How a Review Gets to Grand Jury in Five Days or Less

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Update: Several people have corrected me that contextually this paragraph refers to the torture tape investigation, not the torture investigation. I think it’s still a good sign, but may not yet reflect on the torture investigation.

Although I have publicly suggested that Holder’s selection of John Durham as Special Counsel to investigate torture sets an upper limit on the seniority of those who might be targeted (because you don’t want an AUSA indicting, say, the former Acting Counsel of CIA), I did hold out one hope that Durham’s selection was a good sign. After all, Durham has already been investigating why Jose Rodriguez and others destroyed a bunch of tapes portraying the abuse of Abu Zubaydah and Rahim al-Nashiri. We know Zubaydah’s torturers exceeded the limits of the Bybee Two memo when they waterboarded him. And we know al-Nashiri’s torturers threatened him with drills.

So there was the possibility that Holder’s selection of Durham effectively amounted to an expansion of Durham’s earlier mandate, from an investigation of the destruction of evidence of abuse to an investigation of the abuse itself.

Which is why I’m so interested in a passage that Jason Leopold pointed to in the Walter Pincus story reporting that CIA will pay for CIA officers’ legal fees (the article doesn’t really say whether CIA will pay for contractors’ legal fees).

In that investigation, Durham has asked agency contractors to give testimony before a grand jury in Alexandria next month, according to three sources familiar with the matter. It is not clear that the witnesses will testify. 

Durham has been officially investigating the torture itself (as opposed to the torture tape destruction) for just four days. And his mandate is–at least officially–just a review of the earlier cases. Yet he’s already scheduling testimony before the grand jury next month?

I’m no lawyer (but bmaz is, and he agrees with me, and he’s even a bigger skeptic than I am), but there is no way Durham would be scheduling testimony before a grand jury that didn’t significantly arise from his earlier mandate. So these contractors are–at a minimum–almost certainly tied to the abuse of al-Nashiri, and might be tied to the abuse of Abu Zubayahdah.

The torture apologists are wailing that there’s no reason to reopen investigations that–they claim–were already completed by DOJ. But it appears that one reason to do just that is that CIA destroyed evidence they knew to be abusive Read more →

The Tortured Intra-Administration Squabble Continues

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The NYT has another story mapping the tensions within the White House over the torture issue (though this one, which cites Rahm directly, primarily portrays him–implausibly–as the neutral broker), this one focusing on the Holder-Panetta drama. The most interesting passage in the story, though, is this one.

At the time, Mr. Panetta felt besieged on several fronts. Mr. Blair, the intelligence director, was pushing to appoint the senior intelligence officials in each country overseas, a traditional prerogative of the C.I.A.

And other administration officials complained when the C.I.A. sent documents about the detention program to the Senate Intelligence Committee without giving the White House time to consider whether there were any executive privilege issues.

The interagency debate grew heated enough that Mr. Emanuel summoned Mr. Panetta, Mr. Blair and other officials to the White House to set down rules for what should be provided to Congress. Mr. Panetta complained that he was being chastised for excessive openness after being criticized for excessive secrecy when he pushed to withhold details from the interrogation memos.

The various issues raised by the Bush-era interrogation and detention policies have caused other tensions within the Obama team. Mr. Emanuel and others have concluded that the White House mishandled the planning for the closing of the detention center at Guantánamo Bay, Cuba.

Set aside the Blair-Panetta tension over Chiefs of Station here for the moment, which structurally in this passage is just a feint. While I’m sure the Blair-Panetta squabble over Chiefs of Station came up at the meeting, the passage focuses more closely on what CIA gave to SSCI–presumably for its extensive investigation into the torture program. This dispute was reported–as an intra-CIA squabble–back in May. And back then, Mark Hosenball reported that Panetta wanted to give full cables to SSCI, but instead compromised on giving them redacted cables.

Panetta’s instinct was to give Congress what it wanted. But undercover officers warned him that this would break with standard practice, and veteran spies worried that it would chill brainstorming between field agents and their controllers. Aiming to compromise, Panetta signaled to Congress that the CIA would turn over only redacted documents—and that it would take a long time to vet as many as 10 million pages of cable traffic.

