More CIA Lies about Torture Briefings

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Time has an important story matching a claim made in Steven Bradbury’s July 20, 2007 OLC memo about Congressional briefings on torture with what the Senators themselves (particularly John McCain) say about briefing they received. The claim–which appears in the middle of a discussion about what shocks the conscience (pages 43-44)–is this:

Nevertheless, you have informed us that prior to passage of the Military Commissions Act, several Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, Director of the CIA, on the six techniques that we discuss herein and that, General Hayden explained, would likely be necessary to the CIA detention and interrogation program should the legislation be enacted. In those classified and private conversations, none of the Members expressed the view that the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate. Many of those Members thereafter were critical in ensuring the passage of the legislation, making clear through their public statements and through their votes that they believed that a CIA program along the lines General Hayden described could and should continue.

The Time article focuses closely on McCain’s objection to this representation:

A spokeswoman for McCain said that contrary to those claims, the Arizona Republican repeatedly raised objections in private meetings, including one with Hayden, about the use of sleep deprivation as an interrogation technique. "Senator McCain clearly made the case that he was opposed to unduly coercive techniques, especially when used in combination or taken too far — including sleep deprivation," says Brooke Buchanan, a spokeswoman for McCain.

Less prominent, but important given her current position as Chair of SSCI investigating–among other things–CIA’s lies about briefings, is this objection from DiFi:

In the weeks that followed, according to a person familiar with matter, California Democrat Diane Feinstein, a member of the committee, raised concerns with the CIA about use of enhanced interrogation techniques.

Now, some of the people briefed have already raised objections about the characterizations made of these briefings (for example, Feingold wrote a letter objecting to the program and later wrote objecting to Hayden’s representations of his briefings on the program). Read more →

Finder Is CIA’s Keeper In Slanted NYT Op-Ed

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As several here have noted, there is a particularly odious op-ed spinning the CIA torture innocence position in today’s New York Times by self professed novelist Joseph Finder:

Mr. Holder doesn’t seem concerned that each of these cases was exhaustively reviewed, beginning in 2005, by career prosecutors under the supervision of the United States attorney for the Eastern District of Virginia. Those men had access to the complete, unredacted report of the agency’s inspector general, an expurgated version of which was released on Monday. Yet these prosecutors recommended against criminal charges in all but one case. (That exception involved a contractor named David Passaro, who had assaulted a prisoner with a flashlight and kicked him in the groin, shortly after which the prisoner died. Mr. Passaro was convicted of assault and sentenced to eight years in prison.)

Mr. Holder’s decision, then, implies that justice wasn’t done five years ago probably because high-level officials in the George W. Bush administration put their thumbs on the scale of justice. This seems unlikely. The prosecutors in Virginia were well experienced in dealing with classified intelligence matters, as most of the federal intelligence agencies are in their district. They have a reputation for being hardheaded and unforgiving of C.I.A. transgressions.

Lacking reliable witnesses or forensic evidence, they made the only call they could have made: not to prosecute. In our nation of laws, that’s exactly the way you want government prosecutors to behave. And there is no indication that any of them has complained about being pressured to decide against criminal charges. If any new information has come out about these cases, any complaints about undue influence or any new witnesses, Mr. Holder hasn’t mentioned it. The prosecutors in this case had to abide by the Justice Department’s ruling, in August 2002, that no agency interrogator would face prosecution for exceeding the guidelines as long as he acted in “good faith” and didn’t have “the specific intent to inflict severe pain or suffering.” Not an easy distinction to make, surely, when the work you’re told to do seems to be designed precisely to inflict pain and suffering.

Fiction worthy of a novel indeed. As you may recall, it was only ten days ago we last ran into Mr. Finder doing what he apparently does best, spinning for the CIA sub-culture and Bush Administration leaders (who Finder swears is not Addington, but rather "someone who’s actually smart"). And here he is in a new and Read more →

Cheney: No, I Won’t Cooperate with a Torture Prosecutor

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Far and away, here’s my favorite exchange in the Cheney interview:

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

Wallace asks Cheney if he will speak with Durham, if asked. Cheney does not say yes. Instead, PapaDick immediately suggests he won’t cooperate with an investigation he deems as improper. 

