Dougie Feith’s Little Shop of Tortures?

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I just happened to find Dougie Feith’s responses to Questions for the Record the Senate Intelligence Committee asked him in 2003. They wanted to know how his little intelligence shop at DOD–the Policy Counter Terrorism Evaluation Group (PCTEG)–bridged the line between intelligence and policy.

He said his little intelligence shop helped formulate policy on:

  • DoD response to the presence in Iraq of the al-Qaida affiliated Ansar al-Islam terrorist group.
  • DoD response to the presence in Iraq of al-Qaida operative Abu Musab al-Zarqawi and his CB W network.
  • Helping to formulate requirements for the debriefings of al-Qaida fighters detained at Guantanamo and Bagram.

"Helping to formulate requirements for the debriefings of al-Qaida fighters?!?!?!?!"

What the hell does that mean? How do you formulate policy requirements for interrogations?

I don’t know, really, but I wonder if it has something to do with this (from a psychiatrist advising on interrogations at Gitmo):

[T]his is my opinion, even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between AI Qaeda and Iraq and we were not being successful in establishing a link between AI Qaeda and Iraq. The more frustrated people got in not being able to establish this link, there was more and more pressure to resort to measures that might produce more immediate results.

Or this, coming from Dougie’s boss, Paul Wolfowitz:

Mr. Becker also told the Committee that, on several occasions, MG Dunlavey had advised him that the office of Deputy Secretary of Defense Wolfowitz had called to express concerns about the insufficient intelligence production at GTMO.

Or this:

Mr. Haynes’s memo stated that he had discussed the issue with Deputy Secretary of Defense Paul Wolfowitz, Undersecretary ofDefense for Policy Doug Feith, and Chairman of the Joint Chiefs of Staff (CJCS) General Richard Myers and that they concurred with his recommendation.

Anyone want to speculate whether or not Dougie Feith was giving the torturers a script to focus on Iraq’s specious ties to al Qaeda?

Updated for clarity.

More on the Field Trip to Gitmo

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Just wanted to point to two tiny details from this passage about the "field trip" of the War Council (Addington, Yoo, Haynes, Gonzales, and Rizzo, plus friends) to Gitmo on September 25, 2002.

According to a trip report prepared by a Deputy Staff Judge Advocate at SOUTHCOM, MG Dunlavey held private conversations with Mr. Haynes and a few others and briefed the entire group on a number of issues including "policy constraints" affecting interrogations at the JTF. 354 For example, MG Dunlavey told the group that JTF-170 would "like to take Koran away from some detainees – hold it as incentive" but that the issue was undergoing a policy determination by SOUTHCOM.355 The trip report noted that Mr. Haynes "opined that JTF-170 should have the authority in place to make those calls, per POTUS order," adding that he "[t]hought JTF-170 would have more freedom to command. 356 MG Dunlavey told the Committee that he may have told the group during their visit that JTF-170 was working on a request for authority to use additional interrogation techniques. 357 Mr. Haynes said he did not recall discussing specific interrogation techniques or GTMO’s work on a request for authority to use additional interrogation techniques. 358

According to the Staff Judge Advocate (SJA) at GTMO, LTC Diane Beaver, there was discussion among senior staff at GTMO as to whether or not the JTF required explicit authorization to use interrogation approaches that had not been taught to interrogators at the U.S. Army Intelligence Center at Fort Huachuca, Arizona. While some felt that JTF-170 already had the authority to use additional interrogation techniques, MG Dunlavey directed his staff to draft a request for new authorities to submit to SOUTHCOM for approval.

The Discussion of the Bybee Two Memo?

First, remember that when Addington testified before the Assholes Who Torture hearing last year, he made clear when asked whether he had discussed the Bybee One memo on this Gitmo trip that it was the Bybee One memo–and not the Bybee Two memo (the one that described torture methods)–about which he was responding. That left the distinct possibility that he discussed the Bybee Two memo on the trip. 

Note this conversation with General Dunlavey then: he speaks with Haynes "and a few others," all in the context of a discussion of harsher methods to use at Gitmo.

