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We’re Going to Start a War to Protect a Negligent Corporation’s Property?

Over at Salon, I’ve got a piece pushing back against claims that threats made by hackers attributed to — with little concrete evidence — North Korea is an attack on our First Amendment rights. It’s not. It’s an attack on Sony’s property (or, to put it another way, Sony’s right to make a profit off its speech). And as Rayne has pointed out, Sony was unbelievably negligent in protecting its own property.

The decision to pull the film has been criticized as an attack on free speech, most notably by Aaron Sorkin, but also by other commentators. “Today the U.S. succumbed to an unprecedented attack on our most cherished, bedrock principle of free speech,” Sorkin said.  And free speech is one of the things — the last thing — Sony addressed in its statement on the decision. “We stand by our filmmakers and their right to free expression and are extremely disappointed by this outcome.”

But the threat against the film, which the Department of Homeland Security says is not credible, was only directed at one means of distributing the film: via theater release. A number of people suggested Sony should respond to the threat via other means. Mitt Romney suggested Sony release the film online, for free. Democratic congressman Steve Israel suggested Sony release it directly to DVD. BoingBoing’s Xeni Jardin suggested a global torrent party.

The point is, there are many ways to release the film, most of which would not expose theatergoers and theaters — in the wake of an altered liability landscape after the 2012 mass killing in an Aurora, Colorado, movie theater — to any danger, no matter how remote. Most of those ways would result in far more people watching the film. Some of them might even result in a few North Koreans viewing it.

If the issue is airing the views in the film — and defying the threats of the hackers — such a release would accomplish the goal.

But there’s another issue that seems far more central to this hack than speech: property.

Even before Sony mentioned its filmmakers’ free speech rights, for example, it mentioned the assault on its property rights. “Those who attacked us stole our intellectual property, private emails, and sensitive and proprietary material.” And while free release of its movie would assert its right to free speech, it would result in further financial losses, on top of the other movies (such as “Annie” and “Fury”) released on piracy sites after the hack.

[snip]

The attack on Sony’s property, even more than speech, raises real questions about another detail that has gotten far too little attention during coverage of this hack. Sony Corp. gets hacked a lot, more than 50 breaches in 15 years, and more than some of its rivals, including some fairly significant attacks in recent years that bear no resemblance to this attack. Maybe that’s because it did things like store all its passwords in a file called “password.”

The Administration is already twisting itself in knots trying to retroactively include “multinational movie studio” into its prior definition of critical infrastructure (which normally would include things like electric grid and utilities) so it can make this a state issue. Assuming, all the while, that its certainty North Korea was behind the hack are more certain than that Iraq was behind 9/11.

We’d do well to think a bit about how central to national interests negligently-protected movie company property really is to national interests before this thing spirals out of control.

Shorter GOP Intelligence: “Oversight’s Out for Summer!”


I’m just now getting around to the GOP rebuttal to the Senate Report. While it does raise a few decent points, it engages in a whole slew of the kind of word games the Bush Administration used to hide torture in the first place (I honestly would love to read a serious study of this whole project as an epistemological exercise).

Thus far, however, I most adore this paragraph on Congressional oversight.

The Study claims, “[t]he CIA did not brief the Senate Intelligence Committee leadership on the CIA’s enhanced interrogation techniques until September 2002, after the techniques had been approved and used.”88 We found that the CIA provided information to the Committee in hearings, briefings, and notifications beginning shortly after the signing of the Memorandum of Notification (MON) on September 17, 2001. The Study’s own review of the CIA’s representations to Congress cites CIA hearing testimony from November 7, 2001, discussing the uncertainty in the boundaries on interrogation techniques.89 The Study also cites additional discussions between staff and CIA lawyers in February 2002.90 The Study seems to fault the CIA for not briefing the Committee leadership until after the enhanced interrogation techniques had been approved and used. However, the use of DOJ-approved enhanced interrogation techniques began during the congressional recess period in August, an important fact that the Study conveniently omitted.92 The CIA briefed HPSCI leadership on September4, 2002. SSCI leadership received the same briefing on September 27, 2002.93

I am somewhat sympathetic to the first claim. As it notes, at a briefing for what appears to be the Senators (as opposed to staff) on November 7, 2001, Deputy Director of Operations said something that should have set off alarm bells.

