Jay Bybee Speaks Quavers

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NYT has what might be billed as a blockbuster article: JAY BYBEE REVEALS ALL!!!

Except that the article appears to be nothing more than a legalistic CYA statement which I’m sure his hotshot lawyer Maureen Mahoney had a hand in:

Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented “a good-faith analysis of the law” that properly defined the thin line between harsh treatment and torture. 

[snip]

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

The article even reveals why Maureen Mahoney might have encouraged Judge Bybee to issue a statement–to retract comments made by his friends that he regretted the memos.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect.

Of course, Bybee has to claim a "good faith analysis of the law"–that’s his only defense.

But if he’s invoking the other lawyers in the Administration who agreed with the memo–undoubtedly including David Addington, John Yoo, Alberto Gonzales, Jim Haynes, and John Rizzo–that’s not much of a defense. He’s arguing, basically, that a set of lawyers called the "War Council" for the way they collaborated in private on institutionalizing torture, believe his (Yoo’s) memos authorizing torture in spite of the the law and the bogus facts used in the memo was "legally correct." Most children, if you ask them if they like candy, will enthusiastically say they do, too.

And to suggest the stakes of this are important "no matter our opinion" is pretty disgusting, since it suggests Bybee still believes that issuing an opinion that forced the Read more →

Russ Feingold: Repeated Assertion of State Secrets “Reminiscent of Bush Administration”

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picture-100.thumbnail.pngRuss Feingold just had a conference call to announce his release of a report card grading Obama’s first 100 days in office. (The report card gives Obama a "some good, some bad, some too early to tell" grade.)

While he applauded the efforts the Obama Administration has made to end torture and to restore a presumption of release under FOIA, there were two areas where Feingold had particular complaints: State Secrets and the disclosure of information to the intelligence committee.

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program.

His second major complaint, while less specific (for obvious reasons), was more revealing. He said there was not yet enough disclosure to members and staffers on the intelligence committees. While he said the Obama Administration is clearly more open than the Bush Administration, he suggested the intelligence community was still "stonewalling and roadblocking" information to the committees. He did note, however, that he can’t assess whether the Obama Administration is using the Gang of Eight process properly as he’s not part of the Gang of Eight. He did argue, though, that there are few things that shouldn’t be briefed to the entire intelligence committees. It seems that’s not currently happening.

In a related point, he said the Administration has an opportunity–one it hasn’t taken yet–to fix overclassification problems. He suggested the Administration could–but hadn’t–return to policies practice on classification under the Clinton Administration.

A Milwaukee reporter–who seemed to reflect a divided local response on the release of the torture memos–asked about what he thought of the release. Feingold said the Administration got "real [high?] marks for having the courage to release these memos." He specified, however, that the Administration still should release the 2006 and 2007 memos on torture that we haven’t yet seen.

It sounds like those memos may be just as appalling as what we’ve seen so far.

He also made clear that the memos authorizing the warrantless wiretap program have not been released and remain in effect. I guess we shouldn’t be surprised, then, that the NSA continues to follow the same domestic wiretapping practices it did under the Bush Administration.

Did Bybee Say No to Waterboarding on July 24, 2002?

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Earlier today, I showed that Jim Haynes personally pushed the SERE people to come up with some materials on waterboarding on July 25, 2002, just one day after OLC had given CIA clearance to use some–but not all–of the techniques they had asked for. The same day Haynes got that information and forward it to OLC (or had John Rizzo do it, depending on whom you ask), OLC approved the use of waterboarding.

I wish I had read this passage from this Charlie Savage story before I wrote that post.

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

This is the second time we’ve heard about emails.

Emails.

Hahahahahaha!

Imagine there were emails between–say, Addington–and Yoo, discussing what it would take to get Bybee to sign off on the torture memos? Imagine those emails were dated July 25, 2002, the same day that Haynes was pushing  JPRA to come up with some description of waterboarding that–since we did it to our own Navy men, could get past the bar of legality.

I want these guys to pay for their crimes. But I’d take special pleasure if they somehow didn’t manage to destroy all the emails. 

Did Condi Really Not Know Defense Was Sleeping with the Spooks on Torture?

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There’s a weird detail in John Yoo’s prepared testimony for last year’s House Judiciary Committee hearing on Assholes Who Torture. He claims the National Security Council (so, presumably John Bellinger or Condi or her boss) ordered OLC not to let on what it was doing to either State or Defense.

In particular, the offices of the CIA general counsel and of the NSC legal advisor asked OLC for an opinion on the meaning of the anti-torture statute. They set the classification level of the work and dictated which agencies and personnel could know about it. In this case, the NSC ordered that we not discuss our work on this matter with either the State or Defense Departments. 

