Bull Durham Update: Torture Tape Investigation Winding Down Again

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Take this with a grain of salt, because we have heard it before, but there is a new story out that John Durham is winding down his torture tape investigation. Carrie Johnson and Julie Tate at the Washington Post are out this afternoon with an article intimating the investigation appears to be “nearing a close” and, as predicted here, there appears to be little, if anything, useful going to come from it. A false statements charge against a single secondary CIA official appears to be all that is potentially in the offing, and even that is shaky:

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, the sources said. That could signal that the case is reaching its final stages. Durham has been spotted at the Justice Department headquarters in the District over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke anonymously because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about the handling of the tapes and whether they should have been included when agency records were turned over in other court cases. McPherson is not believed to be under criminal jeopardy but he had previously hesitated to testify, the sources said.
…….
Investigators now are turning their attention to the grand jury testimony last year by another agency official, the sources said. Lawyers point out that prosecutors routinely search for discrepancies in grand jury testimony as part of any broad investigation.

Jose A. Rodriguez, the former chief of the CIA’s directorate of operations, triggered the destruction of the 92 tapes in November 2005. But he has not offered any testimony to prosecutors. But an official who worked alongside him did appear before the grand jury for more than a day and that testimony is being scrutinized closely by prosecutors, the sources said. The Washington Post was asked not to publish the name of the official, who is undercover. The official’s attorney declined comment Wednesday.

If the reporting is accurate, there are several things of interest here. First off, there is little, if any, accountability in the offing. False statements against a secondary official giving closed door testimony is not going to take us rule of law adherents where we want to go. And if this official is indeed covert, the odds of charges really being pursued are not very good; not to mention that any prosecution, even if it were pursued, would be fastidiously kept narrow and Read more →

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John Adams and Patrick Fitzgerald

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About a million of you, seeing Isikoff and Hosenball’s and Justin Elliott’s coverage of a story about Fitzgerald getting involved in an investigation of how photos of torturers ended up at Gitmo have emailed me the story in alarm. (This is a story I first covered 8 days ago.)

I’m going to attribute the alarm to the fact that neither Newsweek nor Elliott mention Bill Gertz’s much more detailed and informative story that first broke this. And to the use of phrases like “most feared,” “paparazzi,” “national controversy,” “star prosecutor,” which sensationalize the story more than it appears to merit, at least thus far.

Here’s what I think is going on:

1) DOJ has been investigating the John Adams Project since last August to find out how photographs of torturers got into the hands of detainees at Gitmo. The JAP has employed a Private Investigator to track down likely interrogators of detainees, to take pictures, get a positive ID, and once done, call those interrogators as witnesses in legal proceedings. DOJ appears concerned that JAP may have made info–learned confidentially in the course of defending these detainees–available to those detainees, and therefore violated the protective order that all defense attorneys work under. Yet JAP says they collected all the info independently, which basically means the contractors in question just got caught using bad tradecraft.

2) DOJ appears to believe no crime was committed and was preparing a report to say as much for John Brennan, who will then brief Obama on it.

3) But CIA cried foul at DOJ’s determination, claiming that because one of the lawyers involved, Donald Vieira, is a former Democratic House Intelligence staffer, he is biased.  They seem to be suggesting that Vieira got briefed on something while at HPSCI that has biased him in this case, yet according to the CIA’s own records, he was not involved in any of the more explosive briefings on torture (so the claim is probably bullshit in any case). After CIA accused Vieira of bias, he recused himself from the investigation.

4) So apparently to replace Vieira and attempt to retain some hold on DOJ’s disintegrating prosecutorial discretion, DOJ brought in Patrick Fitzgerald to pick up with the investigation. Fitz, of course, a) has impeccable national security credentials, and b) has the most experience in the country investigating the Intelligence Identities Protection Act, having investigated the Torturer-in-Chief and his Chief of Staff for outing CIA spy Valerie Plame. In other words, DOJ brought in a guy whom CIA can’t bitch about, presumably to shut down this controversy, not inflame it.

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Judge Orders Mohamedou Slahi Released

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Remember Mohamedou Slahi, the Gitmo detainee who they loaded onto a boat and drove around to give him the impression he was being moved? The judge in his habeas case has just ordered him released–though we don’t know why yet. (h/t cs)

Slahi is the 34th Guantánamo detainee ordered freed since the U.S. Supreme Court ruled detainees could challenge their incarceration in federal court, but his name was already well known because of investigations into detainee abuse.

