The April 22, 2005 Fax on Torture

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I’m working on a series of posts about the 2005 Bradbury Memos and Hassan Ghul. But first, I want to make a couple of points about a document that plays a key role in them–particularly in the Combined Memo: an April 22, 2005 fax from the CIA’s Assistant General Counsel (the name is always redacted) to Steven Bradbury.

The Chronology

Before I get into the significance of the fax, here’s the chronology of it:

December 30, 2004: Background Paper on CIA’s Combined Use of Interrogation Techniques; Daniel Levin torture memo published

February 2005: Daniel Levin leaves DOJ

April 8, 2005: Draft "Techniques" and "Combined" OLC Memos (at that point, 57 pages in length) sent to CIA

"Several weeks" before April 27, 2005: Pat Philbin alerts Jim Comey to problems with "Combined" draft 

April 20, 2005: DOJ announces Jim Comey’s resignation

April 22, 2005: Meeting between Pat Philbin, Jim Comey, Steven Bradbury, Alberto Gonzales about May 10 torture memos

April 22, 2005: Fax to Steven Bradbury from Assistant General Counsel, CIA

April 26, 2005: Comey gets latest draft of Combined memo (no mention of Techniques draft), meets with Gonzales to express concerns, concurs with Techniques memo

April 27, 2005: White House tells Gonzales memos must be finalized by Friday, April 29

April 28, 2005: Gonzales’ Chief of Staff, Ted Ullyot, tells Comey the memo will have to be "sent over" tomorrow

May 10, 2005: Techniques and Combined memos (totaling 67 pages in length) finalized and sent to CIA

Note a few points. The May 10, 2005 memos were drafted by April 8, 2005. Apparently not long after CIA received that draft, Pat Philbin notified Jim Comey of problems with the "Combined" memo and (though there’s no reason to believe they’re related events) Comey resigned. 

And then, on Friday April 22, two things happened. Comey and Philbin tried to talk Gonzales and Bradbury into fixing the "Combined" memo. And Bradbury received the April 22 fax from the Assistant General Counsel of the CIA. Also note, while it’s clear Comey saw a draft of the "Combined" memo after April 22 (the one he describes as being worse than the previous draft he had seen), it’s not clear he saw another draft of the "Techniques" memo before he concurs with it on April 26–though we know the memo would have changed in the interim, since it cites the April 22 fax.

We don’t know what happened after that point. Read more →

Obama DOJ Asks Full Panel to Review Jeppesen

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When the al-Haramain hearing last week turned to questions of next steps, DOJ’s Anthony Coppolino played for time.

 THE COURT: All right. What I would suggest is a — and I’m going to ask the clerk to backstop me here. We have a special setting for hearing this motion — we  could hear it on the — How’s the 5th of August?

(Attorney Coppolino shaking his head.)

THE COURT: Mr. Coppolino says no.

MR. COPPOLINO: Well, really, the first two weeks of August are quite bad for me. I was going to suggest, perhaps, the first Thursday that I could do; it would be the 20th.

THE COURT: Doesn’t have to be on a Thursday unless we have to work around a trial.

MR. COPPOLINO: Okay. My preference would be the 28th or 21st. Looks like you are not available the following week, at least according to that calendar (pointing), at least.

THE CLERK: That’s correct.

MR. COPPOLINO: So I would ask the Court, if it’s possible, and depending on Mr. Eisenberg’s schedule, no sooner than, say, the 21st or then after Labor Day.

MR. EISENBERG: Your Honor, I’m going to be mired in work throughout July and August; it doesn’t matter to me what date you choose. It’s going to be a tough summer; I’m prepared to deal with that.

THE COURT: All right.

MR. COPPOLINO: Plus, you need to build in time for his reply because if he files on the 30th, I would need July because we have the Jewel hearing on the 15th. So I think I need at least the end of July — he gets to reply, if it’s his motion, so I think, unfortunately, if it’s okay, we are into September.

THE COURT: What does September 2 look like?

I suspect that when Coppolino pushed al-Haramain out into September, he knew this was coming (from an ACLU press release).

The Justice Department today argued that the victims of the "extraordinary rendition" program should not have their day in court, asking a federal appeals court to block a landmark case the court had earlier ruled could go forward. In April, the Ninth Circuit Court of Appeals ruled that an American Civil Liberties Union lawsuit against Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful "extraordinary rendition" program could proceed, but today the government asked the appeals court’s full panel of judges to rehear that decision.

