I said yesterday that the plan, going as far back as 2002, was to let CIA and FBI tap right into NSA’s data. I base that on this explanation from Keith Alexander, which he included in his declaration accompanying the End to End Report that was submitted sometime after October 30, 2009.
By the fall of 2002, the Intelligence Community had grown increasingly concerned about the potential for further attacks on the United States. For example, during 10 to 24 September 2002, the Government raised the homeland security threat condition to “orange,” indicating a high likelihood of attack. In this context, in October 2002 the Directors of NSA, CIA, and FBI established an Inter-Agency Review Group to examine information sharing [redacted] The group’s top recommendation was that NSA create a common target knowledge database to allow joint research and information exchanges [redacted].
Of course, we now know that the threat level was high in September 2002 because the government was chasing down a bunch of false leads from Abu Zubaydah’s torture.
Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological “dirty bomb” in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.
“We spent millions of dollars chasing false alarms,” one former intelligence official said.
In other words, the justification for creating a database where CIA and FBI could directly access much of NSA’s data was a mirage, one created by CIA’s own torture.
All that’s separate from the question of whether CIA and FBI should have access directly to NSA’s data. Perhaps it makes us more responsive. Perhaps it perpetuates this process of chasing ghosts. That’s a debate we should have based on actual results, not the tortured false confessions of a decade past.
But it’s a testament to two things: the way in which torture created the illusion of danger, and the degree to which torture — and threat claims based on it — have secretly served as the basis the Executive uses to demand the FISA Court permit it to extend the dragnet.
Even the current CIA Director has admitted this to be true — though without explicitly laying out the import of it. Isn’t it time we start acknowledging this — and reassessing the civil liberties damage done because of it — rather than keeping it hidden under redactions?
Earlier today, the European Court of Human Rights ordered Poland to pay Abu Zubaydah and Abd al Rahim al-Nashiri a combined total of 230,000 Euros for facilitating the torture suffered at Stare Kiejkuty.
The court found Poland violated its obligations under the European Convention on Human Rights to prevent torture, ensure the right to liberty, and properly investigate allegations a crime had been committed on its territory.
It ordered Poland to pay al-Nashiri 100,000 euros in damages and 130,000 euros to Zubaydah.
“The ruling of the tribunal in Strasbourg on CIA jails is embarrassing for Poland and is a burden both in terms of our country’s finances as well as its image,” said Joanna Trzaska-Wieczorek, a spokeswoman for the Polish president.
Of course, that Poland hosted one of CIA’s black sites is not breaking news at all. We’ve known it for years.
But this is an official judgment affirming that to be true. Finally, a court has called America’s torture torture.
The judgment comes as the CIA dawdles over declassifying the Senate Intelligence Committee’s torture report. One reason for the delay, prior reporting has said, comes from a desire to protect our foreign partners in crimes — notably the UK and Poland.
So now that Poland’s role has been confirmed, can we please get the torture report?
By my count, John Rizzo completes his first lie in his purported “memoir,” Company Man, at the 64th word:
Zubaydah complained in his diary (see page 84) before he was captured in 2002 that he was being called Osama bin Laden’s heir when he wasn’t even a member of al Qaeda. And in his Combatant Status Review Board hearing in 2007 (see page 27), Zubaydah described his interrogators admitting he wasn’t Al Qaeda’s number 3, not even a partner. And in a 2009 habeas document the government calls Zubaydah an Al Qaeda affiliate, not a member (see 35 to 36 and related requests).
And yet Rizzo tells this lie right in the first paragraph of his book.
Granted, I’m more sympathetic to this lie than many of Rizzo’s other lies. I understand why he must continue telling it.
Back in 2002, Rizzo told John Yoo that Abu Zubaydah was a top al Qaeda figure during the drafting of the August 1, 2002 Bybee Memo authorizing torture. And based on that information, Yoo wrote,
As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.
Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.
Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.
If Rizzo were to admit that the representations he made to Yoo back in 2002 were false, then the legal sanction CIA got to conduct torture would crumble.
And unlike a lot of the lies CIA — and John Rizzo in particular — told DOJ during the life of the torture program, I’m not absolutely certain CIA knew this one to be a lie when they told it. CIA (and FBI) definitely believed Zubaydah was a high ranking al Qaeda figure when they caught him. In his CSRT, Zubaydah describes admitting he was al Qaeda’s number 3 under torture. Though it’s not clear whether that was the torture that took place before or after the memo authorizing that torture got written, raising the possibility that CIA presented lies Zubaydah told under torture to DOJ to get authorization for the torture they had already committed. But by the time of the memo, CIA had also had 4 months to to read Zubaydah’s diaries, which make such matters clear (and had it in their possession, so that by itself should invalidate the memo). So they should have and probably did know, but I think it marginally conceivable they did not.
Still, that doesn’t excuse journalists who have these facts available to them yet treat Rizzo as an honest interlocutor, as James Rosen is only the latest in a long line of journalists to do.