Those probes found Slahi had been subjected to sleep deprivation, exposed to extremes of heat and cold, moved around the base blindfolded, and at one point taken into the bay on a boat and threatened with death. Investigators also found interrogators had told him they would arrest his mother and have her jailed as the only female detainee at Guantánamo if he did not cooperate.

The interrogations were so abusive a highly regarded Pentagon lawyer, Marine Lt. Col. Stuart Couch, quit the case five years ago rather than prosecute him at the Bush administration’s first effort to stage military commissions.

Read the whole Carol Rosenberg story. As she notes, the judge in question, James Robertson, has had just one other habeas case. And in spite of the fact that he found that case to be “gossamer thin,” he upheld that prisoner’s detention. Suggesting he has ruled Slahi released either because of the torture he underwent (including threats of death that–we know from the OPR Report–John Yoo had warned were clearly torture), or he was set up in a major way.

And, as Rosenberg further notes, Robertson is the guy who first ruled Hamdan’s case to be unconstitutional.

Golly, you think a judge will finally challenge the notion that the government can just detain someone indefinitely because we tortured him into a false confession?

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British Unit Used Sleep Deprivation, Stress Positions, Hooding

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It looks like the Brits are discovering they were engaged in the same kind of torture we were in Iraq.

Fresh evidence has emerged that British military intelligence ran a secret operation in Iraq which authorised degrading and unlawful treatment of prisoners. Documents reveal that prisoners were kept hooded for long periods in intense heat and deprived of sleep by defence intelligence officers. They also reveal that officers running the operation claimed to be answerable only “directly to London”.

The revelations will further embarrass the British government, which last month was forced to release documents showing it knew that UK resident and terror suspect Binyam Mohamed had been tortured in Pakistan.

The latest documents emerged during the inquiry into Baha Mousa, an Iraqi hotel worker beaten to death while in the custody of British troops in September 2003. The inquiry is looking into how interrogation techniques banned by the Government in 1972 and considered torture and degrading treatment were used again in Iraq.

Lawyers believe the new evidence supports suspicions that an intelligence unit – the Joint Forward Interrogation Team (JFIT) which operated in Iraq – used illegal “coercive techniques” and was not answerable to military commanders in Iraq, despite official denials it operated independently.

Not that I’m the least bit surprised, mind you. Mostly I’m hopeful that if the Brits come clean on the systematic torture in Iraq and elsewhere, we might be forced to, too.

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Jane Mayer to Marc Thiessen: Your Guys’ Ignorance Got Us Attacked

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Jane Mayer has a great general purpose slapdown of torture apologist Marc Thiessen love letter to torture. She hits on most of the weaknesses of Thiessen’s arguments: his false claims about what prevented the 2006 liquid explosive plane plot, apologists’ very selective examination of what counts as an attack on American, the silence about Ibn Sheik al-Libi’s (and others’) false confessions, demonstrably false claims that no one at Gitmo was ever tortured.

But there’s a point she makes that really ought to be the focus of push back against all torture apologists: the Bush Administration ignored repeated warnings about the imminent al Qaeda attack in 2001, and any ignorance about al Qaeda–which Thiessen claims was general–belongs to Bush’s top leaders, not the intelligence community.

Thiessen, citing [Michael] McConnell, claims that before the C.I.A. began interrogating detainees the U.S. knew “virtually nothing” about Al Qaeda. But McConnell was not in the government in the years immediately before 9/11. He retired as the director of the National Security Agency in 1996, and did not rejoin the government until 2007. Evidently, he missed a few developments during his time in the private sector, such as the C.I.A.’s founding, in 1996, of its bin Laden unit—the only unit devoted to a single figure. There was also bin Laden’s declaration of war on America, in 1996, and his 1998 indictment in New York, after Al Qaeda’s bombing of two U.S. embassies in East Africa. The subsequent federal trial of the bombing suspects, in New York, produced thousands of pages of documents exposing the internal workings of Al Qaeda. A state’s witness at the trial, a former Al Qaeda member named Jamal al-Fadl, supplied the F.B.I. with invaluable information about the group, including its attempts to obtain nuclear weapons. (Fadl did so without any coercion other than the hope of a future plea bargain. Indeed, the F.B.I., without using violence, has persuaded dozens of other suspected terrorists to coöperate, including, most recently, the Christmas Day bomber.)

