All those drones we’ve been dropping on the tribal lands of Pakistan?

Well, they must have come close to hitting OBL once before–because a drone in Waziristan apparently killed one of OBL’s daughters.

Amongst those left behind by the evacuating Navy Seals were Osama’s three wives, two of them highly educated Saudis, his elder son and four children of a daughter who was killed in a drone strike in Waziristan, the officials said.

They also included Osama’s Abbottabad-born five-year-old son and 22-year-old daughter, the officials added.

But according to this story–relying on the account of the youngest of the three wives reported to have been arrested from the compound in Abbottabad, Amal–OBL moved out of the tribal lands some time in 2003.

Amal, according to officials familiar with [Pakistani] investigations, said that before moving to his sprawling compound in Bilal Town, Abbottabad, towards the end of 2005, Osama bin Laden had lived with his family in Chak Shah Mohammad Khan, a village in the nearby district of Haripur, for nearly two and a half years.

Chak Shah Mohammad, situated on the highway to Abbottabad, is two kilometres to the southeast of Haripur town.

In retrospect that meant, one of the officials observed, Osama had left the country’s tribal region sometime in 2003 to live in a settled area.

Granted, given these Reuters pictures, he appears to have lived in a cave-like dwelling.  But he appears to have left the tribal lands back in 2003, around the time Khalid Sheikh Mohammed got captured and Abu Faraj al-Libi moved to Abbottabad for a year.

The Pentagon has released video found at Osama bin Laden’s home. It shows a grey bearded OBL watching images of a black-bearded OBL engaging in jihad.

The video has to be less than two years old: note the juxtaposition of images of Obama and Osama at :29.

And if this is more recent–that is, if this is an image of OBL watching videos at his compound in Abbottabad–then it should put the claim that OBL lived in a “mansion” to rest.

Can anyone explain what the repeated image of some kind of signal is (it first shows up at :05)?

Teddy did a diary this morning on a newly-reported detail in the case of Mohamed Mohamud–the Portland man accused of attempting to set off a bomb. The FBI had contacted him a year earlier than originally disclosed. The first contact with Mohamud the complaint describes took place in June 2010, after Mohamud was prevented from boarding a flight to Alaska.

On June 14, 2010, MOHAMUD was contacted at Portland, Oregon International Airport after he attempted to board a flight to Kodiak, Alaska. MOHAMUD was not allowed to board the aircraft. Shortly thereafter, MOHAMUD was interviewed by the FBI.

Shortly thereafter, an undercover agent contacted Mohamud, leading up to the July 30, 2010 meeting that was not taped.

An FBI Undercover Employee (UCE1) contacted MOHAMUD in June 2010 under the guise of being affiliated with UA1 and UA1’s associates. MOHAMUD and UCE1 ultimately agreed to meet in Portland on July 30,2010.

But a filing submitted yesterday shows that the Oregon State Police got a report on him in November 2009, after which an FBI agent named Bill Smith started contacting Mohamud.

As noted above, the government seeks to characterize a November 2009 interaction withMohamed as “an unrelated matter.” Resp. at 17. While the direct contact with Mohamed appeared to involve only the Oregon State Police (OSP), the FBI was clearly involved behind the scene. As the government has only provided minimal discovery related to the FBI’s involvement, with much of it redacted, Mohamed cannot assess the extent of the information the FBI gathered andsubsequently used in crafting its sting operation.

What the discovery does show is that the OSP immediately notified the FBI upon receiving a complaint about Mohamed, despite the fact that the substance of the report would ordinarily not result in FBI involvement. Although the redactions in the FBI report prevent the defense from understanding the full scope of the FBI’s role, it appears that agents met with OSP officers prior to contact with Mohamed and were involved with the subsequent interview. OSP then requested consent to image Mohamed’s computer, which was provided to an FBI analyst within hours. Seven days later, agent Bill Smith began contacting Mohamed and soliciting his participation in violence against the West. A short time later, the FBI analyst copied specific information from Mohamed’scomputer and provided it to a fellow agent. The analyst did not write a report of his actions until ayear later.

Other filings make it clear that the OSP polygraphed Mohamud at this point and suggests the search of his computer was consensual.

At first, the government didn’t admit that “Bill Smith” worked for the government (and it remains unclear who he works for). Only after the defense confronted them with that fact did they concede he was, but they claimed these earlier contacts have no connection to this case.

The discovery provided up to [the discovery deadline of February 15] and after included no indication that Bill Smith was a government agent. The government must possess the paperwork and reports that are necessarily generated by a government agent who contacts a citizen for such investigative purposes. If not for fortunate defense work, this exculpatory fact would have continued to be suppressed. It was only by backtracking through voluminous emails, and clearing out hundreds of lines of distracting code, that the defense was able to understand Bill Smith’s apparent connection to the government. Once confronted with the defense conclusions,the government admitted Bill Smith acted as a government agent. However, the conscious determination by the agency that Bill Smith should not be disclosed to the defense as an agent,purportedly because the government does not believe the information is helpful to the defense,establishes that the government alone should not be permitted to determine what is exculpatory without this Court’s supervision and instruction.

