The Five Criminal Referrals WaPo Doesn’t Report

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Can I just say how relieved I am that a TradMed outlet has finally reported the details about how the CIA’s torture program exceeded guidelines that I noted three weeks ago, from the recognition that the CIA was using much more water in its waterboarding than OLC authorized to the description of that action as "poignant"? It’s high time someone [else] started reporting the evidence that the torture program was not legal, even according to the Bybee Memo, as news.

The new news in this piece, though, is that the SSCI is reviewing a 2005 CIA IG [corrected] report on the torture tapes–a report that Jello Jay requested (to no avail) back when it was published.

To assess whether interrogators complied with the department’s guidance, Senate intelligence committee investigators are interviewing those involved, examining hundreds of CIA e-mails and reviewing a classified 2005 study by the agency’s lawyers of dozens of interrogation videotapes, according to government officials who said they were not authorized to be quoted by name.

[snip]

The videotape study, which the Senate intelligence committee demanded to see in 2005 but did not receive until last year, assessed the legality of interrogations that occurred between April and December 2002.

I’ve said before that Jello Jay’s requests for this report and other information from the 2004 CIA IG report likely contributed as much to the CIA’s decision to destroy the torture tapes as all the other reasons. It’s nice to see that it only took him three years to get the document.

But there’s a claim reported in this story that seems to conflict with known information. It quotes two Bushies saying that the CIA never made any criminal referrals out of the [I think] 2004 CIA IG report.

But two Bush administration officials privy to its conclusions said it did not provoke a specific CIA "referral" to the department suggesting an investigation of potential criminal liability, and no such investigation was undertaken at the time.

Though it is not entirely clear, the context seems to suggest that "its" refers to the 2004 CIA IG report. Perhaps the two Bushies mean the conclusions of that report did not provoke a "specific CIA ‘referral’" to DOJ, even if the CIA IG referred specific cases before he reached his conclusion.

But we know from the DOJ IG report that the CIA IG referred five cases to DOJ.

[Alice Fisher] said she recalled there was an investigation based on a CIA referral that may have related to detainee treatment or interrogation techniques, Read more →

al-Libi Dies in a Libyan Prison

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Graphic by Darkblack

Graphic by Darkblack

We have been talking heavily about torture, renditions and the legal and motivational justifications therefore nonstop for the last couple of weeks. But one of the earliest entries in this sordid tale (witness the December 18, 2001 entry on Marcy’s Torture Timeline) was the capture and torture of Ibn Sheikh al-Libi. What became of al-Libi has been ripe discussion ever since he was disappeared. From Andy Worthington (h/t Barb) we learn of al-Libi’s demise:

The Arabic media is ablaze with the news that Ibn al-Shaykh al-Libi, the emir of an Afghan training camp — whose claim that Saddam Hussein had been involved in training al-Qaeda operatives in the use of chemical and biological weapons was used to justify the invasion of Iraq — has died in a Libyan jail.
…
This news resolves, in the grimmest way possible, questions that have long been asked about the whereabouts of Ibn al-Shaykh al-Libi, perhaps the most famous of “America’s Disappeared” — prisoners seized in the “War on Terror,” who were rendered not to Guantánamo but to secret prisons run by the CIA or to the custody of governments in third countries — often their own — where, it was presumed, they would never be seen or heard from again.

Al-Libi was captured by Pakistan on or about December 18, 2001 and was one of the earliest subjects rendered at the will if the CIA, being sent to Egypt for torture. And what did Bush/Cheney want out of him? Information connecting Sadaam Hussein with al-Qaida of course, which he eventually coughed up to his tormenters.

The significance of al-Libi in the events that followed and have led us to where we are today cannot be overestimated.

In Egypt, he came up with the false allegation about connections between al-Qaeda and Saddam Hussein that was used by President Bush in a speech in Cincinnati on October 7, 2002, just days before Congress voted on a resolution authorizing the President to go to war against Iraq, in which, referring to the supposed threat posed by Saddam Hussein’s regime, Bush said, “We’ve learned that Iraq has trained al-Qaeda members in bomb making and poisons and deadly gases.”