Congressional investigators aren’t backing down, however, insisting on all of the material without deletions, including names of personnel who participated in harsh questioning, and holding subpoenas in reserve. 

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BREAKING! Karl Rove Lectures on “Hitting at US Security” During Time of War

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 You think maybe someone should tell Republicans that the guy who outed and then called Valerie Plame "Fair Game" is not their most credible person to sow pout-rage over the appointment of a special prosecutor to investigate torture?

Get Your Torture Team Trading Cards

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I said in my last post that I was going to do a post dedicated to pitching the Center for Constitutional Right’s new Torture Team trading cards [link fixed]. And here’s that post–showing off what the cards look like.

As I said in the comments to the last thread, CCR has played a critical role in protecting the Constitution over the last eight years–they were the first organization to file a habeas petition for one of the Gitmo detainees. So while you can get a small batch of these cards for free, if you can afford it, please consider paying for the complete set. (CCR originally wasn’t going to charge for these at all, but when they unveiled them at the torture panel I did with Jerry Nadler at Netroots Nation, we all thought they should charge money.)

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The Continuity of Addington’s Man-Sized Safe

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The CIA IG Report provides this narrative of the CIA’s past involvement with interrogation techniques.

In the early 1980s, a resurgence of interest in teaching interrogation techniques developed as one of several methods to foster foreign liaison relationships. Because of political sensitivities the then-Deputy Director of Central Intelligence (DDCI) forbade Agency officers from using the word "interrogation." The Agency then. developed the Human Resource Exploitation (HRE) training program designed to train foreign liaison services on interrogation techniques.

In 1984, OIG investigated allegations of misconduct on the part of two Agency officers who were involved in interrogations and the death of one individual [redacted] Following that investigation, the Agency took steps to ensure Agency personnel understood its policy on interrogations, debriefings, and human rights issues. Headquarters sent officers to brief Stations and Bases and provided cable guidance to the field.

In 1986, the Agency ended the HRE training program because of allegations of human rights abuses in Latin America.

From that point, the IG Report lays out the Directorate of Operations policy on interrogations developed in response to the HRE scandal (it is redacted in our copy), and suggests that’s where the narrative leaves off, with the CIA completely out of the business of torture since 1986.

Of course, that history didn’t quite end there. In 1991, we know, the Defense Department "discovered" that seven counterintelligence and interrogation manuals used for training in Latin American–including the one on Interrogation–still contained material that violated human rights and was derived from lesson plans developed in 1982 and used at the School of the Americas. After a nine-month investigation, DOD cited management problems for the inclusion of the inappropriate material in manuals, called for a damage assessment, and ordered that all the manuals be collected and destroyed. All the manuals, that is, except for one master copy:

For record purposes, the DoD General Counsel should retain one copy of each of the seven manuals along with a copy of this report. All other copies of the manuals and associated instructional materials, including computer disks, lesson plans, and "Project X" documents, should be destroyed.

The cover sheet showing the initialed approval of that recommendation by then-Defense Secretary Dick Cheney bears his then Special Assistant (and soon-to be DOD General Counsel) David Addington’s recommendation: "I concur."

While the CIA IG Report underplays the degree to which this knowledge remained at DOD between 1992 and 2001, that’s where we know it remained during the Clinton Administration.

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Are Bradbury’s Two 2006 OLC Opinions Still Active?

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Help me do the math on this for a second.

On April 15, 2009 (just one day before the release of them), OLC withdrew the August 1, 2002 Bybee Two memo, the May 10, 2005 Techniques memo, the May 10, 2005 Combined memo, and the May 30, 2005 CAT memo. 

On April 21, 2009, Spencer reported on the July 20, 2007 memo authorizing dietary manipulation, sleep deprivation, and four coercive techniques; SSCI reported on it officially the next day, April 22.

That memo was withdrawn on June 11, 2009.

But unless I’m mistaken, Bradbury’s two memos from August 31, 2006 remain in place (one, two). These memos authorize six conditions of confinement: blocking detainee vision, isolation, white noise, 24-hour light, shackling, and forced shaving.