Deputy Director of Operations (DDO) James Pavitt assured the Committee that it would be informed of each individual who entered CIA custody. Pavitt disavowed the use of torture against detainees while stating that the boundaries on the use of interrogation techniques were uncertain—specifically in the case of having to identify the location of a hidden nuclear weapon.2447

2447 “We’re not going to engage in torture. But, that said, how do I deal with somebody I know may know right now that there is a nuclear weapon somewhere in the United States that is going to be detonated tomorrow, and I’ve got the guy who I know built it and hid it? I don’t know the answer to that.” (See transcript of Senate Select Committee on Intelligence MON briefing, November 7, 2001 (DTS #2002-0611);

Whoa!

Pavitt effectively said, just as the government started to round up people like Ibn Sheikh al-Libi in Afghanistan, “we’re not going to torture but then again maybe we will.” And while it is crystal clear he failed to meet the terms he laid out — Congress was not informed about each detainee, there was never a detainee in custody who had set a nuclear bomb nor even a ticking time bomb scenario, much less Abu Zubaydah, who was put on ice for over a month before the worst of the torture — his contemplation of using torture in case of a ticking time bomb should have been the moment for Congress to say, “Whoa! Stop!”

There’s no reason to believe the February briefing discussed the torture.

Which brings us to the September briefings.

Now, first of all, elsewhere in their rebuttal, the GOP note that Abu Zubaydah was subjected to torture in April (largely, but not entirely, sleep deprivation). They make much — some of it justified – of the Report for not dealing with this as torture. But here, they adopt the same approach the Report did and ignore that torture and point out that the DOJ-approved torture (that is, the torture that had some authorization beyond the Memorandum of Notification, rather than the torture that relied exclusively on it) started during Congressional recess, so whatever was the poor CIA to do about Richard Shelby and Bob Graham being on vacation? (FWIW, Graham remained actively involved in the Joint Inquiry into 9/11 during that period; it’s when he first started getting incensed about Saudi Arabia’s role in the attack.)

Schools out for summer!

Except it wasn’t out.

Screen shot 2014-12-17 at 7.47.21 PM

As the official schedule from the period makes clear, the Senate met (marked by strike-through) on August 1, the day the torture memos were signed. Under the National Security Act, the Gang of Four, at least, are supposed to be briefed before a covert op. Clearly the Executive knew enough about what they planned to do with Abu Zubaydah on August 1 to be able to brief it before they started on August 4. (In case you’re wondering, the Senate was also in session in April to be briefed.)

I am, however, rather interested that the GOP is adopting the argument that CIA had to wait until September to roll out a new product, just as Andy Card was doing with the Iraq War at that same time. Especially given the way both Nancy Pelosi and Bob Graham have noted that the Executive was lying about both in that same period.

Finally, there’s the final claim — that Bob Graham and Richard Shelby got the same briefing that Nancy Pelosi and Porter Goss did. The claim commits another of the crimes the rebuttal accuses the Report of — insisting you can’t find out what happened at a briefing without interviewing the participants, which the GOP did no more than the SSCI staffers did.

But from the available evidence, we can be pretty sure Graham and Shelby did not get the same briefing that Pelosi and Goss did.

As I’ve laid out, someone(s) in the Pelosi and Goss briefing noted that the torture described in the briefing — which CIA had already done, though they didn’t tell Pelosi and Goss that — would be illegal in another country. The next day, CIA ramped up discussions of destroying the torture tapes that depicted that illegal torture. The next, Jose Rodriguez and a lawyer altered their record of the briefing to take out that reference to illegality. And, for some reason, the Graham and Shelby briefing, which had been scheduled for September 9, got postponed until the end of the month. Rodriguez did not attend the SSCI briefing, as he had the HPSCI one. And it appears to have been held in less secure space.

And while I’ve only interviewed half the people who attended those briefings, there does seem to be abundant evidence they were different. Not only that they were different, but different because of the reaction someone in the HPSCI briefing had.

Whatever. I guess it’s nice to know that departing Vice Chair Saxby Chambliss and rising Chair Richard Burr both think the CIA should get none of the oversight legally required during recess.

