Leon Panetta: I’ve Got to Protect the Contractors from Unwarranted Invasion of Privacy

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Well here’s a really really telling passage from Leon Panetta’s declaration on why he can’t turn over the torture documents to the ACLU.

Information concerning the names and titles of CIA personnel, and information concerning CIA organization, functions, and filing information, has also been withheld from the documents at issue based on FOIA Exemptions b(1) and b(3). Names and identifying information of CIA personnel, and CIA contractors and employees of other federal agencies involved in clandestine counterterrorism operations, also has been withheld on the basis of FOIA Exemption b(6), as the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.1

1 As described in the attached Vaughn index, 62 of the 65 documents at issue contain names or identifying information of Agency employees or personnel involved in clandestine counterterrorism operations. [my empahsis]

And sure enough, every cable from the field includes this dual invocation of FOIA exemptions to protect the identities of those involved in torture.

Exemption b(3) … This document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949 … and thus is protected by Exemption b(3).

[snip]

Exemption b(6) – This document also contains information relating to the identities of personnel engaged in counterterrorism operations, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The public interest in disclosure of this information does not outweigh the harm to the individual whose privacy would be violated, and thus the information is protection from disclosure by Exemption b(6).

They can’t protect James Mitchell and his crowd by invoking the CIA Act of 1949, of course, becase the guys in charge of the torture weren’t employees of the CIA. So instead, they’re invoking privacy protection that even the CIA seems to think might be dodgy.

And curiously, this is not what they have done in the past. Compare what appears in this Vaughn Index with the FOIA exemptions invoked for this set of apparently similar documents from 2004. Like a lot of cables in this series, Document 55 is a clandestine cable from Field to HQ. Read more →

Gravely Damaging Intelligence Gaps

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Just two or three more bits on this Panetta declaration and the related Vaughn Index (Part One, Part Two).

Before he insisted in his declaration, implausibly, that he wasn’t trying to hide embarrassing information that might show legal wrong-doing, Leon Panetta gave this general explanation for why he couldn’t release this information:

I want to emphasize to the Court that the operational documents currently at issue contained detailed intelligence information, to include: intelligence provided by captured terrorists; intelligence requirements that CIA prioritized at specific points in time; what the intelligence community did not know about enemies in certain time frames, i.e., intelligence gaps;

[snip]

Much information in the documents is intelligence that was being provided to the field and intelligence that was being gathered from the interrogations. This sensitive intelligence provides important insight into what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest. I have determined that the disclosure of intelligence about al Qai’da reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed.

Remember, earlier this year the ACLU and CIA agreed that the Agency could exclude raw intelligence cables from this FOIA response.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. [my empahsis]

Nevertheless, even before Panetta says he can’t turn over this material because it would reveal the identities of our counterintelligence officers and the location at which we conducted these interrogations, he says he can’t turn over this material because it’ll reveal the intelligence that went into and came out of the interrogations, even though this is not the primary record of intelligence gathered in the interrogations.

Read more →

The CIA’s Cherry Pick, Two

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Update, July 21: As this post describes, the CIA explains that the timelines and outlines are derivative records, and therefore permissibly withheld from the Vaughn Index.

In my last post, I noted that the CIA’s selection of materials for the Vaughn Index (Part One, Part Two) just happened to avoid any deliberative discussions from April and May, when interrogators were reportedly getting approval for techniques on a regular basis.

In this post, I will look at what the CIA has included and excluded from the later part of its Vaughn Index–the materials in which the torture tapes and their destruction were discussed. I’ve taken the timelines I did in this post and added in what we learn from the Vaughn Index–the additions are bolded.

Once again, the CIA’s selection of materials for Hellerstein’s reviews appear very careful. While the materials include specific details on waterboarding, they appear to exclude the main investigative records surrounding both the torture and the destruction of the tapes.

