Is John Rizzo Stalling?

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Boy, the press conference with Eric Holder today was jam-packed. In addition to using the Zazi arrest to push to renew the PATRIOT Act, Holder apparently updated reporters on the long-awaited OPR report.

The release of a long-awaited ethics report on the conduct of former Justice Department lawyers who authorized the use of harsh interrogation appears to be a ways off.

Attorney General Eric Holder said Tuesday the department is waiting for additional comments from “some of the lawyers who were involved.” The former Office of Legal Counsel lawyers under scrutiny already missed a May deadline for submitting their responses.

Speaking with reporters at Department of Justice headquarters in Washington, Holder said he expected the report to be cleared for release relatively soon. In June, he said the report, now more than four years in the making, would be ready in a “matter of weeks.”

The report explores whether legal advice in the interrogation memos, which have since been rescinded, met professional standards required of Justice Department lawyers. The Office of Professional Responsibility’s initial findings are said to be harshly critical of Jay Bybee, the former head of the Office of Legal Counsel, and John Yoo, a former deputy.

In spite of this report’s focus on Yoo and Bybee, I wonder whether they’re really the cause of the delay. After all, last we heard, the report was delayed not just because Yoo and Bradbury got a chance to review the document and work the ref, but because CIA got to review the document, even while John Rizzo, a key participant in the report, remained as Acting General Counsel at CIA.

In other words, "some of the lawyers who were involved" may not be limited to the OLC lawyers. John Rizzo was "involved" over a longer time and in as central a role as any of the OLC lawyers. He may have as much incentive as they do to delay the report.

Surprise! More Suppressed Torture Tapes

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Would it surprise you to know that the government just admitted to another torture tape, this one of Mohammed al-Qahtani’s treatment? The Obama Administration has continued the Bush Administration’s attempts to stonewall on release of this material.

The government never disclosed the existence of these tapes as exculpatory information in Mr. al Qahtani’s habeas case. CCR had filed a motion in February 2009 to compel the government to turn over exculpatory evidence in their client’s case and to hold the government in contempt for it’s “flagrant violation” of a judge’s November 2008 order to do so. Judge Thomas F. Hogan issued an order in November 2008 (amended in December 2008) requiring the government to turn over promptly any exculpatory evidence it had on the men detained at Guantánamo to their attorneys.  The government filed what was essentially a second motion for an extension of time on  January 30, 2009. Since the original filing in June 2008, the government has twice delayed its compliance with the court’s orders, engaging in what CCR attorneys described as “improper self-help by granting itself an indefinite extension of time.”

Finally, CCR and co-counsel, Sandra Babcock, filed a motion for discovery in March 2009 seeking any video tapes of Mr. al Qahtani’s interrogation and numerous other records.  After seven months of discovery disputes, the court issued the publicly-filed order today.

The videotapes the government is required to produce will reveal the time period at the end of three months of intensive solitary confinement and isolation that immediately preceded the implementation of the “First Special Interrogation Plan,” a regime of systematic torture techniques approved by former Secretary of Defense Donald Rumsfeld for use against Mr. al Qahtani.  In a letter to his superiors reporting possible abuse of men in U.S. custody, T.J. Harrington, Deputy Assistant Director, Counterterrorism Division, FBI described Mr. al Qahtani during this time as “evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reportedly hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).”

Here’s the order.

I’m wondering. Did Susan Crawford admit the government had tortured al-Qahtani because she knew these videotapes might come out?

The Total Nail Polish Remover Awareness Program, Brought to You by the Democratic Party

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tia.pngI wanted to pull together the discussion in Thursday’s PATRIOT Act Hearing regarding the use of authorities within it–particularly Section 215–in existing investigations. DiFi initiates this discussion by referring to the "biggest investigation we’ve had since 9/11" (note, contrary to my earlier post, this reference is only implicitly related to the Zazi arrest.