While the government claims this contact was discontinued in May 2010 (a month before the contact they claim started this investigation), Mohamud continued to email “Smith” until August 2010.

Bill Smith had e-mail contact with defendant beginning in late 2009 and continuing through May 2010. The contact with Smith did not relate to the facts of this case, and was discontinued by the government. Defendant, however, on his own continued to contact Smith through August 2010, after the government had ceased contact with him, by forwarding Smith e-mails, including one that supported violent jihad.

The fact that the government delayed admission of these earlier contacts also means the government has not disclosed the extent to which this earlier contact was used to tailor conversations with Mohamud.

[T]he undercover agents clearly used information from surveillance activities in approaching Mohamed. One obvious example is that agent Bill Smith attempted to ingratiate himself with Mohamed by recommending an online publication based on the government’s belief that Mohamed had connections to the publication.

While it appears that Mohamud was under surveillance before the first contact with the OSP (the complaint cites some emails he had with someone in Yemen August 2009), the earlier contact raises a whole bunch of questions about what led the government to pretend to follow-up on his emails in June 2010.

There’s not all that much in this Bob Woodward piece on the raid to get Osama bin Laden that hasn’t already been reported generally elsewhere: just some details about the surveillance leading up to the raid (which I’ll discuss below) and a cute anecdote about how they measured bin Laden’s corpse to make sure it was taller than six feet.

When bin Laden’s corpse was laid out, one of the Navy SEALs was asked to stretch out next to it to compare heights. The SEAL was 6 feet tall. The body was several inches taller.

After the information was relayed to Obama, he turned to his advisers and said: “We donated a $60 million helicopter to this operation. Could we not afford to buy a tape measure?”

So it’s fair, I guess, to take the article’s selected emphasis as the narrative the White House wanted told. And that narrative focuses on what a risky decision it was to approve the raid.

The [phone call between Abu Ahmed al-Kuwaiti and a friend, from which Woodward includes direct quotes] and several other pieces of information, other officials said, gave President Obama the confidence to launch a politically risky mission to capture or kill bin Laden, a decision he took despite dissension among his key national security advisers and varying estimates of the likelihood that bin Laden was in the compound.

To communicate what a difficult decision it was, Woodward provides the competing estimates of the chances that they had really discovered OBL.

Several assessments concluded there was a 60 to 80 percent chance that bin Laden was in the compound. Michael Leiter, the head of the National Counterterrorism Center, was much more conservative. During one White House meeting, he put the probability at about 40 percent.

When a participant suggested that was a low chance of success, Leiter said, “Yes, but what we’ve got is 38 percent better than we have ever had before.”

To back that up, Woodward provides details about the limits of the US intelligence. Of note, Woodward describes that the US was never able to positively ID OBL, in spite of the fact that a man–presumably OBL–paced around the compound for an hour or two every day. While Woodward doesn’t say whether the National Geospatial-Intelligence Agency was able to get a view of his face (the implication is it was not), he does say that the absence of any information about the size of windows or walls in the compound made it difficult to even measure the height of the pacing man.

So we can take two lessons from the story President Obama’s top advisers leaked to Bob Woodward. First, Obama took a pretty big chance when he ordered SEALs to jump into a compound in the middle of a Pakistani garrison town. And second, if you want to evade our surveillance, keep your battery out of your cell phone until you’re at least 90 minutes away from your stationary location and build that location such that any outside space offers no features to allow the NGA to get a good read on you.

Qaddafi last Saturday, Osama bin Laden Sunday, and Anwar al-Awlaki on Thursday.

A U.S. drone strike in Yemen Thursday was aimed at killing Anwar al-Awlaki, the American-born radical cleric who is suspected of orchestrating terrorist attacks on the U.S, but the missile missed its target, according to Yemeni and U.S. officials.

[snip]

The attempt to kill Mr. Awlaki was the first known U.S. military strike inside Yemen since May 2010, when U.S. missiles mistakenly killed one of Yemen President Abdullah Ali Saleh’s envoys and an unknown number of other people.

Lucky for Obama, batting .333 is still a great average.

Oh–and too bad about all that collateral damage.

Two lessons for Obama: 1) Navy SEALs are far more effective with far fewer mistakes than drones, 2) that adage about celebrities dying in three? It doesn’t actually raise your odds in military strikes.

I don’t really have the heart to refute Michael Mukasey’s apology for torture. In it, he contradicts assertions made by torture apologists who were closer to the torture. He includes extraneous (and false) details to fluff up his case. He falsely pretends the torture described in the torture memos accurately described what happened to the detainees he claims led to OBL. And he doesn’t even have the amusing self-contradiction that Rummy had, which at least made Rummy’s psychological pretzel interesting to read.

In short, for Mukasey, the capture of OBL is not time to celebrate, but rather an opportunity to launch a hackish political attack on President Obama.

But the piece did lead me to reflect on why the torture apologists are so desperately trying to give torture the credit for finding OBL.

