Assymmetrical Self-Gagging

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Seton Hall has a new report out today on the purported suicides of three Gitmo detainees–Yassar Talal Al Zahrani, Mani Shaman Turki Al Habardi Al Tabi, and Ali Abdullah Ahmed–who all died on June 10, 2006. The report catalogs the many reasons to doubt that these men engaged–as the government claimed when they died–in asymmetrical warfare by committing suicide all at the same time. As the report describes, for the three detainees to have really committed suicide, they would have all had to have done the following:

  • Braided a noose by tearing up their sheets and/or clothing
  • Made mannequins of themselves so it would appear to the guards that they were asleep in their cells
  • Hung sheets to block the view into the cells, a violation of SOPs
  • Tied their feet together
  • Tied their hands together
  • Shoved rags in their mouths and down their throats
  • Hung the noose from the metal mesh of the cell wall and/or ceiling
  • Climbed up on to the sink, put the noose around their necks and released their weight, resulting in death by strangulation
  • Hung dead for at least two hours completely unnoticed by guards

In other words, the cover story the government has offered to explain why all three of these detainees died at the same time doesn’t make any sense.

Now as it happens, just last week the Obama Administration filed an argument saying two of these detainees, Zahrani and Ahmed, could not sue the government for their treatment because the parts of the Millitary Commissions Act that prohibit court review of detention remains in place, in spite of the Boumedienne decision that threw out the habeas restrictions. Here’s that filing.

I’ve leave it to the lawyers to assess the merits of the suit. But this report makes it clear that the government may have reason to want to avoid discovery in this suit.

Things Republicans Think Merit Investigation More than Torture: ACORN

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Given how frothy Republicans have gotten about the White House gate-crashers, I thought it’d be worth starting a catalog of things the Republicans think merit investigations more than torture.

Today’s edition: ACORN.

The eight Republican members of Congress who showed up for the hearing didn’t disappoint. With one exception, they labeled ACORN a “criminal enterprise” with close and current ties to the highest levels of the Obama administration and the labor movement.“President Obama previously served as ACORN’s lawyer, participated in ACORN training sessions in Chicago, and presided on the board of two organizations that funded ACORN’s Chicago chapter,” said [Lamar] Smith. An old picture of Obama in an ACORN office was posted near the hearing stand to bolster his point. “The president’s ties with ACORN taint any conclusions the Department of Justice may reach with regard to whether or not to investigate ACORN employees. That’s why I’ve requested that the attorney general appoint a special prosecutor to investigate ACORN.”

To bolster their case, Republicans produced 81 pages of documents about ACORN’s voter registration activities in 2004 and 2006  — a supplement to Issa’s 99-page July 2009 report, “Is ACORN Intentionally Structured As a Criminal Enterprise?”

The 81 new pages, helpfully highlighted by staffers, put ACORN staffers on the record planning voter registration drives and campaigns for “progressive” candidates. They also touched on the organization’s social work — “within the next year Maryland ACORN will conduct 500 new lead tests for low and moderate-income renters and homeowners” — but members and witnesses argued that the organization’s political activity, clearly benefiting Democrats and President Obama, was at least reason to strip it of tax-exempt status.

“The current admin is becoming, in reality, the war room for ACORN’s political machine,” said Issa. “The poor will be better served when ACORN is no longer a go-to place for services.” [my emphasis]

Lamar Smith thinks providing lead tests for low income people is more threatening to this country than torture.

Yoo, OPR, and the Ninth Circuit

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Scott Horton notes that the Obama Administration has made new sweeping arguments about why John Yoo should not be held responsible for authorizing torture used on Jose Padilla.

The Holder Justice Department has filed a sweeping amicus brief in the Padilla v. Yoo case before the Ninth Circuit, seeking to make absolute the immunity granted Justice Department lawyers who counsel torture, disappearings, and other crimes against humanity. The case was brought by Jose Padilla, who claims that he was tortured as the direct result of memoranda written by Yoo, now a law professor at Berkeley. At this stage, the case does not address the factual basis of Padilla’s claims, but documents that have been declassified by the Department of Justice make it clear that the charges have a firm basis in fact. Here’s the portion of the opinion authored by a lifelong Republican, Bush-appointed judge that the Justice Department found so objectionable:

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct….

The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally. Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.

I’m most interested in this aspect of the appellate argument (part of which Horton discusses).

