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

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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.

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The Neoliberal Inhabitants of Mont Pelerin

 

 

In this post, I talked about the intersection of neoliberalism and neoclassical economics. There is a lot of talk on the left about neoliberalism, and a number of ideas about what it is. For me, neoliberalism refers to the general program of a group of economists, lawyers and othes loosely grouped around the Mont Pelerin Society. This description is used by Philip Mirowski in his book, Never Let a Serious Crisis go to Waste. Mirowski did a Book Salon at FDL, here; the introduction gives a good overview of the book, and Mirowski answers a number of interesting questions.

The writer Gaius Publius provides an historical perspective here.  Classical liberalism is based on the idea that property rights are central to the freedom of the individual, an idea espoused by John Locke, as the Theologian Elizabeth Bruenig explains here.

John Locke’s 1689 discussion of property in his Second Treatise on Civil Government establishes ownership as a fundamental relationship between the self and the outside world, with important implications for governance. In Locke’s thought, the justification for private property hinges upon one’s self-ownership, which is then applied to other objects. “Every man,” Locke writes in the Second Treatise, “has a property in his own person: this no body has any right to but himself.” Through labor, Locke continues, the individual mixes a piece of herself with the outside world. Primordial self-ownership commingles with material objects to transform them into property.

In this view, property is the central element that structures individual lives and then society as a whole. Those who have it are entitled to total control over it, just as they are over their own person. Perhaps they should even be in charge of operating the state. When you think about that era, you can see why that formulation would be popular: it solved the problem facing newly rich merchants and others under a monarchy. They were in constant danger that royalty would seize their property from them without fair compensation. Locke’s argument provides a framework to limit the power of the monarch. It also explains the relation between slaves and owners, and women and men. And, as Bruenig points out, it can be extended to justify protection of property with the same force allowed in self-protection.

The defense of property from interference by the State leads directly to the idea of small government. Government shouldn’t interfere with markets any more than it should interfere with any other use of property. The combination of these ideas leads to the principles of classical liberalism: nearly absolute personal freedom for those with property, and a tightly limited sphere of government action. This is the classical formulation of liberalism.

It lasted until the Great Depression and the New Deal. Franklin Roosevelt was faced with the rich on one side, and with angry and miserable workers on the other. These workers and unemployed people, and most of the citizenry were looking at the massive damage done by capitalists and their capitalist system, and saw that the system did not work for them. They were listening to the leftists of the day, socialists and communists; independent smart people like Francis Townsend; and powerful speakers and populists like Huey Long  and Father Coughlin. The elites were frightened of the power of these people to inform and structure the rage of the average citizen, and FDR was able to force them to capitulate to modest regulation of the rich and powerful and their corporations, including highly progressive tax rates.

FDR and the Democrats embraced the term liberalism, and the meaning of the term changed to include a more active state, to some extent guided by Keynesian economic theory. In this version of liberalism, the government becomes a tool used by a society to achieve the goals of that society. People who stuck with the old definition of small government coupled with massive force in the protection of property and rejected all Keynesian ideas were labeled conservatives.

The reformulation of the definition of liberal did not sit well with a segment of the conservatives. Friedrich Hayek and his rich supporters launched the Mont Pelerin Society in 1947. The point of the MPS is to preserve and extend classical liberalism, in an effort to prevent FDR-style liberalism from turning the US and other countries to socialism or something even worse. It is a diffuse group, not secretive, but it doesn’t seek publicity. It seems to content itself with publishing papers and having meetings at which like-minded people can talk to each other and feel good about their brilliance.

The name neoliberal comes from their desire to recapture the glory of small government capitalism. This is from a speech delivered by Edwin J. Feulner, the outgoing president of the group, in 1998:

But with the onset of Progressivism and the New Deal, many Americans became attracted to a political philosophy that was diametrically opposed to Jefferson’s. The new statist philosophy had great faith in public man, but was deeply distrustful of private man. It maintained, quite incorrectly, that the uncoordinated activities of ordinary individuals were bound to culminate in economic catastrophes like the Great Depression, and it looked to an all-good, all-wise and increasingly all-powerful central government to set things right. In the view of these statists — who brazenly hijacked the term “liberal” to describe their very illiberal philosophy — what we Americans needed was more government, not less.

