crimes prosecutor, Navy Capt. John F. Murphy, is leading the Khadr team in court. So the Pentagon tapped Iglesias to brief 35 reporters leaving from Andrews Air Force Base on Monday for the remote U.S. Navy base in Southeast Cuba, a larger than usual number of worldwide media traveling to the base for this week’s hearings. Many are Canadian.

Earlier in his Navy lawyer career, Iglesias has said, he worked on a hazing case that became a basis for the Hollywood hit set in Guantánamo, A Few Good Men, starring Tom Cruise and Jack Nicholson. Since then he has emerged a telegenic critic of Bush era policies.

So there you have it, the white knight Iglesias is not leading the legal charge cleaning up the detention/Habeas cases and prosecution status of the rickety and ill defined military commission effort, he is serving as the used car huckster for the old status quo. I guess Cal Worthington and his dog Spot were not available.

Lest anyone mistake the cravenly serious nature of what is really at stake here, Iglesias is being trotted out to sell a return to military commissions with few established known standards, that have been scorned and blasted by a conservative Supreme Court and, just for kicks, the government is fighting tooth and nail – complete with Holywood Iglesias – for the admissibility of tortured confessions from a child, Canadian Omar Khadr, in a military tribunal to be convened at Guantanamo. Gitmo, the gulag Obama railed on while a candidate and promised to close within Read more →

Why Were the Torture Tapes Destroyed?

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Bob Baer has a column out stating that he can’t figure out why the torture tapes were destroyed–and repeating CIA spin claiming the torture depicted in the tapes should not, itself, be a legal problem, since it was approved by DOJ. (h/t cs)

Did the CIA want to destroy graphic evidence of sleep-deprivation or waterboarding? They were interrogation methods approved by the Department of Justice in memos sent to the CIA, and therefore shouldn’t have been deemed a legal problem. The closest thing we come to answer is an internal CIA e-mail released last Thursday, in which an unidentified CIA officer writes that Rodriguez decided to destroy the tapes because they made the CIA “look horrible; it would be devastating to us.”

[snip]

I haven’t been able to clear up the mystery either, beyond the fact that a former CIA officer aware of the details of the 2002 interrogation of the two al-Qaeda suspects told me that the tapes’ images were “horrific.” He believes that although the interrogations fell within the guidelines provided by the Department of Justice, if the public ever saw them, it would conclude that “enhanced interrogation” is just another name for torture.

Those of you who have been following along already know this, but I thought I ought to sum up what we do know–but what Baer’s CIA sources aren’t telling him.

First, Baer’s source who “believes … the interrogations fell within the guidelines provided by the Department of Justice” is wrong–at least so long as we’re talking DOJ’s written guidelines. As CIA’s Inspector General made clear, the waterboarding that was depicted on the tapes in 2003 did not fall within the limits of the Bybee Two memo, both because the torturers used far more water, forced it down Abu Zubaydah’s throat, and used it with far more repetition than allowed by the memo. Furthermore, the torturers exceeded even the guidelines the Counterterrorism Center set on sleep deprivation–though Yoo may (or may not have) have set the limit in the Bybee Two memo high enough to cover what had already been done to Abu Zubaydah. Folks in the IG’s office had about seven more pages of concerns about what was depicted on the torture tapes (PDF 86-93)–but that all remains redacted.

So the tapes did not, in fact, match the written guidelines DOJ gave them. The torturers claim to have kept John Yoo and others up-to-date on their variances, but John Yoo’s statements thus far challenge that claim.

And in any case, that only describes the evidence on the torture tapes as they existed in 2003 when the IG reviewed them and presumably in 2005 when CIA destroyed them.

The other, potentially bigger problem for those depicted in the torture tapes has to do with what once appeared on the 15 tapes that the torturers altered before November 30, 2002, when CIA lawyer John McPherson reviewed them. Before that point, the torturers had altered 21 hours of the torture tapes, which covered at least two of the harshest torture sessions. Had someone done forensics on the tapes before they were destroyed, we might have learned what happened during those 21 hours. But by destroying the tapes completely, the CIA prevented that from happening.

I’m guessing–though it’s only a guess–that was the point.

