Reposted: The CIA IG Report’s “Other” Contents

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(Today is CIA IG Report day. While we wait, I’m re-posting two posts I did in June describing what we already know is in the report.)

In this post, I reviewed the known contents of the CIA IG Report’s 6-page section on torture for those who seem to forget we’ve seen substantive bits from that in the Bradbury memos. In this post, I’ll look at what else shows up in the Bradbury memos. In a follow-up post, I’ll look at what IG Report contents we haven’t seen (and therefore are all but guaranteed not to see).

From what we can reconstruct, the report appears to include the following:

  • Intro and summary
  • A history of CIA’s involvement in torture
  • A description of the development of the torture techniques as if they were developed for use for Abu Zubaydah
  • A review of the legal authorization for the program, with the critique that doctors were not involved in the pre-authorization review and, probably, a description of the ways that torture as practiced exceeded the guidelines included in Bybee Two 
  • An erroneous claim that everyone who should have been briefed was briefed
  • Apparently a general review of how the program was implemented, including a description of the close involvement of medical personnel, and a description of what was done to which High Value Detainees
  • A description of the decision to videotape and apparent reviews of what a review of the videotapes and cables revealed about whether the torture was what it was claimed to be
  • Forty pages of completely redacted material
  • The Effectiveness section
  • A policy section that notes that the program includes many of the same techniques as the State Department qualifies as abusive
  • Three pages of recommendations
  • A number of Appendices–the CIA appears to be hiding the very existence of about five of these and most of the contents of the rest of them

While I couldn’t begin to guess what that 40 page completely redacted section includes, the stuff that has been made available show the IG was concerned about waterboarding (for a variety of reasons), believed the program to constitute the same kind of abuses the State Department condemned, and believed the approval process for the torture techniques (the Bybee Two memo) was inadequate.

Read the rest of the entry to see the more specific details of the program.

Read more →

Reposted: The CIA IG Report on the Inefficacy of Torture

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(Today is CIA IG Report day. While we wait, I’m re-posting two posts I did in June describing what we already know is in the report.)

Much of the focus on the now-delayed but upcoming release of the CIA IG Report on torture has been on whether the six page section on "Effectiveness"–the section that most challenges Dick Cheney’s claims–would be released.

What people seem to be oblivious to, however, is that much of this section has already been released–in two of the Bradbury Memos declassified in April. I first reported on the IG Report’s comments about efficacy here and a week later, McClatchy did effectively the same report. I’ve replicated the section describing the page-by-page contents, as revealed by the Bradbury memos, below. But here’s basically what the IG Report appears to have concluded about torture’s inefficacy.

  • It could not be conclusively determined whether or not torture had prevented any attacks
  • There is limited data on whether torture is effective or not
  • Torture leads to an increased number of intelligence reports–it’s not clear whether the IG Report comments on the quality of those reports
  • But you can’t learn everything form one detainee–even someone like Khalid Sheikh Mohammed; the information from more minor figures is important to challenge High Value Detainees
  • The CIA waterboarded Abu Zubaydah and KSM a whole bunch of times

Note that last bullet: the report on the sheer number of times AZ and KSM were waterboarded shows up in the section on efficacy–suggesting that the number itself says something about the inefficacy of the technique.

So that’s it–that’s much what the Effectiveness section will show. And given the stinginess of the CIA of late, I expect we might just get exactly what was revealed in the Bradbury memos, and nothing more, once the IG Report is actually released.

I’m actually more interested in some other sections of the IG Report–which we also know of thanks to Steven Bradbury. But I’ll explain those in a follow-up post.

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Is DOJ Withholding the OPR Report Tomorrow to Frame a White-Wash Investigation?

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MadDog pointed to this passage in NYT’s story on the new revelations from the CIA IG report.

Besides the inspector general’s report, other documents expected to be released Monday are a 2007 Justice Department memo reauthorizing the C.I.A.’s “enhanced” interrogation techniques, documents that former Vice President Dick Cheney has said provide evidence that the interrogation methods produced valuable information about Al Qaeda; and Justice Department memos from 2006 concerning conditions of confinement in C.I.A. jails.

Best as I can tell, these are:

2007 Justice Department memo: The OLC memo Spencer was the first to report. From his Windy report:

As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program.

2006 Justice Department memos: The SSCI Narrative describes these to be interpretations of the DTA and the Hamdan decision.