There’s the big reason, of course, hinted at by Jose Rodriguez. He stated that the most valuable piece of intelligence Abu Faraj al-Libi revealed under torture was that OBL’s courier only communicated with the outside world every two months. From that, Rodriguez concluded that OBL was only a figurehead, no longer the active head of al Qaeda (a conclusion that may have been proven false by the intelligence found at OBL’s compound). Later that year, CIA would shutter the group focusing on finding bin Laden because–they had concluded–al Qaeda was no longer the hierarchy that had made OBL such a key figure earlier.

In other words, it’s not just that the torture apologists’ claims about torture–that it would immediately yield the information that would lead to OBL, allowing them to bypass the years of intelligence gathering it ultimately took to find OBL–proved so wrong. It’s that one of the chief torturers seems aware that the best piece of intelligence they got under torture is intelligence that led him to stop searching for OBL.

Then there’s the laughable reason Mukasey seems to be animated by: because Obama’s being mean to the torturers.

Yet the Justice Department, revealing its priorities, had gotten around to reopening investigations into the conduct of a half-dozen CIA employees alleged to have used undue force against suspected terrorists. I say “reopening” advisedly because those investigations had all been formally closed by the end of 2007, with detailed memoranda prepared by career Justice Department prosecutors explaining why no charges were warranted. Attorney General Eric Holder conceded that he had ordered the investigations reopened in September 2009 without reading those memoranda. The investigations have now dragged on for years with prosecutors chasing allegations down rabbit holes, with the CIA along with the rest of the intelligence community left demoralized.

[snip]

We also need to put an end to the ongoing investigations of CIA operatives that continue to undermine intelligence community morale.

Mukasey’s concern is laughable, of course, because no one really believes these ongoing investigations exist for any reason except to shield the US from torture investigations conducted by countries like Spain and Poland. After all, if you won’t charge Jose Rodriguez for destroying evidence that the torture conducted by his contractors exceeded the torture memos, you’re not going to file charges against anyone. Moreover, the statutes of limitation are expiring as we wait.

Though perhaps this is the real reason motivating Mukasey:

Immediately following the killing of bin Laden, the issue of interrogation techniques became in some quarters the “dirty little secret” of the event. But as disclosed in the declassified memos in 2009, the techniques are neither dirty nor, as noted by Director Hayden and others, were their results little. As the memoranda concluded—and as I concluded reading them at the beginning of my tenure as attorney general in 2007—the techniques were entirely lawful as the law stood at the time the memos were written, and the disclosures they elicited were enormously important. [my emphasis]

Mukasey sullied his reputation as a tough but fair judge when he agreed not to pursue torture in exchange for getting the Attorney General job. And since that time, the fiction he has been telling himself–that John Yoo’s analysis was even remotely serious, that the torturers didn’t exceed the guidelines of the memo, and that the torture proved valuable–has been exposed as a sordid lie. And ultimately, OBL’s death makes clear, it wasn’t worth it. The torture just impeded the real intelligence work that ultimately yielded OBL.

After all, ultimately the torture apologists staked their reputation on a certain approach to terrorism. That’s their legacy. It’s all they’ve got.

And, ultimately, I guess there’s one more reason the torture apologists came out of their caves. Either because of the media’s own complicity, or because the media has to sow controversy where celebration should suffice, the media is inviting them out of their caves; scheduling Condi Rice, Michael Chertoff, Michael Hayden, Rudy Giuliani, Rummy, and the pulse-less wonder himself for the Sunday shows. (The last time the Sunday shows featured a crowd like this, they were lying about mushroom clouds to gin up a war to distract us from beating al Qaeda.)

Steven Aftergood has the House intelligence report online and–as he points out–it contains a requirement that the intelligence community close one of the gaping holes in network security highlighted by the WikiLeaks case. The deadline? 2013.

SEC. 402. INSIDER THREAT DETECTION PROGRAM.

(a) Initial Operating Capability.–Not later than October 1, 2012, the Director of National Intelligence shall establish an initial operating capability for an effective automated insider threat detection program for the information resources in each element of the intelligence community in order to detect unauthorized access to, or use or transmission of, classified intelligence.

(b) Full Operating Capability.–Not later than October 1, 2013, the Director of National Intelligence shall ensure the program described in subsection (a) has reached full operating capability.

(c) Report.–Not later than December 1, 2011, the Director of National Intelligence shall submit to the congressional intelligence committees a report on the resources required to implement the insider threat detection program referred to in subsection (a) and any other issues related to such implementation the Director considers appropriate to include in the report.

(d) Information Resources Defined.–In this section, the term “information resources” means networks, systems, workstations, servers, routers, applications, databases, websites, online collaboration environments, and any other information resources in an element of the intelligence community designated by the Director of National Intelligence.

This is precisely what the Senate Intelligence Committee is also mandating. As I pointed out earlier, this seems to simply take DOD’s own lackadaisical deadline and make it a requirement.

In other words, if closing this security gap a year and a half after the leaks are alleged to have occurred is too tough, then they can go ahead and take another year or so to close the barn door.