That October 7, 2002 speech in Cincinnati was a critical base for entire set of lies that put us into the unconscionable and unjustified invasion and occupation of Iraq. You might remember the Cincinnati speech, it was the first time Bush Read more →

Why Is Pat Roberts So Quiet?

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Virtually every report treating the CIA list of torture briefings seems either blissfully ignorant of or totally unconcerned with two significant conflicts between that list and the SSCI Narrative released earlier last month. The conflicts are:

  • CIA says Jello Jay attended the February 4, 2003 briefing on torture; SSCI says he did not (though note CIA’s asterisked comment admitting "later individual briefing to Rockefeller" and Rockefeller’s recent statement about being briefed, which suggests they may be reaching consensus that he had a later, "incomplete" briefing).
  • CIA does not say it briefed the Senate on "legal/policy issues" nor that "CIA [was] currently seeking reaffirmation from DOJ on use of EITs as well as renewed policy approval from NSC principals to continue using EITs" on July 15, 2004–it says it did brief the House intell leaders on this; SSCI says CIA did say it "was seeking OLC’s legal analysis on whether the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture."

The conflicts are important because, if the SSCI narrative is correct, it would show key conclusions reporters are making about the briefings are false, it would clearly undermine the validity of the rest of the CIA briefing list, and it would show that CIA’s version left out key aspects of Congressional oversight (or lack thereof). If the CIA version is correct, it would mean CIA avoided at least one discussion about legal issues that pertained directly to the Senate’s role in approving treaties.

The conflict, however, is not just a he-said-he-said conflict between Bush’s CIA leadership and one key Democrat. The CIA and the SSCI agree that Pat Roberts attended both of these briefings (though not the individual briefing Jello Jay had). Now, Pat Roberts was not on SSCI when it developed its narrative, so he may or may not have had input into the narrative. But it has been public for weeks, and Pat Roberts remains mum about its accuracy (or not; also, he has not yet weighed in on the CIA version, either). 

But we do know there has been an extended process between CIA and SSCI on these issues. 

As Jello Jay explains, discussions about the SSCI narrative started last August–and the CIA, as well as key members of the Bush Administration–got input.

In August 2008, I asked Attorney General Michael B. Mukasey to join the effort to create such an unclassified narrative. Read more →

Memo to WaPo: Torture Is Not Just Waterboarding

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The WaPo has a weird article today–purporting to pinpoint how Nancy Pelosi first learned of waterboarding. It suggests that Michael Sheehy–a Pelosi staffer when she was briefed in September 2002, who then worked for Harman, and subsequently returned to work for Pelosi–told Pelosi about waterboarding after having been briefed on it February 5, 2003.

A top aide to  House Speaker Nancy Pelosi attended a CIA briefing in early 2003 in which it was made clear that waterboarding and other harsh techniques were being used in the interrogation of an alleged al-Qaeda operative, according to documents the CIA released to Congress on Thursday. 

[snip]

But Michael Sheehy, a top Pelosi aide, was present for a classified briefing that included  Rep. Jane Harman (D-Calif.), then the ranking minority member of the House intelligence committee, at which agency officials discussed the use of waterboarding on terrorism suspect Abu Zubaida. 

But the claim–that the documents the CIA released to Congress makes it clear that Sheehy was briefed on waterboarding in February 2003–is totally false. The briefing list, after all, does not specify that the briefing covered waterboarding at all. 

Discussion of detainee interrogation program/techniques.

Existence of AZ tapes briefed and that the tapes to be destroyed as soon as IG completed his report.

It was also discussed that interrogation methods were similar to those taught/used in SERE training.

So if the WaPo is sure the briefing covered waterboarding–as opposed to just torture generally–then it didn’t learn that from the CIA briefing list. To make the claim, the WaPo points to the details of the Roberts/Rockefeller briefing that Rockefeller didn’t attend (though the WaPo doesn’t tell its readers that Rockefeller didn’t attend), claiming with no proof that the briefings were the same.