In June 2006, in Hamdan v. Rumsfeld, the Supreme Court held that Common Article 3 of the Geneva Convention applied to the conflict with Al-Qa’ida, contrary to the position previously adopted by the President. Common Article 3 of the Geneva Conventions requires that detainees “shall in all circumstances be treated humanely,” and prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment” and “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” At the time of the Hamdan decision, the War Crimes Act defined the term “war crime” to include “a violation of Common Article 3.”

In August 2006, OLC issued two documents considering the legality of the conditions of confinement in CIA facilities. One of the documents was an opinion interpreting the Detainee Treatment Act; the other document was a letter interpreting Common Article 3 of the Geneva Conventions, as enforced by the War Crimes Act. These documents included consideration of U.S. constitutional law and the legal decisions of international tribunals and other countries.

Cheney’s documents: Reporting elsewhere suggests this will include more than just the two documents Cheney requested, but a few others. Read more →

Will the Release of SpecialOps Detainee Names to ICRC End our Policy of Disappearances?

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My guess is no–my guess is that we’ve got disappeared detainees floating on some carrier somewhere. But this is important, but small, progress.

In a reversal of Pentagon policy, the military for the first time is notifying the International Committee of the Red Cross of the identities of militants who were being held in secret at a camp in Iraq and another in Afghanistan run by United States Special Operations forces, according to three military officials.

[snip]

The new Pentagon policy on detainees took effect this month with no public announcement from the military or the Red Cross. It represents another shift in detention policy by the Obama administration, which has already vowed to close the American military prison at Guantánamo Bay, Cuba, by next year and is conducting major reviews of the government’s procedures for interrogating and detaining militants.

[snip]

Under Pentagon rules, detainees at the Special Operations camps can be held for up to two weeks. Formerly, the military at that point had to release a detainee; transfer him to a long-term prison in Iraq or Afghanistan, to which the Red Cross has broad access; or seek one-week renewable extensions from Defense Secretary Robert M. Gates or his representative.

Under the new policy, the military must notify the Red Cross of the detainees’ names and identification numbers within two weeks of capture, a notification that before happened only after a detainee was transferred to a long-term prison. The option to seek custody extensions has been eliminated, a senior Pentagon official said.

 And credit to General Petraeus, who seems to have brought this approach from Iraq to Afghanistan.

There are still a lot of problems here. It sounds like ICRC gets the names and ID numbers of detainees, but not yet the access to talk to them. If so, then there is still not an outside monitor on detainee conditions. So the Breedlove review of the Special Operations prisons–described in the article–can’t be assumed to truly reflect the conditions in the prisons. And if the ICRC doesn’t get access, it still means we’re flouting the Geneva Conventions. 

But if we could be sure we were getting out of the disappearances business that would be small progress.

Hiding al-Nashiri’s Torture

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Less than a month after the NYT first revealed the CIA had destroyed torture tapes, I suggested that Doug Jehl’s November 9, 2005 story may have been the precipitating factor that led the CIA to destroy the torture tapes.

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The agency said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." It reaffirmed that statement on Tuesday, but would not comment on any classified report issued by Mr. Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law.

The officials who described the report said it discussed particular techniques used by the C.I.A. against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world. They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the C.I.A. since he was captured in March 2003. Read more →

Intimidating the Defense Attorneys

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It was bad enough that the Bush Administration did away with attorney-client privilege via their warrantless wiretap program. Now the Obama Administration appears to be trying to intimidate lawyers defending Gitmo detainees by threatening them with prosecution for trying to ascertain the identities of those involved in abusing their clients.

The Justice Department recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees charged with organizing the Sept. 11, 2001, attacks, according to sources familiar with the investigation.

Investigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs, the sources said. The lawyers were apparently attempting to identify CIA officers and contractors involved in the agency’s interrogation of al-Qaeda suspects in facilities outside the United States, where the agency employed harsh techniques.

If detainees at the U.S. military prison in Cuba are tried, either in federal court or by a military commission, defense lawyers are expected to attempt to call CIA personnel to testify.

This seems akin to me with the practice of refusing to tell defense attorneys what was done to their clients, including withholding Abu Zubaydah’s own diary.

But for a more informed take on what’s going on, check out this Bill Leonard post (remember, he used to head ISOO, the organization in charge of the federal security classification and after the AIPAC defendants won the right to call him to testify, the government case against the defendants fell apart). 

With the above as background, it is useful to look at the facts as reported in the WaPost article and assess exactly what the government is trying to do with the critical national security tool of classification. First of all, the classified nature of an intelligence officer’s cover is not sacrosanct. For example, earlier this year Andrew Warren was identified as the CIA Station Chief in Algeria when he was charged with drugging and sexually assaulting two women.