Jose Rodriguez & CIA Lawyer Removed Sentence about Torture Illegality from Pelosi, Goss Briefing Record

Over four years ago, I wrote a post noting how, in the two days after Jose Rodriguez and one of his Counterterrorism Lawyers briefed Nancy Pelosi and Porter Goss in September 2002 they might use torture prospectively, they 1) moved closer to deciding to destroy the torture tapes and 2) altered their initial record of the briefing to take out one sentence.

As I pointed out in the comments to this thread, someone (I’ll show in my new weedy post why it might be then-Counterterrorism Center Legal Counsel Jonathan Fredman) changed the initial description of the briefing that Jose Rodriguez and two others (I believe Fredman was one of the two) gave to Porter Goss and Nancy Pelosi on September 4, 2002. To see the documents showing discussing the alteration (but not the content of it), see PDF 84 of this set and PDF 11-12 of this set.

That’s suspicious enough. But as the email discussions of destroying the torture tape show (see PDF 3), the briefing and the alteration to the briefing record happened the day before and the day after–respectively–the day “HQS elements” started talking seriously about destroying the torture tapes.

On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.

[snip]

Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]

So here’s what this looks like in timeline form:

September 4, 2002: Jose Rodriguez, C/CTC/LGL (probably Fredman) and a CTC Records officer brief Porter Goss and Nancy Pelosi on Abu Zubaydah’s treatment. According to both Goss and Pelosi, CIA briefs them on torture techniques, but implies they are hypothetical techniques that might be used in the future, not the past.

September 5, 2002: Unnamed people at CIA HQ discuss destroying the torture tapes, ostensibly because of danger to CIA officers conducting the torture.

September 6, 2002: Someone (possibly Jonathan Fredman or someone else in CTC’s Legal department) alters the initial description of the Goss-Pelosi briefing, eliminating one sentence of it. “Short and sweet” Rodriguez responded to the proposed change.

September 9, 2002: CIA records show a scheduled briefing for Bob Graham and Richard Shelby to cover the same materials as briefed in the Goss-Pelosi briefing. The September 9 briefing never happened; Graham and Shelby were eventually briefed on September 27, 2002 (though not by Rodriguez personally).

September 10, 2002: The altered description of the briefing is sent internally for CTC records. This briefing is never finalized by Office of Congressional Affairs head Stan Moskowitz into a formal Memorandum for the Record.

Or, to put it more plainly, they briefed Pelosi, decided they wanted to destroy the torture tapes (there’s no record Pelosi was told about the tapes), and then tweaked the record about what they had said to Pelosi.

The Torture Report backs my analysis (though doesn’t include the details about the torture tapes or that both Pelosi and Goss said they had been briefed the torture would be used prospectively; see here for backing of the claim this was a prospective briefing). But it adds one more detail.

The sentence Jose Rodriguez and his lawyer eliminated — the day after folks at CIA discussed destroying the torture tapes showing they had already used this torture — recorded that one or both of Pelosi and Goss noted that these techniques would be illegal in another country.

In early September 2002, the CIA briefed the House Permanent Select Committee on Intelligence (HPSCI) leadership about the CIA’s enhanced interrogation techniques. Two days after, the CIA’s [redacted]CTC Legal [redacted], excised from a draft memorandum memorializing the briefing indications that the HPSCI leadership questioned the legality of the program by deleting the sentence: “HPSCI attendees also questioned the legality of these techniques if other countries would use them.”2454 After [redacted] blind-copied Jose Rodriguez on the email in which he transmitted the changes to the memorandum, Rodriguez responded to email with: “short and sweet.”

At least one of these members of Congress (or their staffers) got briefed on torture and said the torture would be illegal if other countries used it, according to CIA’s own records. So CTC’s lawyer eliminated that comment from the CIA’s record, with Jose Rodriguez’ gleeful approval.

And yet he says Congress approved of these techniques from the start.

The 2 Year Delay in Getting ASSET X to Bring Us to Khalid Sheikh Mohammed

We’ve known for some time that CIA found Khalid Sheikh Mohammed with the help of a walk-in source. Terry McDermott and Josh Meyer describe the source as “Baluchi” in their book, The Hunt for KSM–someone, like KSM, from Baluchistan.