He then takes a tack Karl Rove took in the US Attorney firings: claiming that his many public statements on the issue could substitute for an interview (or better yet, a grand jury appearance) about what role OVP had in establishing our torture regime. 

Cheney hides an obvious unwillingness to commit to cooperating with Durham behind his purported "forthrightness" about torture in the past.

Now, I’ll say more on this tomorrow in regards to DOJ’s ongoing claims that they need to suppress Cheney’s CIA Leak interview so high level White House officials will cooperate in the future. But for now, know that Cheney is already laying the groundwork to refuse to cooperate with Durham based on some claim that the investigation is improper.

Cheney’s Sophistry on Torture Investigations

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It will not surprise you to learn that PapaDick parsed wildly about what Obama has said about torture in Cheney’s defense of torture today. Five times today, Cheney claimed that Obama is "going back on his word," "his promise," that "his administration would not go back and look at or try to prosecute CIA personnel."

President Obama made the announcement some weeks ago that this would not happen, that his administration would not go back and look at or try to prosecute CIA personnel.

[snip]

We had the president of the United States, President Obama, tell us a few months ago there wouldn’t be any investigation like this, that there would not be any look back at CIA personnel who were carrying out the policies of the prior administration. Now they get a little heat from the left wing of the Democratic Party, and they’re reversing course on that. 

The president is the chief law enforcement officer in the administration. He’s now saying, well, this isn’t anything that he’s got anything to do with. He’s up on vacation on Martha’s Vineyard and his attorney general is going back and doing something that the president said some months ago he wouldn’t do. 

[snip]

Instead, they’re out there now threatening to disbar the lawyers who gave us the legal opinions, threatening contrary to what the president originally said. They’re going to go out and investigate the CIA personnel who carried out those investigations. I just think it’s an outrageous political act that will do great damage long term to our capacity to be able to have people take on difficult jobs, make difficult decisions, without having to worry about what the next administration is going to say. 

[snip]

I think if you look at the Constitution, the president of the United States is the chief law enforcement officer in the land. The attorney general’s a statutory officer. He’s a member of the cabinet. The president’s the one who bears this responsibility. And for him to say, gee, I didn’t have anything to do with it, especially after he sat in the Oval Office and said this wouldn’t happen, then Holder decides he’s going to do it.

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Dick Cheney: I’m Proud I Tortured to Protect Our Country But Not Our Allies

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One key to Dick Cheney’s defense today is the proud boast that his torture policy worked.

I guess the other thing that offends the hell out of me, frankly, Chris, is we had a track record now of eight years of defending the nation against any further mass casualty attacks from Al Qaeda.

[snip]

I’m very proud of what we did in terms of defending the nation for the last eight years successfully.

[snip]

Chris, my sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks against the United States, and giving us the intelligence we needed to go find Al Qaeda, to find their camps, to find out how they were being financed. Those interrogations were involved in the arrest of nearly all the Al Qaeda members that we were able to bring to justice. I think they were directly responsible for the fact that for eight years, we had no further mass casualty attacks against the United States. 

It was good policy. It was properly carried out. It worked very, very well.

[snip]

The thing I keep coming back to time and time again, Chris, is the fact that we’ve gone for eight years without another attack. Now, how do you explain that? 

The critics don’t have any solution for that. They can criticize our policies, our way of doing business, but the results speak for themselves.

I wonder how Jose Maria Aznar feels about Dick Cheney’s proud defense of torture? Spain’s former Prime Minister who staked much on supporting Cheney’s unpopular war in Iraq had that support rewarded with a vicious attack on Madrid’s subway. The attack happened a year after we started torturing Khalid Sheikh Mohammed. But somehow, all the torture of al Qaeda’s mastermind somehow failed to prevent the Madrid attack.

I wonder what the families of those who died in the Madrid attack think, hearing Cheney defend his torture program by boasting of eight years with no attack?

Or what do the Indonesians think to hear of Cheney’s boast? Several months after we tortured Abu Zubaydah in 2002, Indonesia suffered from its worst terrorist attack, in Bali. Yet somehow waterboarding Abu Zubaydah did little to prevent those more than 200 deaths.

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Your Daily WaPo Torture Apology Debunking

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I will say this for today’s daily installment of the WaPo torture apology. The WaPo’s two spook reporters, Walter Pincus and Joby Warrick, at least note–in paragraph 10–that having Buzzy Krongard speak for everyone at CIA might not be logically valid.