So as a service to those journalists who aren’t doing the basic work they need to do on this story, I thought I’d make a list of the documented lies Rizzo tells just in the first 10 pages of his “memoir.” These don’t include items that may be errors or lies. These don’t include everything that I have strong reason to believe is a lie or that we know to be lies but don’t yet have official documentation to prove it. They include only the lies that are disproven by CIA and other official documents that have been in the public domain for years.
These lies, like Rizzo’s lie about Abu Zubaydah’s role in 9/11, also serve important purposes in the false narrative the torturers have told.
I’ve gone through this exercise (I’m contemplating a much longer analysis of all the lies Rizzo told, but it makes me nauseous thinking about it) to point out that any journalist who treats him as an honest interlocutor, accepting his answers — he made some of the same claims to Rosen as he made here — as credible without real challenge is just acting as a CIA propagandist.
Don’t take my word for it — take the CIA’s word, as many of Rizzo’s claims are disproven by CIA’s own documents!
Update, April 21: Ben Wittes, in his review of this tract: “Rizzo is just being honest.” To be fair, Wittes appears to have meant it to describe Rizzo’s unvarying viewpoint, always serving his loyalty to the CIA. But in a review that doesn’t mention Rizzo’s serial lies, it’s embarrassing.
(1) Abu Zubaydah was not CIA’s first significant “catch.” Ibn Sheikh al-Libi was, though the CIA outsourced his torture to the Egyptians.
(3) Correspondence describes tapes of Abu Zubaydah’s torture in April 2002, not July 2002, as Rizzo claims. (see PDF 1)
(3-4) Obviously, CIA had another option besides torture: to let the FBI continue interrogating Zubaydah. Even if you don’t believe FBI had the success they claim to have had, they were an alternative that Rizzo makes no mention of.
(4) The first torture memo was not the August 1, 2002 one. Yoo wrote a shorter fax on July 13, 2002, which (according to the OPR Report) is actually the memo CTC’s lawyers relied on for their guidance to the torturers.
(5) Jose Rodriguez did not decide to destroy the tapes in October; he decided on September 5, the day after first briefing Nancy Pelosi on torture (without having told her they had already engaged in it).
(5) CIA did not follow the guidelines laid out in the Bybee memo for waterboarding, as CIA’s IG determined in 2004, and at least by the time the CIA IG reviewed the tapes, there was a great deal censored via damage, turning off the camera, or taping over of the content.(see PDF 42 and this post)
(6) The Gang of Eight was not briefed in 2002; only the Gang of Four (the Intelligence Committee heads) was. According to CIA’s own records, only one Congressional leader got a timely briefing, Bill Frist in 2004 (though Pelosi was briefed as HPSCI Ranking Member in 2002).
(8) John McPherson did not review the tapes after Christmas, 2002; he reviewed them about a month earlier. (see this post and linked underlying documents)
(8) Jay Rockefeller was not briefed in January 2003; only a staffer of his was. See this post for all the lies they told Pat Roberts in that briefing.
(9) While John Helgerson did not write about techniques that had not been authorized, he did describe that the waterboard as performed did not follow the guidelines given by DOJ. (see PDF 42) Rizzo also doesn’t note Helgerson’s observations about the tampering done to the tapes, which may have hidden unauthorized techniques.
(10) It is false that the 9/11 Commission Report relied heavily on Abu Zubaydah’s interrogations. They are cited just 10 times, and at least one of those was not corroborated.
But much of this has been clear for even longer, having been exposed in some form in 2009-10.
Yet much of that got lost in CIA’s aggressive attack on Congress — one that anticipated what we’ve seen and will surely continue to see with the release of the Torture Report. At the time, CIA attempted to claim Congress had been fully briefed on torture, and therefore shouldn’t criticize the agency. Yet it gradually became clear how laughable CIA’s claims were. Along the way details of the lies CIA told in briefings came out.
The lies CIA told Congress in its first several years of the torture program include that it,
There are a number of claims CIA made that are almost certainly also false — most notably with regards to what intelligence came from torture — but most of that didn’t get recorded in the CIA’s records. I fully expect we’ll find details of those in the Senate Intelligence Committee report.
September 17, 2001: Bush signs “Gloves Come Off” Memorandum of Notification that authorizes capture and detention of top al Qaeda leaders, but leaves CIA to decide the details of that detention
Before I focus on the briefings, some background is in order.
Torture started as a covert operation authorized by the September 17, 2001 Memorandum of Notification. Under the National Security Act, the Intelligence Committees had to be briefed on that Finding and they were. However, the Finding was structured such that it laid out general ideas — in this case, the capture and detention of senior al Qaeda figures — and left the implementation up to CIA. As a result, key members of Congress (notably, Jane Harman, who was Ranking Member of the House Intelligence Committee for much of the period during which the program operated) apparently had no idea that the Finding they had been briefed on in timely fashion actually served as the Presidential authorization for torture until years later. Also, since that September 17, 2001 Finding authorized both torture and the outsourcing of nasty jobs to foreign intelligence partners, the earliest torture, such as that of Ibn Sheikh al-Libi in Egyptian custody starting in February 2002 and Binyam Mohamed in Pakistani custody starting in April 2002, should be considered part of the same covert op.