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Conyers (et al) to Archivist: How Successful Were They at Destroying Evidence?

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I’m unsurprised that John Conyers, Howard Berman, Jerry Nadler, and Bill Delahunt have written to Hillary Clinton asking for copies of Philip Zelikow’s dissent to Steven Bradbury’s torture memo.

Despite the reported effort he describes to destroy all copies of the memorandum, Professor Zelikow nevertheless believes that "one or two [copies] are still at least in the State Department’s archives."

Of course one of the Committees was going to get this document. 

I’m a lot more interested in their letter to the acting Archivist, asking for any copies in the George W Bush archives.

While we have requested this memorandum from the State Department archives, any copies available from the George W. Bush records are also necessary to determine as completely as possible the full circulation of this important document.

That’s because if the memo isn’t there, then not only is it suggestive of criminal intent, but it also violates the Presidential Records Act. In addition to the memo itself, they ask for:

(2) Copies of any "documentary materials" as defined in the President Records Act, that are related to or reflect any effort by an official of the Bush Administration to collect, destroy, or impede the preservation or retention of this memorandum, including records of any National Security Council meetings or National Security Council Deputies meetings at which the memorandum was discussed.

As you know, the National Security Council is a component of the Executive Office of the President, and its records are in almost all cases President Records which the Act requires to be preserved. Thus, depending on the precise circulation of Professor Zelikow’s dissenting memorandum, the effort he describes to "collect and destroy all copies" of the memorandum raises serious questions of a possible violation of, or conspiracy to violate, the Act, or another breach of federal law.

(3) Copies of any "documentary materials," as defined in the Presidential Records Act, that mention or refer to the Zelikow memorandum.

[snip]

… the requested documents may shed light on the adequacy and completeness of the former Administration’s consideration of these issues over time. [my emphasis]

Well, the normally careful David Addington (if that’s who told Zelikow to destroy the memo) got himself into a pickle with this one. 

If It Sounds Too Good for the Goss, It’s Worth a Second Gander

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The NYT allowed a bunch of gosslings to tell them a story anonymously that they were unwilling–at least partly for legal reasons–to say on the record. They told a story of Porter Goss heroically refusing Stephen Hadley’s (and by association, Dick Cheney’s) pressure to keep the CIA in the torture business.

Acutely aware that the agency would be blamed if the policies lost political support, nervous C.I.A. officials began to curb its practices much earlier than most Americans know: no one was waterboarded after March 2003, and coercive interrogation methods were shelved altogether in 2005.

[snip]

Provoked by the abuse scandal at the Abu Ghraib prison in Iraq and pushed by Senator John McCain of Arizona, who had been tortured by the North Vietnamese, the 2005 bill banned cruel, inhuman and degrading treatment.

Top C.I.A. officials then feared that the agency’s methods could actually be illegal. Mr. Goss, who had succeeded Mr. Tenet at the C.I.A., wrote a memorandum to the White House saying the agency would carry out no harsh interrogations without new Justice Department approval.

The national security advisor, Mr. Hadley, was angered by the C.I.A.’s response. He called Mr. Goss at home over the Christmas holidays to complain; Mr. Goss, backed by his lawyers, would not budge. Mr. Hadley decided he could not push the C.I.A. to do what it thought might be illegal.

But there’s a problem with this story.

Robert Grenier.

Grenier was head of Counterterrorism at the CIA during the Christmas holiday of 2005-6. Yet he was fired within weeks of Goss’ heroic stand against torture because–CIA sources said–he was "insufficiently forceful" against al Qaeda.

His boss at the clandestine service, the nation’s senior human intelligence officer, was said to regard him as insufficiently forceful in the battle with al Qaeda.

"The word on Bob was that he was a good officer, but not the one for the job and not quite as aggressive as he might have been," one official said.

Vincent Cannistraro was more explicit about what "not aggressive enough" means: that Grenier was opposed to waterboarding.

Vincent Cannistraro, a former head of counter-terrorism at the agency, said: “It is not that Grenier wasn’t aggressive enough, it is that he wasn’t ‘with the programme’. He expressed misgivings about the secret prisons in Europe and the rendition of terrorists.”