But the Torture Report provides a different take for the delay in having him lure in KSM, which McDermott and Meyer describe as more than a year and the Torture Report describes ASSET X, the source in question, as approaching the CIA in spring 2001. (This heavily redacted narrative starts on page 328) The CIA did not meet with him until after 9/11, probably some time after September 26, 2001. Per the Senate Report (the CIA disputes that they knew what he could bring them until after starting to torture), before the end of the year, ASSET X “proposed multiple times to the CIA that he use his contacts to locate KSM through [redacted]–the same approach that would lead the CIA to KSM more than 15 months later.” He apparently argued for a “more aggressive and proactive approach” than the CIA, but was persuaded otherwise. Then ALEC Station rejected ASSET X’s monetary demands.

So they lost him. For 9 months.

In July 2002, a detainee in foreign government custody confirmed that ASSET X “should know how to contact KSM.”

The CIA appears to have sent ASSET X to do something else before going after KSM, during which period his handler — whom McDermott and Meyer say was an Iranian-American flying into Pakistan whenever ASSET X wanted to meet — got reassigned. When a new officer took over handling ASSET X, he almost lost him.

ASSET X was thus handled by a new CIA officer who was unfamiliar with ASSET X’s potential utility in tracking KSM. Seeking guidance on how to proceed with ASSET X, the new CIA case officer sent several cables to CIA Headquarters, which he later described as disappearing into a “black hole.” According to an interview of a CIA officer involved in the operation, the cables were being sent to a special compartment at CIA Headquarters which had been previously used by the team [redacted]. With the dispersal of that CIA team, however, the compartment was idle and no one at CIA Headquarters was receiving and reading the cables being sent to the special compartment. When the CIA case officer received no response to the cables he was sending to CIA Headquarters, he made preparations to terminate the CIA’s relationship with ASSET X. According to interviews, in [redacted] 2002, the CIA officer [redacted] and was on his way to meet ASSET X to terminate the asset’s relationship withthe CIA. By chance, the CIA officer who had previously handled ASSET X [redacted] was visiting [redacted]. This visiting CIA officer overheard the discussion between the chief of Base and the CIA case officer concerning the CIA’s termination of ASSET X as a CIA source. The discussion included names that ASSET X had been discussing with the case officer [redacted]—names that the visiting officer recognized [redacted]. The visiting CIA officer interceded and recommended that the CIA Base delay the termination of ASSET X as a CIA source. At the next meeting ASSET X again demonstrated that he had direct access to KSM’s [redacted]. As a result, the CIA decided not to terminate ASSET X’s work as a CIA source.

ASSET X then traveled on his own and set up a meeting with KSM, which set off something the report redacts entirely. The debate over whether to go after KSM’s associates or directly after him appears to have continued, however.

The internal debate within the CIA continued, however, with the [redacted] and ASSET X and his CIA handlers urging the CIA to delay action and wait for an opportunity for ASSET X to locate KSM. ALEC Station initially supported immediate action to capture any KSM associate ASSET X could lead them to, before reversing its position on February [redacted] 2003. The next day, ASSET X arrived in Islamabad [redacted] where he was surprised to find KSM.

After some reservations (not included in McDermott and Meyer’s description), ASSET X appears to have again been able to locate KSM, after which Pakistani authorities conducted a raid and caught the 9/11 mastermind.

That is, even aside from CIA’s claims that they didn’t know ASSET X could bring them to KSM without further evidence gained through torture, there seems to have been delay and debate about how to do it and in what priority. But it appears the guy who eventually led the CIA to KSM had offered up his services even before 9/11.

It just took two years before the CIA would act on his ability to bring them to KSM.

KSM Had the CIA Believing in Black Muslim Convert Jihadist Arsonists in Montana for 3 Months

Before I get into the weeds, let me be clear: there are almost no black Muslims in Montana. Just 0.6% of Montana’s roughly 1 million people are African American, or about 6,100 total. Just 0.034 Montanans identify as Muslim (or around 345 people). Montana has both the fewest African Americans and fewest Muslims. It is almost certainly the least likely state to find black Muslims seeking to wage jihad.

Nevertheless, Khalid Sheikh Mohammed had the CIA believing he was going to send Dhiren al-Barot (an Indian Muslim Brit whom KSM did have case out actual US terrorist targets in 2000) to Montana to recruit African American converts to Muslim to start forest fires.