The IG Report materials

One chunk of material pertains to the IG Report on interrogation eventually published in 2004. The materials in the index include:

January 9, 2003: Review of Interrogation Videotapes. A 5-page memorandum for the record written by a CIA attorney. The document contains information relating to the contents of the destroyed videotapes, pre-decisional information pertaining to policy and legal guidance, confidential communications between the attorney and CIA personnel, and attorney work-product.
February 3, 2003: Interview report
February 10, 2003: Interview report
May 9, 2003: Notes from Tape Review. A 47-page handwritten document of notes from a review of the videotapes that was written in the field with a one-page email enclosed. The notes and email include information concerning the destroyed videotapes that was incorporated into a final report.
May 22, 2003: Trip Report. A 4-page memorandum for the record written by a CIA employee. The document contains information regarding the destroyed videotapes, and recommendations and opinions of CIA employees.
June 17, 2003: Notes of CIA Attorney Discussion. A 6-page record of handwritten notes from a CIA employee discussing the interrogation videotapes with a CIA attorney. The notes include details concerning the destroyed videotapes, communications between the attorney and Agency management, and attorney work-product.
June 18, 2003: Email
June 18, 2003: Interview report

A few interesting details about these materials. Read more →

The CIA’s Cherry-Pick

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Update, July 20: As this post explains, the CIA claims that the gaps in production come from the presence of "derivative" cables that were permissibly withheld from the Vaughn Index.

In footnote 2 of his declaration, Leon Panetta explains that eight of the documents included in the Vaughn Index (Part One, Part Two) he turned over to Judge Hellerstein represent deliberative process, so can’t be turned over.

 As described in the attached Vaughn index, documents 28, 54, 56, 57, and 59-62 contain deliberative process privileged information; and documents 59 and 60 contain attorney-client communications and attorney work product.

Given the report that interrogators were cabling HQ on a daily basis for approvals for interrogation techniques, I was interested in which of the cables included in the index of all torture tape related documents the CIA previously identified would be labeled "deliberative process"–it’s a way to identify which of the cables included actual discussion about techniques. I was particularly interested in whether any of the more remarkable cables–the 28-page cable from Field to HQ written on May 6, 2002, or the 4-page cable from HQ to Field sent on May 28, 2002–were included among these deliberative documents.

Those two cables–which, I have speculated, might be key cables in the early decision-making on torture–were not included among the selection of all the documents that CIA identified "for review for potential release." In fact, the only deliberative cable included among those that Judge Hellerstein will now review is one dated August 20, 2002, long after the CIA got formal approval to use torture techniques. (In addition, the first of the two interrogation logs–the one dated April 13, 2002–is considered to include deliberative records, though the second one–dated August 4, 2002–does not.)

But I don’t think that was an accident.

The CIA was, as I understand it, ordered to give over a selection of these. Sometimes, agencies are ordered to give over every tenth document out of a total collection, but I don’t believe they were here. Sometimes, agencies will simply pull every 10th document, and explain if they deviate from that pattern. But the CIA appears to have submitted a more random selection (though, they supplied a greater percentage of the later documents talking about the torture tape destruction). By comparing the total index with the Vaughn index, though, we can get a sense of what the CIA did include. For most of the series of cables reporting to and from the field, the CIA submitted fairly regular cables–every 10, 11, or 12 cables. From June 22, 2002 through August 20, 2002, they appear to have submitted every 10 document, like clockwork (in addition to the handwritten log dated August 4). (It’s impossible to exactly identify a pattern from after that because so many of the cables are the same length, though it is possible that it sticks pretty close to the every tenth cable pattern.)

Read more →

1000 Words

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The very last item in the Vaughn Index the CIA submitted to Judge Hellerstein in an attempt to keep all this information secret is a photograph of Abu Zubaydah dated October 11, 2002.

A photograph.

We can’t have that either, the CIA says, because it’ll expose sources and methods. More specifically, they say we can’t have it because of:

Exemption b(1) – This document contains information relating to intelligence activities (including special activities), intelligence sources, intelligence methods, and foreign relations or foreign activities of the United States, including confidential sources that is properly classified pursuant to section 1.4(c) and 1.4(d) of Executive Order 12958, as amended, and is thus protected from disclosure by Exemption b(1).

Exemption b(3) – This document contains information relating to intelligence sources and intelligence methods that is specifically exempted from disclosure by section 102A(i)(1) of the National Security Act of 1947, as amended, 50 USCA 403-1(i)(1) (West Supp. 2008) and section 6 of the Central Intelligence Act of 1949, as amended, 50 USCA 403g (West Supp. 2008), and thus is protected from disclosure by Exemption b(3). This document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949, as amended, 50 USCA 403g (West Supp. 2008), and thus is protected from disclosure by Exemption b(3).

A picture, apparently taken two months after the waterboarding, and they won’t release it because, they say, it’ll reveal sources and methods. 

What was apparent in a photo of Abu Zubaydah from October 2002 that it would reveal sources and methods?