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If Condi Says “Nixon” Directly Rather than Through Anonymous Sources, Does the NYT Hear?

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Okay, I was going to make this a fuller rant tomorrow, but the last thread got to be a drag, so here’s my half rant.

Best as I can tell, this was the NYT’s complete coverage of Condi channeling Nixon. An "Opinionator" piece on it–that sterilizes it so much that it feels like a sorority tea.

If the words “college dorm” and “video” uttered in the same sentence make you queasy, or you’ve recently written a tuition check, you might want to watch the wholesome, yet compelling footage of students in a Stanford dormitory engaged in an unenhanced interrogation of the former secretary of state, Condoleezza Rice. Refreshingly, there is not a beer bong in sight.

And this reference in the Mazetti/Shane article, with neither a link to the YouTube nor a hint of her shocking statements.

Just last week, bloggers seized upon a new video clip of Condoleezza Rice, a former secretary of state, sharply defending the program to a Stanford undergraduate and saying nothing about the bitter internal arguments that accompanied the demise of the program. 

And yet, the NYT devotes 1,400 words to a story that does not use one single on the record source. Here’s how they justify doing so:

This is the story of its unraveling, based on interviews with more than a dozen former Bush administration officials. They insisted on anonymity because they feared being enmeshed in future investigations or public controversy, but they shed new light on the battle about the C.I.A. methods that grew passionate in Mr. Bush’s second term.

Now, as I said, this story does offer some useful data points, once you wade beneath the thick ooze of spin. But that doesn’t forgive the NYT’s absurd news judgment here.

It’s bad enough that they say, "well, there wasn’t enough internal conflict in Condi’s directly stated YouTube comments," so rather than covering that, we’ll let a bunch of Condi’s allies anonymously fluff up the story into a heroic fight against Cheney.

But then look at why their 12 anonymous sources won’t go on the record: "they feared being enmeshed in future investigations or public controversy." Since they’re already enmeshed in public controversy (albeit taking their potshots at Cheney while hiding behind the Gray Lady’s skirts), I suspect the issue is more the second part, a fear of "being enmeshed in future investigations." These people fear legal consequences for saying, in their own names, the things they’ve told the NYT are true. They won’t say any of this stuff on the record for fear they’ll have to do so under oath. 

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Rice and Goss Turn on Cheney

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Keep in mind that this article seems to be at least partly the product of two entities–the Bellinger/Condi- and the Goss-reputation protection entities–that have been working overtime lately. (h/t Loo Hoo) In fact, the article references the YouTube of Condi proclaiming, "By definition, if it was authorized by the President, it did not violate our obligations in the Convention Against Torture," without explicitly telling NYT’s readers what Condi said. I guess that part–the part where Condi continues to defend the program by channeling Nixon–isn’t important.

Nevertheless, the article provides a few more data points on the torture plan.

June 2003 Statement of Support Was a Response to Shrub’s Speech

First, the article explains why CIA chose June 2003–of all times–to insist the White House write up a policy statement supporting torture with Bush’s name on it. 

The proclamation that President George W. Bush issued on June 26, 2003, to mark the United Nations International Day in Support of Victims of Torture seemed innocuous, one of dozens of high-minded statements published and duly ignored each year.

The United States is “committed to the worldwide elimination of torture and we are leading this fight by example,” Mr. Bush declared, vowing to prosecute torture and to prevent “other cruel and unusual punishment.”

Uh, yeah, I can see why that would make the CIA squirmy about doing Bush’s cruel and unusual punishment for him.

If this were a just world, the statement CIA forced Bush to write after he proclaimed we will prosecute torture and prevent cruel and unusual punishment, the statement basically endorsing torture as our country’s policy, will be the piece of evidence that leads to his prosecution. Alas, this is not usually a just world. 

Porter Goss CYAed Himself in December 2005

And then there’s the bit where Porter Goss protects himself by saying White House was pushing for torture at the end of 2005, but Goss was refusing without further cover from DOJ.