Five months after the Pelosi-Goss meeting, in briefings for the new leaders of the Senate intelligence committee, the CIA "described in considerable detail . . . how the water board was used," according to the documents released Thursday.

Mind you, I’m not disputing that the Goss/Harman briefing covered waterboarding–I’ve always assumed it did until I saw this list. But the list does not specify that waterboarding was discussed, as it does elsewhere, and the Senate briefing is not dispositive of what went on in the House briefing, so this can’t be where the WaPo got this claim from.

Which is one reason I find it notable that the WaPo interviewed Jane Harman for this interview–and it suggests that Harman said she was told the torture videos depicted waterboarding.

Harman was surprised at what she learned, particularly that intelligence officials had video of the waterboarding of Abu Zubaida and were planning on destroying it.

Harman said in an interview that she "did not recall" discussing the issue with Pelosi.

Read more →

Breaking News!! CIA Manipulating Briefing Process!!

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No. Not really breaking. We knew that CIA was playing around with its obligation to inform the intelligence committees before it starts any big new projects–like opening torture factories around the world.

But that’s the real story of this briefing list–aside from what a bunch right wingers are claiming it says, the actual details of the briefing list notwithstanding. The real story is that the CIA was playing a bunch of games to be able to claim it had informed Congress, even while only informing some of Congress some things.

First, CIA has officially confirmed what I have been saying for weeks. The CIA first briefed Congress on torture on September 4, 2002, 35 days after CIA purportedly began waterboarding and much longer after we know CIA started torturing Abu Zubaydah. Moreover, we have on the record statements from Pelosi and Goss (and I’ve had even stronger assurances elsewhere) that CIA did not tell Congress they were already in the business of torture. Their discussions of torture were all prospective, and they may even have stated clearly that they had not used these techniques yet, which (if true) would be a clear and direct lie to Congress. 

Second, look at when–according to the CIA’s specific assertions–they first talked about waterboarding to members of Congress:

February 4, 2003: Pat Roberts and a Republican and a Democratic staffer (but not Jello Jay); according to the CIA there was no specific mention of waterboarding in the February 5, 2003 briefing for Porter Goss and Jane Harman

July 13, 2004:  Porter Goss and Jane Harman

July 15, 2004:  Pat Roberts and Jello Jay

Now, it’s possible that the people trying to smear Pelosi with this are correct and CIA mentioned waterboarding in September 2002. But that’s not what the CIA says. Once you account for the fact that Jello Jay did not attend the February 4 briefing, the CIA says it first informed Democrats about waterboarding in July 2004, only after the CIA’s own Inspector General had declared the program cruel and inhuman (and note, the Senate intelligence leaders, at least, got a copy of that document in June 2004, so the CIA couldn’t very well pretend that they hadn’t been waterboarding).  

Note, too, that the CIA claims to have discussed legal issues in the July briefing with Harman and Goss, but not in the July briefing with Jello Jay and Roberts. Read more →

Republicans Appropriating Torture

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As I reported some weeks ago, Nancy Pelosi suggested one way the Bush Administration worked around the intelligence committees on torture and wiretapping was via the Appropriations Committees.

Q: Does this call into question the value of the briefing then, if they are not telling you fully…

Speaker Pelosi. I have questioned the values of the briefings over and over and over again. We only know what they choose to tell us and the manner and time in which they tell us. And that is why when people are talking about – whether they are talking about torture, or whether they are talking about wiretapping, or whatever you are talking about, we really have to have a change now in how Congress can do its oversight, because we expect and demand the truth.

And that’s why I, when I became Speaker, established this joint committee between the Appropriations Committee and the Intelligence Committee, because the fact is they really were not fully briefing the Intelligence Committee. And they have to answer to the Appropriations Committee because that’s where their funding comes from.