The FDR socialists and communists brazenly hijacked the term “liberal” to cover their assault on the principles of small state property protection. That gives you some idea of the ressentiment of the neoliberals. They have a strong sense of entitlement, and they cling to grudges for decades. Hayek was perhaps most famous for his book The Road to Serfdom, written in the wake of World War II, a screed warning against socialism. That wasn’t going to happen, but it fit neatly with the ressentiment of the filthy rich capitalists who never forgave the Class Traitor FDR.

The Statement of Aims of the MPS is here.  It describes a limited choice: Communism or Free Market Capitalism This stark choice has

… been fostered by the growth of a view of history which denies all absolute moral standards and by the growth of theories which question the desirability of the rule of law.  It holds further that they have been fostered by a decline of belief in private property and the competitive market; for without the diffused power and initiative associated with these institutions it is difficult to imagine a society in which freedom may be effectively preserved.

This statement shows why the filthy rich love neoliberalism: it feeds there sense of self-glorification. That it lends itself to exploitation for their cash benefit is a lovely side benefit.

 

 

 

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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.

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Week 15 NFL Trash Talk: The Coming of Johnny Football

Late start on Trash this week as I was otherwise occupied and, well, with little college football, there was little action on Saturday. Navy beat Army for the 13th time in a row and Oregon’s Marcus Mariotta won the Heisman, as was expected.

But Sunday is another matter, as the NFL is really heating up. The Cardinals won a tough defensive slugfest in St. Louis against the Rams, but suffered yet another crushing injury as QB Drew Stanton suffered a sprained MCL and ACL. No one knows when, or even if, he can return. There is a big push to get Kurt Warner to come out of retirement to save the day. I, of course, am lobbying for the ‘Ole Geezer Gunslinger himself, Brett Favre. Good times.

I think the Steelers at Falcons may be a great game. Atlanta’s record sucks, but they are very much in the playoff hunt in the woeful NFC south. And they seem to be getting their groove back. The Steelers have been hot or cold lately, better stay hot or the Falcons will take them. The Pack is in Buffalo. If there is one team that won’t be freaked by cold and snow in the outdoors of Orchard Park, it is Green Bay. They are used to it. Patriots should take care of the Dolphins at Foxborough.

Broncos at Chargers is a critical game. Of course you have to pick the Donkos, and Las Vegas is. But the Chargers will be tough. The Vikings have been gelling of late and, were this game in Minnesota, I might be tempted to go with an upset over Detroit. In Detroit, however, have to ride with the Kittehs. Can the Niners get back on the winning track against the Squawks in Seattle? Nope. Cowboys at Eagles for SNF is arguably the game of the week. I rate it as a tossup, but think the eagles may wear out the Boys if Sanchez can play decent.

Now, I said Cowboys/Iggles was “arguably” the game of the week, and any other week it might be. But not this week. Oh no, this week THE game of the week is absolutely the Bengals at the Brownies. And the starting debut of one Mr. Football. Cleveland should have gone to Manziel last week. Brian Hoyer was just pitiful, and the Brown still only lost to the Colts by one point. There is no way Manziel would not have been better. But with the loss to the Colts, Cleveland is gasping, but still technically alive in the playoff hunt. America will be watching. And in a weird scheduling deal, a LOT of America will be watching because FOX, which normally runs NFC games, is broadcasting this strictly AFC matchup. Go Johnny Go, Johnny be good!

Christmas music by Dave Edmunds.

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Sony, Hacked: It’s Not One Massive Breach – It’s More Than 50 Breaches in 15 Years

Cybersecurity_MerrillCollegeofJournalismEver try to follow an evolving story in which the cascade of trouble grew so big and moved so fast it was like trying to stay ahead of a pyroclastic flow?

That’s what it’s like keeping up with emerging reports about the massive cyber attack on Sony. (Granted, it’s nothing like the torture report, but Hollywood has a way of making the story spin harder when it’s about them.)

The second most ridiculous part of the Sony hack story is the way in which the entertainment industry has studiously avoided criticizing those most responsible for data security.

