Wilkerson on Durham’s Investigation

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A number of you have pointed to Andy Worthington’s detailed interview with Lawrence Wilkerson. You should read the whole thing, if only to see Wilkerson tee up on Crazy Cheney.

But the part I found most interesting is this bit:

Lawrence Wilkerson: No. My wife thinks that ultimately there’s going to be something. I’m a little more cynical than she, but she’s convinced that this investigation that’s been going on [by John Durham] — very low-key, the guy’s very persistent, he’s very determined, he reminds me of [Patrick] Fitzgerald on the Valerie Plame case, and his starting point is the destruction of the videotapes, and I’m told he’s got a plan, and he’s following that plan, and I’m told that plan is bigger than I think. [my emphasis]

While I was on the record as saying Durham’s appointment probably meant the torture investigation would never go after John Yoo or John Rizzo or Addington (because it would be harder for an AUSA to go after so senior an official), I also said there’s one scenario in which Durham’s appointment could be a good sign. That’s if the evidence Durham had discovered in the torture tape investigation was part of the new information that merited reopening investigations into torture itself that–even credible people seem to think–has already been investigated.

Now, there are a few more breadcrumbs that suggest the lawyers may be as much a focus of this as the torturers. When Eric Holder announced the investigation, for example, he described the two inquiries as related and Durham’s mandate as expanded.

Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review.

Then there’s the detail that Holder decided he had to do an investigation after reading not just the torture memos and the IG Report, but also the  OPR Report.

But, then, Holder decided to take a close, personal look at the issues, and his perspective began to change. Read more →

Helgerson’s Hints

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JasonLeopold linked to two interviews with John Helgerson, who as the CIA’s former Inspector General, oversaw its investigation into torture. (Fox, Spiegel)

Helgerson and Cheney

The Fox one, perhaps predictably, focuses on Helgerson’s reported interactions with Cheney, providing a counterpoint to Jane Mayer’s portrayal of discussions between the two men as heated.

"The VP (whom I had long known reasonably well, as, in a non-IG capacity, I used to brief the House Intelligence Committee on a weekly basis when he was an active Member) received me graciously and asked a number of good and appropriate questions. Despite what you may have read elsewhere, he did not attempt in any way whatsoever to intimidate me or influence what we were finding, concluding and recommending," Helgerson wrote in an e-mail to FOX News. 

Of course, if Helgerson was briefing the committee regularly during this period, it is likely he was interacting with Addington, then a Counsel on the committee. Also at that time, one of CIA’s young lawyers, John Rizzo, was "the Agency’s focal point in dealing with the joint congressional committee investigating the Iran-Contra Affair." So, curiously, Cheney, Addington, Rizzo, and Helgerson were probably all involved with the House Intelligence Committee during the Iran-Contra issues.

Given the description he gives of his relationship with Cheney, I’m particularly interested in Helgerson’s description of how and why Cheney got a briefing.

"Only infrequently do IG reports take on such significance that they need to be briefed to the VP, and when this is the case, normally White House or NSC Counsel, or the VP’s own staff, receive the material first and then inform the VP as they see fit," he wrote.

Helgerson said that at the time the review had been completed, he and others in the spy agency briefed a number of key parties about the program and the IG’s findings. They included members of the White House, the National Security Council, Congress and the Department of Justice.

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Cheney’s Hagiographer Takes a Mulligan

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Remember how, back in April, Cheney promised that two CIA documents he requested would prove torture worked? Remember how those documents proved no such thing?

Well now Cheney’s hagiographer, Stephen Hayes, is taking a mulligan on the efficacy argument. (h/t Nan) Here, Hayes equates a few spooks’ (and presumably, given the source, Dick’s himself) attempt to cherry-pick some more documents with ACLU’s support of total transparency.

But a growing number of CIA officials–both current and former–are in agreement right now with the ACLU about some of the most-sensitive information the U.S. government has obtained in the eight-year war on terror.

But of course, unlike the ACLU, these spooks just want some documents declassified–the documents they pick and choose, and not even most of the documents the ACLU is focusing on in the FOIA Hayes mentions at the end of the document.

But now there’s a push from within the CIA to declassify and release even more information about the CIA’s enhanced interrogation program. CIA officers believe that making public additional details will end the debate over the efficacy of the program, and so they are pushing to have hundreds of pages of highly classified documents declassified and released, including a detailed response to the IG report, two internal reviews of the interrogation program undertaken by respected national security experts, and perhaps even redacted versions of the raw interrogation logs.