It is a long story, it’s an evolution. It used to be the Intelligence Committee – you couldn’t appropriate unless the Intelligence Committee authorized. It was almost effectively an appropriation. Over time the Intelligence in the Bush years became part of supplementals so there was absolutely no sharing of information. They would just stick the request in the supplementals. We said, "Okay, if they are going right to appropriations, we will have members of the Intelligence Committee serve in this hybrid committee, part Intelligence, part Appropriations." [my emphasis]

Now, the Appropriations briefing for torture actually came much later than it did for wiretapping (three years after the start of the program, rather than immediately after). But look at what CIA’s amazingly self-serving list of briefings describes having happened:

October 18, 2005: Interrogation techniques briefed. Ted Stevens, Thad Cochran

September 19, 2006: Briefing on full detainee program, including the 13 EITs. Bill Young, John Murtha (John Murtha did not stay for EIT portion of briefing)

October 11, 2007: The Director discussed the number of detainees subjected to EITs and discussed EITs. John Murtha

First, note the timing of these. The first Appropriations briefing took place during the debate on the Detainee Treatment Act, at a time when there were a significant number of Republican-only briefings: two for Fristie, one for McCain, one for Duncan Hunter, one for Crazy Pete Hoekstra, and the briefing for "Appropriations." 

Read more →

CIA Lying to ABC about Torture. Again. ABC Reporting It Uncritically. Again.

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As bmaz has reported, the CIA has sent a list of torture briefings to Crazy Pete Hoekstra on when and whom in Congress got briefed that the CIA was in the torture business. And ABC news, just off having to admit the CIA lied to them about torture in the past, has taken what the CIA gave them and treated it totally uncritically. Again.

Based on the list (which I’ve also obtained), they’re out with a post claiming they’ve caught Pelosi in a contradiction.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. 

Setting aside the fact that the list doesn’t mention waterboarding specifically in its description of that briefing (it does in quite a few others), there are huge problems with using the list as a basis to claim anything.

First, there’s this paragraph the CIA included in the letter they sent with the briefing list to Crazy Pete (which ABC didn’t think important enough to include when they first posted this story):

This letter presents the most thorough information we have on dates, locations, and names of all Members of Congress who were briefed by the CIA on enhanced interrogation techniques. This information, however, is drawn from the past files of the CIA and represents MFRs completed at the time and notes that summarized the best recollections of those individuals. In the end, you and the Committee will have to determine whether this information is an accurate summary of what actually happened. We can make the MFRs available at CIA for staff review. [my emphasis]

CIA: "Here’s a list, but we won’t vouch for its accuracy."

ABC: "We’ve proven that Nancy was wrong!!"

ABC, after having been burned in the past, took documents that the CIA itself said might not be accurate, and treated them as accurate.

But it gets worse. ABC printed the following description, as if it were an accurate representation of the next set of torture briefings, which took place in February 2003.

On Feb. 4, 2003, a briefing on “enhanced interrogation techniques” for Sen. Pat Roberts, R-Kan., and Sen. John D. Rockefeller IV, D-W.Va., revealed that interrogations of Abu Zubaydah and Abd Al-Rahim Al-Nashiri were taped.

ABC doesn’t tell you, but there’s an asterisk by Jello Jay’s name, saying, "later individual briefing to Rockefeller," Read more →

Pelosi’s Advisory On Abu Zubaydah And Torture

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As Marcy noted back on April 29th, the issue of Nancy Pelosi’s briefing back in 2002 on the Bush/Cheney torture program, whether or not it was being applied to Abu Zubaydah and, if so, to what extent, has really turned into a he said-she said game. (See also here regarding the Porter Goss offensive against Pelosi and Harman).

So, it should not come as any surprise that yet another missive has been launched in this little passion play. Today’s strike comes courtesy of Rick Klein at ABC News:

ABC News’ Rick Klein reports: House Speaker Nancy Pelosi was briefed on the use of “enhanced interrogation techniques” on terrorist suspect Abu Zubaydah in September 2002, according to a report prepared by the Director of National Intelligence’s office and obtained by ABC News.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. Instead, she has said, she was told only that the Bush administration had legal opinions that would have supported the use of such techniques.