The ready disclosure by the government of Warren’s identity brings up an important provision of Executive Order 12958, as amended, which governs the classification of national security information and which is thus instrumental in investigating any alleged illegal disclosure of classified information. Section 1.7(a) of the order states that "In no case shall information be classified in order to: (1) conceal violations of law…". Read more →

The Errors of Telling of Leon Panetta’s Error

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By my count there are 27 paragraphs in the Daily Beast’s breathless attempt to un-ring Leon Panetta’s bell for him–to tell a story in which Panetta’s revelation that the CIA had an assassination program it had not briefed Congress on was all a big misunderstanding. It takes novelist Joseph Finder, who wrote this story, until paragraph 23 to reveal the context of HPSCI’s reaction to Panetta’s briefing on the program that hadn’t previously been briefed.

More seriously, this controversy has given ammunition to congressional efforts to broaden CIA briefings. Instead of allowing the CIA to limit disclosure of the most sensitive, most highly classified stuff to just the “Gang of Eight”—the leaders of those committees and of the House and Senate—they want to require the CIA to brief the full membership of the intelligence committees.

Somehow, Finder neglects to provide his readers that information where it chronologically makes sense–between the time Panetta briefed Congress on June 24 …

On June 23, in the course of a routine briefing by the head of the National Counterterrorism Center, Panetta first learned about the assassination squads. Alarmed, he terminated the program at once and called the chairman of the House Intelligence Committee, Rep. Silvestre Reyes (D-TX). He told Reyes he’d discovered something of grave concern, and requested an urgent briefing for the House and Senate intelligence committees as soon as possible. Less than 24 hours later, he was on the Hill, "with his hair on fire," as a Republican member of the House committee put it. “The whole committee was stunned,” said Rep. Anna G. Eshoo (D-CA).

And when he describes them leaking the letter and turning this into a big stink.

Afterward, seven Democratic members of the House Intelligence Committee sent Panetta an indignant letter: “Recently you testified that you have determined that top CIA officials have concealed significant actions from all members of Congress, and misled members for a number of years from 2001 to this week," the Democratic lawmakers wrote. They demanded he “correct” his statement back in May that the CIA does not mislead Congress.

Ten days later, one of them leaked the letter.

That is, Finder totally neglects to mention the full chronology, which looks something like this:

June 24: Panetta’s briefing on this program

June 26: HPSCI passes a funding authorization report expanding the Gang of Eight briefings

Read more →

NYT Neglects to Mention Foggo and the Torture Tapes

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There’s a keystone to understanding the story from David Johnston (who frequently regurgitates highly motivated leaks) and Mark Mazzetti (CIA’s guy at NYT) on Dusty Foggo’s role in setting up the black sites run by the CIA: Foggo’s testimony in the torture tape investigation. Early this year, remember, DOJ and CIA told the ACLU that they couldn’t FOIA information pertaining to the disappearing torture tapes because John Durham’s investigation of their destruction was ongoing and would be for perhaps two more months.

And then, just as Dusty Foggo was about to go to jail, John Durham said he needed to interview Foggo. And since then, as far as we know, Durham’s investigation continues, now four months beyond when he thought he’d finish up. As recently as a month or so ago, Durham was flying people back from remote locations to appear before the grand jury. While we can’t be sure, it does seem likely that Foggo’s testimony provided new information that has sustained it.

And, thanks to Johnston and Mazzetti, we now know why Foggo would have something pertinent to say about the torture tapes–because he was the guy who set up the black sites. 

In March 2003, two C.I.A. officials surprised Kyle D. Foggo, then the chief of the agency’s main European supply base, with an unusual request. They wanted his help building secret prisons to hold some of the world’s most threatening terrorists.

[snip]

“It was too sensitive to be handled by headquarters,” he said in an interview. “I was proud to help my nation.”

With that, Mr. Foggo went on to oversee construction of three detention centers, each built to house about a half-dozen detainees, according to former intelligence officials and others briefed on the matter.

[snip]

Early in the fight against Al Qaeda, agency officials relied heavily on American allies to help detain people suspected of terrorism in makeshift facilities in countries like Thailand. But by the time two C.I.A. officials met with Mr. Foggo in 2003, that arrangement was under threat, according to people briefed on the situation. In Thailand, for example, local officials were said to be growing uneasy about a black site outside Bangkok code-named Cat’s Eye. (The agency would eventually change the code name for the Thai prison, fearing it would appear racially insensitive.) The C.I.A. wanted its own, more permanent detention centers.