DiFi (47:00): My concern was that nothing we do here interfere adversely with an investigation that’s going ongoing. I happen to believe that the biggest investigation we’ve had since 9/11 is currently ongoing and do not want to do anything to disturb it. Second, I believe that finally, the intelligence in the transformation or transfiguration of the FBI is now taking hold and that we are developing an intelligence mechanism within the country that is now able to ferret out some of these proposed attacks before they might happen. And I think the arrest of Mr. Zazi is demonstration of that. It is not ended and the investigation continues on. I also believe that we continue to face the very real threat of international terrorism. There are people who would hurt us grievously if they have an opportunity to do so, so again, I think it’s vital that we not take any action, especially at this time that would hinder the government’s ability to detect, investigate, and prosecute those who are intent on killing innocent Americans. 

Note, too, DiFi’s reference to the "transfiguration" of FBI finally in place–is she suggesting that for the first time the FBI has used Total Information Awareness to support  terrorist busts?

Later, during the discussion of Durbin’s attempt to limit the use of 215 to those with some discernible tie to a terrorist suspect, DiFi claims that such changes would end several investigations.

DiFi (101:31): Secondly, the FBI does not support this amendment. And thirdly, in putting forward this higher standard, it would end several classified and critical investigations. This was one of the amendments that I submitted to you and you were gracious enough to accept it. Senator Sessions is correct. These are authorized investigations and it’s a use of the National Security Letter in an authorized investigation. So, as I said, a standard for me is that this not interfere in existing investigations, and in fact it would. 

Understand the implications of that comment. Read more →

DOJ’s DOD Advice for CIA

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I want to make another point about the Vaughn Index relating to OLC’s advice to the CIA. Document 13 and 14 (early March discussions between DOD and OLC on interrogation) have been referred to a third agency because–as DOD documents–it is not CIA’s place to decide whether to declassify them or not. Basically, DOJ is saying, "oops, these aren’t CIA documents, they’re DOD documents, so DOD needs to deal with this."

Fair enough.

But look at document 16. By date and length, we can say with some certainty that that document is the March 14, 2003 John Yoo memo for DOD (though note, the draft in the Vaughn Index is 80 pages, whereas the final is 81 pages).

DOJ does not say–as they do with the other DOD documents–that they have referred this to DOD for processing. Rather, they withhold it–with no consultation with DOD, apparently–by labeling it pre-decisional. Here’s how they describe it:

This is an 80-page draft OLC opinion to DOD consisting of draft advice regarding interrogations of alien unlawful combatants held outside the U.S., to include handwritten notations.

It appears that the reason they don’t have to refer this to DOD is because they’re withholding it for the deliberative value, and that comes–at least in part–from those hand-written notations.

Now, I find that interesting for two reasons.  First, look at Document 15. It’s a 2-page (plus fax cover sheet) memo, dated March 7, 2003, from CIA’s Office of General Counsel to OLC asking for legal advice on detainee interrogations. March 7 is the day after Khalid Sheikh Mohammed’s torture began in earnest, so it’s possible that memo pertains to KSM (though that’s just a guess). Let’s just say I find that timing interesting.

Then there’s the suggestion–based on the fact that DOJ has not referred this to DOD for processing–that the notations on the March 14 Yoo memo came from someone at CIA. Is it possible that War Council member John Rizzo was helping Yoo write the March 14 DOD memo?

The whole thing–particularly the inclusion of a number of DOD documents in a CIA-related Vaughn Index completed under Steven Bradbury–suggests that DOD was not only reverse engineering its torture for CIA, but CIA was returning the favor by providing advice to DOD as it developed its own torture regime. 

The Lead Up to Bybee

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I want to return back to the analysis of the OLC-related Vaughn Index from last week. I’d like to fill in the timeline leading up to the issuance of the Bybee Memos and identify as nearly as possible which documents were exchanged with CIA. The timeline is below, but for now, some observations:

  • There is nothing in the two-week process leading up to the release of the Bybee Memos that appears to contribute to the Bybee One memo–the one authorizing the program in the abstract. Rather, the two week process appears to consist of negotiations over the Bybee Two memo–the one authorizing waterboarding and other torture, as there are several documents exchanged during that period known to contribute to that memo.
  • Note the mix of faxed memos and memos with no apparent cover sheets (suggesting they may have been hand carried). Particularly given that the July 13 memo from Yoo to Rizzo is one of the ones without a cover sheet, I wonder whether the non-faxed letters were sent exclusively between Yoo and Rizzo, whereas the faxed documents were shared with Bybee and others at OLC (but that’s just a wildarsed guess).
  • Note the one memo–on July 19, 2002–which the CIA claims was written in anticipation of litigation. It’s interesting this one has that declaration whereas the others don’t.
  • CIA claims the Abu Zubaydah psychological profile was a draft. Is there a final somewhere? Or do they just call it a draft because they were not sure it made Abu Zubaydah look fit for torture yet?
  • There are still a lot of questions about which DOD documents were forwarded by CIA to the DoJ. It appears likely that the missing document is the first packet of information from JPRA, which is not that inflammatory (though I wonder if it described these techniques as torture?). It also appears that DOD or CIA took apart the July 26 memo from JPRA and sent it to DOJ in parts; that’s important because it appears they left off the 2-page JPRA document referring to these techniques as torture.

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Law & Order v. John Yoo

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As we’ve been discussing the threads (and as Glenn Greenwald discussed here), Law & Order last night took on torture and, specifically, the role of John Yoo and others in justifying torture. If you didn’t see it, check your local listings, because it may be on again at 8PM.

The episode was a TV show. But (as someone who wrote a 400-page dissertation on some "fictional narratives" that used factual details to intervene in current events), I particularly liked the way they used actual details from our history of torture–integrated within a narrative structure–to appeal to the emotions of viewers.

The Law & Order folks originally get the torture issue because the John Yoo figure (named Franklin in the show–he differs from Yoo in that he’s white and he’s still trying to get tenure) kills a former Abu Ghraib guard suffering from PTSD, Greg Tanner, who tried to get Franklin to help him get money and/or VA treatment for his PTSD. The implication, ultimately, is that the Franklin killed Tanner to try to prevent Tanner from revealing his role in torture. After Franklin escapes manslaughter charges through some cynical lawyering, the Law & Order team indict him for conspiracy to torture, based on his role in writing the torture memos.

Stop Now to Avoid Spoilers

The show uses the details of Manadel al-Jamadi’s murder to elicit horror about torture Americans committed. Here, Greg Tanner describes serving as a guard assisting what ended up being the murder of someone killed as al-Jamadi was.

GREG (ON MONITOR) We walked the detainee into the shower room. He was handcuffed and wearing a hood over his head. The interrogator told us to hang him by his wrists from the bars of a window. Like this, with his hands behind his back. 

[snip]

Up high, so the guy can’t kneel or sit, all his weight’s on his arms and chest. The ‘gator said the guy was an unlawful combatant and under the rules we could do whatever we want to him…We hooked him up and left him with the ‘gator. An hour later, the ‘gator called us back in, he wanted us to reposition the detainee. The detainee was slumped forward, his arms were almost out of their sockets, he wasn’t responsive. We took the hood off his head and all this blood poured out of his mouth. He was dead…those rules. Those damn rules were wrong. Read more →

Found: The OGC Review. Still Missing: Legal Plausibility.

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The other day, I pointed to an OGC review of the torture tapes conducted in December 2002.

CIA’s OGC watched the video tapes in November and December 2002, before Pavitt asked OIG to investigate the abuse of al-Nashiri (one wonders if that’s when 11-plus tapes mysteriously became blank and broken).

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. He reported that there was no deviation from the DoJ guidance or the written record.

It appears there was a formal report from this review–because Jello Jay requested it, twice, before they destroyed the torture tapes in 2005.

In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005.

So where is this report and why didn’t CIA get that in a Vaughn Index?

Ask and you shall receive! (Well, sort of.) In a declaration introduced earlier this week, CIA’s Wendy Hilton explains that Document 60 from the June 8 Vaughn Index is that review. (h/t MadDog) Here’s how she describes that document.