On March 17, 2003, KSM stated that, prior to the September 11, 2001, attacks, he tasked Issa[al-Hindi, whose real name is Dhiren Barot] to travel to the United States to “collect information on economic targets.” On March 21, 2003, KSM was waterboarded for failing to confirm interrogators’ suspicions that KSM sought to recruit individuals from among the African American Muslim community. KSM then stated that he had talked with Issa about contacting African American Muslim groups prior to September 11, 2001 The next day KSM was waterboarded for failing to provide more information on the recruitment of African American Muslims. One hour after the waterboarding session, KSM stated that he tasked Issa “to make contact withblack U.S. citizen converts to Islam in Montana,” and that he instructed Issa to use his ties to Shaykh Abu Hamza al-Masri, a U.K.-based Imam, to facilitate his recruitment efforts.KSM later stated that Issa’s mission in the United States was to surveil forests to potentially ignite forest fires.1502

It took the ALEC Station team over 3 months to conclude that KSM’s plan to send an Indian Muslim to Montana to recruit virtually non-existent African American Muslim converts to start forest fires was a fabrication, in part because they first spent a week after he recanted this claim believing it was an attempt to trick them again.

On June 22, 2003, CIA interrogators reported that “[KSM] nervously explained to debriefer that he was under ‘enhanced measures’ when he made these claims” about terrorist recruitment in Montana, and “simply told his interrogators what he thought they wanted to hear.”1505 A CIA Headquarters response cable stated that the CIA’s ALEC Station believed KSM’s fabrication claims were “another resistance/manipulation ploy” and characterized KSM’s contention that he “felt ‘forced’ to make admissions” under enhanced interrogation techniques as “convenient excuses.” As a result, ALECStation urged CIA officers at tiie detention site to get KSM to reveal “who is the key contact person in Montana?”1506 [citing a June 26, 2003 ALEC Station cable] By June 30, 2005, ALEC Station had concluded that KSM’s reporting about African American Muslims in Montana was”an outright fabrication.”

A year after CIA decided KSM was not really going to have a non-existent cell of black Muslims start forest fires, the FBI nevertheless warned a bunch of Rocky Mountain states, including Montana, to be on guard for the threat.

I can think of many more useful things the national security establishment could be doing than chasing ghosts — non-existent black Muslim jihadist ghosts, in the forests of Montana. But by torturing, we signed up to a ghost chase.

Section 309: A Band-Aid for a Gaping Wound in Democracy

Someone surveilling our conversation "connection chained" Bob Litt and I while chatting at CATO.

Metadata: Someone surveilling our conversation “connection chained” Bob Litt and me chatting about spying on Americans in the Hayek Auditorium at CATO on 12/12/14.

On Friday, officials from James Clapper’s office confirmed in a number of different ways that the government obtains “vast troves” of Americans’ communication overseas. And rather than enforce Dianne Feinstein and Mark Udall’s suggestion that the intelligence community treat it under FISA — as the spirit of FISA Amendment Acts, which extended protection to Americans abroad, would support — Congress instead passed Section 309, a measure to impose limited protections on vast unregulated spying on Americans.

This all happened at CATO’s conference on surveillance, an awesome conference set up by Julian Sanchez.

My panel (moderated very superbly by Charlie Savage) revisited at length the debate between former State Department whistleblower John Napier Tye and Director of National Intelligence Civil Liberties Officer Alex Joel (into which I stuck my nose). As he did in his Politico post responding to Tye’s alarms about the risk of EO 123333 collection against Americans to democracy, Joel pointed to the topical limits on bulk collection Obama imposed in his Presidential Policy Directive 28, which read,

The United States must consequently collect signals intelligence in bulk in certain circumstances in order to identify these threats. Routine communications and communications of national security interest increasingly transit the same networks, however, and the collection of signals intelligence in bulk may consequently result in the collection of information about persons whose activities are not of foreign intelligence or counterintelligence value. The United States will therefore impose new limits on its use of signals intelligence collected in bulk. These limits are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.

In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering: (1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) threats to the United States and its interests from terrorism; (3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction; (4) cybersecurity threats; (5) threats to U.S. or allied Armed Forces or other U.S or allied personnel; and (6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section.

