CIA Sticks with Its Waterboarding Shiny Object Strategy

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A month ago, I argued that the CIA was deploying a waterboarding "shiny object" strategy in its attempt to hide the details of the torture program that they otherwise eliminated by destroying the torture tapes–particularly, that torture started before OLC approved it, and that Abu Zubaydah had cooperated without torture, meaning their entire premise for torture was false.

The CIA was hoping–it appears–that its narrative that the torture tapes portrayed waterboarding, and that’s the big reason they were sensitive, would distract Hellerstein and the ACLU and therefore allow them to hide a slew of other information: the success of the FBI before Abu Zubaydah’s torture started, the torture that started before the OLC opinions were written (and the White House’s intimate involvement in approving the earlier torture), the role of contractors in the torture, the quality of intelligence they got using persuasive interrogation as compared to the quality of intelligence they got using torture, whatever happened in al-Nashiri’s waterboarding that led them to stop and even admit it didn’t work with him, whatever happened to Abu Zubaydah around October 11, 2002 that led them to take a picture of him, and the Inspector General’s reconstruction of the Abu Zubaydah’s interrogation (which should have been turned over in the first FOIA).

SHINY OBJECT!! WATERBOARDING!!!

They submitted a filing in the case today that sticks with that same shiny object strategy. Of particular note, there’s a long paragraph that seems to be written for Mary personally. Mary always reminds us that you can’t use classification to hide an example of crime. The CIA responds, as if to Mary, that they couldn’t be hiding a crime because they already revealed all this stuff.

To the extent that plaintiffs argue that the intelligence methods in these documents are illegal and outside the scope of the agency’s authority, and thus are not properly classified, the interrogation and detention methods addressed in the documents were, until January 2009, within the CIA’s authority. See Executive Order 13491, 74 Fed. Reg. 4,893 (Jan. 22, 2009) (terminating CIA terrorist and detention interrogation program). Moreover, Section 1.7(a) of the Executive Order does not bar the Government from classifying information that might contain evidence of illegality, but rather bars the Government from classifying otherwise unclassified information “in order to”— i.e., for the purpose of—concealing violations of law. 68 Fed. Reg. at 15318. Read more →

Neither of Cheney’s Illegal Programs Was Effective

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DOJ’s IG on Cheney’s warrantless wiretap program:

DOJ OIG found it difficult to assess or quantify the overall effectiveness of the PSP program as it relates to the FBI’s counterterrorism activities. However, based on the interviews conducted and documents reviewed, the DOJ OIG concluded that although PSP-derived information had value in some counterterrorism investigations, it generally played a limited role in the FBI’s overall counterterrorism efforts.

CIA IG on Cheney’s warrantless wiretap program:

CIA OIG determined that the CIA did not implement procedures to assess the usefulness of the product of the PSP and did not routinely document whether particular PSP reporting had contributed to successful counterterrorism operations. … consequently, it is difficult to attribute the success of particular counterterrorism case exclusively to the PSP. 

[snip]

Officials also told the CIA OIG that working-level CIA analysts and targeting officers who were read into the PSP had too many competing priorities, and too many other information sources and analytic tools available to them, to fully utilize PSP reporting.

CIA’s IG on Cheney’s torture program:

As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks.

Silvestre Reyes: CIA Lied to Congress

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I suspect Crazy Pete Hoekstra didn’t really consider that his efforts to escalate the battle between CIA and Nancy Pelosi would backfire like this, but now Silvestre Reyes, the Chair of the House Intelligence Committee, has responded to Hoekstra’s opposition to measures to increase intelligence oversight by stating that CIA lied to Congress.

House Intelligence Chairman Silvestre Reyes has suggested Republicans avoid politicizing the intelligence authorizaton bill later this week in light of what he says is evidence the CIA "affirmatively lied to" the panel.

In a Tuesday letter to his committee’s top-ranking Republican, Peter Hoekstra of Michigan, that was obtained by Congressional Quarterly, Reyes, D-Texas, wrote that the committee has recently received information that reveals significant problems with the intelligence agency’s reporting to the panel.

"These notifications have led me to conclude this committee has been misled, has not been provided full and complete notifications, and (in at least one occasion) was affirmatively lied to," Reyes wrote.

Reyes did not describe or detail the alleged false or misleading statements to the committee.