Though to be fair, this deadline may come directly from the lackadaisical DOD, as the deadlines given here seem to match those DOD aspires to hit.

Now, maybe it’s considered unpatriotic to note that our intelligence community–and its congressional overseers–are tolerating pretty shoddy levels of security all while insisting that they takes leaks seriously.

But seriously: if our government is going to claim that leaks are as urgent as it does, if it’s going to continue to pretend that secrets are, you know, really secret, then it really ought to at least pretend to show urgency on responding to the gaping technical issues that will not only protect against leakers, but also provide better cybersecurity and protect against spies. Aspiring to fix those issues years after the fact really doesn’t cut it.

Ah well! Bin Laden is dead. Who else might want our secrets?

National Journal has a fascinating article comparing the cost-benefit of the war against al Qaeda with that of other wars. It puts the cost of the war at $3 trillion–less than just the defense costs of World War II. But it didn’t bring the same kind of return.

By conservative estimates, bin Laden cost the United States at least $3 trillion over the past 15 years, counting the disruptions he wrought on the domestic economy, the wars and heightened security triggered by the terrorist attacks he engineered, and the direct efforts to hunt him down.What do we have to show for that tab? Two wars that continue to occupy 150,000 troops and tie up a quarter of our defense budget; a bloated homeland-security apparatus that has at times pushed the bounds of civil liberty; soaring oil prices partially attributable to the global war on bin Laden’s terrorist network; and a chunk of our mounting national debt, which threatens to hobble the economy unless lawmakers compromise on an unprecedented deficit-reduction deal.

All of that has not given us, at least not yet, anything close to the social or economic advancements produced by the battles against America’s costliest past enemies.

Just as one example, here’s how it contrasts WWII’s cost-benefit calculus.

World War II defense spending cost $4.4 trillion. At its peak, it sucked up nearly 40 percent of GDP, according to the Congressional Research Service. It was an unprecedented national mobilization, says Chris Hellman, a defense budget analyst at the National Priorities Project. One in 10 Americans—some 12 million people—donned a uniform during the war.

But the payoff was immense. The war machine that revved up to defeat Germany and Japan powered the U.S. out of the Great Depression and into an unparalleled stretch of postwar growth. Jet engines and nuclear power spread into everyday lives. A new global economic order—forged at Bretton Woods, N.H., by the Allies in the waning days of the war—opened a floodgate of benefits through international trade. Returning soldiers dramatically improved the nation’s skills and education level, thanks to the GI Bill, and they produced a baby boom that would vastly expand the workforce.

It’s a perhaps cold way to discuss war, but a fascinating one. (Note, here’s another cost-benefit analysis, one which shows we invest far too much in security theater given the extent of the threat we face.)

Given such analysis, can we perhaps consider the question of whether we fought this war wrong? Just as an example, I perhaps too glibly considered the plight of al Qaeda, which is reportedly now considering derailing trains for an anniversary attack. I was glib primarily because, given our aging rail stock, derailments are a fairly common occurrence even without a terrorist’s involvement. Similarly, I noted the silliness of a big domestic spying effort to find potential threats to pipelines when utilities themselves seem to be ensuring pipelines blow-up.

What if, instead of dumping billions into domestic surveillance, we instead spent some of that on training, but much of that on making our infrastructure much more resilient–resilient to terrorist attacks, but also common decay? What if, rather than encouraging consumers to go deeper in debt to make sure the economy looked good on paper, we had invested to make it more resilient while making the country more self-reliant?

It seems that responding to terrorism in that manner would have had the kind of benefits our other wars had–and would have better prepared us for other tremendous threats, like climate change.

I’m bemused by this first report on the intelligence from Osama bin Laden’s compound. Apparently, al Qaeda wants to derail trains.

A new bulletin issued tonight by the FBI and the Department of Homeland Security and obtained by ABC News describes the terror organization’s chilling desire to derail a train.

“As of February 2010, al-Qa’ida was allegedly contemplating conducting an operation against trains at an unspecified location in the United States on the 10th anniversary of September 11, 2001,” the document reads, using an alternate spelling for bin Laden’s terror group. “As one option, al-Qa’ida was looking into trying to tip a train by tampering with the rails so that the train would fall off the track at either a valley or a bridge.”

With all due respect to the fuckers that brought down the World Trade Center, really? They want to tip a train off a track?

I’m bemused for several reasons. First, it sort of, kind of, refutes the point Jose Rodriguez is clinging to to justify having stopped the investigation of OBL. That is, OBL is still getting terrorist proposals; he’s not just a figurehead.

That said, really? The US is going to get all hot and bothered over a train derailment? When we manage to derail trains through our own declining rail stock all the time? And al Qaeda, the terrorist organization that scored one of the biggest media coups ever by taking down NYC landmarks wants to topple a train in a valley that doesn’t house major media outlets?

Finally, though, I can’t help but relish in the irony. As I noted earlier, our government seems to have a fondness for analogizing al Qaeda with Native Americans, first to Seminoles and then to Apaches. All this time we’ve been playing Cowboys and Indians. Only we totally misunderstood that we’re now dealing with the equivalent of Jesse James and his nineteenth century attacks on trains, not Indians. Al Qaeda and its current “aspirational” attacks has been degraded to the tactics used by Wild West gangsters.

