Condi’s Response to Tenet’s Request for a Review of Torture

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Earlier this year, WilliamOckham found a document that appears to be George Tenet’s request of Condi–on June 4, 2004–for reiteration of approval of torture and/or a White House document endorsing the torture policy (click through to the post to see WO’s outline of the false information Tenet included in that document).

The ACLU has received Condi’s response, sent a week later. (h/t MadDog) The summary of the response describes the document as “Memorandum from Condoleezza Rice … regarding review of CIA’s Interrogation Program.” Condi appears to be putting Tenet off on DOJ.

I have reviewed your memorandum to me of June 4, 2004. As we have already discussed, the next logical step is for the Attorney General to complete the relevant legal analysis now in preparation. Once this work is completed and you have returned from your current travel, we can convene a Principals Committee meeting on this subject. In the interim, I will contact Attorney General Ashcroft to underscore the priority we attach to completing expeditiously the Department of Justice’s legal analysis. I also encourage you to carry through on your expressed intention of talking to the Attorney General directly on this subject before any Principals Committee meeting.

Now, the document is interesting when read against the background of reports that–at precisely this time–Tenet requested a document from the White House endorsing torture as a policy. That is, Condi’s response to Tenet’s request for a document from President Bush might have been to pawn Tenet off on DOJ.

With that in mind look at how these two documents–and Condi’s instruction that DOJ would have to review the torture program next–fit into the timeline of debate between DOJ and CIA.

June 3, 2004: Tenet announces his resignation; John McLaughlin resigns as well. SOUTHCOM Commander James Hill traces source of abusive techniques used on al-Qahtani to SERE training.

June 2004: (After announcing his resignation) Tenet requests more explicit approval water-boarding.

June 4, 2004: Tenet requests review from Condi.

June 7, 2004: WSJ refers to March 2003 OLC opinion.

June 8, 2004: WaPo reports on details of Bybee Memo.

June 10, 2004: Goldsmith tells Muller that the Legal Principles are not an opinion of OLC, demands any more request for opinions to be in writing.

June 11, 2004: Condi responds to Tenet’s request for review (Tenet receives this on June 14).

June 15, 2004: Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns. This effectively leaves the CIA with no legal protection for the water-boarding it had already done.

June 17, 2004: Jack Goldsmith announces his resignation.

June 18, 2004: Goldsmith writes Tenet telling him the IG Report mis-represents Ashcroft’s statements.

June 22, 2004: In an off-the-record briefing, Comey, Goldsmith, and Philbin renounce Bybee Memo. Rizzo sends Philbin copy of earlier approval from Yoo. Muller responds to Goldsmith saying he had forwarded the complaints to John Helgerson, but would release the IG Report that week.

No wonder things were getting so testy between CIA and DOJ. (It may also explain why Goldsmith only withdrew the Bybee One memo, and not the Bybee Two memo.)

Does Cheney’s CYA Document Include False Justifications for Torture?

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As MadDog noted, Judicial Watch has succeeded in getting two more copies of Cheney’s CYA document liberated. There now are three versions of this same document:

  • June 1, 2005 (the date suggests this is the version Cheney requested from the Archives)
  • June 3, 2005 (this was the document released in August’s document dump)
  • July 12, 2005 (this is the second Judicial Watch document)

Judicial Watch explains this as the one notable difference:

Notably, the June 1, 2005 report concludes that “Detainee reporting accounts for more than half of all HUMINT reporting on al-Qa’ida since the program began…” This fact is missing from the other two later reports.

That’s not entirely correct. Page 13 of the June 3 version has a graphic (also included in the June 1 version, but not the July 12 one) showing just that–that 3,800 of 6,600 reports came from detainees [all page references in this post are to PDF pages]. But there are other differences–differences which may suggest the June 1 version was targeted towards keeping the CIA torture program intact.

Other noticeable differences include:

  • The June 1 version is classified Top Secret; the others are Secret.
  • The June 1 version has three redacted paragraphs (page 3), and states, “Detainees typically are uncooperative early in their detention and often pass incomplete or intentionally misleading information” instead of “Detainees have been known to pass incomplete or intentionally misleading information.”
  • The June 1 version includes what appears to be a turf war comment (page 5) reading:

This paper focuses primarily on reporting from al-Qa’ida detainees held in CIA custody. [several lines redacted] we control the questions being asked and can pursue gaps and inconsistencies in reporting promptly.

  • The June 1 report either lacks–or entirely redacts–the passage on Ghailani that appears on page 10 of the June 3 report. (The June 3 report appears to have further redactions here, too.)
  • Read more →

Justice Denied: Voices from Gitmo

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ACLU just put together a video of some of the detainees who mistakenly ended up at Gitmo. The whole video is quite good–but these two lines should be read by all Americans.