While several of those are used in domestic prisons, the others–and the techniques used in combination–seem pretty transparently designed to achieve the kind of disorientation achieved by sensory deprivation even while claiming not to be doing so. The techniques, used in combination, could easily be sleep deprivation and/or stress positions in disguise. The memos claim to need these techniques precisely because these detainees are not held in real prisons, which they could be, if the CIA were not so secretive with its program. Moreover, the memos appear to be bound by the same pained logic as Bradbury’s earlier memos and indeed relys on some of the same propaganda documents in their logic. If we’re going to authorize shackles and isolation, let’s do it with a sincere concern for safety and security, not one used to pretty up a coercive philosophy that remains in place.

By all means keep these detainees in secure facilities. But let’s do so without retaining the twisted logic of the Bush Administration.

NYT: False Banality Is Not Evil

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The NYT is awed by the meticulous bureaucracy the Bush Administration imposed on its torture regime, suggesting that banality somehow makes torture right.

The first news reports this week about hundreds of pages of newly released documents on the C.I.A. program focused on aberrations in the field: threats of execution by handgun or assault by power drill; a prisoner lifted off the ground by his arms, which were tied behind his back; another detainee repeatedly knocked out with pressure applied to the carotid artery.

But the strong impression that emerges from the documents, many with long passages blacked out for secrecy, is by no means one of gung-ho operatives running wild. It is a portrait of overwhelming control exercised from C.I.A. headquarters and the Department of Justice — control Bush administration officials say was intended to ensure that the program was safe and legal.

Managers, doctors and lawyers not only set the program’s parameters but dictated every facet of a detainee’s daily routine, monitoring interrogations on an hour-by-hour basis. From their Washington offices, they obsessed over the smallest details: the number of calories a prisoner consumed daily (1,500); the number of hours he could be kept in a box (eight hours for the large box, two hours for the small one); the proper time when his enforced nudity should be ended and his clothes returned.

But the NYT has been, sadly, snookered by a spectacular–but deceptive–display of bureaucracy.

That’s true, first of all, for the same reason that the abundance of details in the CIA torture documents have always been deceptive. We’ve known since April that all the details that John Yoo put into the original Bybee memo did nothing to to ensure that those details would be followed. The details Shane and Mazzetti boast of are all requirements put into place as it became clear that that the torture program was out of control. Yet given the absence of another IG review of the torture program–or better yet, an independent assessment from an outsider–there’s no reason to believe that the two weeks training that CIA eventually required of its interrogators would guarantee that they performed the interrogations as the detailed requirements laid out. In other words, the NYT is confusing documents prescribing certain actions with actions themselves–and no one, as far as I know, has done a review to see whether the actions matched the detailed procedures laid out in documents.

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“We Will Provide, at a Later Date, an Opinion That Explains the Basis for this Conclusion”

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There’s an interesting line in the August 6, 2004 letter from Daniel Levin to John Rizzo approving the use of waterboarding with (we know from the later 2005 memos and from the short name included here) Hassan Ghul. Levin promises to send an opinion that explains the basis for his conclusion that waterboarding would be legal (albeit a close call).

We will provide, at a later date, an opinion that explains the basis for this conclusion.

That promise doesn’t appear on the July 7, 2004 letter from Jack Goldsmith approving the use of all the techniques but waterboarding (I’m not certain the letter pertains to Ghul). It doesn’t appear on the July 22, 2004 letter from John Ashcroft to John McLaughlin (then Acting DCI), approving everything but waterboarding. It doesn’t appear on the September 20, 2004 letter approving a bunch of other techniques, including water dousing.

It appears to show up only on the letter approving waterboarding. Waterboarding, and only waterboarding.

That’s mighty interesting because, in 2005, when OLC was just getting around to writing that promised opinion, CIA provided last minute information to make sure that waterboarding would be included in the March 10 Combined memo. They had to do so because CIA’s December 30 memo on combined techniques did not include waterboarding. So, with the last minute information, the Combined Memo came to argue that it was okay to waterboard someone who had been deprived of sleep. And, as Jim Comey revealed in his emails, that Combined memo was really intended to authorize treatment retroactively.

Now this doesn’t prove that the CIA waterboarded Ghul. (They claim to have decided not to because he was too obese for the technique.) Perhaps it wasn’t Ghul they waterboarded; perhaps it was someone they tortured later. We can’t ask Ghul because he remains disappeared, last seen in a Pakistani jail.

