WaPo’s Partisan Press Release Service

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The front page of the WaPo website features what amounts to a press release from John Boehner, attempting to continue blaming Nancy Pelosi because Dick Cheney tortured.

House Minority Leader John A. Boehner (R-Ohio) said that House Speaker Nancy Pelosi (D-Calif.) "ought to either present the evidence or apologize’" in the wake of her comments that CIA officials misled her about the use of controversial interrogation techniques on terrorist suspects.

"Lying to the Congress of the United States is a crime," Boehner said yesterday on CNN’s "State of the Union." "And if the speaker is accusing the CIA and other intelligence officials of lying or misleading the Congress, then she should come forward with evidence and turn that over to the Justice Department so they can be prosecuted."

He added: "And if that’s not the case, I think she ought to apologize to our intelligence professionals around the world."

The story doesn’t report that two out of three of the other members of Congress who were "briefed" in September 2002 (including the hyper-anal Bob Graham) back Pelosi’s claim. Here’s Graham:

The CIA when I asked them, what were the dates these briefings took place, gave me four dates. And I went back to my spiral notebooks and a daily schedule that I keep and found, and the CIA concurred, that in three of those four dates, there was no briefing held. That raises some questions about the bookkeeping of the CIA. Under the rules of clandestine information, I was prohibited from keeping notes of what was actually said during that briefing other than a brief summation that it had to do with the interrogation of detainees.

And here’s Goss, speaking of the torture techniques prospectively (and therefore revealing that he was not briefed they had already been used, which is precisely what Pelosi has claimed):

the techniques on which they were briefed were to actually be employed

And for good measure, here’s Jello Jay, pointing out that the CIA also got its briefing schedule wrong with him, as they did with Graham.

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A Dick Cheney Torture Trifecta!

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First we have Judy "re-connected at the roots" Miller claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

Then we got Stephen "Hagiographer" Hayes, claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

And now we’ve got Victoria Toensing, claiming we shouldn’t prosecute John Yoo and Jay Bybee because they told Dick Cheney he could torture. This article is notably bad, even for Toensing. She invokes her Reagan-era legal experience as her basis of authority–but ignores the Reagan-era case which declared waterboarding to be torture.

In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard:

She claims the lawyers (she conveniently mentions just Yoo and Bybee, for obvious reasons) only had to determine whether waterboarding constitued a specific intent to torture, and not whether it shocked the conscience.

Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law’s definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.

Bradbury, of course, spent a good part of his May 30, 2005 memo addressing the "shock the consicence" standard, because the program had been deemed illegal by the CIA’s own IG under that standard.

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You Can’t Spell “Walter Pincus” without C, I, and A

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Walter Pincus, in one of the rare moments when his lifetime relationship with the CIA supercedes his normally excellent reporting, claims that waterboarding was not used when Abu Zubaydah and Khalid Sheikh Mohammed were asked about Iraqi ties with Al Qaeda.

Senior intelligence officials yesterday acknowledged that two al-Qaeda operatives, Abu Zubaida and Khalid Sheik Mohammed, had been questioned about alleged links between al-Qaeda and Iraq when the two men underwent CIA interrogation in 2002 and 2003. But the officials denied that the questioning on Iraq had included waterboarding.

"The two top priorities driving so-called enhanced interrogation techniques were information on the locations of al-Qaeda leadership and plots against the United States," one intelligence official said yesterday, speaking on the condition of anonymity because he was not authorized to discuss the subject publicly. "Questions were asked about Iraq, but the notion that waterboarding was used to extract from either an admission that Iraq and al-Qaeda had a relationship is false, period," he added.

Note, these two senior intelligence officials did not deny that Ibn Sheikh al-Libi was waterboarded to elicit a claim of an Iraqi-al Qaeda tie. They do not deny that Dick Cheney’s office pitched waterboarding an Iraqi to get such a claim. They do not deny that the non-briefing of Congress on torture was part of a plan to hide the torture which might undermine the accuracy of Abu Zubaydah’s claim of such a tie (note, KSM apparently never claimed there was a tie). And they do not deny that harsh methods were used by DOD to elicit such claims. In fact, they don’t even deny that torture (but not waterboarding) was used in interrogations when KSM and AZ were asked about Al Qaeda ties with Iraq.

So the denial here falls short of even denying that the Administration used–and threatened to use–torture to trump up ties between al Qaeda and Iraq.

And besides, why should we believe this? Two senior officials, unwilling to go on the record to make this denial? 

If someone wants to make this claim, let’s see the records. Let’s have your names (and the basis for your firsthand knowledge).  Short of that–short of some evidence the CIA didn’t just call Walter Pincus to issue a friendly denial–I really don’t know why this would be considered credible. 