Leon Panetta Kisses His Credibility Goodbye

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Well, that didn’t take long, for a Director of Central Intelligence to totally lose his credibility in the servitude of the institution. What has it been? Three, four months?

I’ll have more to say about Panetta’s declaration in the ACLU FOIA case tomorrow.  But for now, a little unsolicited advice for the spook-in-chief.

When you say, 

I also want to emphasize that my determinations expressed above, and in my classified declaration, are in no way driven by a desire to prevent embarrassment for the U.S. Government or the CIA, or to suppress evidence of unlawful conduct,

Yet the entire world knows–and the CIA has itself acknowledged–that the materials in question do, in fact, show evidence of unlawful conduct, and when you sort of kind of pretend that no one else knows what they all know–that the materials show evidence of unlawful conduct…

Then you look like a fool. 

A chump.

Like George Tenet, maybe, when he boasted of "slam dunk."

And then when you go on to say,

As the Court knows, some of the operational documents currently at issue contain descriptions of EITs being applied during specific overseas interrogations. These descriptions, however, are EITs as applied in actual operations, and are of qualitatively different nature than the EIT descriptions in the abstract contained in the OLC memoranda.

Then you’re just hoping we’re all bigger idiots than we really are.

Let me say this plainly. According to the CIA–the CIA itself–there’s a reason why the interrogations don’t resemble the "EIT descriptions in the abstract contained in the OLC memoranda." That’s because some cowboy probably named James Mitchell who was getting rich off of torture thought things would be more poignant–yes, the fucker actually said "poignant"–if he drowned Abu Zubaydah in gallons of water rather than sprinkling him like a daisy. There’s a reason why the descriptions of torture as it was applied is such a problem–and yes, is evidence of unlawful conduct.  And that’s because we know–we all know!!!!–that the torture began before the memos authorized it, and the torture exceeded what few guidelines John Yoo placed on it.

So don’t give me this crap about not trying to avoid embarrassment–unless you start admitting how damning this shit is. 

We know you’re trying to hide the evidence of criminal torture. Insisting, over and over, under oath, that that’s not what you’re doing isn’t convincing anyone. 

Cheney’s and Gonzales’ CYA Libraries

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On March 12 or 13, 2004, after Jim Comey threatened to quit because George Bush had reauthorized warrantless wiretapping over Comey’s objections, Bush ordered Alberto Gonzales to write up notes of his March 10, 2004 meeting with members of Congress; the congressional meeting would serve as Gonzales’ excuse for having visited John Ashcroft in the ICU ward. Gonzales would go on to carry those notes around with him in a briefcase, thereby violating rules on treating classified information. After moving to DOJ in 2005, Gonzales did not feel safe leaving the documents in one of the DOJ safes accessible by–among others–Jim Comey (there was also one in the AG office that woudl presumably not be accessible to Comey).

On June 1, 2005, the day after Alberto Gonzales claims to have passed on Jim Comey’s warning to the NSC Principals Committee of the fallout that would come from their continuing to approve torture, the CIA produced a document that purported to tell the benefits of the torture program. That is one of two documents Cheney requested from the National Archives earlier this year to prove that torture worked. It is a document Cheney kept in his "immediate office files" in a file called "detainees."

And if that doesn’t make you suspect Cheney and Gonzales got worried enough to start building up their own little CYA libraries to protect themselves from the torture (and wiretap) fallout, consider some of the other document included in Alberto Gonzales’ briefcase of highly classified documents.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program;

[snip]

The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. The documents related to the NSA surveillance program discussed in Gonzales’s handwritten notes as well as to a detainee interrogation program. The documents included Office of Legal Counsel opinions that discuss the legal bases for various aspects of the compartmented programs, memoranda summarizing the operational details of the programs, [my emphasis]

Now, as I understand it, only the 2005 memos–and not the 2002 or 2003 memos authorizing torture–bear the markings of the compartment of that program (the middle redacted phrase, as I understand it, would be the compartment). Read more →

“Legal”

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When I first started bitching about this NYT story, I did so because it appeared someone had come to the NYT with three pieces of data–the news that Jim Comey concurred with the May 10, 2005 OLC "Techniques" memo, the previously known fact that Daniel Levin had authorized waterboarding under certain circumstances in August 2004, and the self-evident fact that Jack Goldsmith had not withdrawn the Bybee Two memo in 2004 when he had withdrawn the Bybee One memo (though not for lack of concern about the memo)–and turned it into an A1 story trumpeting that "US Lawyers Agreed on the Legality of Brutal Tactic."