In arguing that a Bivens action should not be recognized here, we are not suggesting that the actions of a Department of Justice attorney advising the Attorney General, the President and/or other agencies should go unchecked. Congress has enacted 28 U.S.C. § 530B (also known as the “McDade Amendment”). Under Section 530B, Department of Justice attorneys, as well as other government attorneys, “shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” 28 U.S.C. § 530B. State bar rules speak to 2 an attorney’s ethical duties when advising a client. See, e.g., ABA MODEL RULES OF PROFESSIONAL CONDUCT, 2.1, 3.1. To the extent someone believes that a Department of Justice attorney has violated the applicable bar rules, under the McDade Amendment, they can file a complaint with the relevant state bar.

In fact, complaints have been filed with the District of Columbia and Pennsylvania bars against defendant Yoo. Under the McDade Amendment, Yoo potentially could be subject to discipline if he violated any of the applicable rules and/or standards.

In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”), see 28 C.F.R. 0.39 and the Office of the Inspector General, 5 U.S.C. App. §8E. Section 1001 of the USA Patriot Act directs the Department of Justice Inspector General to review information and receive complaints alleging abuses of civil rights and civil liberties by Department of Justice employees. See Pub. L. 107-56, § 1001, 115 Stat. 391 (2001). OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate. [my emphasis]

The government is arguing that Bivens isn’t appropriate because there are other means of punishing Yoo’s bad lawyering.

And they specifically invoke OPR investigations.

Now, in any case, this is an already well-worn Obama tactic. They have repeatedly done what they needed to do, legally, to ensure that the executive is the only one who gets to check the executive’s power and (just as importantly) to prevent the Courts from reviewing executive branch actions.

But it’s all the more interesting, given the delay of the OPR report which–Eric Holder told the Senate on November 18–would be out by the end of the month. Meaning, last month (and no, it’s not coming out today either).

Had DOJ already released that OPR report, that passage would either say, “we’ve already recommended Yoo be disciplined and so basically agree with plaintiffs” or “well, we looked, but we think Yoo should skate and so this claim that there are other means of redress is really just BS.”

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Torturing Binyam Mohamed–Before Bybee Two

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A few of you have alerted me to this judgment from the Binyam Mohamed case in the UK. As a reminder, Mohamed has been trying to force the British government to release information about torture he suffered at the hands of Americans and Pakistanis. But the British government refuses to allow the information to be revealed publicly because–they say–it’ll threaten the relationship (and intelligence sharing) between the UK and US. Here Andy Worthington’s post on this ruling, and here’s Clive Stafford Smith’s.

The ruling suggests that Americans were using torture techniques on Binyam Mohamed in April and May 2002, before use of those techniques was given (dubious) legal sanction with the Bybee Two memo on August 1, 2002.

The ruling is sort of like a Russian egg, arguing that passages from one ruling explaining why passages from an earlier ruling should not be redacted themselves should not be redacted. It is basically an argument in favor of making four passages from an October judgment (these are four passages from ruling five–I’ll call them 4/5) publicly available. The Foreign Secretary David Miliband doesn’t want those passages to become available because doing so would reveal what was redacted from an earlier judgment (these are seven passages from ruling one–I’ll call them 7/1).

[The Foreign Secretary argues that] the four passages in the fifth judgment [4/5] indicate what is in the seven paragraphs redacted from the first judgment [7/1].

But the High Court argues that even if 7/1 should not be released (they don’t buy this, but use the assumption to make their argument), there is no reason 4/5 cannot be.

Now, the High Court appears to be using the Bybee Two memo (the one laying out the 10 techniques approved for use with Abu Zubaydah) as its basis for arguing that 4/5 can be released. They note that “the entire content” of 4/5 is in the public domain. The have already unredacted a passage in this ruling reading,

One of those memoranda dated 1 August 2002 [from Jay Bybee to John Rizzo] made clear that the techniques described were those employed against Mr. Zubdaydah.

And they note that one of the paragraphs redacted in 4/5 “is a verbatim quotation from the memoranda made public on 16 April 2009.” From this, we can assume that the content of that passage is an exact quotation from the Bybee Two memo.

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The TWO Afghan Black Site Stories

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We’ve long discussed that Obama’s orders regarding torture don’t apply to Bagram, as well as rules that allow the Red Cross some–but not enough–access to our prisons in Bagram. So the news reported in the NYT and WaPo today that we’ve still got black sites in Afghanistan are no surprise.

What I’m curious about is why now? Why did both the NYT and WaPo decide to publish this story on a holiday Saturday at the same time?

The NYT relies on the stories of three former detainees–who allege sleep deprivation but not physical beatings.

“The black jail was the most dangerous and fearful place,” said Hamidullah, a spare-parts dealer in Kandahar who was detained in June and who, like some Afghans, doesn’t use a last name. “They don’t let the I.C.R.C. officials or any other civilians see or communicate with the people they keep there. Because I did not know what time it was, I did not know when to pray.”