But apparently, we’re still trying to fearmonger over it.

As I noted earlier, the AP and other outlets have reported that Hassan Ghul was among the first to inform American interrogators of the importance of Abu Ahmed al-Kuwaiti. Here’s what the AP reported.

Then in 2004, top al-Qaida operative Hassan Ghul was captured in Iraq. Ghul told the CIA that al-Kuwaiti was a courier, someone crucial to the terrorist organization. In particular, Ghul said, the courier was close to Faraj al-Libi, who replaced Mohammed as al-Qaida’s operational commander. It was a key break in the hunt for in bin Laden’s personal courier.

“Hassan Ghul was the linchpin,” a U.S. official said.

Given the apparent importance of Ghul’s interrogation, as well as reports that he was freed at some point, I wanted to point out several oddities that may relate to his interrogation.

A Long Delay Before Entering CIA Interrogation

Here’s an outdated timeline I did of Ghul’s treatment (I’m working on an updated one). But we know he was first reported captured on January 22 or 23 2004. Yet, CIA was just getting approval for interrogation techniques to use with Ghul in August 2004, seven months later.

We know this from an unredacted reference to Ghul in the May 30, 2005 CAT Memo.

The interrogation team “carefully analyzed Gul’s responsiveness to different areas of inquiry” during this time and noted that his resistance increased as questioning moved to his “knowledge of operational terrorist activities.” Id at 3. [redacted] feigned memory problems (which CIA psychologists ruled out through intelligence and memory tests) in order to avoid answering questions. Id.

At this point, the interrogation team believed [redacted] “maintains a tough, Mujahidin fighter mentality and has conditioned himself for a physical interrogation.” Id. The team therefore concluded that “more subtle interrogation measures designed more to weaken [redacted] physical ability and mental desire to resist interrogation over the long run are likely to be more effective.” Id. For these reasons, the team sought authorization to use dietary manipulation, nudity, water dousing, and abdominal slap. Id at 4-5. In the team’s view, adding these techniques would be especially helpful [redacted] because he appeared to have a particular weakness for food and also seemed especially modest.

The document referred to here was a August 25, 2004 memo from the CIA to Daniel Levin, who was acting OLC head after Jack Goldsmith left in 2004. While we haven’t seen that memo, we have seen his response, written the following day, which approves the use of dietary manipulation, nudity, water dousing, and abdominal slap. That letter also references an August 13, 2004 meeting (at which water dousing was clearly discussed), and a July 30, 3004 letter, with attachment, and the attachment to a August 2 letter.

In other words, from this correspondence, it would appear that it took at least six months (from late January to late July) before the CIA got around to torturing Ghul.

This, in spite of the fact that an earlier reference to the August 25 letter claims that CIA believed Ghul had information about pending attacks.

On [redacted] the CIA took custody of [redacted] whom the CIA believed had actionable intelligence concerning the pre-election threat to the United States. [reference to August 25 letter] [redacted] extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and intelligence indicated [redacted] arranged a … meeting between [redacted] and [redacted] at which elements of the pre-election threat were discussed. Id at 2-3; see also Undated CIA Memo, [redacted]

That paragraph is followed by more intelligence that may pertain to Ghul alone, to another detainee alone, or to Ghul and then another detainee:

Intelligence indicated that prior to his capture, [redacted] perform[ed] critical facilitation and finance activities for al-Qa’ida,” including “transporting people, funds, and documents.” Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted] Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [redacted] played an active part in planning attacks against United States forces [redacted] had extensive contacts with key members of al Qaeda, including, prior to their capture, Khalid Shaykh Muhammad (“KSM”) and Abu Zubaydah. See id. [Redacted] was captured while on a mission from [redacted] to establish contact” with al-Zarqawi. See CIA Directorate of Intelligence, US Efforts Grinding Down al-Qa’ida 2 (Feb. 21, 2004)

In addition to the information on Ghul contained in the August 30 CAT Memo, there’s further reference to correspondence on Ghul in the May 10, 2005 Techniques memo (which for a variety of reasons must have been written to pertain to Ghul specifically).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted] You informed us that the [redacted] had information about al Qaeda’s plans to launch an attack within the United States. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments completed by a CIA physician and psychologist, and that based on this examination, the physician concluded [redacted] medically stable and has no medical contraindications to interrogation, including the use of interrogation techniques addressed in this memorandum. 20

20 You have advised us that the waterboard has not been used [redacted] We understand that there may have been medical reasons against using that technique in his case. Of course, our advice assumes that the waterboard could only be used in the absence of medical contraindications.

The following footnote describes, among other things, that Ghul “was obese, and that he reported a “5-6 year history of non-exertional chest pressures.”

And there’s this information, which was leaked to Fox:

Ghul, a Pakistani, is known to have been an Al Qaeda member since the early 1990s, when Al Qaeda was established.