In late November, when the hacker(s) self-identified as “Guardians of Peace” made threats across Sony Pictures’ computer network before releasing digital film content, members of the entertainment industry were quick to revile pirates they believed were intent on stealing and distributing digital film content.

When reports emerged implicating North Korea as the alleged source of the hack, the industry backpedaled away from their outrage over piracy, mumbling instead about hackers.

The industry’s insiders shifted gears once again it was revealed that Sony’s passwords were in a password-protected file, and the password to this file was ‘password.

At this juncture you’d think Sony’s employees and contractors – whose Social Security numbers, addresses, emails, and other sensitive information had been exposed – would demand a corporate-wide purge of IT department and Sony executives.

You’d think that anyone affiliated with Sony, whose past and future business dealings might also be exposed would similarly demand expulsion of the incompetents who couldn’t find OPSEC if it was tattooed on their asses. Or perhaps investors and analysts would descend upon the corporation with pitchforks and torches, demanding heads on pikes because of teh stoopid.

Nope.

Instead the industry has been tsk-tsking about the massive breach, all the while rummaging through the equivalent of Sony Pictures’ wide-open lingerie drawer, looking for industry intelligence. Reporting by entertainment industry news outlets has focused almost solely on the content of emails between executives.

But the first most ridiculous part of this massive assault on Sony is that Sony has been hacked more than 50 times in the last 15 years.

Yes. That’s More Than Fifty.

Inside Fifteen Years. Continue reading

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Vindictive John Brennan Should Be Fired Before He Strikes Again

Rarely do we get to see both faces of John Brennan.

Rarely do we get to see both faces of John Brennan.

Since the release of the summary of the Senate Select Committee on Intelligence report on torture, I don’t think we’ve seen a return of the fawning press pieces over John Brennan where we see reverent mention of his moral rectitude. That’s a good thing, since the hummus incident in the report would suggest that those he leads at the CIA display something more like moral rectaltude. Sadly, though, it seems that outgoing Senator Mark Udall of Colorado is the lone voice in the wilderness calling for Brennan to be fired. Here he is on Wednesday, in the Senate, disclosing more information from the Panetta review on torture and calling for Brennan to be fired over his continued lies to Congress and the American people (at 3:09 of the video, “In other words, the CIA is lying.”):

As Udall notes, Brennan has continued to cover for CIA lies and misrepresentations to Congressional overseers. He also has mostly claimed that CIA torture saved lives, although yesterday he did engage in some semantics over that point, presumably in response to Udall’s Wednesday speech.

But besides Udall’s point about Brennan needing to be fired over his failure to clean house over torture or even to fully recognize it, there is another, stronger, reason to call for Brennan’s removal. Brennan has demonstrated, multiple times, that he will allow political vindictiveness to drive his actions. And he has done so in the worst possible way: in his previous counterterrorism role and then at CIA in his control of drone strikes.  As I have noted in this post and this one, drone strikes in which Brennan would have played a controlling role can be seen as being driven by political retaliation rather than security.

A man who has used drone strikes as political retaliation tools has no business running a CIA that is once again under siege for its crimes. Even though few in the US are calling for prosecutions, calls for prosecutions have now come from more than one UN figure.

Also, don’t forget another event that will factor into Brennan’s anger over calls for prosecutions and/or his removal: he undoubtedly feels that the anti-torture crowd caused him to have to wait to take his rightful role as head of CIA. Recall that he withdrew his name for consideration in 2008 due to his association with the torture program and has been director now for less than two years.

How can Barack Obama leave in office a man who has used lethal drone strikes in the past to score political points to remain in office when the organization he leads is under siege for its demonstrated breaches of international law? Brennan makes the case for his removal even more urgent when he says that a return to torture is simply a question for future policymakers rather than something that is clearly illegal.

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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.

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Where Are They Now? Dozens of Prisoners Unaccounted For With Closure of US Bagram Prison

Both NBC and Reuters are reporting that the US has closed its prison at the Bagram air base that was used to house non-Afghan prisoners. After many fits and starts, the US had ceded control of (mostly?) all Afghan prisoners to Afghanistan last year. As far as I can tell, the last time we had an accounting of the foreign prisoners held at Bagram was in February, when the number sat at 49, although Adam Goldman noted that the US was busy trying to reduce that number.