The Two Torture Tape Suspects, the Pelosi Briefing, and the Panetta Statement

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A number of people are panicking about Leon Panetta’s statement to CIA employees, believing it rebuts Nancy Pelosi’s statement.

There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress.

Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

My advice — indeed, my direction — to you is straightforward: ignore the noise and stay focused on your mission. We have too much work to do to be distracted from our job of protecting this country.

We are an Agency of high integrity, professionalism, and dedication. Our task is to tell it like it is—even if that’s not what people always want to hear. Keep it up. Our national security depends on it.

But there’s a better way to understand this. 

First, look at Panetta’s statement about the briefings themselves.

As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

Panetta is stating two things:

  1. The contemporaneous records (that is, the CIA briefer’s own notes on the briefing) show that the briefers "briefed truthfully … describing ‘the enhanced techniques that had been employed’" on Zubaydah.
  2. It is up to Congress to evaluate this evidence and "reach its own conclusions about what happened."

Now, first of all, Panetta is not saying (nor has anyone said, not even Porter Goss) that the briefers briefed Congress that these techniques had been used. I know this sounds weasely, but until someone says, in plain language, that the CIA told Congress those techniques had already been used on Abu Zubaydah, we should assume that’s not what the notes reflect, because if they did, you can be sure both the briefing list and the public statements would say so. Read more →

The Terrorism Intelligence and the Briefing Schedule

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I suggested yesterday that one of the explanations for the CIA’s unreliable record of briefings on torture and terrorism in 2002 and 2003 might reflect an attempt to hide certain information.

Did CIA not reveal they were torturing detainees to dodge any question about the accuracy of claims about Iraq intelligence? 

While we don’t know the full schedule of briefings on Iraq intelligence, the schedule of intelligence documents pertaining to Iraqi ties to terrorism suggests that might be possible. Significantly, according to Bob Graham and Nancy Pelosi, they were not briefed that Abu Zubaydah had been tortured before the NIE appeared integrating his August 2002 interrogation reports. And Jane Harman was not informed he had been tortured until after the last major report on Iraqi links to terrorism came out in January 2003.

Here are the intelligence documents mentioned in the SSCI Report on Iraq, interspersed with the torture briefings.

September 21, 2001: Document written by Cofer Black (then Director of CounterTerrorism) and Near East and South Asia Directorate. Distributed only to President’s Daily Brief principals, and not revealed to Congress until June 2004. The document is described as "taking a ‘Q&A’ approach to the issue of Iraq’s possible links" to 9/11.

October 2001:  NESA document discussing Iraq’s overall ties to terrorism.CIA refused to share the document with SSCI, explaining its dissemination was limited to PDB readers.

December 18, 2001: Ibn Sheikh al-Libi captured.

February 22, 2002: First report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

March 28, 2002: Abu Zubaydah captured.

June 21, 2002, Iraq and al-Qaida: Interpreting a Murky Relationship: Ostensibly a joint project between CTC and NESA, the report was a subject of a CIA Ombud invsetigation into a complaint from a NESA analyst alleging that the document did not adequately reflect the views of NESA. The document was intentionally expansive, as described by Jamie Miscik: "If you were going to stretch to the maximum the evidence you had, what could you come up with?"

July 26, 2002: OLC orally authorized waterboarding.

July 31, 2002: Second report doubting al-Libi’s claims of ties between Iraq and al Qaeda.

Summer 2002, Dougie Feith’s Propaganda: This led to a series of briefings in August 2002 apparently designed to reinsert previously discredited claims into the CIA stream of intelligence. In particular, George Tenet agreed to hold up the production of Iraqi Support for Terrorism until CIA could attend a meeting with Feith’s people; the meeting took place on August 20, 2002. Read more →

Dick Cheney, Torture, Iraq, and Valerie Plame

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I’ve been reluctant to embrace suggestions that torture, Iraq, and Valerie Plame were all going to coalesce into one linked story. After all, it would be too easy for me, of all people, to argue these stories were linked. But I increasingly suspect they are.

First, let me pull together some data points.

Nancy Pelosi and Bob Graham are linking the non-briefings on torture with the Iraq NIE

Now that they are explicitly stating that CIA lied in its September briefings on torture, Nancy Pelosi and Bob Graham are also both linking those lies with the lies they were telling–at precisely the same time–in the Iraq NIE. Here’s Pelosi:

Of all the briefings that I have received at this same time, earlier, they were misinforming the American people there were weapons of mass destruction in Iraq and it was an imminent threat to the United States. I, to the limit of what I could say to my caucus, told them, the intelligence does not support the imminent threat that this Administration is contending. Whether it’s on the subject of what’s happening in Iraq, whether it’s on the subject of techniques used by the intelligence community on those they are interrogating, every step of the way, the Administration was misleading the Congress.