To be fair, Yoo is referring to the production of just the Bybee One memo–the one requiring torture to rival organ failure or death–and not the recently-released Bybee Two memo–the one detailing the techniques in question.  And from reviewing the hearing now that Bybee Two has been released (trust me, I mean it when I call it the hearing on Assholes Who Torture), it’s clear that Addington and Yoo both maintained a clear distinction between the two memos (in Addington’s case, for example, he did so to avoid admitting he had discussed torture techniques with the folks in Gitmo.)

So it’s possible that Yoo was only ordered to keep this memo secret from DOD; it’s possible Condi knew the techniques memo was basically a group project for the torture kids over at Defense and CIA. 

But with this weird detail in mind, I find another weird detail from the Senate Armed Services Report even weirder.  Both DOD’s Jim Haynes and CIA’s John Rizzo kind of sort of take credit for passing the material from JPRA to Yoo and friends at OLC. Here’s Haynes:

Mr. Haynes also recalled that he may have been "asked that information be given to the Justice Department for something they were working on," which he said related to a program he was not free to discuss with the Committee, even in a classified setting.

And here’s Rizzo:

According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice.

These aren’t necessarily contradictory. Read more →

Torture Timeline and Iraq-Al Qaeda Ties

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Mostly because I want to point you all to the newly updated Torture Timeline, I want to make a point about the timing of the decision to torture Abu Zubaydah.

At least according to the Senate narrative, they started discussing torture plans for Abu Zubaydah after February  22, 2002–when DIA first questioned Ibn Sheikh al-Libi’s claim of a tie between Iraq and al Qaeda that derived from torture. And they signed the Bybee Memo the day after the second DIA report questioning al-Libi’s Iraq-al Qaeda ties. 

The intelligence reports from al-Libi’s torture, of course, were used (in spite of DIA doubts about them) as a central claim in Colin Powell’s speech to the UN a year later.

I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to al Qaeda.

Fortunately, this operative is now detained, and he has told his story. I will relate it to you now as he, himself, described it.

This senior al Qaeda terrorist was responsible for one of al Qaeda’s training camps in Afghanistan.

His information comes firsthand from his personal involvement at senior levels of al Qaeda. He says bin Laden and his top deputy in Afghanistan, deceased al Qaeda leader Mohammed Atef, did not believe that al Qaeda labs in Afghanistan were capable enough to manufacture these chemical or biological agents. They needed to go somewhere else. They had to look outside of Afghanistan for help. Where did they go? Where did they look? They went to Iraq.

The support that (inaudible) describes included Iraq offering chemical or biological weapons training for two al Qaeda associates beginning in December 2000. He says that a militant known as Abu Abdula Al-Iraqi (ph) had been sent to Iraq several times between 1997and 2000 for help in acquiring poisons and gases. Abdula Al-Iraqi (ph) characterized the relationship he forged with Iraqi officials as successful.

In other words, they were getting false information from torture–the false information they would use to bring us to war with Iraq–at the same time as they were devising their plan to torture Abu Zubaydah. 

Here’s an excerpt of the full timeline.

September 17 (alternately, 15), 2001: Bush signs Memorandum of Notification authorizing CIA to capture, detain, and interrogate al Qaeda figures.

October 21, 2001: OLC memo eviscerating 4th Amendment. 

December 17, 2001: DoD OGC asks JPRA for information about detainee "exploitation."

December 2001 or January 2002: James Mitchell asked Bruce Jessen to  review documents describing al Qaeda resistence training. They generated a paper on al Qaeda resistence capabilities and countermeasures.

December 18, 2001: Ibn Sheikh al-Libi captured. After being tortured, al-Libi made up stories about Al Qaeda ties to Iraq.

December 27, 2001: Rumsfeld announces plans to hold detainees at Gitmo. 

January 20, 2002: Bybee to Abu Gonzales memo specifying that common article 3 of the Geneva Convention does not apply to "an armed conflict between a nation-state and a transnational terrorist organization."

January 25, 2002: Gonzales memo for Bush recommends against applying the Geneva Convention to enemy detainees.

January 2002: Supplemental Public Affairs Guidance on Detainees affirms Geneva Convention wrt media photographs.

February 2, 2002: William Taft argues for the application of Geneva Conventions.

February 12, 2002: Jessen sends paper on al Qaeda resistance capabilities to JPRA commander Randy Moulton.

February 22, 2002: DIA voices doubts about al-Libi’s claims of Iraq-al Qaeda ties.

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Jim Haynes’ Request: A[nother] List of Techniques–Including Waterboarding

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There’s an interesting footnote in the Senate Report on Torture that suggests Jim Haynes personally went fishing for a description of waterboarding so it could be added to techniques approved by OLC.