It is impossible to extrapolate from the small sample contacted by Washington Post reporters about the effect the varied inquiries are having on the thousands of agency employees, more than one-third of whom are spread around the world. But among the dozens of officials who were part of the program and either remain active or have retired, feelings run high about how the White House and the Justice Department have handled the issue. 

But they never get around to challenging Buzzy and their other sources themselves. They never point out that a lot of the whining their sources do is either transparently bogus or just plain whining. And they present numerous sources from the CIA itself debunking the cries of low morale from the torture apologists, yet still let the torture apologists dictate Pincus and Warrick’s conclusion that the torture investigation has and will devastate CIA morale.

Take the claimed worries about whether the legal advice from one Administration carries over to another one.

A much-discussed question is whether the legal reassurances of one administration carry over to its successor. "When a previous administration says something was legal, and the next says it doesn’t matter, the result is hesitancy to take on cutting-edge missions," the former senior official warned. 

I can’t count the number of times that Obama Administration officials have stated that no one who followed John Yoo’s transparently bad legal advice will be prosecuted, but here’s how Eric Holder reiterated that point in his announcement of the investigation.

Further, [the men and women in our intelligence community] need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.

Yet Pincus and Warrick simply print that complaint, without pointing out the entire premise of it is wrong.

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The WaPo Declares Itself Unable to Find the Truth

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The WaPo wants you to know that it–one of the most storied newspapers in American history–is absolutely incapable of sorting through the facts about whether Khalid Sheikh Mohammed’s torture turned him into a helpful college professor of terror.

The debate over the effectiveness of subjecting detainees to psychological and physical pressure is in some ways irresolvable, because it is impossible to know whether less coercive methods would have achieved the same result.

So, throwing up its institutional hands and declaring itself unable to find the truth, let’s look at what it does instead.

First, in a 1,400 word article written with the assistance of both of WaPo’s spook reporters, they neglect to mention that, after KSM’s most intense torture ended, the CIA started to use rapport-based interrogation with him. I guess they didn’t think that little detail–that the treatment of KSM immediately preceding the time when he was so cooperative and helpful actually adopted a different approach to interrogation–was worthy of mention.

And that is particularly remarkable considering the most detailed story of that rapport-based interrogation also includes the details about KSM’s helpful lecturing that–the WaPo now claims–have previously not been publicized. Call me crazy, but I’m betting the same CIA sources that told the NYT about how successful rapport was with KSM are among those boasting to WaPo about KSM’s little lecture circuit. But I guess the WaPo, faced with this "irresolvable" problem, doesn’t want to muddy its confusion by mentioning, even once, the use of rapport-based interrogation with KSM.

Then there’s the WaPo’s chronological muddying. It treats several different kinds of sources–the IG Report, the Pre-Eminent Source document written in the wake of and almost certainly as a response to the IG Report, and the human sources boasting of KSM’s lecture series–as if there were no temporal or reliability distinction between the them. Which means they use events that happened in 2005 and 2006, the lecture series, to reinforce claims made by a propagandistic document produced on July 13, 2004. Both of which, of course, happened long after KSM’s torture. But that doesn’t stop the WaPo from implying a causal effect between the torture and the cooperation that happened years later.

This reversal occurred after Mohammed was subjected to simulated drowning and prolonged sleep deprivation, among other harsh interrogation techniques. 

And, while we’re on chronological muddying, it bears mentioning that the WaPo doesn’t note that KSM went from capture to torture in a matter of weeks, so any claim that he was uncooperative–weighed against two years of rapport-based interrogation–is completely  bogus.

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Cheney: Torturers Can Do No Wrong

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McClatchy has a preview of tomorrow’s Cheney tirade on Fox. And in it, Cheney basically says it doesn’t matter if the torturers exceed the legal guidelines on torture.

Cheney, who strongly opposes the Obama administration’s new probe into alleged detainee abuse, was asked in the Fox News interview whether he was "OK" with interrogations that went beyond Justice’s specific legal authorization.

"I am," the former vice president replied.

"My sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks," he said. "It was good policy. It was properly carried out. It worked very, very well." [my emphasis]

Oh, okay then, let’s just do away with the law altogether, in favor of whatever policy Article II wants.

