Why Did Tenet Create a False Record on the Day After He “Quit”?

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William Ockham made another really important discovery:

I’d like to point to a document that was released a year ago (5/27/2008) as part of the ACLU’s ongoing torture FOIA. It’s a heavily redacted memo dated June 4, 2004 from George Tenet to the National Security Advisor (Rice). By June 2004, Tenet is on his way out as CIA director, the Abu Ghraib scandal has hit with full force, the CIA IG’s report has just been finished (but not yet briefed to Congress) and the 2004 Presidential campaign is in full swing. The CIA prison system was mostly still secret, but they had just released Khaled el-Masri in May 2004. The story of the ghost detainees in Iraq was just about to break.

With that as the background, here’s the parts of the second page of the memo that aren’t redacted (all the rest except the date, sender, and addressee are redacted:

3. As you know, beginning in September 2002, the Justice Department authorized CIA in its discretion, to employ on selected HVDs [Redaction ~3 lines] waterboard, [Redaction ~2 lines] CIA has reserved use of these [Redaction] techniques to elicit ongoing threat information from the most hardcore, senior terrorist figures that have been captured– men such as Khalid Sheik Muhammad, Abu Zubaydeh, [Redaction ~ 7 lines] key members of Congress have been briefed from the beginning–CIA informed the leadership of the Congressional Intelligence Committees of the existence and nature of the Program when it commenced in late 2002, in early 2003 when members of the leadership changed, and again in September 2003.

Rice and Tenet both knew that most of that was not true. They knew the program commenced long before September 2002, that the DOJ memos (which were not authorizations) came in August, that the Congressional briefings were after the fact and completely inadequate from a statutory perspective. What is this memo other than an attempt to create an after-the-fact coverup?

I’d add two details to those WO offers. The document appears not just after Tenet was on his way out, but the day after Bush announced his resignation. And it happened around the time Tenet asked for written endorsement from Bush of the torture program.

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — Read more →

CIA: Focus on the Beatings, Not the Incompetence

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fatster linked to this CQ article, quoting a former CIA ops officer admitting the CIA dissembles to Congress–and suggesting the CIA likes this controversy, because it makes them look tough.

"The interrogations controversy has served the CIA bureaucracy," Jones asserted. "A top goal of bureaucracy is to look busy, and whether one agrees with the interrogation methods or not, the impression given is that the CIA is both busy and aggressive."

Jones added: "It relishes this ‘cowboy’ image, and its greatest fear is that the taxpayer might figure out how little it actually is doing.

"Bans or restrictions on interrogations," he added, "would have the constructive effect of removing this smokescreen, this distraction, and redirecting focus to what exactly the CIA is doing to provide the foreign intelligence the president needs."

All the more reason to bring Ali Soufan back, to talk about how James Mitchell’s torturers tortured because they didn’t have the linguistic skills, knowledge of Al Qaeda, or background in interrogation to do it right.

Dick Cheney’s Torture Kabuki

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I wanted to pull three threads together in this post, which suggest how Cheney instituted torture in this country:

  • Alberto Gonzales may have been approving torture even while Condi Rice and others went through the show of getting an OLC opinion to authorize it;
  • CIA claimed to be briefing Congress when it wasn’t;
  • The Bush Administration then claimed Congress had bought off on torture to persuade those objecting to torture within the administration.

There are also certain parallels with the way Cheney implemented his illegal wiretap program.

Alberto Gonzales’ approvals

As Ari Shapiro reported last week, Alberto Gonzales was personally approving the techniques Mitchell’s torturers would use on a daily basis.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

We know there’s cable traffic from the field back to CIA HQ every day. And we know there’s a May 28, 2002, 4-page cable from HQ back to the Field that roughly corresponds to when Ali Soufan has said the torturers brought out the small box in which they eventually confined Abu Zubaydah. This may mean there’s a seven-week gap between the time the harshest techniques were first okayed, and the time Condi purportedly gave the torture program its first okay on July 17, 2002. As I noted the other day, this raises the possibility that the OLC approval process was all just show, basically endorsing torture that had gone on for some time already.