Mr. Hamidullah was released in October, after five and half months in detention, five to six weeks of it in the black jail, he said.

Although his and other detainees’ accounts could not be independently corroborated, each was interviewed separately and described similar conditions. Their descriptions also matched those obtained by two human rights workers who had interviewed other former detainees at the site.

While two of the detainees were captured before the Obama administration took office, one was captured in June of this year.

All three detainees were later released without charges. None said they had been tortured, though they said they heard sounds of abuse going on and certainly felt humiliated and roughly used. “They beat up other people in the black jail, but not me,” Hamidullah said. “But the problem was that they didn’t let me sleep. There was shouting noise so you couldn’t sleep.”

Whereas the WaPo focuses primarily on two teen-aged former detainees who allege physical beatings and sleep deprivation there, though it uses the claims of two more detainees to corroborate their story.

The two teenagers — Issa Mohammad, 17, and Abdul Rashid, who said he is younger than 16 — said in interviews this week that they were punched and slapped in the face by their captors during their time at Bagram air base, where they were held in individual cells. Rashid said his interrogator forced him to look at pornography alongside a photograph of his mother.

The holding center described by the teenagers appeared to have been a facility run by U.S. Special Operations forces that is separate from the Bagram Theater Internment Facility, the main American-run prison, which holds about 700 detainees. The teenagers’ descriptions of a holding area on a different part of the Bagram base are consistent with the accounts of two other former detainees, who say they endured similar mistreatment, but not beatings, while being held last year at what Afghans call Bagram’s “black” prison.

The NYT story references the WaPo story, so it is likely a response to WaPo’s decision to publish this today.

Others, however, have given accounts of abuse at the site, including two Afghan teenagers who told The Washington Post that they had been subjected to beatings and humiliation by American guards

Now maybe what happened is that the WaPo got the story of these two teenagers. And decided to go with the story (which they admit could not be independent substantiated). And not wanting to be scooped entirely, the NYT decided to go with the story of its interviews with former detainees.

But I can’t help but note that this story came out just weeks after the Center for American Progress’ Ken Gude floated sending military detainees from Gitmo to Bagram. And just after two of the Administration officials focused on doing the right thing with Gitmo left the Administration.

Torture Tape Destruction, the OGC Review, and the IG Report

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One of the most fascinating aspects to the torture tape Vaughn Index is the way it hints at a tension between the torturers in the field growing increasingly panicked about the torture tapes and the CIA’s Office of General Counsel’s decision to review the tapes and, subsequently, not to destroy them (yet). The tension grew worse as the Inspector General decided to review the torture program (and ultimately, the tapes) and as Jane Harman challenged the CIA’s careful excuse allowing them to destroy the tapes. This post will trace what we can see of that tension.

Early in the Abu Zubaydah interrogation, there were two communications pertaining to how to retain the torture tapes. (Note, I’ve indicated: the classification of the documents as question, whether John Durham asserted they were protected under his investigation, and some indication of attorney involvement, though the latter deserves closer attention, as there is significant variation in the way CIA claimed exemption under attorney work product.)

April 17, 2002: Someone (the Vaughn provides no sender or recipient information) sends cable providing guidance on the retention of the video tapes (TS; atty doc)

April 27, 2002: One CIA officer sends another CIA officer cable, copied to several additional officers and attorneys, regarding the interrogation of Abu Zubaydah (S; Durham document)

From the period of August (around the time the waterboarding occurred) until November, 2002 the Index shows recurrent and (as far as we can tell from a Vaughn Index) increasingly urgent communications from the Field, asking to change the protocol regarding interrogation tapes and ultimately, asking to destroy them.

August 20, 2002: Field write to HQ discussing “policy for the security risks of videotape retention and suggests new procedures for videotape retention and disposal” (S)

September 6, 2002: Email between CIA attorneys, titled, “Destruction proposal on disposition of videotapes at field” (S; atty doc)

September 6, 2002: Email between CIA attorneys on revisions of a draft cable regarding the disposition of the video tapes (S; atty doc)

October 25, 2002: Field writes to HQ “discussing the security risks if videotapes are retained” (S; Durham document; atty doc)

November 6, 2002: CIA officer sends CIA officers and attorneys email, titled, “Tapes issue,” following up with the proper procedures for destruction of the interrogation video tapes (S; atty doc)

In mid-November (note, the dates on these emails may be confusing if sent from different sides of the date line), an officer in the Field expresses “personnel concerns” with the disposition of the videotapes. In what appears to be a response, HQ asks to have a “random independent review of the video tapes, before they are destroyed.” This seems to be the genesis of what became the OGC review of the tapes.