And that is the issue. And that is why we need a truth commission.

And here’s Graham:

Yes, they’re obligated to tell the full Intelligence Committee, not just the leadership. This was the same time within the same week, in fact, that the CIA was submitting its National Intelligence Estimate on weapons of mass destruction in Iraq which proves so erroneous that we went to war, have had thousands of persons killed and injured as a result of misinformation.

Now, it’s quite possible Graham and Pelosi are tying these two lies together just to remind reporters how unreliable the CIA is. Perhaps they’re doing it to remind reporters of how they got burned leading into the Iraq War, trusting the spin of the Administration.

But perhaps they’re trying to say there’s a direct connection, an explicit one, between the NIE and torture. We know Ibn Sheikh al-Libi’s claims appeared in there. Did anything that came out of Abu Zubaydah’s interrogation? Or Ramzi bin al-Shibh? 

Did CIA not reveal they were torturing detainees to dodge any question about the accuracy of claims about Iraq intelligence?

The proposal to waterboard Muhammed Khudayr al-Dulaymi

Then there’s not just the revelation, by Charles Duelfer, but the timing he describes of OVP proposals to waterboard Muhammed Khudayr al-Dulaymi, a Mukhabarat officer. Read more →

Fox Reports Absence of Presidential Finding, Clear Violation of Law, Yawns

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Aw man. The corporate press keeps getting stupider and stupider in their desperation to claim Democrats didn’t do enough to prevent torture after being briefed on it more than six months after the torture started.

This time it’s Fox News, complaining that Jane Harman, in her letter to Scott Muller, raised policy concerns, not legal ones.

California Rep. Jane Harman wrote about policy concerns, not legal concerns, in the letter House Speaker Nancy Pelosi is citing in her claim that she let the top Intelligence Committee Democrat take the lead in addressing complaints to the CIA about "enhanced" interrogation techniques used on terror detainees.

In her Feb. 10, 2003, letter, Harman wrote to CIA General Counsel Scott Muller asking whether President Bush had authorized and approved the enhanced techniques, because of the impact such methods may have on policy.

Now there are two big problems with Fox’s latest pathetic attempt at a gotcha. First, it misquotes Pelosi in several significant ways.

At a press conference on Thursday, Pelosi told reporters that she supported the letter Harman drafted for Muller that raised concerns over the legality of the program.

Pelosi said her staffer told her in February 2003 that Harman and Goss "had been briefed about the use of certain techniques which had been the subject of earlier legal opinions. Following that briefing, a letter raising concerns was sent to CIA general counsel, Scott Muller, by the new Democratic ranking member of committee, the appropriate person to register a protest," Pelosi said

"But no letter or anything else is going to stop them from doing what they’re going to do," she added.

Pelosi added that those briefing her in September 2002 gave her inaccurate and incomplete information. Pelosi’s office issued a statement Thursday saying Pelosi had been told in September 2002 that waterboarding, or simulated drowning, had not been used, but was going to be used in the future.

Here are the complete quotes from Pelosi’s statement.

The CIA briefed me only once on some enhanced interrogation techniques, in September 2002, in my capacity as Ranking Member of the House Intelligence Committee.

I was informed then that Department of Justice opinions had concluded that the use of enhanced interrogation techniques was legal. The only mention of waterboarding at that briefing was that it was not being employed.

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Crazy Pete Hoekstra Flip-Flops on Congressional Notification

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In 2006, a certain member of Congress laid out the President’s and Intelligence Community’s obligation under the National Security Act to brief Congress on intelligence activities.

I want to reemphasize that the Administration has the legal responsibility to "fully and currently" inform the House and Senate Intelligence Committees of its intelligence and intelligence-related activities. Although the law gives you and the committees flexibility on how we accomplish that (I have been fully supportive of your concerns in that respect), it is clear that we, the Congress, are to be provided all information about such activities. I have learned of some alleged Intelligence Community activities about which our committee has not been briefed. In the next few days I will be formally requesting information on these activities. If these allegations are true, they may represent a breach of responsibility by the Administration, a violation of law, and, just as importantly, a direct affront to me and the Members of this committee who have so ardently supported efforts to collect information on our enemies. I strongly encourage you to direct all elements of the Intelligence Community to fulfill their legal responsibility to keep the Intelligence Committees fully briefed on their activities. The U.S. Congress should not have to play "Twenty Questions" to get the information that it deserves under the Constitution.

This letter makes the President’s and Intelligence Community’s obligation pretty clear. They must "fully and currently" inform congressional intelligence committees. They must provide all information about such activities. Congress should not have to play "Twenty Questions" to get such information. Not providing such information is a violation of the law. And, "just as importantly," it is "a direct affront" to Congress to withhold such information.

That’s a pretty clear statement of the importance of CIA’s obligation to inform Congress of their activities.