There was a report of two Yemenis being transferred out of the facility back in August and Russian prisoner Irek Ilgiz Hamidullin was brought to the US for trial in November, but even as recently as earlier this week, when Latif Mehsud and two of his guards were repatriated to Pakistan, Dawn still reported that conventional wisdom put the number of foreign prisoners held at Bagram in the dozens. The Dawn report relayed a statement from the US embassy that the population was being reduced:

The US Embassy in Kabul said the three prisoners had been held at a detention centre near Bagram airfield.

The facility is believed to house several dozen foreign prisoners who the United States will no longer be allowed to keep in Afghanistan when the mission for the US-led force there ends later this month.

“We’re actually just going through and returning all the third-country nationals detained in Afghanistan to resolve that issue,” a US embassy spokeswoman said.

Note especially that the spokeswoman said “all the third-country nationals”. That stands out because Hamidullin was not the only prisoner held at Bagram who was expected to be brought to trial. Goldman’s report in February said that the “number of people being looked at for prosecution is in the single digits”. Are more of these prisoners already being held in the US in preparation for the filing of charges? Are they held elsewhere? Or were they repatriated instead?

But there were also some prisoners who can’t be tried but are still deemed “too dangerous to release”:

And bringing some of them to the United States for trial in a military commission, an option being considered by the Obama administration, could run into political opposition or may be stymied by a lack of court-ready evidence.

What happened to the prisoners whom the US deemed too dangerous to release but who lacked “court-ready evidence”?

The US prison at Bagram and Defense Department operated prisons throughout both Afghanistan and Iraq have a long, checkered history of lies and misdirection about facilities and their population. Further, this facility at Bagram has been used to house prisoners who were tortured. It seems likely that most of the 49 foreign prisoners known to be there in February have been repatriated without public announcements, but what about those who had been slated for indefinite detention? We now have a number of prisoners who were deemed dangerous and have disappeared in the last several months. Will their status ever be clarified? Will we be forced to concoct more crazy theories on where they went?

Update: It should be noted that both of the stories linked at the beginning of this post state that the last two prisoners transferred out of the US facility at Bagram were handed over to Afghan authorities. This represents a huge change in policy for Afghanistan. Under Hamid Karzai, Afghanistan was adamant that no foreign prisoners would be held in Afghan jails. With this move, it is clear that Ashraf Ghani has changed the policy. So perhaps Afghan prisons are where we will find all of the prisoners the US had slated for indefinite detention without charges?

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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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emptywheel @DanaHoule Hey now, even those who escaped the Empire in 1916 still use Cellotape!
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emptywheel @TimothyS Nice. I was waiting for them to say they were just teaching Sony "learned helplessness."
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JimWhiteGNV We tortured some folks. So? #2014in5words
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emptywheel @billmon1 No, really, the punch line is Evan Bayh. He's actually QUOTED in the torture report ... being a fucking moron.
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emptywheel RT @AlecMacGillis: When a player gets multiple concussions, knows what it means, but can't quit. Great @KVanValkenburg on Wes Welker: http:…
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emptywheel BREAKINGNOTBREAKING Evan Bayh is a chump. http://t.co/intM2rUXoC
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JimWhiteGNV Shocking! Oh, wait... RT @nytimesworld: Panel to Advise Against Penalty for C.I.A.’s Computer Search http://t.co/MqXeS8DWwV
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emptywheel @empiricalerror LOL. Wung it.
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JimWhiteGNV Tebow keeping it classy. In WalMart ads now. Sheesh.
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JimWhiteGNV Hmm. William Broad asks why silicon content of anthrax attacks not investigated better. http://t.co/kVd8i55k0V See https://t.co/29vuNgukNV
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emptywheel @GregoryMcNeal My bacon comes from a farm too small for a drone to find. #ObscurityInBacon
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JimWhiteGNV RT @emptywheel: When certain Tweeps or certain Gray Science Journos write about a topic it tends to raise suspicion, not allay it.
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