April to July 2002: CIA tortures Abu Zubaydah based solely on Presidential authorization
By now there is no dispute: the CIA started torturing Abu Zubaydah well before the August 1, 2002 memo that purportedly prospectively authorized that treatment. CIA even exceeded early verbal guidance on things like sleep deprivation, after which CIA unilaterally authorized what CIA had done retrospectively. The CIA appears to have gotten in real trouble when they moved to conduct mock burial with Abu Zubaydah, to which Ali Soufan objected; his objections appear to be the reason why mock burial (and by extension, mock execution) was the only technique John Yoo ultimately rejected. On July 13, after Michael Chertoff refused to give advance declination of prosecution to CIA for things they were ostensibly talking about prospectively but which had in fact already occurred, Yoo wrote a short memo, almost certainly coached by David Addington but not overseen by Yoo’s boss Jay Bybee, that actually served as the authorization CIA’s CTC would rely on for Abu Zubaydah’s torture, not the August 1 memos everyone talks about. As a result, CIA could point to a document that did not include limits on specific techniques and the precise implementation of those techniques as their authorization to torture.
CIA had, in internal documents, once claimed to have briefed the Gang of Four (then Porter Goss, Nancy Pelosi, Richard Shelby, and Bob Graham) in April 2002. But after being challenged, they agreed they did not conduct those briefings. This, then, created a problem, as CIA had not really briefed Congress — not even the Gang of Four — about this “covert op.”
Septmber 4, 2002: CIA provides initial trial balloon briefing to Pelosi and Goss, then starts destroying evidence
On September 4, 2002, 7 months after Egypt started torturing Ibn Sheikh al-Libi at America’s behest, almost 5 months after CIA started torturing Abu Zubaydah, and over a month after the OLC memo that purportedly started a month of torture for Abu Zubaydah, Jose Rodriguez, a CTC lawyer, and Office of Congressional Affairs head Stan Moskowitz first briefed Congress on torture techniques.
The record supports a claim that CIA provided some kind of description of torture to Nancy Pelosi and Porter Goss. It supports a claim that neither objected to the techniques briefed. Both Pelosi and Goss refer to this briefing, however, as a prospective briefing. Goss referred to the torture techniques as “techniques [that] were to actually be employed,” not that had already been employed, and when asked he did not claim they had been briefed on techniques that had been used. Pelosi claimed,
I was informed then that Department of Justice opinions had concluded that the use of enhanced interrogation techniques was legal. The only mention of waterboarding at that briefing was that it was not being employed.
Those conducting the briefing promised to inform the appropriate Members of Congress if that technique were to be used in the future.
Thus, at least as far as Goss and Pelosi are concerned, over a month after they first waterboarded Abu Zubaydah (and many more after Egypt had waterboarded al-Libi for us), CIA implied they had not yet done so with any detainee.
As striking as the evidence that CIA only briefed prospectively on torture that had been used for as many as 7 months, however, is what happened next. CIA moved to destroy evidence.
The day after that initial briefing in which CIA told Congress it might torture in the future, it “determined that the best alternative to eliminate those security and additional risks is to destroy these tapes.” Then, the following day, CTC altered its own notes on the substance of the briefing, taking out a sentence (it’s not clear what that sentence said). CIA’s Office of Congressional Affairs never finalized a description for this, and at one time even listed Jane Harman as the attendee rather than Pelosi. In fact, in a list of the briefings on torture compiled in July 2004, it did not treat this briefing as one covering torture at all.
In addition, for some reason a briefing for Bob Graham and Richard Shelby initially scheduled for September 9 got rescheduled for the end of the month, September 27. According to available records, Jose Rodriguez did not attend. According to Bob Graham’s notoriously meticulous notes, the briefing was not conducted in a SCIF, but instead in Hart Office Building, meaning highly classified information could not have been discussed. Graham says it chiefly described the intelligence the CIA claimed to have gotten from their interrogation program. Graham insists waterboarding did not come up, but Shelby, working off memory, disputes that claim.
February 4 and 5, 2002: CIA gets Republican approval to destroy the torture tapes, kills SSCI’s nascent investigation, and refuses to explain torture’s Presidential authorization
By November 2002, Bob Graham had started to hear vague rumors about the torture program. He did not, he says, receive notice that CIA froze Gul Rahman to death after dousing him with water or even hear about it specifically. But because of those rumors, Graham moved to exercise more oversight over the torture program, asking to have another staffer read into the program, and asking that a staffer see a Black Site and observe interrogation. That effort was thwarted in the first full briefing CIA gave Congress on torture on February 4, 2002, when CIA told Pat Roberts (who had assumed Senate Intelligence Chair; newly Ranking Member Jay Rockefeller was not present at this briefing, though a staffer was) they would not meet Graham’s requests. CIA claims — but Roberts disputes — that he said he could think of “ten reasons right off why it is a terrible idea” to exercise such oversight.