Footnote 179–describing JPRA (the SERE people) receiving a request for descriptions of SERE techniques from DOD’s Office of General Counsel reads,

Committee staff interview of Lt Col Daniel Baumgertner (August 8, 2007); see also email from Col Moulton to [redacted] (June 30, 2006) ("We [JPRA] initially received a call from OSD General Counscil (sic) requesting information about resistance techniques used against U.S. POWs. I believe this was early in Operation Enduring Freedom. We were requested to provide that information within hours and were authorized by JFCOM to forward it to OSD. … Once we understood what OSD/GC was looking for, we provided a[] list of techniques.")

There are several things about this note. Colonel Randy Moulton, the head of JPRA, presumably in response to a DOD IG request, seems to refer to the December 2001 request from DOD’s General Counsel (since that would have been "early in Operation Eduring Freedom"). He goes on to describe the process by which Jim Haynes’ office asked for a list of techniques, suggesting that JPRA at first didn’t understand what Haynes’ office was looking for. And note the bracket: "a[] list of techniques." That suggests a word beginning with "a" was shortened–the most likely possibility being "another." That suggests that JPRA may have submitted a list of techniques, subsequently learned that Haynes’ office was looking for something else, and then submitted a second set of techniques. 

That’s interesting because there’s a difference of recollection between Richard Shiffrin, then DOD Deputy General Counsel in charge of Intelligence, and Daniel Baumgartner, Chief of Staff for JPRA, that pertains to these requests.

First, the timeline the SASC Report describes surrounding the list of techniques is:

July 25, 2002: Shiffrin requests information  for a "list of exploitation and interrogation techniques" from Baumgartner.

July 25, 2002: Baumgartner writes a memo in response to Shiffrin including lesson plans and describing JPRA’s expertise on exploitation.

July 25, 2002: "Prior to the memo being delivered" to the General Counsel’s office, Shiffrin calls Baumgartner again to ask for additional information, including a list of techniques used by JPRA at SERE school.

Read more →

About Democratic Complicity: the Early Briefings on Torture

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Leen links to two articles suggesting the Democrats are reluctant to have a truth commission because of their own complicity in torture.

Now, I don’t mean to be an apologist for Democrats on torture–because I do believe the Constitutional Speech and Debate clause must take precedence over national security guidelines that limit briefings to the Gang of Four or Eight. But before we start attacking Democrats, let’s establish what we know about briefings that happened before the waterboarding of detainees. Between the public spat between Porter Goss and Nancy Pelosi, Jane Harman’s letter to Scott Muller, and the SSCI Narrative, we can establish that the only Democrat who was briefed in time to prevent waterboarding and told it had been and was going to be used–Jane Harman–wrote a letter raising concerns about the techniques.

Fall 2002: The CIA first briefed the Gang of Four (then comprising Richard Shelby, Porter Goss, Bob Graham, and Nancy Pelosi) after the waterboarding of Abu Zubaydah had already ended–and possibly after the waterboarding of al-Nashiri had, too. Furthermore, even Porter Goss appears to confirm Nancy Pelosi’s assertion that the CIA spoke of enhanced techniques (whether or not they mentioned waterboarding specifically) as a prospective activity. That is, in fall 2002, CIA did not reveal that it had already waterboarded Abu Zubaydah (and possibly al-Nashiri).

January/February 2003: Three of four leaders in the intelligence committees changed in 2003. Jello Jay replaced Graham (who was running for President), Pat Roberts replaced Shelby (who had been ousted for leaking classified information), and Jane Harman replaced Pelosi (who had become Minority Leader). The SSCI Narrative notes that Roberts–but not Jello Jay–got a briefing in "early 2003" (though Jello Jay’s staffer did attend).

After the change in leadership of the Committee in January of 2003, CIA records indicate that the new Chairman of the Committee was briefed on the CIA’s program in early 2003. Although the new Vice-Chairman did not attend that briefing, it was attended by both the staff director and minority staff director of the Committee.

In addition, Scott Muller refers to briefing Goss and Harman on February 5, 2003.

Thank you for your letter of 10 February following up on the briefing we gave you and Congressman Goss on 5 February concerning the Central Intelligence Agency’s limited use of the handful of specially approved interrogation techniques we described.

Muller’s reference to Goss and Harman–but not Roberts–suggests it’s possible that Roberts received a separate briefing, potentially with different content. Read more →

Who Gave James Mitchell the Al-Qaeda Resistance Manual?