I noted — as I did in my Salon piece on the topic — that bulk collection for even just one topic means the collection of everything, as counterterrorism serves as the excuse to get all phone records in the US in the phone dragnet. Joel did not dispute that, explaining that PPD-28 only limits the use of data that has been bulk collected to these six purposes. PPD-28 does nothing to limit bulk collection itself. Though the fact that these limitations have forced a change in how the NSA operates is testament that they were using data collected in bulk for even more reasons before January.

The NSA is, then, aspiring to collect it all, around the world.

Which was a point confirmed in an exchange between Joel and Tye. Joel claimed we weren’t collecting nearly all of the Internet traffic out there, saying it was just a small fraction. Tye said that was disingenuous, because 80% of Internet traffic is actually things like Netflix. Tye stated that the NSA does collect a significant percentage of the remainder (he implied most, but I’d want to see the video before I characterize how strongly he said that).

Again, collect it all.

Our panel didn’t get around to talking about Section 309 of the Intelligence Authorization, which I examined here. The Section imposes a 5 year retention limit on US person data except for a number of familiar purposes — foreign intelligence, evidence of a crime, encryption, all foreign participants, tech assurance or compliance, or an Agency head says he needs to retain it longer (which requires notice to Congress). Justin Amash had argued, in an unsuccessful attempt to defeat the provision, that the measure provides affirmative basis for sharing US person content collected under EO 12333.

In a later panel at the CATO conference, DNI General Counsel Bob Litt said that the measure doesn’t change anything about what the IC is already doing.  Continue reading

Why Did Alfreda Bikowsky Invent a Story about al Qaeda Trash-Talking Us?

One curious revelation in the Torture Report is the specific stories invented by the torturers. One of those is the oft-repeated claim that Abu Zubaydah said detainees were only permitted to start talking after they had reached the limits of their ability to endure torture.

The CIA has consistently represented that Abu Zubaydah stated that the CIA’s enhanced interrogation techniques were necessary to gain his cooperation. For example, the CIA informed the OLC that:

As Zubaydah himself explained with respect to enhanced techniques,’brothers who are captured and interrogated are permitted by Allah to provide information when they believe they have ‘reached the limit of their ability to withhold it’ in the face of psychological and physical hardships.

As is described in greater detail in the full Committee Study, CIA records do not support the CIA representation that Abu Zubaydah made these statements.229 CIA records indicate that Abu Zubaydah maintained that he always intended to talk and never believed he could withhold information from interrogators.230 In February 2003, Abu Zubaydah told a CIA psychologist that he believed prior to his capture that every captured “brother” would talk in detention and that he told individuals at a terrorist training camp that “brothers should be able to expect that the organization will make adjustments to protect people and plans when someone with knowledge is captured.”231

229 While there no records of Abu Zubaydah making these statements, the deputy chief of ALEC Station, [redacted, Alfreda Bikowsky] told the Inspector General on July 17, 2003, that the “best information [the CIA] received on how to handle the [CIA] detainees came from a walk-in [a source [redacted] to volunteer information to the CIA] after the arrest of Abu Zubaydah. He told us we were underestimating Al-Qa’ida. The detainees were happy to be arrested by the U.S. because they got a big show trial. When they were turned over to [foreign governments], they were treated badly so they talked. Allah apparently allows you to talk if you feel threatened. The [CIA] detainees never counted on being detained by us outside the U.S. and being subjected to methods they never dreamed of.” See [redacted] Memorandum for the Record; subject: meeting with deputy chief, Counterterrorist Center ALEC Station; date: 17 July 2003.

More interesting still, CIA claimed that both Abu Zubaydah and Khalid Sheikh Mohammed said the US was weak and would not do what is necessary — purportedly meaning, torture — to combat al Qaeda.