In addition to getting Roberts to quash that nascent assessment, CIA gave Roberts the following false information:
The Memorandum of Understanding of this briefing appears to be one of only two that got finalized (it actually included a reference that Goss and Harman had been briefed on the torture tape, but not that Harman warned against destroying it).
The February 5, 2003 briefing involving Porter Goss and Jane Harman is just as interesting, though CIA has refused to release their notes from it.
Five days after the briefing, Harman wrote a letter questioning whether torture had been reviewed from a policy perspective and advising against destroying Abu Zubaydah’s torture tape. In addition, she asked if the President had signed off, revealing that she didn’t know that the Finding she had been briefed on included torture. The CIA and the White House met to decide how to respond. In the end, CIA General Counsel Scott Muller’s response didn’t really answer any of Harman’s questions, nor note her warning against destroying the torture tape.
Also note: in the month before these briefings, the CIA prepared what appears to be a tear-line document on Abu Zubaydah. While it’s not certain the document was prepared to brief the Gang of Four, it matches what we know to have been said to Roberts, especially as regards to the torture tapes. But it also reveals real discrepancies between the tear-line (Secret) claims and the Top Secret claims it was based on, notably inflating the value of Abu Zubaydah’s intelligence below the tear-line.
September 4, 2003: An innocuous briefing left off some of the tracking
We don’t really know what happened in the September 4, 2003 briefings of both Goss and Harman and Roberts and Rockfeller, which is a shame because it would have covered Khalid Sheikh Mohammed’s treatment (and that of Ammar al-Baluchi, whom we now know may have been treated even worse than his uncle). In fact, it was left off lists of “sensitive” briefings at different times.
July 2004: CIA has to tell Congress even CIA(‘s IG) thinks they lied
On May 7, 2004, CIA’s IG John Helgerson completed his report finding that the torture had exceeded guidelines and questioning the value of the intelligence obtained using it. On June 23, the Roberts and Rockefeller got copies (it’s not clear whether Goss and Harman got advance copies). On July 13, 2004, CIA briefed Goss and Harman again.
The briefing did include some details from CIA IG John Helgerson’s report on the program — that it violated the Convention Against Torture and did not comply with the OLC memos. He also explained that both Abu Zubaydah and Khalid Sheikh Mohammed’s waterboarding was problematic, the first in execution and the second in number.
As part of that briefing (or by reading the IG Report), Harman learned that the Finding authorized this torture; in the briefing she pointed out the Finding had only authorized detention and capture, not interrogation.
But CIA persisted in a narrow dodge and two false claims:
There are few details on the briefing CIA gave Roberts and Rockefeller on July 15.
These are just the details of the lies CIA itself has documented and released CIA telling Congress. There are other allegations of CIA lies in briefings, though those records were not released under FOIA. And things started getting really funky in 2005, as Dick Cheney started participating in CIA briefings to try to defeat the Detainee Treatment Act. In addition, CIA briefed Pete Hoekstra (who had become the Chair of the House Intelligence Committee) on the morning they destroyed the torture tapes; the content of that briefing has never been revealed.
None of this excuses Congress, of course: the knew enough to know this was problematic.
But it is clear that CIA lied to them both to boost the value of the torture they were doing and to diminish the problems and abuses.
The traditional media is catching up to my post the other day focusing on Robert Eatinger, the CIA lawyer who referred Senate Intelligence Committee staffers for criminal investigation. Welcome traditional media!!
Just to expand the discussion of how deeply involved CTC’s lawyers — including, but not limited to, Eatinger — have been in torture, I thought I’d expand on my post from the other day with a timeline of CTC documents and consultation, most from its legal team, that might be among the 1,600 mentions of Eatinger in the Senate Torture Report that Dianne Feinstein referred to the other day.
I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.
Note, some of this information relies on the OPR report; at least three of CTC’s lawyers refused to cooperate with that report, two based on advice of counsel. Remember too that, just as happened with the SCIF CIA made the Senate Intelligence Committee use, between 10 and 61 torture documents disappeared from DOJ’s OLC SCIF during the period when OPR was working on its report.
April 2002: Months before the first torture memo, CTC’s lawyers, in consultation with NSC and DOJ, approved 24-48 hours of sleep deprivation for use with Abu Zubaydah (who, remember, was still recovering from life-threatening bullet wounds). The torturers promptly exceeded those limits. So CTC, on its own, approved the new amounts because, they claimed, Abu Zubaydah hadn’t suffered any adverse consequences. (See PDF 113-114)
After consulting with the NSC and DOJ, CTC[redacted] originally approved 24-48 hours of sleep deprivation.