"Please! FOIA me!" The CIA is suddenly saying. "But don’t FOIA the approval processes. Don’t FOIA the early work involving John Yoo, John Rizzo, and David Addington. You don’t want to see those documents!! No, check out these other documents."

These aren’t the droids you’re looking for.

Heck, Hayes even reveals one of John Helgerson’s recommendations–which CIA had redacted in its entirety–to do an outside review.

In his 2004 report, Helgerson recommended bringing in an outside group to review the program. CIA director George Tenet delegated the task to the directorate of operations. Concerned about sharing details of the top secret program, officials "outside" of the interrogation program but still inside the CIA were selected to do the review. The team’s findings are known inside the agency as the "rebuttal," and they argue that the program worked even more unambiguously than the IG report suggested. 

Of course, Hayes doesn’t tell you that the head of DO, Jim Pavitt, was part of the program itself (as the IG Report itself notes).  I’m sure that didn’t have any influence on the review.

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Which 2003 Document Was Hayden Talking About?

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I’d like to return to this post, in which I tried to figure out which 2003 OLC opinion approved–according to Michael Hayden–waterboarding.

Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

We may well have found our answer in the IG Report. As I’ve been chronicling, John Yoo helped the Counterterrorism Center develop a "Legal Principles" document in 2003 that included waterboarding among permissible techniques. Scott Muller would claim Yoo’s involvement in the process constituted DOJ agreement with the principles espoused in the document. But in 2004, Jack Goldsmith asserted that the Legal Principles document, "did not and do not represent an opinion or a statement of the views" OLC. 

So it appears likely that Michael Hayden claimed that OLC had written an opinion on waterboarding that OLC claims does not constitute an opinion. If so, then the squabble between OLC and CIA over that document remains active (or at least did, as of earlier this year, when Hayden still headed the CIA).

But there’s another part of the earlier post I’d like to return to: a 2003 "secret memo" from the White House "explicitly endorsing" CIA’s use of torture.

Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

Now that we know of the "Legal Principles" document, I don’t think this is what Hayden referred to, since there was also a 2004 document and Hayden didn’t mention a 2004 OLC endorsement of torture (which is all the more remarkable, given that Daniel Levin did authorize the use of waterboarding in an August 2004 letter).

Read more →

Cheney’s Sabotage of Counter-Terrorism

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Just a day after the Brits finally prosecuted some (but not all) of the terrorists who were plotting to blow up planes with liquid explosive, a prosecutor in the case explains how the Americans almost blew the case.

Fearful for the safety of American lives, the US authorities had been getting edgy, seeking reassurance that this was not going to slip through our hands. We moved from having congenial conversations to eyeball-to-eyeball confrontations.

We thought we had managed to persuade them to hold back so we could develop new opportunities and get more evidence to present to the courts. But I was never convinced that they were content with that position. In the end, I strongly suspect that they lost their nerve and had a hand in triggering the arrest in Pakistan.

The arrest hampered our evidence-gathering and placed us in Britain under intolerable pressure.

Now, I’ve been following these accusations since August 2006, shortly after the arrests (which was, it should be said, shortly after Lamont’s primary victory over Joe Lieberman demonstrated how the Iraq War was hurting Bush and the Republicans). But the best explanation of what happened came a year ago from Ron Suskind: 

NPR: I want to talk just a little about this fascinating episode you describe in the summer of 2006, when President Bush is very anxious about some intelligence briefings that he is getting from the British. What are they telling him?

SUSKIND: In late July of 2006, the British are moving forward on a mission they’ve been–an investigation they’ve been at for a year at that point, where they’ve got a group of "plotters," so-called, in the London area that they’ve been tracking…Bush gets this briefing at the end of July of 2006, and he’s very agitated. When Blair comes at the end of the month, they talk about it and he says, "Look, I want this thing, this trap snapped shut immediately." Blair’s like, "Well, look, be patient here. What we do in Britain"–Blair describes, and this is something well known to Bush–"is we try to be more patient so they move a bit forward. These guys are not going to breathe without us knowing it. Read more →

Addington’s Direct Involvement in the Torture Memos

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As I noted yesterday, I’ve been reading old HJC hearings–including the hearing at which Daniel Levin testified about the torture memos. Levin basically testified that he was asked to resign while he was drafting what became the 2005 Bradbury memos.