The CIA representation that Abu Zubaydah “expressed [his] belief that the general US population was ‘weak,’ lacked resilience, and would be unable to ‘do what was necessary’ to prevent the terrorists from succeeding in their goals” is not supported by CIA records.1190

On August 30, 2006, a CIA officer from the CIA’s al-Qa’ida Plans and Organization Group wrote: “we have no records that ‘he declared that America was weak, and lacking in resilience and that our society did not have the will to ‘do what was necessary’ to prevent the terrorists from succeeding in their goals.’”1191 In a CIA Sametime communication that same day, a CIA ALEC Station officer wrote, “I can find no reference to AZ being deifant [sic] and declaring America weak… in fact everything I have read indicated he used a non deifiant [sic] resistance strategy.” In response, the chief of the [redacted] Department in CTC, [redacted], wrote: “I’ve certainly heard that said of AZ for years, but don’t know why….” The CIA ALEC Station officer replied, “probably a combo of[deputy chief of ALEC Station, [redacted, Alfreda Bikowsky] and [redacted]. I’ll leave it at that.” The chief of the Department completed the exchange, writing “yes, believe so… and agree, we shall pass over in silence.”1192

[snip]

Finally, the CIA attributed to KSM,along with Abu Zubaydah, the statement that “the general US population was ‘weak,’ lacked resilience, and would be unable to ‘do what was necessary’ to prevent the teiTorists from succeeding in their goals.”1265 There are no CIA operational or interrogation records to support the representation that KSM or Abu Zubaydah made these statements.

It seems to suggest both of these claims came from Alfreda Bikowsky, who was Deputy Chief of ALEC station in this period. Indeed, it suggests that others within CIA believed she (and someone else, whose name is redacted) made that up.

These aren’t the only oft-repeated stories the report says were made up (others include the claim that Abu Zubaydah wrote the al Qaeda manual, which was always so problematic it’s surprising it lasted this long).

But I find it interesting that Bikowsky, in particular, seems to have been inventing this kind of trash talking from al Qaeda. Trash talking that served to justify torture.

Meet the Press: 12 Years of Unchallenged Cheney Claims about Iraq and Al Qaeda

Chuck Todd figured the best way to engage in journalism after the release of the Torture Report was not to invite one of the many interrogators who objected to torture or, having performed it, learned that it damaged them as much as the detainee (Kudos to ABC and CNN for having done so), but instead to invite Dick Cheney on to defend anal rape (which Todd did not call anal rape).

And while Todd had a Tim Russert style gotcha — Dick Cheney predicting 20 years ago that overthrowing Saddam would lead to the disintegration of Iraq and untold chaos — when Dick Cheney explained that 9/11 changed that earlier analysis, Todd offered the most impotent rebuttal, noting that the report undermines that claim, without doing any of several things:

  • Rather than engaging in “report says he says” two side false equivalency, point out that the evidence — the facts — refute that
  • Pointing out the new evidence, offered by Carl Levin this week, that Cheney had knowingly and repeatedly lied on Meet the Press about this topic
  • Reminding Cheney that CIA and DOD set off to find a way to “exploit,” not just “interrogate” detainees, and on the measure of producing false confessions to be used propaganda, the torture was a key part of starting an illegal war that led to the death of 4,000 Americans and untold Iraqis

Todd, of course, did none of those things.

I guess Meet the Press believes they’ll return to the glory of the Tim Russert era if they do the same thing Tim Russert did in his last years, offer Cheney a platform to lie and lie and lie.

For 12 years now, Meet the Press has been willing platform for unchallenged Dick Cheney lies.

As Last Piece of Business, Carl Levin Reiterates that Dick Cheney Lied Us into War

As one of the last things Carl Levin did before retiring, he released a letter he received from John Brennan demonstrating what a liar Dick Cheney is.

For years, Levin has been trying to get the CIA to declassify a March 13, 2003 cable assessing a source’s claim that Mohammed Atta met Iraqi intelligence officer Ahmad Samir al-Ani in Prague before 9/11, a purported meeting Cheney repeatedly used to insinuate a tie between Iraq and al Qaeda justified the war in Iraq. While Brennan still refuses to declassify the cable, but his letter does explain some of CIA’s assessment of that source.

On 13 March 2003, CIA headquarters received a communication from the field responding to a request that the field look into a single-source intelligence report indicating that Mohammed Atta met with former Iraqi intelligence officer al-Ani in Praque in April 20001. In that communication, the field expressed significant concern regarding the possibility of an official public statement by the United States Government indicating that such a meeting took place. The communication noted that information received after the single-source report raised serious doubts about that report’s accuracy.