MadDog has slithered into the depths of Human Events.com to find what they claim is "the report". He has also given us a hand glossary for the abbreviations. The Washington Post seems to think it is "the report" as well, for what it is worth:

In a 10-page memo outlining an almost seven-year history of classified briefings, intelligence officials said that Pelosi and then-Rep. Porter J. Goss (R-Fla.) were the first two members of Congress briefed on the tactics. Then the ranking member and chairman of the House intelligence committee, respectively, Pelosi and Goss were briefed Sept. 4, 2002, one week before the anniversary of the terrorist attacks of Sept. 11, 2001.

Pelosi has already, of course, issued a denial through a spokesman. More he said-she said. Quite frankly, without more, today’s play should be taken with a grain of salt. Multiple major news organizations have this hot off the press info right after Congress receives it and right wing hit rag Human Events (Jed Babbin) is pitching it as a slam on Pelosi. How very convenient. As further evidence of the need for grains Read more →

Interrogation and Response–the Democratic Way

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Okay, I lied. I’m going to throw up a quick post.

I wanted to direct your attention to Scott Horton’s interview of the Stanford students who challenged Condi Rice on her role in torture. In particular, I wanted to point to the comments of Sammy Abusrur–whose friends are now calling him "Frost"–about Condi’s role over all as National Security Advisor and Secretary of State.

I am not a political scientist, nor an international relations major, so I am not going to pretend that I am an expert on this subject. However, in my opinion, Condoleezza Rice’s eight years in the Bush Administration were a disaster for the United States. Evidence has shown she failed to act on intelligence warning of the 9/11 terrorist attacks, approved torture, and finally, unconditionally supported Israel’s campaigns in Lebanon and Gaza, which resulted in the deaths of hundreds of innocent Lebanese and Palestinian children, women, and men. Therefore, I don’t think history will look back kindly on Condoleezza Rice. Indeed, the Bush Administration left the world in a worse state than it found it.

Condi was pretty contemptuous of these students asking her questions. But I’m glad the blogosphere offers a means for these students to have their say, as well. 

The OPR Report: Why No Sanctions for Bradbury?

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The WaPo has a helpful preview of what to expect from the Office of Professional Responsibility’s upcoming report on the authors of the torture memos. It talks a lot about the recommendation for professional sanctions for John Yoo and Jay Bybee.

A draft report of more than 200 pages, prepared in January before Bush’s departure, recommends disciplinary action, rather than criminal prosecution, by state bar associations against Yoo and Bybee, former attorneys in the department’s Office of Legal Counsel, for their work in preparing and signing the interrogation memos. State bar associations have the power to suspend a lawyer’s license to practice or impose other penalties. 

But curiously (or rather, suspiciously), the report does not recommend sanctions against Bradbury.

The legal analysis on interrogation prepared by a third former chief of the Office of Legal Counsel, Steven G. Bradbury, also was a subject of the ethics probe. But in an early draft, investigators did not make disciplinary recommendations about Bradbury. 

Remember, the OLC got to review an early draft of this report–an OLC then headed by Steven Bradbury. I’m not a lawyer, so I’ll leave it to those who are to convince me that Bradbury’s opinions weren’t every bit as crappy as Yoo’s. But I do find his wholesale dismissal of the 8th Amendment rather troubling.

The WaPo also has this fascinating passage:

In a separate effort to counterbalance the draft report, Attorney General Michael B. Mukasey and Deputy Attorney General Mark R. Filip wrote a 14-page letter before they left office this year. They described the context surrounding the origins of the memos, written at a time when officials feared another terrorist strike on American soil.

Both Mukasey and Filip were dissatisfied with the quality of the legal analysis in the wide-ranging draft report, sources said. Among other things, the draft report cited passages from a 2004 CIA inspector general’s investigation and cast doubt on the effectiveness of the questioning techniques, which sources characterized as far afield from the narrow legal questions surrounding the lawyers’ activities. The letter from Mukasey and Filip has not been publicly released, but it may emerge when the investigative report is issued.

So Mukasey and Filip are going to try to rebut this report. Mukasey, of course, repeatedly pointed to the OLC memos to explain his refusal to prosecture torturers–so he’s got to pretend they’re respectable. Read more →