So why do you think it is that the author of this letter–Crazy Pete Hoekstra–has spent the last three weeks beating up Nancy Pelosi when–by all accounts–she was not briefed on the CIA’s activities "fully and currently" in 2002? Why is it okay for Crazy Pete that Pelosi and Porter Goss should have to play Twenty Questions on torture, when such games were not okay for Crazy Pete himself after he became the Chair of HPSCI? Does’t Crazy Pete care that CIA’s treatment of Congress in 2002 was a "direct affront" to their efforts to support the intelligence community?

And most importantly, if it was a violation of the law in 2006 not to inform Congress about intelligence community activities, then wasn’t it a violation of the law in 2002?

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Graham: They Claimed to Have Briefed Before Torture, Did Not

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I’ve got to correct something I said yesterday about Bob Graham. I reported that Graham said that CIA had given him two erroneous dates for briefings. That was wrong (RawStory reported the number correctly, though). They gave erroneous dates for three briefings.

The difference is critical, because it means the CIA tried to claim it had briefed Graham on torture in April 2002, which would have put it in compliance with the National Security Act. But Graham, by consulting his trusty notebooks, proved that claim to be false. 

Graham also notes that the CIA is obligated to tell the entire intelligence committees, not just the leadership. 

You think maybe someone besides us here and MSNBC will start focusing on CIA’s failure to comply with the requirement that it brief Congress on its actions?

David Shuster: House Speaker Nancy Pelosi says the CIA misleads Congress all the time and has at least one big-name Democrat backing her up, Former Senator Bob Graham who chaired the Senate Intelligence Committee following the 9/11 attacks and he joins us live this morning. Senator Graham, House Speaker Pelosi said specifically when she was briefed in September 2002, she was told that waterboarding specifically was not being used. What were you told during that same time period, September 2002?

Graham: David, when I was briefed which was about three weeks after the Speaker, the subject of waterboarding did not come up. Nor did the treatment of Abu Zubaydah or any other specific detainee.

Shuster: And the reason that’s significant is because by the time of your briefing and the Speaker’s briefing, we now knew Zubaydah had been waterboarded some 83 times. So again, was there a requirement, was it incumbent upon the CIA, to tell you as the Chairman of the Senate Intelligence Committee or Ranking Member, was there an obligation on them to tell you about it if it was going on?

Graham: Yes, they’re obligated to tell the full Intelligence Committee, not just the leadership. This was the same time within the same week, in fact, that the CIA was submitting its National Intelligence Estimate on weapons of mass destruction in Iraq which proves so erroneous that we went to war, have had thousands of persons killed and injured as a result of misinformation.

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Dick Cheney Out on a Limb Fourth Branch

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We’ve been laughing about this in threads, but I wanted to share the joke(s). Greg Sargent got the letter from the CIA telling the Archives that Dick Cheney can’t have his propaganda.

As you are aware, a request for Mandatory Declassification Review is governed by Executive Order 12958, as amended, which was signed and executed by the President on March 25, 2003. Under section 3.5.(a)(3) of that Executive Order, a document is excluded from Mandatory Declassification Review if that document contains information that is the subject of pending litigation. This provision ensures that the Mandatory Declassification Review process is not used to disrupt simultaneous litigation proceedings that are already pending. In researching the information in question, we have discovered that it is currently the subject of pending FOIA litigation (Bloche v. Department of Defense, Amnesty International v. Central Intelligence Agency). Therefore, the requested document, which contains this information, is excluded from Mandatory Declassification Review.

There are two reasons I’ve been laughing my ass off for the last few hours.

First, those FOIAs? The CIA says Dick can’t have his propaganda until two liberal entities–some experts in bioethics wanting more details on the use of doctors in torture, and Amnesty International and Center for Constitutional Rights looking for more information on extraordinary rendition and ghost detainees–resolve their demand for these documents. But guess what? Cheney’s propaganda documents aren’t the only things that would be responsive under FOIA! So would the IG report, particularly the parts that describe how the CIA’s own IG didn’t think torture was all that effective and those that discuss the use of psychologist-contractors to conduct torture. So for Dick to get his documents, he may have to wait for these do-gooder torture opponents get a whole load of proof of just how ineffective and unethical Cheney’s torture program was.

I just can’t wait to see Dick Cheney asking the Center for Constitutional Rights nicely to give him his little propaganda documents. 

And what’s better? That EO the CIA cites, saying it cannot turn over these documents? EO 12958, as amended? That amendment is EO 13292–an amendment Dick had Bush sign on March 25, 2003, just at the beginning of the Iraq War. It’s a special amendment in Dick’s little bureaucratic evil, because it’s the basis that Dick used to claim he could insta-declassify the identity of a CIA spy and have it leaked to Judy Miller! Read more →