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The SASC Report on Detainee Treatment reveals that some information collected from al Qaeda–and not DOD’s attempts to find methods to interrogate detainees–is one key to discovering how we got in the torture business. The SASC report reveals (as Valtin has been pointing out for some time) that DOD first contacted JPRA–the unit that oversees SERE–for "information about detainee ‘exploitation’" on December 17, 2001. But there’s another reference that suggests James Mitchell–one of the two retired SERE psychologists who reverse-engineered SERE and oversaw the first interrogations–was already on the job. In the section, "JPRA Collaboration with Other Government Agencies" (meaning, CIA), this reference appears:

[classification redaction] In December 2001 or January 2002, a retired Air Force SERE psychologist, Dr. James Mitchell, [redaction that I bet talks about a CIA contract] asked his former colleague, the senior SERE psychologist at JPRA, Dr. John "Bruce" Jessen, to review documents describing al Qaeda resistance training. The two psychologists reviewed the materials, [half line redacted], and generated a paper on al Qaeda resistance capabilities and countermeasures to defeat that resistance. 

Note, the "December 2001 or January 2002" date comes from an interview of Jessen, not directly from Mitchell. It’s not clear anyone has asked when Mitchell got the al Qaeda documents–but by the time Jessen was interviewed on July 11, 2007, DOD had already sent out notice to preserve all documents relating to Mitchell, so he was already under legal scrutiny at the time Jessen gave these dates.

In a section describing a DIA training session Jessen and Joseph Witsch did, it’s clear the al Qaeda documents form the basis for the training.

[classification redaction] Mr. Witsch stated that he worked with Dr. Jessen to develop a set of briefing slides for the [acronym redacted] training. The Department of Defense provided the Committee with slide presentations that appeared to have been produced by JPRA for the March 8, 2002 training. Mr. Witsch testified that the two slide presentations (1) [half line redacted–elsewhere this appears unredacted as Al Qaeda Resistance Contingency Training: Contingency Training for (redacted) Personnel] Based on Recently Obtained Al Qaeda Documents" and (2) "Exploitation" — appeared to be the same as those used by JPRA in the March 8, 2002 training. Read more →

The Torture Document Dump Timeline

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John Lopresti noted that it might be helpful to have a timeline of all the torture documents released in the last several weeks. And you know I can’t resist requests for timelines. So here goes:

April 6: NYRB posts the Red Cross report on high value detainees

April 9: CIA Director Leon Panetta bans contractors from conducting interrogations

April 16: Obama statement on memo release, torture memos released:

  • August 1, 2002: Memo from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA 
  • May 10, 2005: Memo from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA ["Techniques"]
  • May 10, 2005: Memo from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA ["Combined"]
  • May 30, 2005: Memo from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA

April 21: Senate Armed Services Committee releases declassified Inquiry into the Treatment of Detainees in US Custody

April 22: Senate Intelligence Committee releases declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program (Jello Jay’s statement on the release)

April 23: Ali Soufan, FBI interrogator, publishes NYT op-ed describing early interrogation of Abu Zubaydah

April 23: DOJ announces it will release a number of photos showing detainee abuse that had previously been FOIAed, along with thousands more

April 24: Greg Sargent gets a copy of Cheney’s request for two documents to make his "efficacy" case

April 24: In ACLU FOIA case, Judge Hellerstein orders a more expansive response on torture tape documents from CIA

April 24: WaPo releases JPRA memo–which had been circulated among the torture architects–using the word "torture" and warning that torture will beget false information

Pelosi: Of Hidden Memos and Covert Ops Hidden in Supplementals

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I wanted to point out two more details from the Pelosi press conference the other day when she made her comments about briefings on torture (the complete transcript of this section is below).

First, Pelosi points out that one thing BushCo did was put intelligence-related appropriations through without telling the intelligence committee what they were putting through.

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]

We know that BushCo briefed Toobz Stevens and Daniel Inouye on the warrantless wiretap program in December 2001. (Yeah, I know. There’s a twosome I want guarding my civil liberties.) I wonder if they got more substantive briefings than the Gang of Four?

And of course, we know the entire Iraq War was paid for on supplementals. So there were billions and billions of dollars to sneak illegal programs through.

And finally, a point klynn and Sara have been making–the guys who did this torture were contractors, not CIA officers. Which means they only had to get Uncle Toobz and his buddy Inouye to approve a contract in an emergency supplemental. And voila! We’ve got state-sanctioned torture!

Pelosi also referenced memos they had previously not known of:

When you are there, you only have the benefit of the information that they give you. You don’t even know if there are other opinions, and that’s what we wanted to find out, and now we are finding out that there were.

I don’t know if she’s referring to just the 2007 memo Spencer scooped, the 2003 memo described by the WaPo last year, or whether there are others. My guess, of course, is that there are more memos–and I’m betting that 2003 one includes reference to use of drugs in interrogation.

But one thing is clear: even Pelosi is still learning new details of the torture program. There’s a lot more to come yet.

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