Moazzam Begg: My experience of America prior to this was everything that I had seen in the films… the concept of the good guys, the concept of people trying to do the right thing…and, that was shattered.

Omar Deghayes: I want the people themselves, humans, the people in America, good people which I met many of, to realize how in their names those ugly people have done to others.

Ali Soufan Claims He Had Success with Ramzi Bin al-Shibh, Too

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While I’ve been taking my sweet time getting around to the ACLU document dump from Friday, Adam Serwer has been picking up the slack. Check out these posts on the FBI’s approach to torture here and here.

One of the things included in the document dump is a re-release of DOJ’s IG Report on torture, with some new disclosures. Of particular interest are details about Ali Soufan’s (recall the IG Report refers to him by the pseudonym Thomas) brief participation in the interrogation of Ramzi bin al-Shibh.

According to the, [sic] Assistant Chief for the FBI’s Counterterrorism Operational Response Team (CTORS), he and several agents, including Thomas, traveled to a CIA-controlled facility to conduct a joint interview of Binalshibh [redacted] with the CIA. The Assistant Chief said that the detainees were manacled to the ceiling and subjected to blaring music around the clock. He said the FBI agents worked with the CIA in developing questions for Binalshibh, but were denied direct access to him for 4 or 5 days, until Thomas was given 45 minutes with him. Thomas stated that Binalshibh was naked and chained to the floor when Thomas was given access to him. Thomas told the OIG that he obtained valuable actionable intelligence in a short time but that the CIA quickly shut down the interview. According to the notes of FBI General Counsel Valerie Caproni, Deputy Assistant Director T.J. Harrington told her that the FBI agents who went to the CIA site saw Binalshibh [redacted].

I’m interested in this revelation for two reasons. First, if Soufan’s claims are correct then it shows that the FBI repeatedly got intelligence the CIA was unable to get–and that the CIA, on at least two occasions, shut down the FBI access when they were succeeding.

But I’m also interested because the National Archives has been in the process of declassifying Soufan’s interview with the 9/11 Commission since April. Some agency appears to be sitting on it.

Among the thing Soufan said in that interview is that the FBI’s Khalid Sheikh Mohammed expert was unable to interview KSM. But I wonder how many more details like this were in his interview?

Torture Tape Destruction Accountability: How It Is Done

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images5thumbnail1.thumbnail1When the government possesses videotape evidence of the torture of subjects under its dominion and control, there is only one reason to destroy the tapes. That reason is not because they possess no evidentiary value; in fact it is the direct opposite, it is because they are smoking guns. Videotapes are definitive for one of the two sides; they either prove the subject was tortured, or they prove that he was not.

Either way, videotapes of detainee treatment are of paramount evidentiary value where there are allegations of torture. It would be insane to argue that such tapes have “no possible evidentiary value”; yet that is exactly what the United States government has officially claimed as their rationale with respect to the infamous destruction of the “torture tapes” depicting the treatment of detainees Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes were wantonly destroyed by the CIA in 2005, news of the destruction became public via a December 6, 2007 article in the New York Times and the DOJ specially assigned a prosecutor, John Durham, at the end of December 2007.

In the nearly two years that have elapsed since the appointment of Durham, he and the crack US Department of Justice have apparently not been able to find anything wrong with the destruction of the torture tapes. But, once again, US Federal courts have demonstrated the dithering perfidy of the Executive Branch, whether it be that of George W. Bush or, in many key Constitutional respects, his clone, Barack Obama.

From the Kansas City Star:

A Missouri prison inmate claims he was restrained for 17 hours without breaks to get a drink of water or use the bathroom.

But videotape that could prove or disprove Darrin Scott Walker’s allegations of abuse cannot be found.

And a federal judge this week concluded that prison officials intentionally destroyed the tape “in a manner indicating a desire to suppress the truth.”

U.S. District Judge Richard Dorr made the ruling in a lawsuit Walker filed alleging that he was subjected to cruel and unusual punishment.

The case is Darrin Scott Walker v. Michael Bowersox, and is filed in the Western District of Missouri (WDMO) in Case No. 05-3001-CV-S-RED. Here is a copy of Judge Dorr’s Order.

First off, it should be noted that as bad as the alleged torture of Walker is, it is nowhere near the the sadistic and egregious conduct performed upon Zubayduh and al-Nashiri. Secondly, in Walker, the court was confronted with a tape that was “lost”, maybe taped over. In the cases of Zubayduh and al-Nashiri, the US government, with malice aforethought, wantonly and intentionally physically destroyed the evidence; light years worse conduct than that in Walker. Yet Judge Dorr blistered the state for its acts in destruction of evidence:

For all of the following reasons, this Court agrees with Walker that the videotape was intentionally destroyed in a manner indicating a desire to suppress the truth. The prison had adopted a policy that required episodes on the restraint bench be videotaped. The Defendants offered no explanation of what happened to the tape, other than the fact the tape could have been taped over, which indicates intentional destruction. The videotape was delivered to a responsible person for safekeeping by people who believed the videotape should have been kept in case of litigation. The Defendants were on notice to keep the videotape because prison officials knew Walker was considering a lawsuit the night of the incident. Lastly, the loss or taping over of the videotape was not a first time incident.