In April 2002 CTC[redacted] learned that due to a misunderstanding, that time frame had been exceeded.
However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucinations (thereby disrupting profoundly Abu Zubaydah’s senses or personality) it was within legal parameters.
After August 1, 2002: After the Bybee Memos laid out which torture techniques were permitted, then, CTC chief lawyer Jonathan Fredman sent out legal guidance to the torturers in Thailand. Rather than relying on the Bybee Memos, he relied on a July 13, 2002 John Yoo memo, purportedly prepared without the knowledge of Bybee (but, given the timing, probably written in response to Chertoff’s refusal to provide pre-declination andwith coaching from David Addington). The earlier memo lacked some of the key caveats of the later ones.
September 6, 2002: On September 4, 2002, Jose Rodriguez and a lawyer from CTC briefed Nancy Pelosi and Porter Goss on torture. The following day, CIA started discussing destroying the torture tapes. Then, on September 6, a lawyer from CTC altered the record of the briefing to Pelosi and Goss. (see PDF 84 and PDF 11-12)
October 2, 2002: CTC top lawyer Jonathan Fredman briefs Gitmo about torture and says a number of inflammatory things about detainee treatment.
December 24, 2002: CTC completes memo advocating for destruction of torture tapes.
Early 2003: After DOJ told CIA’s Inspector General to develop its own set of facts for review of any criminal liability in torture, John Yoo and Jennifer Koester start freelancing with CTC’s lawyers to develop the “Legal Principles” or “Bullet Points” document which expanded on the analysis officially approved by OLC. Koester told DOJ’s Office of Professional Responsibility the document would be used to assess the legality of the torture.
She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.
June 16, 2003: In her review, Koester took out language CIA had included saying that “comparable, approved techniques” to those approved in the Bybee Memo did not violate law or the Constitution. But when CTC’s lawyers sent the “Bullet Points” back to OLC in 2003 as an attempted fait accompli, that language had been inserted back into the memo.
April 2004: Eatinger takes over as top CTC lawyer.
Unknown date: CTC’s lawyers write a declination memo recommending against charges for Salt Pit manager Matt Zirbel in the murder of Gul Rahman based on (according to Jay Bybee’s characterization) an entirely intent-based exoneration. (see footnote 28)
Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.
May 11, 2004: White House meeting, possibly attended by Eatinger, at which White House lawyers tell CIA not to destroy torture tapes.
June 2004: According to John Rizzo, Eatinger attends White House meeting at which White House lawyers instruct not to destroy torture tapes.
August 4-5, 2004: CTC lawyers provide Daniel Levin additional information on waterboarding; the Torture Report found this information to be inaccurate.
August 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.
September 5, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.
September 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture report found to be inaccurate.
February 2, 2005: A CTC lawyer worked closely with Daniel Levin to try to finish the Combined Memo before Levin moved to NSC. At that point, the Memo did not include waterboarding. Nevertheless, Levin did not complete it, and Steve Bradbury would add waterboarding back in when he completed the memo that April.
Febraury 14, 2005: CTC panics because Congress might hold hearings into detainee treatment.
March 1, 2005: Steven Bradbury’s main contact for Combined and other torture memos is a CTC attorney. The Torture Report found information used in these memos to be inaccurate.
March 2, 2005: CTC sends Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. John Rizzo says CTC lawyers were involved in drafting this document.
April 15, 2005: CTC sends Briefing Notes on the Value of Detainee Reporting to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. Rizzo says CTC lawyers were involved in drafting this document.
May 10, 2005: Steven Bradbury completes two OLC memos — the Techniques Memo and Combined Memo — that the Torture Report found are based on inaccurate information.
May 30, 2005: Bradbury completes a third OLC memo — the CAT Memo — that the Torture Report found is based on inaccurate information.
November 8, 2005: The day CIA destroyed the torture tapes, someone from CTC/LGL gave HPSCI Chair Pete Hoekstra a briefing with no staffers present. (see page 32) The briefing was included in a summary of all Congressional briefings completed that day.
November 8, 2005: Eatinger and another CTC lawyer claim there is no legal reason to retain the torture tapes, in spite of several pending legal requests covering the videos. Jose Rodriguez orders their destruction.
January 25, 2006: Another letter from a lawyer other than John Rizzo that Torture Report may have found to be inaccurate.
April 19, 2006: Fax from a lawyer other than Rizzo that Torture Report may have found to be inaccurate.
May 18, 2006: Letter from a lawyer other than Rizzo, claiming torture techniques would be used for safety reasons, the Torture Report may have found to be inaccurate.
Update: h/t to DocEx blog for some additions to this timeline.
Here and elsewhere, Rizzo alludes to the one torture technique John Yoo rejected, though he says “DOJ” rejected it because it was “so gruesome.” (Note the context in which this appears, though, as an afterthought to the sentence describing simulated drowning.)