I am reminded of one of the "Legal Principles" on torture that appeared in a document hand-carried from Scott Muller to John Yoo.

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.

I’m sure Cheney and Addington had nothing to do with that "Legal Principle," not at all.

Dan Levin’s September Memo

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I have said before that Dan Levin’s September 2004 Memo is one of the most interesting documents in Monday’s entire document dump. DOJ describes the document as "OLC’s view on the previous and current guidance it provided to CIA and DOD." As the date implies, it was written some time in September, though given the underscore in place of a date, it’s not clear whether this is more than a draft or even whether it was sent. It was addressed to John Ashcroft and Jim Comey by title.

The document is important and interesting for several reasons. I suspect it reflects ongoing difficulties on the part of DOJ to recover from John Yoo’s free-lancing and generally crappy lawyering. It provides an important marker of the discussions transpiring in fall 2004 on interrogation. And it provides critical insight to the Bradbury memos from spring 2005.

Since the document is heavily redacted, I’ll recreate the entire text of the document, along with my comments below. The original text is in blockquotes with my comments interspersed.

You have asked for an update on the status of interrogation advice.

A. GENERAL ADVICE

1. Previously Given

a. The primary prior general advice was an unclassified August 1, 2002 memorandum from Jay Bybee to Judge Gonzales interpreting the torture statute. It contains discussion of a variety of matters that are not necessary to resolving any issues to date.

This refers to the Bybee One memo–the memo invoking organ failure that Jack Goldsmith had withdrawn on June 22, 2004.

Levin states that this discusses "a variety of matters that are no necessary to resolving any issues to date," which suggests that thus far, the Bybee Two memo was adequate to authorize the interrogations that Levin knew of.

2. Current/Pending

a. [one description redacted]

This redacted pending memo must describe the Levin memo to Comey completed on December 30, 2004. I find it particularly interesting that this is redacted, since the memo itself has been unclassified and available for years. This suggests that Levin, Ashcroft, and Comey may have had a shared understanding about what that memo had to do to replace the Bybee One memo–an understanding that we’re not allowed to know about. As a reminder, the December 2004 Levin memo is the one with the footnote backing off of full renunciation of the Bybee One memo.

B. CIA ADVICE

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The IG Report Chronology

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I wanted to make some observations about the chronology included in the CIA IG Report–Appendix B of the report. These are mostly just observations, so I apologize if this post is incoherent.

Three columns

First, notice that the chronology has three columns, only one of which (Events at Washington) is labeled. The other two columns appear to be organized in parallel structure to the report itself, with the High Value Detainee program–which corresponds with pages 33 though 45 in the report–in the third column, and a program that appears to be in Afghanistan and Pakistan–which corresponds with pages 46 through 77 [note–someone smart already pointed out this structure WRT the report itself–apologies for forgetting who it was]–in the center column.

The most interesting detail of the three-column structure is that it shows the capture of Khalid Sheikh Mohammed in the center column, whereas the capture of Abu Zubaydah is in the third column, suggesting a different administrative entity captured KSM than captured AZ (though KSM was transferred into that other entity immediately after being captured). 

First Column

So let’s look at the first column. The first redaction probably pertains to the Finding authorizing the program in general–I’ll come back to treatment of this after that Finding is released on Monday. It also describes CIA OGC "beginning research" on interrogation issues as early as September 2001. That suggests legal research (and no doubt refers to work done in cooperation with John Yoo and David Addington), but I wonder if OGC also started the technical research–which would put that genesis of the torture program (unsurprisingly) much earlier than the December 2001 date currently claimed.

The rest of the column–at least the unredacted bits–include four different kinds of information:

  • Policy maker deliberations (July 2002)
  • DOJ deliberations and authorizations (July 2002, August 2002, July 2003)
  • Congressional briefings (Fall 2002, February to March 2003–I’ll return to these later)
  • Management improvements (November 2002, January 2003, April 2003, June 2003, September 2003)

Of those, one very interesting detail (in addition to the redacted event in December 2002) is the repeated focus on OMS (Office of Medical Services) guidelines, which demonstrates the degree to which they used medical personnel to make this look legit. Note that the CIA doesn’t include the "Legal Principles" document in there, even though it considered that a key authorization–or so it says.

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