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Court Slaps Government Over Use Of Torture Evidence

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You might not know it from the asleep at the wheel major media, but the Bush/Cheney war on terror foundation has taken some serious hits recently, from news of the murder of Gul Rahman at the Salt Pit, to the selective prosecution of David Passaro, to the finding by Judge Walker that the wiretapping was illegal, to widely acclaimed terror pros Steve Kappes and Phil Mudd both suddenly bailing from their high ranking intelligence jobs. You can add to the list a hard slap down by a Federal Court of the government’s continued use of bogus evidence obtained by brutal torture to try to justify continued detention of detainees at Guantanamo.

On Wednesday, Judge Henry H. Kennedy of the DC District Court issued his written opinion in the Habeas Petition by Uthman Abdul Rahim Mohammed Uthman, and it is a testament of what it looks like when a legitimate court encounters the unconscionable torture and innuendo evidence the US Government, under both the Bush and Obama Administrations, has been relying on to hold the detainees at Gitmo.

Uthman had been captured in the Afganistan/Pakistan border region (allegedly in the general area of Tora Bora, although that was never established) with a large group of others all rounded up en masse. Uthman claims he was a teacher innocently traveling, the DOJ asserted he was a key bodyguard for bin Laden. The evidence proffered against Uthman came almost exclusively from two other detainees, Sharqwi Abdu Ali AI-Hajj and Sanad Yislam Ali Al Kazimi, who both assert they fabricated the statements in response to severe torture.

Here is how the handling of Hajj and Kazimi was described by Uthman, and found credible by the court:

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj’s description to her of his treatment Read more →

Mudd Wrestling and Torture

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Spencer’s got one of the big scoops of the day: that Philip Mudd left the FBI about six weeks ago (so early March).

Philip Mudd, one of the intelligence community’s leading al-Qaeda analysts, has quietly retired from the FBI, where he was associate executive director of the National Security Branch. Mudd confirmed in an email that he left “about six weeks ago,” but didn’t immediately respond to additional questions about his departure.

Mudd was a longtime CIA counterterrorism specialist before coming to the FBI, but it doesn’t appear as if he’ll return to his home agency. This could be it for Mudd’s government career.

Spencer describes Mudd as one of the smartest guys on al Qaeda in government (here’s Mark Hosenball’s report on this, repeating the superlatives). But, last year, when he was nominated to take over Department of Homeland Security’s intelligence side, he was forced to withdraw his nomination after Senate staffers questioned whether he had ties to the torture program.

The White House nominee to be the undersecretary of intelligence and analysis at the Department of Homeland Security has withdrawn, he and the White House said in statements Friday. 

The withdrawal of the nomination of Philip Mudd, a veteran CIA analyst who had worked in recent years as a senior executive at the FBI, comes after an AP report yesterday. The report said that a Republican lawmaker planned to question Mudd over whether he had “direct knowledge” of the Bush-era harsh interrogation program while serving in a senior analytical role at the CIA.

The sinking of the nomination of someone who had served in an analytical capacity at the CIA, rather than in an operational or senior policy one, shows the broad scope of exposure to the controversial Bush-era harsh interrogation program for officials who did not obviously have a direct role in the program.

An aide to Sen. Susan Collins (R-ME) told the AP that “Mudd’s analysts used information obtained through harsh interrogations, and the official said that Mudd is likely to be questioned on whether the analysis branch pressured interrogators in the field to use harsher methods because they believed detainees were not telling the truth.” Collins sits on the Senate Homeland Security and Government Affairs committee that oversees the DHS. [my emphasis]

Now, I didn’t make the connection between these two events last year, but since I’ve been reading the questions CIA’s Inspector General was (probably) asking a manager at CTC in February 2003, I happen to have read this passage of the CIA IG Report just this morning.

Handgun and Power Drill
91. [Redacted] interrogation team members, whose purpose it was to interrogate al-Nashiri and debrief Abu Zubaydah, initially staffed [redacted]. The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [redacted] they assessed him to be “compliant.” Subsequently, CTC officers at Headquarters [redacted] sent a [redacted] senior operations officer (the debriefer) [redacted] to debrief and assess Al-Nashiri.

92. The debriefer assessed Al-Nashiri as withholding information, at which point [redacted] reinstated [redacted] hooding, and handcuffing. Sometime between 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information.44 After discussing this plan with [redacted] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head.45 On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. [my emphasis]

Of note, the torturers had deemed al-Nashiri compliant. But CTC decided he had more information and sent out an operations guy to further question him, which is what led to two death threats being used against al-Nashiri (the kind of threats John Yoo had specifically refused to approve around July 25, 2002).

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