The only real news from those three pieces of data is that Jim Comey, in an email to his Chief of Staff, described having said this to then Attorney General Alberto Gonzales:

I told him the first opinion was ready to go out and I concurred. 

Assuming the statement means what it appears to–that Comey endorsed the findings of the "Techniques" memo–it is news. It means that Comey concurred with the following propositions:

With these considerations in mind, we turn to the particular question before us: whether certain specified interrogation techniques may be used by the Central Intelligence Agency ("CIA") on a high value al Qaeda detainee consistent with the federal statutory prohibition on torture, 18 USC 2340-2340A. For the reasons discussed below, and based on the representations we have received from you (or officials from your Agency), about the particular techniques in question, the circumstances in which they are authorized for use, and the physical and psychological assessments made of the detainee to be interrogated, we conclude that the separate authorized use of each of the specific techniques at issue, subject to the limitations and safeguards described therein, would not violate sections 2340-2340A. Our conclusion is straightforward with respect to all but two of the techniques discussed herein. As discussed below, use of sleep deprivation as an enhanced technique and use of the waterboard involve more substantial questions, with the waterboard presenting the most substantial question.

[snip]

Assuming adherence to the strict limitations discussed herein, including the careful medical monitoring and available intervention by the team as necessary, we conclude that although the question is substantial and difficult, the authorized use of the waterboard by adequately trained interrogators and other team members could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering and thus would not violate sections 2340-2340A.

Read more →

All the News NYT Does Not See Fit to Print

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nyt-dom-dada.jpg

As I have pointed out in the last two posts, the NYT has a story up claiming that Jim Comey approved of torture, but that grossly misreads the Comey emails on which the story is based. In fact, the memos appear to show that the White House–especially Dick Cheney and David Addington–were pushing DOJ to approve the torture that had been done to Hassan Ghul, without the specificity to record what they had done to him; in fact, one of the things the push on the memos appears to have prevented, was for Comey and Philbin to have actually researched what happened to Ghul.

But the NYT instead claims that Jim Comey approved of torture legally, even while downplaying his concerns about the "combined techniques" memo that was the focus of his concerns (and not mentioning his response to the third memo).

But there is more news than that in the Comey emails–news the Grey Lady doesn’t seem to think is news. This includes:

Pressure on Pat Philbin

On April 27, 2005, Jim Comey alerted Chuck Rosenberg, his then Chief of Staff, on the fight over the torture emails because he was about to go on a trip, and he figured Pat Philbin would need cover from political pressure. He described that Philbin’s concerns about the memo were ignored. He closed the email by saying that Gonzales had visited the White House and–in spite of Comey’s request for a delay–told Philbin and Bradbury to finish the memo by Friday, April 29. Philbin objected that that was not enough time to do the "fact gathering" needed to fix the memo. Comey was basically asking Rosenberg to prepare to intercede on this process.

The following day, Comey emailed again to say that Ted Ullyot (who had just been read-in to this program) was pushing to get the memo done. It also appears that Ullyot was claiming Comey’s objections had to do with the prototypical interrogation included in the memo, and not the lack of specificity.

Alberto Gonzales’ Cowardice

Comey describes Dick Cheney putting a great deal of pressure on Alberto Gonzales to push through the memos in the last weeks of April.

The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week. Read more →

The May 10, 2005 Opinions Were Retrospective

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I asked in my earlier post on the NYT leak of Jim Comey emails what the big rush was in May 2005 that Comey couldn’t use a week to fix the "combined techniques" opinion.

The emails themselves explain the rush–and that rush should have been the NYT story. On April 28, 2005, Comey wrote:

[Alberto Gonzales’s COS Ted Ullyot] mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

In other words, the May 10, 2005 authorization to use combined techniques was designed to give legal cover for something that had already happened.

Now, the other memo mentioned Hassan Ghul several times–Ghul’s interrogators were making requests to use torture in August 2004. Was this the torture they were authorizing after the fact?

And if so, why was it so critical to authorize, since Dan Levin had authorized even waterboarding the previous August? And did they use waterboarding, even though they claim not to have?

More importantly, where is Hassan Ghul? He has not surfaced at Gitmo. Are they trying to hide the reasons why?

Update: Corrected that Comey’s conversation was with Ted Ullyot, and not with Gonzales directly.