All of this is inconclusive. But Levin’s promise of a follow-up memo, combined with the urgency surrounding the memo in April 2005, suggests they really did waterboard someone. 

If so, they have been lying about it to Congress and the American people ever since.

Update: I’m still working through these–and I see that the August 26, 2004 letter from Levin to Rizzo has the same line, as well as a September 6, 2004 one that appears to relate to a different detainee. That letter discusses four new techniques that had not been used before, which showed Read more →

Was John Yoo Free-Lancing When He Approved the “Legal Principles”?

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Earlier today, I showed that there is a CIA document on the "Legal Principles" on torture that included legal justifications that had not been in any of the August 1, 2002 OLC memos authorizing torture. I showed that the document changed over time, but that when CIA asked Jack Goldsmith to "re-affirm" the Legal Principles in March 2004, he stated that he did not consider the document to be a product of OLC.

I have further inquired into the circumstances surrounding the creation of the bullet points in the spring of 2003. These inquiries have reconfirmed what I have conveyed to you before, namely, that the bullet points did not and do not represent an opinion or a statement of the views of this Office.

It seems–reading Jack Goldsmith and John Ashcroft’s objections to the CIA IG Report–that John Yoo was free-lancing when he worked with CIA on them.

In the DOJ dissent to the IG Report, Goldsmith explained that OLC disagreed with CIA’s representation of OLC’s role in drafting the Legal Principles document.

The disagreement revolves around the status of a document containing a set of bullet points outlining legal principles and entitled "Legal Principles Applicable to CIA Detention and Interrogation of Captured al-Qa’ida Personnel." The bullet points were drafted by OLC in consultation with OLC attorneys in the Spring of 2003. There is no dispute that OLC attorneys reviewed and provided comments on several drafts of the bullet points. In OGC’s view, OGC secured formal OLC concurrence in the bullet points and thus believed that the bullet points reflected a formal statement of OLC’s views of the law. OLC’s view, however, is that the bullet points–which, unlike OLC opinions, are not signed or dated–were not and are not an opinion from OLC or formal statement of views.

Goldsmith’s memo makes it clear, twice, that the work on the bullet points was the work of one OLC lawyer–John Yoo–and not the work of the department. Read more →

Ashcroft versus CIA

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When I read the CIA IG Report yesterday, I thought to myself, "Of course! They didn’t investigate all the instances when torturers exceeded the Bybee Two memo description of waterboarding because John Ascroft approved of them."

I got that from reading the following passages:

On 29 July 2003, the DCI and the General Counsel provided a detailed briefing to selected NSC Principals on CIA’s detention and interrogation efforts involving "high value detainees," to include the expanded use of EITS.28 According to a Memorandum for the Record prepared by the General Counsel following that meeting [which was dated August 5, 2003], the Attorney General confirmed that DoJ approved of the expanded use of various EITs, including multiple applications of the waterboard.29 The General Counsel said he believes everyone in attendance was aware of exactly what CIA was doing with respect to detention and interrogation, and approved of the effort.

[snip]

The Review determined that the interrogators used the waterboard on Khalid Shaykh Muhammad in a manner inconsistent with the SERE application of the waterboard and the description of the waterboard in the DoJ OLC opinion, in that the technique was used on Khalid Shaykh Muhammad a large number of times. According to the General Counsel, the Attorney General acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DoJ opinion and the authority given to CIA by that opinion. The Attorney General was informed the waterboard had been used 119 times on a single individual. [my emphasis]

But John Ashcroft disagrees with that representation, as relayed in a June 18, 2004 letter from Jack Goldsmith to George Tenet.

Dear Director Tenet:

I am writing at the Attorney General’s request concerning a report that that [sic] the Inspector General of the CIA has recently forwarded to your office. The Department of Justice did not have an opportunity to review a draft of the report and instead only had a chance to review the final report after it had been forwarded to your office.

The Department of Justice believes that the report contains some ambiguous statements concerning the Attorney General’s remarks at a 29 July 2003 meeting of selected NSC principals that should be clarified and that it contains some statements that mistakenly characterize the extent of advice provided by the Department.

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