The context — and CIA’s long refusal to declassify the cable — suggests that the source was yet another planted lead designed to justify the war, a last ditch attempt to create a tie between Iraq and al Qaeda that did not exist.

Brennan’s letter goes on to quote on line from the report.

The field added that, to its knowledge, “there is not one USG [counterterrorism] or FBI expert that … has said they have evidence of ‘know’ that [Atta] was indeed [in Prague]. In fact, the analysis has been quite the opposite. [brackets original]

Four days after this report, Cheney fought mightily to make the Atta claim once more, just before the attack, even though the entire intelligence community thought the claim was not credible.

I raise all this when I should instead be talking about the torture report because it gets to the point I made here, which I keep making in every radio appearance I do on the torture report.

This all was about exploitation, not intelligence. And for over a year, Dick Cheney’s goal for exploitation was to create a fraudulent case for the Iraq war, whether via torture or dubious single source claims in Prague. As Cheney complains that the torture report (which reported on the anal rape done in the guise of rectal rehydration done on his order) is “full of crap,” we should never forget that one end result of this was the disastrous Iraq war.

The Advance Declination Letter and the White House Meetings

John Sifton has a piece at JustSecurity on a key new detail in the torture report: a description of a letter the CIA lawyers were sending around discussing getting an advance declination (though unless I’m misreading the report, this email chain is dated July 8, not April).

But perhaps the most important revelation in the report is not about the torture itself but rather about the legal culpability of the CIA. The report contains a key passage on page 33 revealing that senior lawyers at the CIA in mid 2002, at the very beginning of the CIA’s program, drafted a letter to the Attorney General in which it is expressly acknowledged that the interrogation tactics that came to be known as “enhanced interrogation techniques” violated the US torture statute. The draft letter requested that the Attorney General provide the CIA with “a formal declination of prosecution, in advance”—basically, a promise not to prosecute, or immunity. The document was shared even with CIA interrogators involved in the nascent program. From the beginning, in other words, key CIA officials were well aware that these techniques were clearly unlawful.

While the date is off slightly, that appears to be the email chain I pointed to in this post, which was described as — and may be — “an issue that arose.” (Remember that CIA had already exceeded the guidelines they’d been given on sleep deprivation.)

That least to the timeline laid out in this post (though the post was wrong about ongoing torture — Abu Zubaydah was being held in isolation at that point).

As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

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

[snip]

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

That language — about whether a defendant specifically intended to threaten a victim with imminent death — was reportedly what Jonathan Fredman used to exonerate the people who killed Gul Rahman.

One thing is critically important about this: this is precisely the period when Alberto Gonzales and David Addington were closely involved with the torture report. All this pre-exoneration for crimes came from the White House.

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JimWhiteGNV RT @ZaidJilani: As America gets actually safer its officials have to reach further and further into the realm of hysteria http://t.co/rLct0
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emptywheel @normative Actually, that itself relies on trusting past claims abt NK hacks, no? And not just NK but NK govt.
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JimWhiteGNV RT @CliveSSmith: Its not PK v. West. Don't forfeit all that is good about PK. US rushed to throw out the rule of law in the wake of a horri…
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emptywheel @Krhawkins5 Link not working for me. @attackerman
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emptywheel RT @GEsfandiari: North Korea Is Not Funny by @adrianhong http://t.co/YBognjcbT0
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emptywheel @TyreJim Actually doubt mine will be very effective. I'm still behind on NSA what with 2 weeks of torture. @kurtopsahl
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emptywheel @JAMyerson I don't think he was doing that and I don't mind the convo. Just think @GomesBolt misinterpreted what I was getting at.
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emptywheel @TyreJim Again, who goes to court minutes before Christmas vacation starts? @kurtopsahl
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emptywheel @GomesBolt Well, apparently we're now looking for a proportionate response. So it'd be nice to think that, but that's not thec case
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emptywheel @GomesBolt No, Brennan is in charge of the CIA. He's in charge of most of the IC, which includes far more than CIA. @JAMyerson
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emptywheel @GomesBolt You'll note that NSA also appears there. @JAMyerson
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emptywheel @GomesBolt Your point is? As I noted "top spy." @JAMyerson
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