Read more →

The Scope of the SSCI Investigation and Where It Leads

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Honest. I was going to write this post today or yesterday or tomorrow even before Rachel Maddow said people would be parsing her interview last night with Sheldon Whitehouse closely (here’s the full interview).

Back in February, I was very skeptical whether a DiFi-led SSCI investigation into torture would be a rigorous investigation. I owe DiFi an apology, because by all appearances this investigation is time-consuming, demanding, and productive. The Senate Intelligence Committee has been maintaining an unbelieveable pace of closed hearings this year–often two a week–many of which must deal with this investigation (though some clearly deal with other intelligence issues such as the warrantless wiretapping program). At least per Rachel’s comments in her interview with Senator Whitehouse, the committee won its squabble with CIA to get unredacted cables from the field. And as a result of the hearings, Sheldon Whitehouse has come out and said "no further actionable intelligence" was gotten through waterboarding Abu Zubaydah. Thus far, this is not the weasely whitewash we’ve come to expect from SSCI (though it remains to be seen whether Kit Bond and friends can politicize whatever report we get out of it–and whether we get a report at all). So I apologize to DiFi for my doubts.

I wanted to look at the scope and the direction of this investigation–at least what we know. Both at the beginning, and now, SSCI has said the investigation covers three things:

  • Whether detentions and interrogations complied with DOJ authorizations
  • Whether the interrogations gained valuable intelligence or not
  • Whether SSCI was kept properly informed

Here’s how Whitehouse described the questions they’re asking in his Senate speech the other day:

I see three issues we need to grapple with. The first is the torture itself: What did Americans do? In what conditions of humanity and hygiene were the techniques applied? With what intensity and duration? Are our preconceptions about what was done based on the sanitized descriptions of techniques justified? Or was the actuality far worse?

Were the carefully described predicates for the torture techniques and the limitations on their use followed in practice? Or did the torture exceed the predicates and bounds of the Office of Legal Counsel opinions?

[snip–Whitehouse basically interjects the same argument I made here, that Panetta’s declaration makes it clear the torture did exceed OLC bounds]

The questions go on: What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done? Ultimately, was it successful? Did it generate the immediately actionable intelligence protecting America from immediate threats that it had been sold as producing? How did the torture techniques stack up against professional interrogation?

Well, that is a significant array of questions all on its own, and we intend to answer them in the Senate Intelligence Committee under the leadership of Chairman Feinstein, expanding on work already done, thanks to the previous leadership of Chairman Rockefeller.

As I noted, both Whitehouse and I have pointed out that Panetta’s declaration by itself makes clear that the torture exceeded the authorizations it had gotten from OLC–but we already knew that from the CIA itself. And as Whitehouse has made clear, and I have made clear, we already know the program was ineffective–but we already knew that from the CIA itself. And (though Whitehouse doesn’t focus on this aspect of the investigation), we know that CIA did not brief SSCI the way it said it did–nor in the manner it was legally obliged to do. We know that, too, from the CIA itself.

So where does that lead us? That’s why this exchange from Rachel’s interview with Whitehouse last night is so important.

Maddow: The way you’ve described that makes me want to ask a question that no one’s been able to tell me–and I’ve been asking a lot of people. The remit of what the intelligence committee is looking at right now–looking at what happened to High Value Detainees, millions of pages of documents, succeeded in getting agreements to get stuff completely unredacted. We know it’s going to be a big comprehensive look at what happened to those High Value Detainees. Does it only look at what the CIA did, or will it look at the chain of command, whether or not instruction came from the White House, the Office of the Vice President beyond the Intelligence Agency?

Whitehouse: We’re not at the stage yet, in the investigation, where those chain of command issues are yet raised. I hope very much that it will. I believe it implicates chain of command issues. And I think that that’s a critical question.

Maddow: But it’s not what the intelligence committee is looking at right now and we should not expect that will be in the intelligence committee’s report when it comes out in six months or so?

Read more →

ACLU’s Latest Lawsuit: Suing to Get the 2002 Convention Against Torture Opinion

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The ACLU sued the CIA and other government agencies today for still more documents relating to torture. They’re basically suing to enforce a FOIA request they submitted last year that amounts to … everything they haven’t already gotten. 

1. "Any indices, tables, or logs that list or otherwise identify legal memoranda produced by the Office of Legal Counsel (‘OLC’) after September 11, 2001, relating to the detention, interrogation, treatment, or prosecution of suspected terrorists, or the transfer of suspected terrorists to foreign countries, including any indices, tables, or logs produced in response to the subpoena issued by the Senate Judiciary Committee to Attorney General Michael Mukasey on October 21, 2008.