November 15, 2002: HQ sends email to Field titled, “Videotapes–response” requesting “to have a random independent review of the video tapes, before they are destroyed” (TS; atty doc)

November 15, 2002: HQ sends email to Field titled, “Video tapes” requesting “to have a random independent review of the video tapes, before they are destroyed, to ensure accuracy” (TS; atty doc)

November 15, 2002: Email chain “including an email from a CIA officer in the field to CIA officers at headquarters expressing personnel concerns with the disposition of the video tapes and headquarters requset to have a random independent review of the video tapes, before they are destroyed, discussed in a two-page email from a CIA attorney at headquarters to the field that is also part of the email chain (TS; atty doc)

November 16, 2002: Someone (the Vaughn provides no sender or recipient information) sends email, forwarding two additional emails, between CIA attorneys, discussing draft language on the logistics of destroying the tapes” (TS; atty doc)

November 16, 2002: Field officer sends CIA attorneys and officers at HQ email informing HQ of “personnel concerns regarding the videotapes” (TS; atty doc)

Here’s how the 2004 CIA IG Report described the OGC review.

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters.

Here’s how CIA described the review in a FOIA declaration description of it.

The CIA OGC also conducted a legal review of the interrogation of Abu Zubaydah to ensure compliance with the relevant legal and policy guidance. This review was implemented not only to ensure that the interrogation of  Abu Zubadaydah was consistent with the law and United States policy, but also to improve the CIA’s program going forward. Document 60 contains the analysis and impressions of a CIA Attorney shortly after the Attorney’s review of subsequently destroyed videotapes, as well as the relevant cable traffic. The document reflects the CIA attorney’s view on what facts were relevant to determine whether the interrogation of Abu Zubaydah was compliant with law and policy, as well as what information would be informative to CIA management in improving the program going forward.

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John Durham’s Thirteen Documents

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As William Ockham has noted, there are thirteen documents described in the torture tapes FOIA over which John Durham has asserted a law enforcement exemption.

Of the 55 documents [in the Vaughn Declaration], the Agency determined that 13 documents could be released in part. Prior to releasing the 13 documents, however, the Agency was informed by the Department of Justice that Special Prosecutor John Durham was asserting Freedom of Information Act (FOIA) Exemption (b)(7)(A) over the portions of the 13 documents that the CIA was prepared to release.

Now, it may be that those are the only documents from this time frame that Durham sought to protect (he has said he was more concerned about documents closer to 2005), or it may be that he only reviewed the 13 that the CIA would have otherwise released.

But it seems worthwhile to pull out which of the 55 documents described in the Vaughn Index were singled out by Durham. I’ve put them below, in the likely date order.

Document 1, April 27, 2002, AZ Interrogation

This document is a one-page email from a CIA officer to another CIA officer, with several additional CIA officers and attorneys copied. The email contains information relating to the interrogation of Abu Zubaydah,

Document 15, October 25, 2002, Disposition of videotapes–security risks

This is a two-page cable from field to CIA headquarters discussing the security risks if videotapes are retained.

Document 8, December 3, 2002, Closing of facility and destruction of classified information

This document is a two-page cable from CIA Headquarters to the field discussing the destruction of videotapes and other classified material at a field facility.

Document 16, December 20, 2002, Source material on videotapes

This is a three-page memo, with a cable attached, from headquarters to field regarding the policies on tape usage and destruction.

Document 18, January 13, 2003, Guidance on retention of videotapes

This is a two-page email, with a cable attached from CIA headquarters to field, providing guidance on the procedures for retention of AZ videotapes.

Document 29, UNDATED, Meeting on disposition of AZ tapes

This is a one-page email that on scheduling a meeting to discuss the disposition of the tapes. [Neighbor emails are from February 2003 and concern the response to Jane Harman’s concerns about torture tape destruction.]

Document 6, August 4, 2003, Response to destruction of videotapes

This document is a thirteen page cable that discusses the disposition of the 92 videotapes.

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Torture Tapes and CIA Retirements

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The NYT originally broke the news of the torture tape destruction on December 6, 2007. And on October 25, 2007, the government informed Leonie Brinkema that they had found three unrelated tapes of interrogations that should have been disclosed during the Moussaoui trial. Those two events were the first we had confirmation of the scandal surrounding the CIA’s taping–and subsequent destruction–of torture tapes.

Those events followed–distantly–the retirement of Jose Rodriguez, who we know was in charge of CTC when the torture tapes were made and was later in charge of Clandestine Services when the torture tapes were destroyed. Rodriguez’s replacement was reported publicly on September 14 and he left on September 30.