You have to wonder what Judge Dorr would think of the acts of Jose Rodriquez, the CIA and the highest levels of authority in the Executive Branch in destroying the “torture tapes” if this was his opinion in Walker. Dorr went on to hold that there should be a presumption that the destroyed tape was negative to the interests of the government in Walker and cited strong authority for said holding.

The Walker v, Bowersox case, and the strong foundation it is based on, just adds to the curiosity of the lack of ability of John Durham to find addressable conduct in the case of the torture tapes. Granted, one is a civil rights lawsuit, and one is a criminal investigation for obstruction, but the theory of culpability is the same.

Hey John Durham, where are you and what say you? Or are we just going to be peddled a bunch of Bull by Durham?

The CIA’s Fifth Lie?

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As I suggested in comments the other day, I suspect that the fifth lie that HPSCI referred to the other day is one fired CIA officer Mary McCarthy reported–when, at an HPSCI hearing in February 2005, under questioning from Jane Harman, someone from the CIA lied about detainee treatment.

While we don’t know what the substance of Harman’s questions were, this lie was reported in a 2006 WaPo story.

In addition to CIA misrepresentations at the session last summer, [Mary] McCarthy told the friends, a senior agency official failed to provide a full account of the CIA’s detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (Calif.), the senior Democrat.

Jan Schakowsky–who is in charge of HPSCI’s investigation–spoke at a reception I attended tonight. While I didn’t ask her whether this lie was the fifth lie the committee referred to, I did ask her whether this lie was in the scope of her subcommittee’s investigation.

She responded that detainee treatment was one of the things the committee was investigating (as is clear from its reference to the lie to Pelosi in 2002), though did not confirm or deny whether that 2005 lie was the fifth referred to the other day.

Which I guess tells us the February 2005 is one possibility among many other lies CIA may have told.

The CIA’s Five Lies

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As a number of you have pointed out, the House Intelligence Committee have revealed preliminary results of its investigations into the CIA’s lies and found–wait for it–the CIA lies.

In a hearing of the House Intelligence committee this afternoon, Reps. Anna Eshoo and Jan Schakowsky, both Democrats, pointed to at least five instances going back to at least 2001 in which the C.I.A. withheld information from or lied to Congress.

Those five lies are:

  1. Lies about torture (to Pelosi)
  2. The assassination program that started this probe
  3. The Peruvian plane shoot-down that got Crazy Pete Hoekstra on board
  4. The destruction of the torture tapes
  5. ???

So, first of all, I’m wondering where number 5 is–I’ll follow up tomorrow on that. Was this hearing designed to let CIA know that HPSCI was going to reveal number 5, or did they do so today?

But I’m interested in the inclusion of the torture tape destruction. Is HPSCI asserting that CIA lied about the desruction of the tapes … which would imply that the Committee asked about it in the first place? (I’ll remind you that when the tapes were destroyed, Jane Harman was still on the committee making a stink about the CIA’s other lies about torture)? Or is the Committee just including the torture tape destruction as one misrepresentation among others?

Update: Here’s how The Hill describes it (and they, too, list just four lies).

In addition, the CIA may have failed to properly notify Congress about the 2005 destruction of videotapes recording the interrogation of al Qaeda operatives by intelligence officials, Eshoo and Schakowsky said.

What If Trials Prove Torture Wasn’t Necessary?

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Cynthia Kouril and Adam Serwer and both have really good smackdowns of Mukasey’s op-ed against civilian trials. Cynthia writes,

The thing that bothers me most about this article though, comes near the end:

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

This twisted notion that we would only observe our own laws, our own Constitution, our own Enlightenment Age ideals—if there was something in it for us, if we could somehow profit by it— appalls me.

NO, No, no, no, no. We observe our own laws, we follow our own constitution, we hew to our own Founding Father’s ideals, because it is the RIGHT THING TO DO.

And Adam, responding as well to Michael Isikoff’s report that 25 detainees will soon be shipped to the US for trial, speculates,

I’m skeptical that the Classified Information Procedures Act, the statute governing the disclosure of classified information in federal court, is inadequate to prevent whatever national security information might be disclosed in any of these trials. But remember, if you look at the more declassified version of the 2006 CIA Inspector General’s report that was recently released, there are 24 straight pages of redacted information describing what was done to KSM. If you’re wondering what Mukasey and the others are worried about a civilian trial disclosing, it’s a good bet that some of it is probably in there.