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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Crazy Pete Hoekstra: Obama Must Torture

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Crazy Pete Hoekstra (and his side-kick, John Shadegg) lives up to his nick-name with this op-ed today in the right wing Washington Times.

He argues that the increased fatalities in Afghanistan stem from a lack of intelligence. And from that claim, he argues that Obama has to abandon the Army Field Manual–basically, he’s calling for a return to the torture regime implemented by the Bush Administration.

For our troops to succeed and protect themselves, it is urgent that we step up our intelligence collection. Regrettably, Obama administration policies are undermining the collection of intelligence against terrorist activities worldwide, but especially in Afghanistan. 

[snip]

Despite the effectiveness of CIA interrogation of senior al Qaeda suspects, last August President Obama stripped the CIA of responsibility for such interrogations and handed it to an interagency team to be led by the FBI and monitored by the White House. This multiagency interrogation bureaucracy will be restricted to using interrogation techniques in the Army Field Manual. It is certain to be much less effective in obtaining crucial and timely intelligence needed to protect our troops. 

Hoekstra claims that Obama has contributed to low morale, citing as proof a letter written by seven guys who no longer work at CIA.

For example, the risk of being investigated and prosecuted for working on counterterrorism programs is causing CIA officers to flee from such jobs or leave the CIA entirely. This was made clear by a bipartisan Sept. 18 letter from seven former CIA directors. It noted the "distraction and devastating impact" that reopening an investigation into enhanced interrogation of al Qaeda suspects is having on "CIA morale, America’s counterterrorism efforts and our foreign intelligence partnerships." 

But wait!! See those quotation marks, implying that the CIA ex-Directors said precisely those words? Do you see those words in their actual letter?  Nope–me neither, not even searching for those words in a searchable PDF. In fact, the word "morale" doesn’t even appear in the letter.

That, Congressman Hoekstra, is called "making shit up." You can quote me on it.

And speaking of "making shit up," Hoekstra claims that Nancy Pelosi, "has accused CIA officers of being pathological liars."

Um. No. She said they did not tell her that they were in the business of waterboarding–sort of like when Crazy Pete himself complained that the CIA didn’t tell him about certain covert programs. And Porter Goss, who was in that briefing, does not disagree with Pelosi.

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JPRA’s Advice Has Gone Missing

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As I noted earlier, ACLU got a new Vaughn Index today, covering the OLC documents pertaining to CIA’s torture program.

But what ACLU really got is a long admission from Acting OLC head David Barron that OLC has lost ten or more of the documents included on a Vaughn Index provided in 2007.

And one of those documents–apparently referred to as Document 6 in both Vaughn Indices–is one of the packets of information JPRA provided to Jim Haynes and from there to OLC as back-up to the Bybee Two Memo (though note, given the date of July 25, this does not appear to be the document compiled urgently that described waterboarding).

The 2007 Index refers to the document as a 46-page document, dated July 25, 2002, providing legal advice. Yesterday’s Index refers to the document as a 59-page document, from and to the DOD, dated July 25, 2002, providing legal advice.

The page discrepancy, by itself is interesting (that is, if they don’t have the document, then how do they know that the original index listed the page numbers wrong?). 

And then there’s the fact that this document is missing. Some of these documents discussed SERE techniques as torture. In the SASC report, both Jim Haynes and John Rizzo were very squirmy about discussing how DOD advice to to OLC for CIA’s torture memos; if we had the document itself, we might be able to explain that definitively. And then there’s the possibility that someone took notes on this document.

But, if my reading of the two Vaughn Indices is correct, we can’t answer those questions. Because somehow, one of the key documents in the generation of the torture memos has just disappeared from a SCIF facility.

CIA’s Latest Vaughn Declarations, Working Thread

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The CIA has released some new Vaughn Declaration documents in the ACLU’s torture FOIA. These documents relate to its communication with the OLC;

I’m keeping half an ear on HJC’s PATRIOT Act hearing at the moment, then will need to head to the CGI event.  So I won’t be able to look at them until later. 

In the meantime, however, consider this a working thread.

Update: Here’s the Vaughn Index from 2007 that Barron discusses in his declaration.