In order to make the case that America was blind to the threat of Al Qaeda in the days before 9/11, Thiessen skips over the scandalous amount of intelligence that reached the Bush White House before the attacks. In February, 2001, the C.I.A.’s director, George Tenet, called Al Qaeda “the most immediate and serious threat” to the country. Richard Clarke, then the country’s counterterrorism chief, tried without success to get Condoleezza Rice, Bush’s national-security adviser, to hold a Cabinet-level meeting on Al Qaeda. Thomas Pickard, then the F.B.I.’s acting director, has testified that Attorney General John Ashcroft told him that he wanted to hear no more about Al Qaeda. On August 6, 2001, Bush did nothing in response to a briefing entitled “Bin Laden Determined to Strike in the U.S.” As Tenet later put it, “The system was blinking red.”

(I would add that refusal of Thiessen’s precious CIA to share information about Nawaf al-Hazmi and Khalid al-Mihdhar also prevented us from acting on the biggest lead that could have prevented the attack.)

This point is not repeated enough, perhaps out of some sense of comity toward a guy, Cheney, who has spent the last year (really, his entire life) breaking every rule of comity in DC.

Out of ignorance of al Qaeda, arrogance that only loyal insiders should participate in setting security priorities, and plain old bad judgment about the potential threat of terrorists, the Bush Administration failed to act on clear warnings that we would be hit on 9/11. Those are, not surprisingly, precisely the same characteristics drove us to ignore our experts on interrogation and instead follow the word of a bunch of hucksters who wanted to get rich off of torturing other human beings.

Every time someone like Thiessen attempts to push his propaganda, we really ought to be asking why we should trust the propagandist of the guys who are still trying to overcompensate for having failed in the first place.

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DOD’s Empty Vessel for Torture Authorization

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When I asked whether DOD had any authorization for torture after 2004, Jeff Kaye reminded me we just recently saw one new aspect of authorization: an April 2006 Steven Bradbury Opinion authorizing Appendix M of the new version of the Army Field Manual released on September 6, 2006. (As Jeff and Matthew Alexander have shown, Appendix M, which remains in place, basically incorporates a number of techniques amounting to torture right into the AFM.) While the 2006 Bradbury memo doesn’t explain what DOD was doing between 2004 and 2006, the memo basically serves to turn Appendix M into an empty vessel into which DOD can throw anything it wants and have it pre-approved.

Make sure the client never sees the caveats

Let’s start with the structure of the memo: note to whom it is addressed?

Nobody.

Rather, this is a Memorandum for the Files. It serves as a document internal to OLC, rather than a document explaining factual assumptions, legal reasoning, and specific limits to the client. So how does the client know the result of the memo? The first paragraph of this memo explains,

The Department of Defense (“DOD”) has asked us to review for form and legality the revised drafts of the Army Field Manual 2-22.3 (“Human Intelligence Collector Operations”), Appendix M of FM 2-22.3 (“Restricted Interrogations Techniques”), and the Policy Directive regarding DOD’s Detainee Program. By letter sent today to the General Counsel of DOD, we advised that these documents are consistent with the requirements of law, in particular with the requirements of the Detainee Treatment Act of 2005 [citation removed]. This memorandum explains that conclusion.

In other words, Bradbury did tell Jim Haynes the result of his review: that the Appendix passed legal muster. But it appears that Bradbury did not send this memo (the memo was finalized after the letter had already been sent). Indeed, Bradbury suggests that he did little more than send a letter saying, “The new Army Field Manual, Appendix M, and the associated Directive are legal under the Detainee Treatment Act.”

Love, Stevie, kthxby.

Now, Bradbury does put limits on his judgment that Appendix M was legal. He spends what appears to be six paragraphs describing the techniques he says were part of Appendix M. Those paragraphs place limits on the techniques (for example, they prohibit an interrogator from leading a detainee to believe the interrogator was a member of the Red Cross). He references restrictive language in specific paragraphs of the AFM itself. He includes assumptions about whom DOD would use these techniques with.

But if DOD never saw this memo–and there’s no indication they did–then his approval would be utterly divorced from any of the restrictions he had placed on that approval.

Approve a document and then make changes to it

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter. (See this article from Jeff for a review of the debates in the interim period.) Read more →

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Did DOD Have ANY Authorization for Torture after 2004?

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There are a couple of things that have been bugging me about the authorizations DOD got for interrogations.  It’s not clear what kind of authorization DOD used to justify detainee interrogations after the Yoo memo was withdrawn in 2003-2004–they had no overall interrogation approval from OLC. While it’s possible they were just relying on already-existing DOD documents, there are hints that DOD was either relying exclusively on the CIA’s more expansive authorizations (that included waterboarding), or they had some alternative approval that may not have involved OLC at all.

As I’ve shown (here and here), in March 2004, DOD requested approval to use–at the least–extended isolation with detainees. In response, Jack Goldsmith and Steven Bradbury started trying to replace the 2003 Yoo memo.