Mr. DAVIS. Mr. Levin, let me begin with you and Mr. Wilkerson, and put frankly everything I have heard today in some context. And I want to pull out two particular events. The first one is the circumstances of your not being at the Department. I know that you were very careful in your answers to Chairman Nadler earlier. But let me make sure I understand you.

You didn’t voluntarily leave the Department; is that correct?

Mr. LEVIN. I would have preferred to have stayed. I mean, when I was told I wasn’t going to stay, I voluntarily left.

Mr. DAVIS. That tends to be what happens; when people who are over you tell you to go, you go. That is what in the real world is called being fired.

But he also revealed something else about what happened when he was drafting the replacements for John Yoo’s crappy memos: he had no direct contact with David Addington during the process–or anyone else in OVP.

Mr. ELLISON. Whom did you talk to in the redrafting?

Mr. LEVIN. I talked to a lot of people. As I mentioned in my opening remarks, I think one of the problems with the earlier memo was, it was not the subject of sufficiently broad collaboration and discussion.

I talked, in addition to everybody in the Office of Legal Counsel virtually, people at the Criminal Division, various other people in the Department, people at the State Department.

Mr. ELLISON. Did you talk to anybody in the Vice President’s Office?

Mr. LEVIN. I don’t believe I did talk to anybody in the Vice President’s Office. I did submit drafts to the White House Counsel’s Office, and whom they circulated it to in the White House, I don’t know.

Mr. ELLISON. Okay. Do you know if—did Mr. Addington have any input into your redraft?

Mr. LEVIN. Not directly to me. Whether he did so indirectly, I am not sure. He may have provided comments to White House Counsel that were then communicated to me as their comments. I was not ever told anything that were his comments, and he never spoke to me about it directly.

Now, that’s remarkable. Read more →

What al-Nashiri and KSM Didn’t Tell Us

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You know how we’ve been trying to figure out why PapaDick and BabyDick never claim waterboarding worked with Rahim al-Nashiri? Ali Soufan tells us what we didn’t learn from him using torture: details of his operation on the Arabian peninsula.

A third top suspected terrorist who was subjected to enhanced interrogation, in 2002, was Abd al-Rahim al-Nashiri, the man charged with plotting the 2000 bombing of the Navy destroyer Cole. I was the lead agent on a team that worked with the Yemenis to thwart a series of plots by Mr. Nashiri’s operatives in the Arabian Peninsula — including planned attacks on Western embassies. In 2004, we helped prosecute 15 of these operatives in a Yemeni court. Not a single piece of evidence that helped us apprehend or convict them came from Mr. Nashiri.

And what we didn’t learn from Khalid Sheikh Mohammed–the location of Osama bin Laden and Ayman al-Zawahiri–is even more incendiary.

Mr. Mohammed knew the location of most, if not all, of the members of Al Qaeda’s leadership council, and possibly of every covert cell around the world. One can only imagine who else we could have captured, or what attacks we might have disrupted, if Mr. Mohammed had been questioned by the experts who knew the most about him.

Some of this, btw, is almost certainly explained in Soufan’s interview with the 9/11 Commission, which has been imminently pending to be declassified since April.

So how long until PapaDick and BabyDick and their apologists start getting asked about how torture may have prevented us from finding Osama bin Laden?

Ashcroft on Waterboarding Prosecutions

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I wanted to compare John Ashcroft’s testimony last year before the House Judiciary Committee to information that has come out in the IG Report to see how his veracity held up over time. The testimony is worth reading for his claims about what he did or did not know and/or meetings he did or did not attend (which are largely couched in claims that such information would be classified anyway so he couldn’t really tell us) and for his denial of knowing how the torture that took place before August 1, 2002 was authorized (again, couched behind claims to it being classified). One of the few admissions he made about problems with OLC is his limited confirmation that he opposed John Yoo’s appointment to head OLC because he was too close to the White House.

Aside from that, the most interesting exchange is one that seems to reinforce CIA’s claim in the IG Report regarding Ashcroft’s approval of excessive uses of waterboarding on July 29, 2003 (though as I’ll show, Ashcroft’s specific statement would avoid being a lie, perhaps by design; also the terms Ashcroft uses here may explain the nature of Goldsmith’s requested corrections).

First, Maxine Waters asks Ashcroft whether he learned any information that merited investigation. After nearly committing perjury–claiming he knew of no request for an investigation–he corrects himself and answers a different question–whether he learned anything that merited prosecution.