Acutely aware that the agency would be blamed if the policies lost political support, nervous C.I.A. officials began to curb its practices much earlier than most Americans know: no one was waterboarded after March 2003, and coercive interrogation methods were shelved altogether in 2005.

[snip]

Provoked by the abuse scandal at the Abu Ghraib prison in Iraq and pushed by Senator John McCain of Arizona, who had been tortured by the North Vietnamese, the 2005 bill banned cruel, inhuman and degrading treatment.

Top C.I.A. officials then feared that the agency’s methods could actually be illegal. Read more →

Did Mitchell and Jessen Have the Three OTHER Torture Tapes? Or the Egyptians?

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Update: Aeon makes an important point: the tapes may have been in foreign custody.

I thought it might be useful to go back and see what DOJ said to Brinkema about the ones that didn’t get destroyed.

The position of the CIA is that only AZ and al-Nashiri were videotaped. (grain of salt time — It is also their position that they recorded over all tapes every two days — thus explaining why only 92 tapes were destroyed.)

A Feb 2008 Mazzetti article about the subject of your post here adds some detail:

But federal prosecutors told a judge in October that the C.I.A. possessed two videotapes and one audiotape documenting the interrogations of detainees suspected of having been Qaeda operatives. In recent weeks, some government officials have indicated that the C.I.A. may have obtained those tapes or others from foreign intelligence services.

So another detainee could very well have been shown on these three tapes especially if obtained from a liaison service. But also the interrogation in question may have been then conducted by the same foreign intel service.

Moussaoui also asked for material from Ibn Sheikh al-Libi. Who, of course, was in Egyptian custody. That might explain why the transcripts were suspect, and it might explain why one part of CIA had contact with the people who had the tapes.  Thanks Aeon!

Since we’re back on torture tapes, I wanted to return to the letter DOJ sent to Leonie Brinkema to tell her they had found three torture tapes they had neglected to mention when she asked about tapes in November 2005. There’s much that remains obscure about this letter, but the whole thing makes a lot more sense if Mitchell and Jessen had been in possession of the three "discovered" tapes.

DOJ writes:

Recently, we learned that the CIA obtained three recordings (two video tapes and one short audio tape) of interviews of [four lines redacted]. We are unaware of recordings involving the other enemy combatant witnesses at issue in this case [half line redacted, must be the names of those Moussaoui asked to testify]. Further, the CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a video tape of the interrogation of [one and a half lines redacted]. On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution [footnote to a comment, "the recording from (redacted)"]. The existence of the video tape is at odds with statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in a possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted, with unredacted footnote saying, "The transcript of the audio tape previously existed and was contained within an intelligence cable."] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings. Read more →

Torture Tapes and Briefings

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Isikoff has an article that basically catches everyone up on torture investigation. The big piece of news is that John Durham is flying spooks back from overseas stations to appear before the grand jury.

In recent weeks, prosecutor John Durham has summoned CIA operatives back from overseas to testify before a federal grand jury, according to three legal sources familiar with the case who asked not to be identified discussing sensitive matters. The sources said Durham is also seeking testimony from agency lawyers who gave advice relating to the November 2005 decision by Jose Rodriguez, then chief of the CIA’s operations directorate, to destroy the tapes.

There are lawyers probably named Robert Bennett quoted as saying, "maybe he’s just tying up loose ends," but that news, coupled with the news that Durham interviewed  Dusty Foggo, who had recently been hung out to dry by Porter Goss, suggests Durham has been able to break the omerta at the CIA and make some headway on this case.

But I’m sort of interested in this claim:

Durham was appointed by former attorney general Michael Mukasey shortly after the December 2007 revelation about Rodriguez’s decision. At the time, then-CIA director Michael Hayden insisted the tapes were destroyed only after "it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries—including the trial of Zacarias Moussaoui." But since then, declassified filings in the Moussaoui case show that around the time the tapes were destroyed, Moussaoui’s lawyers were seeking CIA records about the interrogation of Abu Zubaydah—who, according to recent disclosures, was waterboarded 83 times. On Nov. 3, 2005, Judge Leonie Brinkema even ordered government lawyers "to confirm or deny that it has video- or audiotapes" of interro-gations of potential witnesses.