At precisely the same time, Goldsmith was working through the mess created by the Legal Principles document. As you recall, faced with clearly illegal conduct and with the opportunity to investigate that conduct themselves in 2003, CIA worked back channel with Jennifer Koester and John Yoo to summarize the legal advice given on torture, going so far as to claim certain techniques (like abdominal slap and diapers) had been approved when they hadn’t been. During that period, Koester and Yoo gave CIA an opportunity to review and provide input on the 2003 Yoo memo. Then, Koester and Yoo relied on the Yoo memo for several of the claims they made in the Legal Principles. That raises the possibility that one reason the Yoo memo was so bad (it was even more permissive than the Bybee One memo) was to help CIA avoid criminal liability for crimes already committed.

At the very least, this is proof that CIA and DOD were both relying on advice given to the other agency to justify their own agency’s actions. We know DOD used the Bybee memos (and oral authorization from Yoo based on that analysis) to authorize its treatment of Mohammed al-Qahtani in 2002-2003. And the Legal Principles show CIA was using the Yoo memo, written for DOD, to authorize its treatment of multiple detainees in anticipation of the CIA IG Report. In other words, though DOJ liked to maintain the fiction that the approval tracks for CIA and DOD were separate, they weren’t, at least not when John Yoo was involved.

And that was becoming crystal clear in spring of 2004. (In the same phone conversation in which Goldsmith confirmed that the Legal Principles weren’t an official OLC document, he also asked Yoo for details of his verbal authorizations to Jim Haynes leading up to the al-Qahtani torture, so he clearly pursued these issues in tandem.)

Yet after that, CIA’s memos got withdrawn and replaced. DOD’s Yoo memo reportedly was withdrawn. But no formal guidance from OLC ever replaced it.

So what happened after that point?

The Daniel Levin Memo

My concerns about DOD’s later authorizations stem partly from a memo Daniel Levin wrote John Ashcroft and Jim Comey in September 2004 to summarize all the advice OLC had given on torture. Read more →

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Steven Bradbury: Breaking His Own Rules Even as He Writes Them

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I’m working on a big post on the May 2005 Bradbury Memos. But I wanted to point out this tidbit about them in the interim.

As you might recall, the Jim Comey emails (probably leaked by the torture apologists last summer) provide a few clues about why Comey objected to the May 10, 2005 Combined memo. Significantly, he thought the memo was too general because it did not stick to the facts regarding one detainee who had already been tortured.

I also suggested a possible way to narrow the focus of the second opinion to be more responsible.

[snip]

[Alberto Gonzales’ Chief of Staff Ted Ullyot] said Pat had shared my concerns, which he understood as concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.

[snip]

He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

As it happens, just six days after the Combined memo was published, Steven Bradbury issued a set of “Best Practices” for OLC. On at least two counts, his “Best Practices” violated the entire set of the May 2005 memos. In particularly, though, he warned against writing memos that were either retrospective or overly general.

The legal question presented should be focused and concrete; OLC generally avoids undertaking a general survey of an area of law or a broad, abstract legal opinion.

[snip]

Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).

And yet, the Combined memo suffered from the fault of being both retrospective to that one detainee and overly general.

I wonder if that’s one of the reasons why Michael Mukasey spiked Office of Professional Responsibility’s proposed review of these memos.

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The Request for Reaffirmation of Torture

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This is going to be another weedy post…

I wanted to put two totally bureaucratic pages (PDF 23-24) from the recent FOIA dump into the context of the other known documents in the chronology. The first page is an “Executive Correspondence Routing Sheet,” sent from CIA General Counsel Scott Muller around top CIA management for approval. It reads:

This memo follows General Counsel discussion with the DCI and agreement on the need to seek reaffirmation from the NSC.

And the memo in question (the following page) appears to be a very short memo with the subject, “Review of CIA Interrogation Program,” from John Rizzo circulated to the lawyers involved with the torture program and the top CIA executives on the Executive Correspondence Routing Sheet. The Rizzo memo is dated May 24, 2004; the last signature–that of George Tenet–is dated June 4, 2004.

The routing sheet is interesting not just because Tenet signed it the day after he resigned.

It also shows a glimpse of the bridge by which CIA responded to the CIA IG Report but also (probably) Jack Goldsmith’s unwillingness to reaffirm opinions that OLC had never made by asking the White House for some kind of written re-endorsement of the torture program.