[snip]

One official said Ghul was “definitely in Iraq to promote an Al Qaeda, Islamic extremist agenda.” Ghul is described by officials as a facilitator known in terrorist circles as “the Gatekeeper” who moves money and people around the Middle East, Africa and possibly beyond. Officials added that Ghul has extensive contacts in Al Qaeda and wider terrorist communities, and is thought to have had some kind of connection to the 1998 East African embassy bombings, though officials stress those links are still being probed.

All of which presents us with the highly implausible possibility that Ghul was captured in January 2004, believed to be a key facilitator for al Qaeda, yet not entered into the CIA program and tortured until six or seven months later.

There are several possible explanations for this odd fact, including (note, these are all possibilities–I’m not saying they definitely happened):

• Ghul’s transfer to CIA custody was delayed by concerns about removing him from Iraq
• Ghul was moved to CIA only after they got intelligence about pre-election attacks
• Ghul’s torture happened under DOD, not CIA, custody
• CIA required Ghul’s interrogation to be approved personally by the Principal’s Committee, which it did without the advice of Jack Goldsmith or Jim Comey
• Ghul’s interrogation approvals were retroactive

I believe some combination of these factors explains they delay between the time when Ghul was captured and when CIA first got approval for his interrogation. If I had to make a wildarsed guess, I think DOJ prevented Ghul’s transfer into the CIA program for some time, and once he was transferred (with approval directly from the Principals Committee and possibly without any more formal legal cover), CIA used water dousing, which had not yet been formally approved, all of which forced them to retroactively approve his treatment.

DOJ may have had concerns about removing Ghul from Iraq

One of the things that may have delayed Ghul’s CIA interrogation is a concern whether the Geneva Conventions prohibited moving someone outside of territory we occupied. In October 2003, Goldsmith had pissed off Cheney and Addington by determining that Iraqi members of al Qaeda could not be moved outside of Iraq. Then, on March 18, 2004, he drafted a memo that concluded that “al Qaeda operatives captured in occupied Iraq who are neither citizens nor permanent residents of Iraq are not entitled to “protected person” status.” [Ed.: See the update below.] That should have provided approval for Ghul, as a Pakistani, to be removed from Iraq. But Goldsmith claims that that memo was neither finalized nor relied upon to render anyone.

In any event, I never finalized the draft, it never became operational, and it was never relied on to take anyone outside of Iraq.

Nevertheless, there appears to have been a flurry of discussions about rendering someone out of Iraq from June 29 to at least July 15. Then in October 2004, Doug Jehl wrote a story (rebutting an earlier Dana Priest one) suggesting that the Administration had formulated an entirely new opinion on rendering people out of Iraq, one that didn’t rely on Goldsmith’s earlier one. That story claimed, among other things, that any detainee moved out of Iraq had been moved before March 2004.

While the truth of the matter remains unclear, the debate is important for Ghul’s treatment for several reasons:

• The Priest and Jehl reporting was a key impetus to pressure from Congress about ghost detainees; the May 2005 torture memos–written in part about Ghul–were in large part a response to that pressure.
• If Jehl’s reporting is correct, it would say either Ghul was rendered out of Iraq before Goldsmith drafted his memo, not until September time frame, or without the coverage of an OLC memo.
• Clearly there was a great deal of debate before Goldsmith’s departure on this topic in the weeks leading up to his hasty departure.
• As I’ll show, it appears the White House may have bypassed OLC on some issues in this time frame.

Ghul may have been moved to CIA after a delay

Another possible explanation for the delay in approvals for Ghul’s treatment is that he wasn’t actually moved to CIA’s custody for some time. Given what was immediately leaked to Fox, this seems remarkable. But the language used in the CAT memo seems to support such an explanation:

On [redacted] the CIA took custody of [redacted] whom the CIA believed had actionable intelligence concerning the pre-election threat to the United States.

The first redaction must be a date, one that distinguishes when the US captured Ghul from when CIA actually took custody. And the reference to the pre-election threat suggests that CIA may have gotten new information, which in turn led them to request custody of Ghul. And in this passage,

You informed us that the [redacted] had information about al Qaeda’s plans to launch an attack within the United States.

The redaction–with the article “the” preceding it–seems to refer to a source of intelligence, not to Ghul himself.

That would raise some more questions. As noted above, the CIA wrote a memo to Jack Goldsmith about a detainee on March 12:

Intelligence indicated that prior to his capture, [redacted] perform[ed] critical facilitation and finance activities for al-Qa’ida,” including “transporting people, funds, and documents.” Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted] Assistant General Counsel, Central Intelligence Agency (March 12, 2004).

While (as I said) the reference may be to Ghul but may also be to someone else, the description of someone who transported “people, funds, and documents” sounds remarkably like the description leaked to Fox.

Ghul is described by officials as a facilitator known in terrorist circles as “the Gatekeeper” who moves money and people around the Middle East, Africa and possibly beyond.