2. "All legal memoranda produced by the OLC after September 11, 2001, relating to the detention, interrogation, treatment, or prosecution of suspected terrorists, or the transfer of suspected terrorists to foreign countries.

3. "All records issued after September 11, 2001 by the Defense Department, Justice Department, State Department, or CIA, in which any of those agencies, or personnel at those agencies, sought guidance, advice, or analysis from the White Housel with respect to the detention, interrogation, treatment, or prosecution of suspected terrorists, or the transfer of suspected terrorists to foreign countries.

4. "All records, including directives and memoranda, that were issued after September 11, 2001 by the White House to the Defense Department, Justice Department, State Department, or CIA, or to specific personnel at those agencies, and that relate to the detention, interrogation, treatment, or prosecution of suspected terrorists, or the transfer of suspected terrorists to foreign countries.

But in their press release announcing the suit, the ACLU describes three documents in particular they’re seeking.

  1. Documents between the White House and CIA concerning the use of the CIA’s so-called "enhanced interrogation techniques"
  2. A legal memorandum or letter dated July 22, 2002 from Yoo to Alberto R. Gonzales regarding the applicability of the Convention Against Torture
  3. A 2007 opinion by Bradbury analyzing the legality of the interrogation techniques authorized for use in the CIA program under Common Article 3, the Detainee Treatment Act and the War Crimes Act

Item one would include the discussions about approval for individual techniques (and might catch David Addington chatting up John Rizzo).

Item three is one of the two remaining torture memos we’re missing, where Bradbury tried to authorize things SCOTUS had already ruled were illegal. This is the memo, remember, that justified Bush’s July 2007 Executive Order on torture.

I’m particularly interested in item two, though. I noted yesterday that I think we’re going to learn that the Bush Administration claimed to have exempted CIA from complying with the Convention Against Torture’s prohibition on cruel and inhuman treatment. This opinion–which was mentioned in John Yoo’s 2003 torture memo for DOD–apparently claims to exempt everyone from complying with Article 16 of CAT. 

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Why the CIA Would Want to Hide May 2002 from Judge Hellerstein (and the ACLU)

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Update July 20: See this post for the CIA’s explanation for the gaps in May’s production and the timelines. While their explanation makes them permissible to withhold, it doesn’t change the underlying reasons why they may have wanted to withhold them.

I’ve had a couple of really weedy posts examining the CIA’s response to the torture FOIA (Cherry-Pick One, Cherry-Pick Two, FOIA Exemptions). And I wanted to pull back a bit, and explain what I think they might mean.

We’re getting all these documents because the CIA is trying to avoid being held in contempt for not revealing the now-destroyed torture tapes in a response to this FOIA in 2004. At that time, the CIA had to reveal the torture related documents held by its Inspector General or Office of General Counsel. When ACLU learned of the torture tape destruction, it argued that the tapes should have been included in that FOIA compliance and certainly should not have been destroyed. The CIA argued, though, that since the Inspector General had never physically had the tapes, they were not responsive to the original FOIA. Things got delayed because of the John Durham investigation into the torture tape destruction. But last September, Judge Hellerstein deferred the decision on whether the CIA had deliberately ignored his earlier orders in destroying the torture tapes.

I find the facts before me are insufficient to justify a holding of civil contempt. 

[snip]

Here, I find that there has yet to be any such "clear and convincing evidence" of noncompliance on the CIA’s part.

He asked the DOJ to explain why Durham’s investigation prevented the production of a catalog listing:

1) A list identifying and describing each of the destroyed records;

2) A list of any summaries, transcripts, or memoranda regarding the records, and of any reconstruction of the records’ contents; and

3) Identification of any witnesses who may have viewed the videotapes or retained custody of the videotapes before their destruction.

The government was able to get another delay because of the Durham investigation, but the FOIA reponse we’re getting now is basically this long-awaited catalog, which Hellerstein will use to determine whether the CIA deliberately ignored his 2004 order in this FOIA case.

So the CIA has a couple of goals in its response to Judge Hellerstein’s orders. It wants to appear as cooperative as possible, lest Hellerstein believe that the CIA was and is continuing to cover something up. At the same time, the CIA wants to hide any evidence that it would have had reason to destroy the torture tapes to cover something up. Read more →

Why Doesn’t the CIA’s Vaughn Index Match the CIA’s Vaughn Index?

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Bear with me, because this is going to be weedy, even for me.