[snip]

Republicans contend a provision of the fiscal 2010 bill (HR 2701) scheduled for floor action Thursday would modify congressional notification procedures to provide political cover for Speaker Nancy Pelosi. Such briefings are a sensitive political topic, because Republicans have repeatedly criticized Pelosi over what she knew and when about the Bush administration’s use of harsh interrogation techniques and her assertion that the CIA "misled" Congress on that topic. [my emphasis]

Reyes actually gave a date when the Committee discovered it had been lied to by the CIA: June 24, squarely in the middle of CIA’s review of both the CIA IG Report and of the Office of Public Responsibility report on the John Yoo and Steven Bradbury memos. 

"Like you, I was greatly concerned," Reyes told Hoekstra, about what he committee learned on June 24 and another unspecified date from CIA Director Leon E. Panetta. "As you know, I have begun to take steps to gather information on the recent notifications," Reyes wrote. Read more →

Rummy: It’s Jim Haynes’ Fault

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Justin Elliott at TPMM takes a close look at Donald Rumsfeld, scrambling for excuses, for his involvement in trashing the Geneva Convention. As Elliott points out, Rummy’s excuse of "process" is pretty lame.

But I’m also interested in the way Rummy blames Jim Haynes, DOD’s General Counsel. Elliott quotes from Rummy biographer Bradley Graham:   

With the passage of time, Rumsfeld has come to recognize that he made a mistake, although he sees the error as one of process, not basic judgment. He faults himself for taking too legalistic an approach initially, saying it would have been better if senior Pentagon officials responsible for policy and management matters had been brought in earlier to play more of a role and provide a broader perspective. As he explained in an interview in late 2008, policies were developing so fast in the weeks after the September 11 attacks that he did not follow his own normal procedures. "All of a sudden, it was just all happening, and the general counsel’s office in the Pentagon had the lead," he said. "It never registered in my mind in this particular instance–it did in almost every other case–that these issues ought to be in a policy development or management posture. Looking back at it now, I have a feeling that was a mistake. In retrospect, it would have been better to take all of those issues and put them in the hands of policy or management." 

Granted, this is a version of the same argument Jack Goldsmith (who came into DOD’s OGC in spring 2002) makes–things got out of hand because everything was so legalistic.

The excuse is credible given what we know of Rummy’s December 2002 approval of harsh interrogation methods. Jim Haynes’ office served as a gatekeeper, ensuring that none of the services–the policy people–could weigh in on the stupidity of torturing detainees. And then, with almost no review, Rummy signed off on a one page memo authorizing the use of the techniques.

At the same time, I’m most interested in the timing. "In the weeks after the September 11 attacks … the general counsel’s office in the Pentagon had the lead." This puts Haynes in the mix much earlier than–for example–the Senate Armed Services Committee Report on torture does. Read more →

CIA Wants to Stall All Summer on IG Report

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Ut oh. The ACLU asked the CIA to stop stalling on production of the CIA IG report. And now the CIA has invented a reason to stall until the August 31 deadline that Hellerstein has given them–they want to review the 318 other documents it owes the ACLU first.

As we explained to the Court and Plaintiffs when Plaintiffs first raised the prospect of expediting the Special Review Report, the Report poses unique processing issues. It is over 200 pages long and contains a comprehensive summary and review of the CIA’s detention and interrogation program. The Report touches upon the information contained in virtually all of the remaining 318 documents remanded for further review. Although the Government has endeavored in good faith to complete the review of the Special Review Report first, as we have gone through the process, we have determined that prioritizing the Report is simply untenable.

In this instance, we have determined that the only practicable approach is to first complete the review of the remaining 318 documents, and then apply the withholding determinations made with respect to the information in those documents to the Special Review Report.

[snip]

One month into that process, we have concluded that we must review all of the documents together, and that the review will take until August 31, 2009.

Shorter the CIA: Obama said we have to make this stuff public. So we’re going to buy ourselves two more months until we make it public.

If Judge Hellerstein allows them.

Update: The ACLU’s Jameel Jaffer responds (via Spencer):

The CIA has already had more than five months to review the inspector general’s report, and the report is only about two hundred pages long. We’re increasingly troubled that the Obama administration is suppressing documents that would provide more evidence that the CIA’s interrogation program was both ineffective and illegal. President Obama should not allow the CIA to determine whether evidence of its own unlawful conduct should be made available to the public. The public has a right to know what took place in the CIA’s secret prisons and on whose authority. 