In other words, if that reference is to Ghul, then it suggests that CIA was talking about his value as early as March–and just one week before Goldsmith wrote the memo on rendering people out of Iraq. In addition, all this took place just after General Taguba submitted the first draft of his report on prisoner abuse on March 9. And finally, note that DOD was trying, at a minimum, to institutionalize its frequent flyer program (a loophole invented to use sleep deprivation)–and may have been trying to get approval for extended isolation–in March 2004.

These details are all really sketchy. But at a minimum, at the same time as the Abu Ghraib scandal was becoming clear within DOD, there was some renewed focus on DOD’s interrogation techniques. That discussion happened at the same time as another discussion about rendering people out of Iraq. And both of those discussions happened at the same time as CIA wrote to Jack Goldsmith trying to get something approved for a detainee who may or may not be Ghul.

Ghul’s interrogation may have occurred under DOD

Which leads to another possibility: that Ghul’s interrogation happened (or at least started) in DOD custody, not CIA custody.

As Goldsmith and a number of reports have explained, he told Jim Haynes in December 2003 not to rely on the March 2003 Yoo memo on torture. But, as I have noted, he did not formally withdraw it.

Goldsmith told Jim Haynes not to rely on the Yoo memo in December 2003. But he didn’t start his efforts on replacing the Yoo memo until after DOD asked to use–at a minimum–extended isolation in March 2004 (and after DOD, but according to the Terror Presidency, not Goldsmith, knew about Abu Ghraib). The first draft was not completed until after the Abu Ghraib scandal had broken (remember that Goldsmith was very busy trying to salvage Cheney’s illegal wiretap program between March 10 and May 6, 2004). Then, after writing six drafts between the time he started this process and mid-June, he started attacking the Yoo memo directly.Significantly, the very day Goldsmith told Ashcroft he would withdraw the Bybee One memo, he also had Bradbury put this into a footnote on the first page of a draft memo purportedly replacing the Yoo memo:

The Yoo Memo “is flawed in so many important respects that it must be withdrawn.” June 15, 2004 draft at 1, n.l.

This language speaks of withdrawing the memo as something that had yet to be done, suggesting that the Yoo Memo was not, in fact, operationally withdrawn yet in June 2004.

In a September memo summarizing all the advice OLC had given on interrogation, Daniel Levin seemed confused about how the techniques used by DOD had been approved. But it was not until Levin’s final day as acting OLC head on February 4, 2005–at a time when he was working on the Techniques memo that pertained directly to Ghul–that Levin formally withdrew the March 2003 memo. Now, Levin did say that he understood that DOD had not relied on the March 2003 memo after December 2003, but I always find the last things OLC heads do before they’re pushed out the door to be notable. And, at a time when Levin was writing an OLC memo formalizing the advice given on Ghul, he was trying to make it very clear to DOD that they needed to restrain their interrogation practices.

And so it’s possible that in that period after Ghul was captured as the Abu Ghraib scandal slowly developed and DOJ debated over rendering people out of Iraq, DOD did something with Ghul that only CIA was supposed to have done.

CIA may have required Ghul’s interrogation to be approved by the Principals Committee

We know that in June 2004, George Tenet asked for–and finally, in July 2004, received–confirmation that the White House approved of the torture program.

But it appears that on July 2, two things happened.

First, CIA appears to have gotten possession of a detainee and asked DOJ–but not necessarily OLC–for permission to torture him.

The Vaughn Index of OLC documents relating to the torture program gives a few details of what led up to the request. Document 44 is a fax from CIA to DOJ (note, nothing in the description refers to OLC) noting the CIA has taken custody of a particular detainee [ed: I’m not sure they had taken custody at this point].

This is a two-page memo with a fax coversheet, providing legal advice regarding the CIA securing custody of a detainee and use of interrogation methods.

Document 45 is a document–apparently internal to CIA–requesting of CIA’s General Counsel permission to torture a detainee.

This document is a ten page memo from the CIA’s Office of General Counsel requesting legal guidance on the proposed interrogation of a specific detainee.

And on that very same day, the Principals Committee met and talked about a particular detainee. In his response to the OPR Report, Jay Bybee said they discussed Janat Gul.

Deputy Attorney General James Comey. Comey joined Ashcroft at a NSC Principals Meeting on July 2, 2004 to discuss the possible interrogation of CIA detainee Janat Gul. Report at 123. Ashcroft and Comey conferred with Goldsmith after the meeting, leading to Goldsmith’s letter to Muller approving all of the techniques described in the Classified Bybee Memo except for the waterboard. Id

But for reasons I lay out here, I think it most likely it was Hassan–and not Janat–Ghul who was discussed (note, Bybee cites a redacted portion of the OPR report itself, so the error, if it was one, may have come from that report).

And that, in turn, is significant because it appears that the Principals came to a decision about the treatment of this particular detainee after Jim Comey and John Bellinger left the meeting (it appears Jack Goldsmith was not at the meeting at all).