The CIA has produced two different Vaughn Index descriptions of four cables recording Abu Zubaydah’s interrogation: the cables from August 1, 2002 (page 1-2; page 24), August 7, 2002 (page 21; page 25), August 11, 2002 (page 12 or 14; page 26), and August 16, 2002 (page 23; page 27).

Basically, what happened is that the government produced a Vaughn Index for the first half of August 2002 back on May 1, but then got ordered to produce a Vaughn Index that covered a wider range of dates, which was released two days ago. The two Vaughn Indices both include these four dates (as well as the interrogation log dated August 4, 2002), which means we’ve got two versions of the index descriptions of the cable for those dates. To avoid confusing dates of cables with dates of indices, I’m going to call the first Vaughn Index–dated May 1, 2009–Vaughn A, and the second Vaughn Index–dated June 8, 2009–Vaughn B.

The series are worth comparing generally, but by comparing these same-day descriptions, we learn a few things.

Somebody (the FBI?) Left the Interrogation Site after August 6, 2002

Yesterday, I pointed out that Leon Panetta admitted that there were contractors on site whose identities could not be revealed because it’d be an unwarranted invasion of their privacy. That manifests itself as an Exemption b(6) for every single cable in Vaughn B.

Vaughn A makes different Exemption claims for the persons present. The Vaughn A August 1, 2002 description includes the same Exemption b(6) claimed in the Vaughn B August 1 description. But it also includes another person-based exemption:

Exemption b(7)(C) – This document contains the names and other personal information of law enforcement officials acting in their official duties. The disclosure of this information could reasonably be expected to constitute an unwarranted invasion of personal privacy and for which there is no public interest in the disclosure. Therefore the information is protected from disclosure by Exemption b(7)(C). [my emphasis; note this strikes me as a really bogus use of this exemption]

In other words, Vaughn A claims there were personnel involved in counterterrorism operations and claims there were law enforcement personnel on site on August 1, 2002.

But Vaughn A stops making both those exemption claims after August 6. It appears someone left the interrogation site after August 6. Given that the Index claims a law enforcement exemption, I wonder if this was an FBI agent, perhaps Ali Soufan’s partner (who was supposed to have left in June)?

Read more →

Did Somebody Improperly Make Torture a Special Access Program?

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I wanted to take one last look at the Panetta declaration, this time with respect to what it says about classifying torture (also see Mary’s long comment and pmorlan’s comment on this topic).

NSC Officials Made This a Special Access Program, Not Director of CIA

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a "special access program" as "a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.

[snip]

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA "shall" "exercise" the function of creating special access programs pertaining to intelligence. But then the very next paragraph says "NSC officials established a special access program." One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it. 

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Sheldon Whitehouse: “No Further Actionable Intelligence Was Obtained” from Abu Zubaydah by Waterboarding

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Sheldon Whitehouse gave a barnburner of a speech last night, in which he described how egregious Dick Cheney’s lies about torture have been.

The speech goes further than President Obama’s and Russ Feingold’s and Carl Levin’s calls on Cheney’s lies in two ways. First, those other calls focused on whether the documents Cheney wants declassified actually say what he claims they say; Whitehouse focused on whether Cheney’s more basic claims about torture are true. And second, Whitehouse here focuses not on whether we needed waterboarding to get intelligence (Obama, for example, said, "the public reports and the public justifications for these techniques — which is that we got information from these individuals that were subjected to these techniques — doesn’t answer the core question, which is:  Could we have gotten that same information without resorting to these techniques?), but whether we actually got any useful intelligence from the methods at all. 

Whitehouse says that no further actionable intelligence was gained through the torture used on Abu Zubaydah after he was turned over to the CIA contractors for good. [Note: this transcript is my own–I found the Congressional Record copy after I did this. I’ve edited in response to Andersonblogs’ comment to take out ellipses and put in emphasis.]

So for a third time he was returned to the FBI and CIA agents, again for professional interrogation, but by now he had been so compromised by the techniques that were applied to him that even they were unsuccessful in getting further information. And as best as I have been able to determine, for the remaining sessions of 83 waterboardings that have been disclosed as being associated with his interrogation, no further actionable intelligence was obtained. And yet the story has been exactly the opposite. The story over and over has been that once you get these guys out of the hands of the FBI and military "amateurs" and into the hands of these "trained CIA professionals" who can use these tougher techniques, that’s when you get the information. In this case at least, the exact opposite was the truth. And this was a case cited by the Vice President by name. 