Tortured To Death

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graphic by PirateCat

graphic by PirateCat

As Spencer Ackerman informs, the long awaited IG Report will be a little longer awaited, and will not be released today. Could be tomorrow, could be next week; what a shocker.

In the meantime, and in keeping with our coordinated push with the ACLU Accountability Project, I would like to draw attention to an article Andy Worthington has out today:

On Friday, I also wrote an article about torture for the ACLU’s Accountability Project, explaining how the hunger strikers at Guantánamo are part of the same torture machine — and, moreover, one that, unnervingly, is still operating today — but as a contribution to the specific topic of demonstrating to the US public, and the wider world, that torture techniques implemented by the Bush administration led to murders in US custody, I’m presenting below some relevant sections from my book The Guantánamo Files, from testimony provided by former prisoner Omar Deghayes, and from a recent report by investigator John Sifton, relating to ten murders in US prisons in Afghanistan, three of which, to the best of my knowledge, have never been investigated at all.

Following the outline proposed by Glenn Greenwald above, some of these murders may have involved a few “rogue” actions, but in general it’s clear that they followed methods authorized at the highest levels of the Bush White House — or variations introduced in a context where limits on abusive behavior had been reduced or eliminated, ostensibly to facilitate interrogation.

The prelude to two notorious murders — and, very possibly, three others — in the US prison at Bagram airbase began in the summer of 2002, when 14 soldiers from the 525th Military Intelligence Brigade at Fort Bragg arrived at the prison, led by Lt. Carolyn Wood, and were soon joined by six Arabic-speaking reservists from the Utah National Guard. Lt. Wood took over interrogations from a team led by an interrogator who later wrote a book about his experiences, The Interrogators, using the pseudonym Chris Mackey. This is how I described what happened next in The Guantánamo Files.

Please, go read the entire article, Andy lays out the case on ten murders in US custody in Afghanistan, taken mostly from his book "The Guantanamo Files," but also including testimony by released Guantanamo prisoner Omar Deghayes and research by John Sifton. It is a damning read.

Marcy is in transit back from New York and I have a couple Read more →

A Sliver of Good News

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I hate that I’m now clinging to scraps like this to make myself happier about President Obama’s efforts to overturn torture, but this is an improvement over the Bush Administration. The acting head of OLC has determined that military commissions cannot use statements gotten through torture to convict detainees.

The Justice Department has determined that detainees tried by military commissions in the U.S. can claim at least some constitutional rights, particularly protection against the use of statements taken through coercive interrogations, officials said.

The conclusion, explained in a confidential memorandum whose contents were shared with The Wall Street Journal, could alter significantly the way the commissions operate — and has created new divisions among the agencies responsible for overseeing the commissions.

Of course, the WSJ finds the folks at DOD who are upset by this decision so as to push back against even this minimal improvement (there are those at DOD who don’t agree with this sentiment).

Defense Department officials warn that the Justice Department position could reduce the chance of convicting some defendants. Military prosecutors have said involuntary statements comprise the lion’s share of their evidence against dozens of Guantanamo prisoners who could be tried.

Also note, this decision (made in early May) should have been made by Obama’s nominee to head OLC, Dawn Johnsen. But her confirmation still languishes. Maybe Senator Franken can change that.

John Rizzo Pre-Empts the OPR Report

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As we speak, the CIA–including, by all appearances, John Rizzo–is reviewing the Office of Professional Responsibility’s report on OLC’s torture memos.

As if on cue, the LAT has a story profiling him. (Also, as if on cue, I take up Spencer’s bait.)

Given its scope, the OPR report must focus on two different periods: the months leading up to the August 2002 OLC memos, and the months leading up to the May 2005 OLC memos (as well as, probably, the time leading up to the March 2003 OLC memo, but that was a DOD memo, not a CIA one).

Those are, not surprisingly, the two years, at least, that appear in this story. We are told–with no sourcing–that Rizzo never dealt with legal questions about torture before the capture of Abu Zubaydah.

Rizzo had never dealt with legal questions about interrogation until officials from the agency’s Counterterrorism Center approached him in 2002 with a list of techniques they wanted to employ to get a suspected Al Qaeda captive, Abu Zubaydah, to talk. Among them was waterboarding, in which a prisoner is strapped to a plank and doused to make him feel he is drowning.