Is it possible that when Bellinger and Condi asked for an OLC opinion, the CIA’s torturers were already hard at work, and it’s only because Bellinger asked for an opinion that they even bothered? If Gonzales was relaying daily approvals for torture directly to the torturers in the field, then why would it appear that Condi was the one who "approved" the program in mid-July? Why not Gonzales?

It’s a possibility that one of Shapiro’s sources is contemplating.

"I can’t believe the CIA would have settled for a piece of paper from the counsel to the president," says one former government official familiar with those discussions.

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Feingold’s Opposition to Indefinite Detention

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Man, I love Russ Feingold. Here’s the letter he sent Obama to lay out his opposition to the notion of indefinite detention. (h/t dday)

He perfectly explains why indefinite would be a dangerous precedent.

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional Read more →

Richard Shelby Contradicts the CIA and Everyone Else

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Last we checked, the only member of Congress briefed on torture in September 2002 who agreed with the CIA’s representation of that meeting was Richard Shelby. After Greg Sargent asked him point blank whether they were told about waterboarding, Shelby said,

To Senator Shelby’s recollection of the Senate briefing, waterboarding was one the EITs the CIA said it had used. As he also recalls, the CIA described the valuable intelligence it obtained using EITs, including waterboarding.

Now, as I pointed out yesterday, an anonymous source who is almost certainly the Shelby staffer in that meeting, Bill Duhnke, seems to remember the meeting similarly to Bob Graham. So Shelby’s story was already getting a little wobbly, even ignoring the credibility afforded Graham’s story by his extensive notes.

Well, Shelby’s wobbly story just got shot to hell by his own big mouth. This morning, he described a meeting attended by all four Gang of Four members, rather than two and two as the CIA shows. (h/t Bob Fertik)

KING: Vice President Cheney wants other memos released. Should we just have full disclosure on all fronts here, transparency, let the American people decide?

SHELBY: Well, that’s a tough road to go down. What we are basically doing is weakening our intelligence agencies and we will pay dearly for that. I was in that meeting, Senator Graham, Congressman Goss, Congresswoman Pelosi at that time, four of us were in the meeting.

And I came away from there believing that the enhanced interrogation techniques were working, they were getting good information. This was in ’02. I thought we had a pretty good description of what was happening by the CIA.

But, you know, they are the ones that were there. It has been seven years. But I believe that we ought to err on the side of national security, I thought then and I know it now. [my emphasis]

Uh, if four of you were in the meeting, then the CIA’s records are wrong, which means we shouldn’t trust their version of that briefing. And if not–as seems to be the case–then Shelby’s wrong even about the basic circumstances of the briefing.  Shelby’s follow-on, "they are the ones that were there. It has been seven years" seems like a giant hedge. Or maybe a confession on Shelby’s part that even when he’s "there," he’s not all there. 

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John Rizzo’s Nomination and the Bybee Two Memo

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On August 23, 2006, Jello Jay Rockefeller wrote to Michael Hayden requesting a number of documents in relation to John Rizzo’s nomination to be CIA’s General Counsel. In addition to a list of all OLC memos and access for the full committee to the 2004 CIA IG report on torture, Rockefeller asked for materials relating to the Bybee Two memo listing all the torture techniques CIA could use. As with the IG report, Jello Jay asked that all committee members be able to read the document (starting on page 15).

[For Bybee Two] the question is not whether it should be delivered [to the Committee], for it is here, but whether all Members of the Committee and their staff assisting them in preparing for the hearing may read it. The Senate has referred the nomination to the full Committee, not to the Chairman and Vice Chairman alone. Each Member must decide how to vote. In doing that, each should be able to ask those questions that he or she deems necessary for an informed vote. The memo was requested from OLC for the CIA by the nominee and he had responsibility for implementing it. Members may therefore wish to question him about it.

And in a section asking for more information about Rizzo’s role in buying off on torture policy (and following a completely redacted paragraph), Jello Jay asked specifically about Rizzo’s role in formulating Bybee Two.