Perhaps, Adam argues, Mukasey (and Lindsey Graham and John McCain) don’t want civilian trials because they would provide Khalid Sheikh Mohammed opportunity to detail the torture done to him.

There’s one other possibility, though.

If DOJ decides KSM can get a civilian trial, that means there’s enough information to try him and his alleged co-conspirators independent of any evidence tainted by torture. It means the government learned sufficient information about the 9/11 plot via people they did not torture, pocket litter, or in sessions that they believe they can segregate off from the torture they did to KSM.

And that–along with what will surely be extensive litigation about what is admissible–will make it clear how much information was available via means other than torture.

Granted, they’ll be trying KSM just for 9/11 and not, presumably, for the Liberty Tower Plot (though they have information about that, too, via other sources than KSM). But a civilian trial will expose some of what was available without using torture.

And that may be why the apologists are afraid of civilian trials.

What Did Dick Give Judy to Go Pro-Torture?

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Judy Miller must think she’s smarter than Susan Crawford. Crawford, after all, while still convening authority for military commissions in Gitmo, admitted that Mohammed al-Qahtani had been tortured. And by that, she was referring to the treatment that started in November 2002, nine months after Gitmo opened; she was talking about conduct that was ultimately approved in large part by Rummy.

Susan Crawford ought to know, and she says we tortured Qahtani.

But Judy Miller now says we didn’t torture at Gitmo–and any abuse occurred in the first four months after Gitmo was opened–in May 2002 and earlier. (h/t fatster)

“Even though this hasn’t been true for many, many years now,” she explained. “No one was ever waterboarded at Guantanamo, according to Guantanamo officials,” Miller continued. “Torture as ordinary people would call it took place only during four months when it first opened…like sleep deprivation, being doused with ice cold water…things that don’t meet current standards.”

What’s particularly interesting about this opinion from someone whose opinion no one much heeds anymore is that she had a different take on Gitmo back in May.

Joel, I’m sorry, but I was actually in a jail with — one floor away — from Zacarias Moussaoui. … We know how to do this. Believe me, we can do it. The issue is, is it politically acceptable to the American people? That we’re not sure about.

Back in May (just a month after Judy admitted she had a hard time reading the torture memos her buddy Dick had conjured up), she said we know how to close Gitmo. But back in September, Judy said we had to have Gitmo or a place like it.

While the administration ponders the detainees’ legal fate, it seems pointless to spend more money and energy moving them to “Gitmo North” — maximum-security prisons in the United States where they may be far more harshly treated.

It’s time for the Obama administration to acknowledge that Gitmo, or another center like it, will be needed as long as the war on terrorism — no matter what our commander in chief calls it — endures.

Now, I never really expected intellectual consistency from Judy Miller. But I do find it interesting that she’s hitting the airwaves at the moment making claims that are transparently untrue.

Sort of makes you wonder who’s behind her new opinions about Gitmo, doesn’t it?

Little Legal Recourse For Artists’ Rage Against Musical Torture

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One of the obvious questions from the announcement of the musicians Rage Against Musical Torture, and one that several people have been asking, is what avenues of legal recourse do the musicians have? It turns out remarkably few, if any.

A look at the recent case of Jackson Browne v. John McCain demonstrates why. Here is a link to the complaint in Browne v. McCain; as you can tell, Plaintiff Browne pled four causes of action for the wrongful use of his music. The four counts are copyright infringement, vicarious copyright infringement, violation of the Lanham Act and violation of state law (California) right to publicity. (You can see the court’s rulings upholding the viability of these counts at the links provided here).

The lead count of copyright infringement is based upon 17 USC 501 et seq. The specific triggering conduct is delineated in 17 USC 106-122. Unlike in Browne, there really is no provision of the applicable law that comes into play. In Browne, there was an appropriation for use in a campaign commercial, that was broadcast on television and the internet, and the conduct happened in the United States; none of that is the case, unfortunately, for the musicians here. There was no “commercial use”, there was no “secondary broadcast”, and the putative conduct did not occur within the United States.

The key here is the nature of the use. As horrid as the conduct of using the artists’ music for torture is, there is no evidence that the governmental actors, whether soldiers, CIA or contractors, obtained the music illegally. Furthermore, there is no evidence that they used the music for a “commercial purpose”. It was not broadcast, nor was it played in a public setting; there is legally little to nothing to distinguish what was done from a person playing his boom box or stereo too loud in his apartment building. In short, there does not seem to be a “copyright infringement”. The same rationale explains why there is no apparent RIAA violation. Also, since there was no cognizable copyright violation, there was no “vicarious copyright infringement” as was present in Browne.

The next common count to proceed in these situations is via the “Lanham Act“. Here, again, the facts simply do not truly reach the scope of the claim. There is no legal basis for asserting that the restricted use made of the artists’ music would create confusion or imply that the artists approved of the torture; and, again, the conduct was not done in a public setting or Read more →