Now, this is assuredly not news. The Moussaoui request has been on my torture tape timeline for well over a year, based on this and other reporting. And it is just one case where a party had made a legally binding request for any torture tapes–the other two being the ACLU FOIA and the 9/11 Commission request for any such materials.

(On the 9/11 Commission request, keep in mind that Philip Zelikow, Commission Executive Director, has been saying "let the prosecutor work" in his recent public critiques of torture; he may well have been interviewed in this case, so he may have reason to be confident in the quality of the invsetigation.)

Okay, back to Moussaoui. Not new news. Read more →

Zelikow’s Dissent and Rockefeller’s Question

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Dalybean made an important point in EPU-land of the Gestation of Bradbury’s Torture Memos thread. As I pointed out in that thread, the May 30 Bradbury memo was a response–at least in part–to Congress’ demand that the Administration assess whether their torture program complied with the Fifth, Eighth, and Fourteenth Amendments as they fulfilled the US obligation under the Convention Against Torture.

Well, that was one of the biggest points Phillip Zelikow made in his dissent to the May 30, 2005 torture memo.

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

  • the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA’s methods;
  • the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
  • the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law — whatever the alleged gain. [my emphasis]

Zelikow, with a background in this area of law, wrote a dissent to the torture memo ripping its legal analysis. Significantly, Zelikow hit on one point that Congress was hitting on too: the importance of the Eighth Amendment in our compliance with the Convention Against Torture. As Zelikow apparently pointed out, the case law surrounding the Eighth Amendment said that even these detainees were entitled to protection from cruel and unusual punishment.

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Addington’s Multiple Choice Torture Memos

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When I read the transcript from the House Judiciary Committee’s Assholes Who Torture hearing after the torture memos got released, one thing became clear. Addington was hiding his involvement with the Bybee Two memo (about techniques) by answering questions only about Bybee One.

Twice during the hearing, David Addington answered a question about the  Bybee One memo (abstract authorization for torture–which had been declassified long before this hearing), but made sure to clarify in the record that his answer pertained specifically to that memo. This suggests his answers may have been dramatically different had he been asked about the Bybee Two memo (concrete techniques–the one released last month). If I’m right, it suggests that Addington discussed the Bybee Two memo on his September 25, 2002 field trip to Gitmo with John Yoo, Jim Haynes, and John Rizzo (and others). 

In the first of these exchanges, Jerry Nadler asks Addington what role he had in drafting the Bybee memo (without specifying which one he meant).

Mr. NADLER.  Mr. Addington, It has been reported in several books and in the The Washington Post that you contributed to the analysis or assisted in the drafting of the August 1, 2002 interrogation memo signed by Jay Bibey. [sic] Is this correct?

Mr. ADDINGTON. No.

Mr. NADLER. You had nothing to do with that.

Mr. ADDINGTON. No. I didn’t say I had nothing to do with it. You asked if I assisted in contribution, and let me read to you something I think will be helpful to you.

Addington filibusters for a bit, so Nadler interrupts and instructs him to tell what his role was (did I mention this was the Assholes Who Torture hearing?). 

Mr. NADLER. Wait a minute. Mr. Addington, please, we don’t need all these quotes.

Mr. ADDINGTON. Okay.

Mr. NADLER. Just tell us what your role was, if you can.

Mr. ADDINGTON. Yes, I will.

At which point Addington asks precisely which one Nadler was talking about.

Mr. NADLER. Because you said it wasn’t nonexistant but you didn’t help shape it. So what was it?

Mr. ADDINGTON. Mr. Chairman, my recollection, first of all, I would be interested in seeing the document you are questioning me about. I think you are talking about a document of August 2002.

Mr. NADLER. Yes.

Mr. ADDINGTON. It would be useful to have that in front of me so I can make sure that what I am remembering relates to the document you have and not a lot of other legal opinions I looked at. Read more →