Ms. WATERS. I want to ask about, were there ever allegations of torture or other misconduct by U.S. personnel involved in interrogations that you, Mr. Ashcroft, considered to rise to the level as to justify a criminal investigation?

I understand there has been some discussion, but I am not clear whether or not you feel that there was information that emerged in these interrogations that really did rise to that level of a criminal investigation.

Mr. ASHCROFT. I’m not aware of any interrogation process that resulted in a request or in a situation that would have given rise to a basis for prosecution for torture.

Then Waters asks about the extent of Ashcroft’s knowledge of waterboarding (this exchange is characteristic of the way Ashcroft tried to both deny remembering how he learned this information and then couch it behind claims of classification).

Ms. WATERS. Where you ever aware that U.S. personnel were indeed involved with waterboarding?

Mr. ASHCROFT. I have been aware of that.

Ms. WATERS. How did you become aware of this?

Read more →

Dan Rather, Jane Mayer, and emptywheel, NYC, September 23

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rather.jpgA number of you have already gotten notice of this event. But I’m really looking forward to it, so I wanted to pitch it here.

The Nation presents a conversation on the future of news, featuring legendary newscaster Dan Rather, investigative reporter and best-selling author Jane Mayer, pioneering blogger Marcy Wheeler, and longtime editor and publisher–now publisher emeritus–of The Nation, Victor Navasky. Hosted by Katrina vanden Heuvel.

What will the media look like in five years? The discussion will explore the shape and consequences of fundamental shifts in the media landscape. There will also be ample time for audience questions. A cocktail reception with food will follow the discussion. Take this opportunity to hear from and meet some of the most influential journalists of our time.

All proceeds benefit The Nation. Admission includes the post-show reception, a one-year subscription to The Nation, and a signed copy of The Nation Guide.

Wed, Sep 23 at 7 pm
Leonard Nimoy Thalia
$200; Members $150; Day of Show $250

It’s a lot of scratch, but for those who are in NY and have some spare change to benefit the Nation, here’s a code that will save you 50% on the tickets: RAC102

The “Legal Principles” Timeline

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I wanted to do a "Legal Principles" timeline to better understand why the document was developed and what more we might learn from it.

As a reminder, the "Legal Principles" document is a set of bullet points CIA’s Counterterrorism Center developed with the participation of John Yoo. Though the document was undated and unsigned, CIA tried to claim it counted as "DOJ agreement" an official OLC opinion authorizing key parts of their torture program.

It appears the "Legal Principles" document claimed to do three things:

  • Authorize the use of torture with other "al Qaeda" detainees, even those not described as "High Value"
  • Legally excuse crimes, potentially up to and including murder
  • Dismiss CAT’s Article 16 prohibition on cruel and inhuman treatment

As such, the document formed a critical legal fig leaf leading up to the release of the IG Report (at which point OLC clarified in writing that it was not a valid OLC opinion). I suspect the need to replace this explains some of the urgency surrounding the May 2005 OLC opinions.

John Yoo’s Original Approvals

The early approvals for torture focus largely on the torture statute to the detriment of other laws. Furthermore, the specific approval for torture–the Bybee Two memo–only covered Abu Zubaydah.

July 13, 2002: John Yoo writes Rizzo a letter outlining "what is necessary to establish the crime of torture."

August 1, 2002: Bybee memos establish organ failure standard and support necessity defense, state that interrogation would not be subject to ICC, and approve ten techniques for use with Abu Zubaydah.

Crimes Create the Need for New Approvals

It appears that the deaths in custody in November and December 2002 may have been the impetus for the "Legal Principles," in which case they can be understood as a way to dismiss crimes–including murder–committed on detainees.

November, December 2002: Deaths in CIA custody, (probably) abuse of al-Nashiri.

December 2002: Scott Muller meets with OLC (and Criminal Division) and briefed them on scope and breadth of program.  

April 28, 2003: Muller has draft of Legal Principles hand-carried to John Yoo. It states:

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

CIA Delivers "Legal Principles" to Philbin as Final Document after Yoo Leaves

In 2003, John Yoo left the OLC, which appears to have created legal exposure for CIA because they had the understanding that his authorizations were carte blanche authorizations. CIA tried to deal with this by presenting Yoo’s carte blanche to his replacement, Pat Philbin, as a fait accompli.

Read more →