This would suggest the War Council–David Addington, Jim Haynes, John Yoo, and Rizzo–weren’t already talking about torture in December 2001, when Mitchell and Jessen first started developing their torture program. It would also suggest that Rizzo never weighed in on the treatment of Ibn Sheikh al-Libi and others rendered to torture. It would repeat the same myth the Cheney apologists like to tell–that these ideas bubbled up from CTC, rather than were imposed from the top.

It’s an interesting story. If true, then I wonder why it’s taking CIA so long to review that OPR report?

And then there are the 2005 dates. As Spencer describes, at some point in 2005 Rizzo personally observed the Salt Pit.

Rizzo kept close watch on the interrogation program. Once, during a 2005 trip by senior CIA executives to Kabul, Afghanistan, Rizzo disappeared from the crowd after dinner with Afghan intelligence officials.

It wasn’t until the next day, one participant remembered, that Rizzo revealed he had arranged a midnight trip to the Salt Pit, a secret CIA prison on the outskirts of the city, to see detention operations up close.

A CIA detainee had died at the site in 2002. But Rizzo came away newly assured that the operation was well-run, former officials said.

The story would have you believe that Rizzo thought, in 2005, that the torture we were conducting at the Salt Pit was all hunky dory. Read more →

04-309: Death from Torture

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Meet "04-309." I don’t know his name–DOD redacted that from the reports on detainee deaths it released to ACLU some time ago. "04-309" is the number DOD assigned to the autopsy they did on him in Mosul on April 26, 2004, just two days before the Abu Ghraib story broke.

When 04-309 was captured by Navy Seals around April 2, 2004, he was around 27, a "well-developed, well-nourished" man, 6 foot and 190 pounds. He had no visible scars. He was, apparently, healthy.

04-309 did, however, show signs of minor injury: cuts and bruises around his head and belly and right shoulder and arm. These wounds may have come when he was arrested–his autopsy summary says "Q by NSWT [Navy Seals], struggled/interrogated" before it describes he, "died sleeping."

But 04-309’s Final Autopsy Report–completed on November 22, 2004, long after Abu Ghraib broke and the CIA’s Inspector General concluded the CIA’s interrogation program was cruel and inhumane (though not all that long after a criminal investigation of homicides committed in 2002 concluded, on October 8, 2004, that the deaths were partly caused by sleep deprivation and stress positions)–doesn’t conclude how he died. It does, however, describe these "circumstances of death:"

During his confinement, he was hooded, sleep deprived, and subjected to hot and cold environmental conditions, including the use of cold water on his body and hood.

Later in the document, the Opinion section explains,

Based on the available investigation and complete autopsy examination, no definitive cause of death for this approximately 27-year old male Iraqi civilian in US custody in Iraq could be determined. There is evidence of multiple minor injuries; however, there is no definitive evidence of any trauma significant enough to explain the death. The injuries include bilateral periorbital ecchymoses ("blackeyes"); abrasion and contusions of the face, torso, and extremities; contusion on the side of the neck’ and subgaleal hemorrhage of the scalp.

There is evidence of restraint, consisting of "flexicuffs" around the wrists with associated minor contusions, and asphyxia from various means cannot be completely excluded in a restrained individual. 

There are non-specific cardiac findings, including mild medial thickening of the sinus nodal artery and focal mild dysplasia of the penetrating branches of the atrioventricular nodal artery. However, there is no associated increased septal fibrosis, which can be a potential substrate for cardiac arrhythmia. There is no gross evidence of atherosclerosis of the coronary arteries. A cardiac arrhytmia related to ion channelopathies or coronary vasospasm cannot be excluded. 

The decedent was also subjected to cold and wet conditions, and hypothermia may have contributed to his death.

Read more →

On The Rule Of Law And Crimes Of Torture

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graphic by csb.dk

graphic by csb.dk

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.

And thus was stated by Plato the general theory underlying what we have come to know and understand as the "Rule of Law". Plato’s student and protege, Aristotle, refined the thought:

Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; . . . That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law . . . Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.

In American, and modern anglo-saxon iterations, there is no one set of constructs defining the "Rule of Law", but there are universal elements common to all. They have been generally identified as follows:

1) a government bound by and ruled by law;
2) equality before the law;
3) the establishment of law and order;
4) the efficient and predictable application of justice; and
5) the protection of human rights.

There are other lists as well. Political/legal theorist Joseph Raz has promulgated the following factors:

* That laws should be prospective rather than retroactive.
* Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
* There should be clear rules and procedures for making laws.
* The independence of the judiciary has to be guaranteed.
* The principles of natural justice should be Read more →