From that, Whitehouse makes appeals to his colleagues not to believe they’ve been told, just as Bob Graham appealed to his colleagues not to believe what they’d been told about the Iraq intelligence.

I want my colleagues and the American public to know that, measured against the information I’ve been able to gain access to, the story-line that we have been led to believe, the story-line about waterboarding that we have been sold, is false in every one of its dimensions, and I ask that my colleagues be patient and be prepared to listen to the evidence when all is said and done before they wrap themselves in that storyline.

One more point about this. Read more →

SSCI Investigating Its Torture Briefings

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I’m all in favor of an unrelenting focus on Dick Cheney’s role in torture, but I think David Corn’s focus on the possibility that Cheney’s briefing of Pat Roberts and Jello Jay on March 8 (and possibly March 7), 2005 is too narrowly focused. (h/t fatster via RawStory)

"The Senate intelligence committee’s study includes an examination  of how the committee was briefed on the CIA’s detention and interrogation program,"  says Phil LaVelle, a Feinstein spokesperson. "This includes briefings of committee leadership, and is not limited by who conducted the briefing." The committee has restricted this part of its review and is not examining briefings provided to other committees–such as the House intelligence committee–according to a congressional source familiar with the probe. But given that Cheney briefed two senior members of the Senate intelligence panel, the committee can review what Cheney told Roberts and Rockefeller about the interrogation program and evaluate whether his assertions were supported by the facts. That is, the Cheney briefing is fair game for the Senate investigators.

[snip]

So did Cheney make an honest presentation during the behind-closed-doors meetings with congressional leaders when he was veep? Feinstein can find out–if she wants to.

The Senate intelligence committee’s investigation is not wide-ranging–which may be good news for Cheney. According to a press release it issued, the committee is mainly focusing on what the CIA did, whether it remained in compliance with guidance it received from the Justice Department, and what was the value of the intelligence it obtained through the use of "enhanced and standard interrogation techniques."  That press release makes it seem unlikely that the committee is investigating whether the White House–with or without Cheney’s involvement–pressured the Justice Department to cook up legal cover for the CIA’s use of so-called enhanced interrogation techniques.

When I asked LaVelle whether the committee was examining the 2005 Cheney briefing, he declined to comment. The committee is not confirming or denying any specific aspects of its inquiry, including the witnessess it has or will be interviewing. But the committee has granted itself the authority to investigate what Cheney told committee members about the CIA interrogations. If it chooses not to do so, its probe will be incomplete. [my emphasis]

That is, I think Cheney’s role in persuading the SSCI not to investigate the torture program in 2005 may be one of the least interesting things the SSCI might be investigating wrt its CIA briefings. Consider two other items of interest:

CIA Claims to Have Briefed Democrats When It Didn’t

Read more →

CIA IG Report: To Be Released on June 19

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The detail that Abu Zubaydah was waterboarded 83 times in a month and Khalid Sheikh Mohammed got into the OLC memo via the CIA IG Report released May 2004. So, too, did the reports that CIA interrogators exceeded the guidelines laid out in the Bybee Two memo. And the conclusion that the torture couldn’t be said to have stopped any attacks? That was in the CIA IG Report, too.

Which is why the IG Report’s reported release–on June 19–might be big news.

Or, it might be 400 pages of mostly redacted content. 

In new responses to lawsuits, the C.I.A. has agreed to release information from two previously secret sources: statements by high-level members of Al Qaeda who say they have been mistreated, and a 2004 report by the agency’s inspector general questioning both the legality and the effectiveness of coercive interrogations.

The Qaeda prisoners’ statements, made at tribunals at the detention camp at Guantánamo Bay, Cuba, were previously excised from transcripts of the proceedings, but they will be at least partly disclosed by this Friday, according to a court filing. The report by the inspector general, whose secret findings in April 2004 led to a suspension of the C.I.A. interrogation program, will be released by June 19, the Justice Department said in a letter to a federal judge in New York.

Precisely how much the agency will disclose, however, remains to be determined, as the administration is clearly struggling to decide where to draw the line. In both cases, which involve separate Freedom of Information Act lawsuits filed by the American Civil Liberties Union, the documents are likely to be redacted to withhold information the C.I.A. still considers especially delicate.

Me? I’ll be pleasantly surprised (though not satisfied) if they release pages 85 though 91, which talk about the (in)efficacy of the program. It was in response to these six pages that at least some of Dick Cheney’s CYA documents were written.

And the detainee statements from their CSRTs? Maybe we’ll finally learn why Rahim al-Nashiri was only waterboarded two times.