Waterboarding: The interrogator would strap Zubaydah to an inclined bench, with his feet slightly elevated. A cloth would be placed over his forehead and eyes, and water would be applied to the cloth in a controlled manner—for 20 to 40 seconds from a height of 12 to 24 inches. The intention would be simulate the sensation of drowning. There was also another technique that I’m barred from describing that was so gruesome that the Justice Department later stopped short of approving it. [my emphasis]
As I reported almost 4 years ago, this technique actually should be unclassified, as DOJ released it in unredacted form in a draft of the Office of Professional Responsibility report.
The technique is mock burial.
They planned to use simulated drowning and simulated burial.
And Yoo didn’t reject it outright: he told Rizzo he would “need more time” if he wanted that technique to be approved.
Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute, he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved.
Moreover, Yoo likely rejected it not because he found it gruesome (remember, Yoo has said he would seriously consider authorizing torturers crushing a child’s testicles to make his father talk). He almost certainly rejected it because Ali Soufan called the torturers’ plan to stick Abu Zubaydah (whose gunshot wounds were still not entirely healed) into a coffin, “borderline torture,” and then left the torture site and complained to his superiors. So (again, this is supported but not confirmed by the public record) when Michael Chertoff — then head of the Criminal Division and trying to ensure he wouldn’t have to charge the torturers with torture because the FBI witnessed and then complained about it — reviewed the techniques, this one presented a problem.
That DOJ approved, instead, both small and large box confinement shows they had no squeamishness with putting someone inside a box to simulate death. And we have reports that small or large box confinement got used as mock burial later in the torture program.
Plus, Rizzo does provide one other detail that helps explain one detail of how they planned to simulate burial.
For the small box, the interrogator would have the option to place a harmless insect inside.
That is, the insect they approved for use with Zubaydah was tied to the small — not the large — box. Stick him in a box, make him think he was buried alive, only to find an insect crawling around in there, as if he were 6 feet under.
Perhaps that’s why they never used the insect? Because they could never conduct unfettered live burial like they wanted, because Ali Soufan objected to it.
In any case, Rizzo will no doubt get a lot of mileage claiming that DOJ got squeamish about a single torture technique. But the truth is DOJ got cornered by the legal dilemma presented by a complaint about a coffin.
A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.
As always, CIA dutifully followed White House orders, [my emphasis]
Two years ago, at least, when he was trying to diss Congress using demonstrably false claims about the degree to which they had been briefed, John Rizzo claimed that the authority for the torture program all came directly from George Bush (Michael Hayden has said the same).
Not so today, apparently.
Steve Coll reports that Rizzo’s memoir claims Bush knew nothing about the details of torture his authorization provided the legal cover for.
Rizzo’s most remarkable account concerns President Bush. Essentially, Rizzo concludes that Bush has lately invented a memory of himself as a someone who was well informed and decisively in favor of waterboarding certain Al Qaeda prisoners, when, as far as Rizzo can tell, Bush seems not to have known at the time what the C.I.A. was doing.
In “Decision Points,” his 2010 memoir, Bush recalled that George Tenet provided a list of brutal interrogation techniques the C.I.A. proposed to use, and that Bush overruled “two that I felt went too far.” Later, when Tenet asked the President directly if he could employ waterboarding on Khalid Sheikh Mohammed, Bush wrote that he answered, “Damn right.”
Yet, according to Rizzo, “The one senior U.S. Government national security official during this time—from August 2002 through 2003—who I did not believe was knowledgeable about the E.I.T.s was President Bush himself. He was not present at any of the Principals Committee meetings … and none of the principals at any of the E.I.T. sessions during this period ever alluded to the President knowing anything about them.”
Some of the chronology of events related to the C.I.A. interrogations that Bush provides in “Decision Points” doesn’t compute, according to Rizzo. Also, Rizzo would certainly have known if Bush had banned two techniques, but Rizzo has “no idea” what Bush might have been referring to in his memoir. Throughout this period, Rizzo, as he remembers it, was in daily contact with George Tenet, who said “nothing about any conversations he had with the president about E.I.T.s, much less any instructions or approvals coming from Bush.”
Rizzo writes, “It simply didn’t seem conceivable that George [Tenet] wouldn’t have passed something like that on to those of us who were running the program.” Rizzo got in touch with Tenet while preparing “Company Man” and Tenet confirmed “that he did not recall ever briefing Bush” on specific interrogation techniques being used at C.I.A. prisons. “I have to conclude that the account in Bush’s memoir simply is wrong,” Rizzo concludes. [my emphasis]
There are, as there always are with John Rizzo’s claims, obvious gimmicks. He apparently discusses the period from August 2002 — the date when DOJ’s OLC authorized torture for Abu Zubaydah, at which point much, if not all of the techniques approved, had already been used on him — through 2003, the year before Bush issued a second authorization for the torture program in Tenet’s last days. The key authorizations from the White House came before August 2002, as the torture was happening (and Coll should review these details if he wants to review Rizzo’s memoir competently). And we know Tenet did record Bush’s authorization for the program — he did it in a document Rizzo handled.