The torture tape revelations also followed–distantly–the September 25 withdrawal of the nomination of John Rizzo to be CIA General Counsel, a function had he filled on an interim basis for some years. We know Rizzo was involved in the authorization of torture, though he claimed to be mysteriously out of the loop of 2005 discussions about whether or not to destroy the torture tapes.

Given the lapse of time between the Rodriguez retirement and the Rizzo withdrawal, it was unclear whether there was a connection.

And while it’s still unclear whether there’s a connection, it turns out the timing of CIA internal discussions about the torture tape destruction and Rodriguez’ retirement and Rizzo’s withdrawal is much closer than we knew.

The torture tapes FOIA reveals that the CIA was discussing the torture tape destruction on September 25 and October 5, 2007. It describes a Top Secret September 25, 2007 email “discussing the review and disposition of the tapes” and must have attached these earlier discussions (that’s why they were included in this Vaughn Index). And it describes a Secret October 5, 2007 email which appears to link to the earlier email approving of the destruction of the tapes. John Durham has claimed a law enforcement exemption over the latter of these two emails, suggesting that release of that email would interfere with whatever investigation of the torture tape destruction he is doing.

Again, not that there’s a connection, but CIA was linking to discussions that Rodriquez was involved in and Rizzo may have been involved in at precisely the time they effectively ended their CIA careers.

CIA Met with White House about How to Respond to Jane Harman’s Torture Warnings

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After being briefed on February 5, 2003 that the CIA had used waterboarding and intended to destroy tapes depicting that torture, Jane Harman wrote CIA General Counsel Scott Muller a letter raising concerns. Harman warned CIA they should not destroy the torture tapes, whether or not they constituted an official record.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

And she asked directly whether President Bush had bought off on torture as a policy.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In his response to her, Muller basically ignored her warning about the torture tapes. And he gave her a very indirect answer to the question that–under the National Security Act–she should have been able to get a direct answer on, whether or not Bush had signed off on the torture.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

As it turns out, Scott Muller was not acting alone when he largely blew off Harman’s concern. Document 28 of the CIA’s Vaughn Index on the torture tape destruction reveals that CIA met with the White House about its response to Harman. (There’s also a one-page draft of the letter to Harman dated February 19.) The Vaughn Index describes the second email, which has the subject “Harmon Letter,” this way:

This is a one-page email, discussing a meeting between CIA and the White House regarding the CIA’s response to a congressional inquiry. The document also includes the draft text of a letter to Congress. This document contains information relating to the sources and methods of the CIA. The document also contains predecisional, deliberative information, CIA attorney work-product, and information provided by a CIA attorney to his client in connection with the provision of legal advice.

Thus, even though Harman’s letter and Muller’s response have been declassified, the CIA is claiming that we can’t know what Muller advised (himself? Bush? Tenet? Precisely who is the CIA General Counsel’s client, here?) about how to respond to Harman’s inquiry.

So we know that the White House weighed in on how to respond to Harman. We’re just not allowed to know how they weighed in.

The CIA Asked to Destroy Torture Tapes on Same Day They Claimed They Didn’t Torture

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As William Ockham has noted, there is a new–very informative–Vaughn Index and Declaration out. I’ll have much more to say about these. But for now, look at what documents 3 and 4 from the Vaughn Index tell us about the timing of the torture tape destruction.

November 1, 2005: Bill Frist briefed on torture.

November 1, 2005: Dana Priest reveals the use of black sites in Europe. In response, CIA starts moving detainees from the countries in question.

November 3, 2005: Leonie Brinkema inquires whether govt has video or audio tapes of interrogations. CIA IG Report on Manadel al-Janabi’s death completed.

November 4, 2005: Member of Congress writes four page letter to CIA IG.

November 8, 2005: CIA requests permission to destroy torture tapes. CIA reaffirms March 2005 statement that all interrogation methods are lawful. Duncan Hunter briefed on torture. Pete Hoekstra briefed on torture.

November 9, 2005: CIA confirms destruction of torture tapes.  Doug Jehl article on spring 2004 CIA IG report on interrogation methods appears.

November 14, 2005: Govt tells Brinkema it has no audio or video tapes.

That is, the CIA requested to destroy the torture tapes in email on November 8, 2005. They confirmed the destruction on November 9. Not surprisingly, after Leonie Brinkema had asked about videotapes. But also right in the middle of debates about McCain’s Detainee Treatment Act. And note that briefing for Crazy Pete Hoekstra–but not the other Dems in Intelligence Committee leadership–on the same day that CIA started asking to destroy the torture tapes.