As I’ve shown here and here, when the CIA Inspector General began its review of the torture program in response to the Salt Pit death and abuses of al-Nashiri, CIA and Jennifer Koester and John Yoo (though he denies involvement) worked back channel to develop a set of “Legal Principles” (elsewhere called “Bullet Points”) that would expand the legal authorization DOJ had given CIA’s torture program in such a way as to legally excuse the crimes the IG was inspecting. Significantly, the Legal Principles document expanded the already farcical analysis of Article 16 of the Convention Against Torture that Yoo had done in the Bybee One memo.

CIA twice tried to present these Legal Principles to OLC as a fait accompli, first in June 2003, when Patrick Philbin took over many of John Yoo’s duties, and then again in March 2004, in conjunction with the finalization of the IG Report and at a time when Goldsmith headed the OLC. Both Philbin and Goldsmith refused to accept the Legal Principles as OLC sanctioned documents.

Now, significantly, the March 2, 2004 set of Legal Principles was itself a request for “reaffirmation” of the torture program’s legality. Scott Muller emphasized CIA needed that reauthorization, among other reasons, because they had incorporated new torture techniques based on the OLC “guidance.”

For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique.

Of note, Goldsmith appears to have taken special note of the description of water PFT, which (Muller’s note said explicitly) was “intended to … humiliate” detainees. Given that the IG Report concluded that the torture program probably violated Article 16, this language seemed to flout the prohibitions against cruel, inhuman, and degrading treatment.

Between March 2 and May 24 (when Rizzo wrote his memo), Goldsmith did not reauthorize the Legal Principles. Nevertheless, CIA incorporated the Legal Principles into the final draft of the IG Report. Goldsmith got a copy of that document some time before May 25 and presumably spoke to Muller about the inclusion of the Legal Principles in it, because on that day, he wrote CIA’s IG noting that he had received it and asking for time to review the depiction of OLC’s legal advice in the IG Report before it got sent to Congress.

In other words, Goldsmith’s continued objection to the inclusion of the Legal Principles in the IG Report is probably what prompted John Rizzo to send out a memo referencing the IG Report (which the CIA called the “Review of the CIA Interrogation Program,” the subject of his memo) that appears to have recommended asking NSC for reaffirmation of the torture program.

So faced with Goldsmith’s refusal to reaffirm something OLC had never affirmed in the first place, CIA decided to go to the White House and get them to approve of the program in writing. Read more →

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Kiriakou: CIA IG Report Confirmed They Waterboarded Before Getting Approval (?)

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I believe Jon Kiriakou is still engaging in disinformation, so while I suppose I’ll read his book, I won’t accept anything in it without corroboration.

Take this weird tidbit in his appearance on Tweety (just after 2:05). The statement is false on its face. But it does report an underlying truth.

We didn’t know that he’d been waterboarded 83 times. Last year the CIA Inspector General’s Report came out from 2004, heavily redacted, but it still confirmed that, ah, Abu Zubaydah had been waterboarded before the CIA actually received written permission to do it. So my view now, in retrospect, is that he had been waterboarded 83 times, but the people in the field actually carrying out the waterboarding did not report it. So those of us at headquarters, seeing the one report that finally did come in, believed he had been waterboarded once, and he had cracked.

See, that’s not what the CIA IG Report says–certainly not the unredacted section. In fact, the CIA IG Report implies that all the waterboarding occurred in August 2002, so after the Bybee Memo was signed.

Interrogators applied the waterboard to Abu Zubaydah at least 83 times during August 2002.

So if waterboarding happened before the Bybee Two memo was signed, it was not entered into the log books (nor was it captured on the 77 torture tapes still functional by the time the IG review them) the IG based this claim on. Or, the IG Report doesn’t mention it along with the other unredacted discussions of waterboarding. Or, the IG is lying about the timing of these 83 waterboardings.

And Kiriakou’s statement makes no sense, anyway, because if those 83 waterboardings took place in August but the IG Report admitted to waterboarding before the Bybee Two memo was signed, then the single waterboarding (the one that “cracked him”) would have been the one that happened before August.

That said, we do know Zubaydah was tortured before the Bybee Memos got signed–we’re just unclear on what happened (that is, how much torture happened), when.

All this confusion may simply stem from Kiriakou’s own attempt to excuse his own disinformation about waterboarding in the first place. Or he may well be confused himself, still reeling from cognitive dissonance of discovering the truth behind the torture regime. Or perhaps he is revealing something that is not otherwise documented in unredacted documents.

In any case, between Kiriakou and Thiessen and others spinning wildly, we’ll continue to hear details that don’t match the known details of the torture program.

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