Moreover, there are other public claims that refute Rizzo’s claim, as when Glenn Carle described being told CIA had a letter from the President authorizing it to go beyond SERE with detainees.
“We don’t do that sort of thing,” [Glenn Carle responded to a CIA Counterterrorism Center Deputy about "going beyond SERE" with a detainee].
“We do now,” Wilmington’s voice was flat. The conversation remained quiet.
“What about EO12333? We’ve never done that sort of thing. The Agency’d never do that. We’d need a finding, at least.”
“We have it.” Wilmington’s manner brightened a little. “We have a letter from the president. We can do whatever we need to do. We’re covered.” [my emphasis]
In other words, Rizzo’s claims don’t mean much (except that, goddamnit I’m going to have to read his stinking memoir).
But hey, let’s take him at his word. Because if Bush really was ignorant about the torture program, then it means the entire thing was illegal.
If CIA’s former top lawyer wants to claim the torture program was illegal, who are we to doubt him?
As I noted in this post, today John Brennan will try to convince Dianne Feinstein and Saxby Chambliss that their (well, really McCain and the Democrats’) 6,000 page report documenting that torture didn’t work and CIA lied to Congress (and the White House and DOJ and the public) about it not working.
Here’s the basis on which Brennan will stake his claim that SSCI’s report is wrong.
The CIA report catalogues errors that teams of agency analysts found in the committee’s research. It also questions the panel’s methodology, noting that the committee collected millions of internal CIA cables and other documents on the interrogation program, but it did not interview anyone directly involved.
Never mind that the CIA chose not to make its officials available to the committee. Never mind that John Kiriakou made it clear that the cables describing Abu Zubaydah’s torture, at least, both downplayed the number of times he had been waterboarded and exaggerated how effectively it worked.
The CIA will make the case that if you were to read millions of their cables recording their intelligence programs, you would have a grossly distorted understanding of those programs. CIA will make the case that nothing true they do is written down.
Or something like that.
Now, there’s abundant evidence the conclusions of the SSCI report are actually correct, no matter what torturers would say if asked.
But I do think it ought to raise at least as many concerns to be told that the millions of CIA cables and other documentation SSCI read doesn’t convey the truth about what CIA is doing.
Hell, I think John Brennan just made the case that the lawyers for Gitmo detainees who were held by the CIA need to interview all of the CIA personnel in person.
Responding to her in detail is difficult, because her account is so weedy;
His entire piece is worth reading, because in key ways it reinforces my argument (though Wittes, the think tank employee, appears not to understand that). His refutation consists of:
Wittes claims Fredman tried to refute his perception comment, not his dead detainee comment
Wittes deems it “bizarre” that I would expect a lawyer to deny a statement explicitly if he were really denying it, especially if he were going to spend 6 pages purportedly denying it. That, in spite of that fact that he admits that Carl Levin and other Senators at the hearing to which Fredman responded referenced a number of other things Fredman allegedly said at the meeting.
Yes, Levin and other senators also quoted a few other alleged Fredman comments from the minutes.
As I noted in my post, several of the things Fredman allegedly said at the Gitmo meeting — claiming the CIA decided which torture techniques to use for most techniques and discussing the use of extreme weather in torture — would have been far more legally troubling in light of Gul Rahman’s subsequent death, by freezing to death after CIA used unapproved water dousing on him, than the “if a detainee dies” comment.
And the “perception … detainee dies” wasn’t even the first quote from Fredman that Levin mentioned at the hearing (which Ben obscures with an ellipsis). First, he raised Fredman’s alleged support for exploiting phobias, including insects which — in 2008 we didn’t know but we now do — appears in the list of techniques approved by DOJ. He also raised Fredman’s description of how waterboarding worked before the “detainee dies” comment.
Claire McCaskill (and Hillary Clinton) focused on Fredman’s alleged comment about hiding detainees from ICRC. McCaskill also raised Fredman’s alleged comment that videotaping interrogations would be ugly (the latter of which, considering someone in Fredman’s immediate vicinity altered the record of a Congressional briefing just as CIA decided to destroy their tapes, might have been particularly damning given the then ongoing John Durham investigation into that destruction). So in fact, the focus on Fredman at the hearing wasn’t at all exclusively on that detainee dies comment, nor was it the most legally dangerous one for him.
But Ben insists — and he may know this from talking to Fredman personally — that Fredman wrote the memo specifically in response to these comments from Levin, and therefore we shouldn’t expect him to specify that directly:
And Mr. Fredman presented the following disturbing perspective [on] our legal obligations under our anti-torture laws, saying, quote, “It is basically subject to perception. If the detainee dies, you’re doing it wrong.” “If the detainee dies, you’re doing it wrong.” How on earth did we get to the point where a senior U.S. Government lawyer would say that whether or not an interrogation technique is torture is, quote, “subject to perception,” and that, if, quote, “the detainee dies, you’re doing it wrong”?