The focus of the requests described above concerns matters relating to and following the August 2002 Second Bybee Memo. There were also important decisions about U.S. legal policies related to counterterrorism, including on such matters as the application of the Geneva Conventions, that preceded the Bybee Memos, and my understanding is that the nominee had a role in that process, both within the CIA and outside of it. It will therefore be important to assess his participation in the formulation of those policies. Accordingly, in addition to documents relating directly to the Second Bybee Memo, please provide documents authored by the nominee, or prepared under his supervision, that set forth the nominee’s contribution to the development of U.S. legal policy after the September 11 attacks.

The request is important for several reasons. First, it asks to what degree Rizzo was involved in the shredding of the Geneva Conventions, particularly repeated exemptions even from the flabby support of the GC applied to other agencies. Read more →

Preventative Detention and Our Crimes

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I guess the news that came out of yesterday’s great chat (if I do say so myself) with Sheldon Whitehouse is his analogy on preventative detention.

To argue by analogy, one can go to court and to a civil standard of proof show that someone is a danger to themselves or others, and obtain a civil commitment restricting their freedom. If we can do this with Americans, it seems logical that we could also do it with foreign terrorists. The question is, what checks and balances should surround the initial determination of danger, and what safeguards should stay with the person through the period of confinement? I look forward to hearing more from the Obama Administration about what schedule of rule of law safeguards they intend to apply, but I think that the example of civil commitment shows that it is not categorically forbidden to restrict someone’s freedom based on a finding of danger.

I was already thinking of what it means to use the analogy from psychiatric detention, but reading Digby talk about issues has a way of bringing them into focus. 

I think that may be even scarier than Gitmo. It implies use of psychiatric hospitals for political prisoners, a la the Soviet Union. It’s a terrible analogy.

Whitehouse is a good guy and I don’t mean to pick on him, but this just won’t do, even to make a point. Involuntary committment cannot be used for criminals, who everyone knows may very well re-offend when they are released, so it certainly cannot be used for terrorist suspects who are accused of being at war with America. (Unless, of course, you think it is insane to be at war with America.) The history of involuntary commitment is hideous throughout world history and it remains controversial to this day, even when it is used for people who are truly mentally ill. To even think of it as a way to argue that such policies are analogous to the indefinite detention of terrorist suspects is really dangerous.

You see, while I know this whole preventative detention thing is being proposed for a range of detainees, having read two recent filings from Abu Zubaydah’s lawyers and TheraP’s take on those filings, I’m mostly thinking of Abu Zubaydah, whom our government has been calling one of the 9/11 plotters for years, but who did not get charged when KSM and the others got charged. I can’t help to shake the notion that this preventative detention stuff is supposed to solve what we do with Abu Zubaydah. Read more →

WaPo Doubles Down on Conflict Over Truth

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In spite of the fact that it is becoming increasingly clear to the rest of the media that Porter Goss and Nancy Pelosi agree that they were not briefed that the CIA had already been torturing prisoners in September 2002, the WaPo has decided to double down on deliberately misreading events. The excuse the WaPo uses to present a story of Republican-Democratic conflict, again, is to report the impression that members of the intelligence committees express after having viewed the briefing documents.

Members of Congress are largely divided into two camps: One says that the CIA intentionally withheld information about the tactics it was already using against detainees, even as it was providing Congress with intelligence that led to an overwhelming bipartisan vote supporting the use of force in Iraq to rid Saddam Hussein of weapons of mass destruction. The other says that Pelosi is covering up her original tacit support of techniques that she now labels as torture.

Before I go any further, look at how utterly crazy this description is. The WaPo notes that the CIA gave this briefing at the same time as it was drumming up the case for war, but rather than describe that case as something like "now recognized as one of the worst examples of CIA deception and incompetence in our history," it instead emphasized that the CIA’s case led to "an overwhelming bipartisan vote supporting the use of force in Iraq." WaPo. Don’t you think you owe your readers an admission that the whole point of raising the Iraq War case is to remind them that almost everyone agrees everything else the CIA was doing in September 2002 was either incompetent or deliberately deceptive?