Some time after the meeting that day, Muller sent John Bellinger a memo and CCed it to Comey. The cover sheet twice directed “EYES ONLY NO COPIES,” suggesting Comey shouldn’t share it, perhaps not even with Goldsmith. In addition to the cover sheets, the one page memo–on plain paper, not CIA stationary, explained:

Subsequent to today’s meeting we have had further discussions that clarified the extent of today’s approval of certain techniques. The authorized techniques are those previously approved for use with Abu Zubaydah (with the exception of the waterboard) and the 24 approved by the Secretary of Defense on 16 April 2003 for use by the Department of Defense. I have relayed this information to the CIA’s Counterterrorist Center.

In other words, after Comey and Bellinger left the meeting, “we” (Muller doesn’t explain who all were included in that “we”) “had further discussions” in which they “clarified the extent of today’s approval of certain techniques.”

This is Muller telling Comey (and Bellinger) what got approved. This is CIA telling DOJ what got approved, not DOJ telling CIA what was legal.

While John Ashcroft signed off on this treatment, it appears that none of the torture skeptics did, at least not until after the meeting.

And of course that means that the approval exposed people like Dick Cheney more than other torture decisions made.

Retroactive approval of Ghul’s treatment

All of which leads to the possibility that either DOD or the Principals Committee approved treatment for Ghul that OLC had not formally approved yet.

It’s possible that that treatment was the waterboard. Ghul’s assessment, written on August 2, seems to have approved him for any treatment. And just days after that assessment, on August 6, Daniel Levin approved the use of waterboarding, promising a follow-up memo memorializing that advice which, for all intents and purposes, was the May 10 Techniques memo that pertained to Ghul. It is possible, for example, that all the OLC assertions that CIA only waterboarded 3 detainees (Zubaydah, al-Nashiri, and KSM) pointedly excluded whatever DOD did.

But I think it just as likely DOJ had to retroactively authorize water dousing. John Yoo had claimed to approve water dousing in his Legal Principles documents. Yet Bybee would ultimately testify to Congress that dousing was used without prior approval. And while the Techniques memo pertaining to Ghul basically reapproved everything that the Bybee Memo had already approved in 2002, it added water dousing, a technique first formally approved by OLC in the August 26 letter from Levin.

And while I think it pertains to a different detainee, we do know that one of the problems Jim Comey had with the Combined Memo–approved the same day as the Techniques memo–was that it provided retrospective advice to use techniques that Steven Bradbury refused to spell out in the memo itself.

The emails themselves explain the rush–and that rush should have been the NYT story. On April 28, 2005, Comey wrote:

[Alberto Gonzales’s COS Ted Ullyot] mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

In other words, the May 10, 2005 authorization to use combined techniques was designed to give legal cover for something that had already happened.

The Combined Memo went out of its way to approve waterboarding used in conjunction with sleep deprivation; CIA even provided supplemental information to Bradbury they had not shared with Levin so he could include that combination in his memo. So it seems there is one detainee on whom that combination was used that we may not know about (again, it may have happened in DOD custody). I don’t think that detainee was Ghul, but it is a possibility.

All of which doesn’t explain what happened to Ghul–nor where he is now, when he was last purportedly seen in Pakistani custody in 2007.

But it suggests there are a whole lot of weird things about Ghul’s treatment. And as more people discuss his role in finding Osama bin Laden, it’d be nice to resolve the source of all this weirdness.

Update: I’ve just reviewed the testimony from Cage Prisoners that pertains to Ghul, from a detainee who said he was jailed next to him in Pakistan.

Hassan Ghul – he was captured in Iraq in 2004 and he was in the cell left to me. I talked to him when no guards were around me and he told me that the CIA kept him in a secret location for 2 years. After 2 ½ years they handed him to the Pakistan authorities. I believe he was a Pakistani national. He was there when I arrived and he was moved in January 2007.

Ahmed was arrested August 20, 2006. So Ahmed was jailed with Ghul for five months. The timing laid out here: that the CIA held him for two years (so starting at least in August 2004), with the different timing (2½ years) may support the possibility of him being transferred out of Iraq and into CIA custody (Adam Goldman has said he was in Romania) in mid-2004.

Update: One more detail I meant to mention. Note that John McLaughlin is quoted in this Jose Rodriguez piece. But he doesn’t say anything directly about torture leading to OBL.

Former Bush officials say that the use of enhanced interrogation techniques is misunderstood. “The main thing that people misunderstand about the program is it was intended to encourage compliance,” says John McLaughlin, deputy director of the Central Intelligence Agency during the period in which waterboarding was used. “It wasn’t set out to torture people. It was never conceived of as a torture program.”

I find that interesting because, as acting head of the CIA from mid-July to mid-September 2004, he would have been directly in the chain of command for whatever happened to Ghul (if his interrogation happened when the record claims it did, in August 2004). Particularly given that Ghul is the one detainee (aside from possibly Mohammed al-Qahtani) who may have said something useful about Abu Ahmed under torture, I find his silence on specifics, particularly relating to Ghul, notable.

Update: WRT the Goldsmith memo on rendering people out of Iraq, this law review article (see pp. 54-59) points out there are two opinions. One, finalized and dated March 18, that argued that effectively argued that those engaged in global armed conflict with the US were deportable, and another draft, dated March 19, that stated even foreigners who are protected can be deported if they qualify under local law.