Look, however, at how Wittes summarizes Fredman’s response:
In that memo, Fredman described the comments he provided at the Guantanamo meeting. And he described them in specific response to these alleged quotations. Far from saying that torture is “subject to perception,” as he described his remarks, he “emphasized that all interrogation practices and legal guidance must not be based on anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice.” And he then went on to flatly deny the statements attributed to him: “I did not say the obscene things that were falsely attributed to me at the Senate hearing. . . . The so-called minutes misstate the substance, content, and meaning of my remarks.” His denial could hardly be clearer. [my emphasis]
Note, first of all, that Wittes uses the plural, “quotations,” in this passage. That’s interesting, because at least some of the journalists Ben wants to shut up shut up shut up used the “if the detainee dies, you’re doing it wrong” quotation without the “subject to perception” bit. The two sentences appear together in the notes and I agree they can be treated as one, but the truly shocking quote — the one Ben wants everyone to stop using — is the “if the detainee dies” one, which is utterly consistent with everything Fredman says in his disingenuous memo, which says repeatedly that detainee deaths are bad things.
More interesting though is that Wittes lays out very clearly what he says Fredman was refuting: that he said torture is subject to perception. And his response to that — Ben’s evidence the memo should be accepted as refutation of that comment — is Fredman’s claim that all torture must be based on definitive and binding legal analysis from DOJ.
Wittes seems to accept that Fredman did not base torture on definitive and binding legal analysis from DOJ
Here’s where Ben’s professed difficulty with weeds seems to have utterly sunk his efforts to defend his buddy. Because if it can be proved that Fredman did not, in his actions, ensure that torture be limited by definitive and binding legal analysis from DOJ, then it is clear that his memo is false, a lie, issued to refute some very damning evidence made worse by subsequent events, but not in any way an honest reflection of what Fredman believed or how he acted.
For any think tank employees or others who have difficulty with weeds, here’s what the evidence I laid out showed:
There are at least four pieces of evidence in the public record that Fredman authorized torture in ways outside of DOJ’s definitive and binding legal analysis. Now, Ben doesn’t refute a single one of these points. Indeed, he actually uses the Yoo fax in his response (he doesn’t, however, mention the retroactive effort to snooker OLC, perhaps because his blogmate was involved in refusing to be snookered).
From which I take it that Ben accepts that Fredman’s office, and Fredman personally, repeatedly found ways around relying on the definitive and binding legal analysis DOJ developed. Continue reading
Since the Administration turned over the OLC memos authorizing the killing of Anwar al-Awlaki Thursday, there’s been a sudden surge of support for setting up a FISA type court for targeted killing (actually, for drone targeting; I guess Americans being killed by cruise missile or gun still won’t get due process).
There are a lot of problems with such a court, which I hope to explore at length in upcoming weeks.
But, in the same way John Brennan undermined the very premise of drone targeting in his hearing (by attesting that the judge and jury in the existing targeting program is not competent to serve as judge and jury), he also undermined the value of a FISA Drone Court.
In this exchange, Richard Burr finds a way to corner John Brennan into agreeing that he trusted information gotten in the torture program. Burr gets Brennan to admit that he submitted declarations to the FISA court that may have relied on information gained from torture.
Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives. Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?
Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.
Burr: I said I wasn’t clear whether I understood, whether whether I was clear.
Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.
Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.
Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation.
To corner Brennan, however, Burr also gets him to admit that a number of FISA-approved programs were probably based on torture.
The government was wiretapping people based on tortured confessions the Senate Intelligence Committee has now, a decade later, deemed unreliable.
And because of how rarely FISA-derived information gets double checked, we’ll never learn which wiretaps were approved based on tortured evidence.
Compare that to what has happened even in the Gitmo habeas cases, even with some limits on discovery. Because detainee lawyers got to challenge the information behind accusations, and because the source of accusations were somewhat public, it made it much easier to challenge the accusations from certain detainees, especially Abu Zubaydah, who had been tortured. Indeed, the government dropped a number of charges originally derived from Abu Zubaydah.
As a threshold matter, intelligence is different from evidence. And a FISA Court would be relying on the former.
But because it operates in secret, it would never be able to vet out the intelligence of dubious provenance, whatever the reason. It was torture 9 years ago when Brennan was making dicey declarations. We’re still seeing questionable allegations from informants work through the system (even in the regular courts!). It could be the self-interested claims of our foreign partners, setting up the death of someone they don’t like.
In the FISA Court, unlike a regular court, there’s no way to clean up Brennan’s torture-based declarations.
The very same day Congres started talking about a FISA Drone Court in earnest, John Brennan demonstrated how dodgy some of the representations submitted to the existing FISA Court have been. That ought to give us pause before we extend the court’s warrants to death, in addition to wiretaps.