Then there is the flatly deceptive language the WaPo uses to sustain their case that the "conflict" between Goss and Pelosi, Shelby and Graham, is one with equally credible sides. First, with Goss, they choose to ignore his language that is specific to the briefing in question, 

In the fall of 2002, while I was chairman of the House intelligence committee, senior members of Congress were briefed on the CIA’s "High Value Terrorist Program," including the development of "enhanced interrogation techniques" and what those techniques were. This was not a one-time briefing but an ongoing subject with lots of back and forth between those members and the briefers.

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Did Abu Zubaydah’s Torture Begin After May 28, 2002?

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I increasingly suspect that the torture index provided to ACLU may better pinpoint the day when Abu Zubaydah’s torture began. Here are they key datapoints.

April 13, 2002: CIA starts taping Abu Zubaydah interrogations.

April 16, 2002: Bruce Jessen circulates draft exploitation plan to JPRA Commander.

April 2002: CIA OGC lawyers begin conversations with John Bellinger and John Yoo/Jay Bybee on proposed interrogation plan for Abu Zubaydah. Bellinger briefed Condi, Hadley, and Gonzales, as well as Ashcroft and Chertoff.

May 6, 2002: Interrogators send 28-page cable to HQ.

Mid-May 2002: CIA OGC lawyers meet with Ashcroft, Condi, Hadley, Bellinger, and Gonzales to discuss alternative interrogation methods, including waterboarding.

Mid to late May, 2002: Ali Soufan leaves Thailand after contractors threaten to confine Abu Zubaydah in small box.

May 28, 2002: CIA HQ sends 4 page cable to interrogators in Thailand.

Early June, 2002: Soufan’s partner, Steve Gaudin, leaves Thailand.

July 13, 2002: CIA OGC (Rizzo?) meets with Bellinger, Yoo, Chertoff, Daniel Levin, and Gonzales for overview of interrogation plan.

July 17, 2002: Tenet met with Condi, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

It appears that, as MadDog suggested, that that May 28, 2002 cable may have been the written approval for contractor James Mitchell to start using the harsher forms of torture.

Here’s what I think happened.

First, it’s clear that Mitchell’s partner, Bruce Jessen, started circulating his exploitation plan at about the same time Mitchell took over the interrogation of AZ.  It’s equally clear that CIA’s counsel (presumably John Rizzo) started working with OLC (presumably Yoo) on formulating legal advice at about the same time. So in mid-April, you’ve already got the intent to use SERE techniques in interrogation.

Ari Shapiro described a process by which Mitchell wrote cables every night to get the next day’s torture approved by Alberto Gonzales.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

But a 28 pages would cover far more than the next day (the other cables are generally 2 to 5 pages long). Read more →

The Context of the Torture Index

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I wanted to return to the torture index released to ACLU the other day to comment on what the CIA claims to have in terms of records.

First, remember what this index is. The April 21 order required CIA to turn over two things. 

  • Records "relating to the content" of the torture tapes "from the entire period of the tapes that were destroyed"
  • "Documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction"

The second bullet (referred to as Paragraph 4 material) is the stuff discussed in the recent John Durham squabble. The first bullet (referred to as Paragraph 3 material) is the stuff we got the other daya and which I’ll discuss in this post.

The May 7 order summarizes how CIA and ACLU agreed CIA would treat those records that described the content of the torture tapes.

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. With respect to the contemporaneous and derivitive records, the parties jointly propose the following: 

  • May 18, 2009: The Government will produce a list of all contemporaneous records and all derivative records. The list will, to the greatest extent permissible on the public record (i.e., the list will not include classified information or information otherwise protected by statute), identify the date, sender, recipient, type, and subject matter for each record;

So the stuff we got the other day is one of three things:

  • Documentation made contemporaneously with interrogations that were videotaped
  • Documentation made contemporaneously to the viewing of the videotapes
  • Derivative records that summarize the contents of the contemporaneous record

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