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Rahm and the Torture Investigation

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Thanks to Bruce Fealk for taping my torture panel from Saturday (and to RevDeb for making sure I got the links). Above is my bit. Here are:

Introductions and Congressman Nadler

Center for Constitutional Rights Executive Director Vince Warren (who I thought was the most interesting of all of us)

ACLU Attorney Melissa Goodman

DFH blogger "emptywheel"

Questions & Answers

I wanted to talk briefly about a point I made in my comments.

Rahm Emanuel has stood between us and accountability on torture. And if today or tomorrow or soon, DOJ announces a whitewash, Rahm owns that too.

Back when Obama picked Rahm, I grudgingly accepted it. If, as seemed to be the plan, Obama picked Rahm because of his perceived ability to get things done legislatively, it at least signaled an intent to avoid the legislative problems Clinton had. Turns out, though (and I guess this was predictable), Rahm brought a legislative strategy that might be appropriate for 2004, but is a disaster given the majorities we have in 2009. And then Rahm failed to even effectively implement that outdated legislative strategy (someone at the surreal midget bar experience–someone who has a lot of respect for Rahm–called it "political malpractice").

And in exchange for this political malpractice, a tight, professional campaign turned literally overnight into a leaky sieve. 

Within short order after his selection, Rahm was working hard to jerry-rig his replacement to make it easy for him to swoop back into the House in two years to take away Pelosi’s gavel. As a result, Greg Craig was forced to jump through some ill-advised hoops to distract the press from Rahm’s conversations with Rod Blagojevich; you can be sure Rahm’s conversations with Blago will continue to be a liability as that case gets closer to trial.

But, we were promised, Rahm would get us health care. What that really meant though is that we had to clear the political landscape to give Rahm his opportunity to get us health care. And instead of doing the legislative work to get that done, Rahm and the loathsome Jim Messina have been trying to cut deals with big health care corporations to turn this into a welfare program for them. As even that effort is beginning to go south, Rahm has (predictably) already switched into scapegoat mode, trying to blame his utter failure on health care on someone else. 

Against that background, consider again the parallel scapegoating directed at Greg Craig and Eric Holder for their efforts to come clean on torture. Read more →

Obama’s First Rendition Looks Very Questionable

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If his first publicly known rendition case is any indication, there may well be a legitimate question as to whether Obama’s rendition program is even more repulsive than that of George Bush. More evidence will be required for an informed answer, but Obama is off to a very inauspicious beginning. From Scott Horton in an exclusive for Huffington Post:

[I]n a federal court in suburban Washington, a case is unfolding that gives us a practical sense of what an Obama-era rendition looks like.

Raymond Azar, a 45-year-old Lebanese construction manager with a grade school education, is employed by Sima International, a Lebanon-based contractor that does work for the U.S. military in Iraq and Afghanistan. He also has the unlikely distinction of being the first target of a rendition carried out on the Obama watch.

According to court papers, on April 7, 2009, Azar and a Lebanese-American colleague, Dinorah Cobos, were seized by "at least eight" heavily armed FBI agents in Kabul, Afghanistan, where they had traveled for a meeting to discuss the status of one of his company’s U.S. government contracts. The trip ended with Azar alighting in manacles from a Gulfstream V executive jet in Manassas, Virginia, where he was formally arrested and charged in a federal antitrust probe.

This rendition involved no black sites and was clearly driven by a desire to get the target quickly before a court. Also unlike renditions of the Bush-era, the target wasn’t even a terror suspect; rather, he was suspected of fraud. But in a troubling intimation of the last administration, accusations of torture hover menacingly over the case. According to papers filed by his lawyers, Azar was threatened, subjected to coercive interrogation techniques and induced to sign a confession. Azar claims he was hooded, stripped naked (while being photographed) and subjected to a "body cavity search."

I would say that the evidence of torture is an allegation at this point; but the optics of forced rendition for simple contracting fraud are disturbing. No terrorism, no deaths, and it does not even appear that Azar is a principal in the company, Sima International.

But in all three previous administrations, renditions have been considered a rare technique reserved for dangerous terrorists and violent drug kingpins. Azar is at worst a secondary figure in a small-time contract fraud case and is not accused in any way of terrorism. Why such aggressive and dramatic techniques were used in Read more →