Abu Zubaydah

John Rizzo Declares Entire Torture Program Illegal

As I have noted in the past, John Rizzo has gone on the record to admit that the torture program was authorized by a Presidential Memorandum of Notification.

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.”

[snip]

“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?

BREAKING: CIA Admits to SSCI Millions of Its Official Records Are Badly Inaccurate

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.

Pulling Weeds for Think Tank Employees: My Response to Wittes’ Response

Ben Wittes, an employee of the Brookings think tank, had this to say about my post showing how disingenuous his buddy Jonathan Fredman’s defense of his statements at Gitmo in 2002 is.

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:

  • 189 words effectively saying, “sure I wanted to debate interrogation [sic] history that is a decade old two days ago, but now that you’re presenting facts about my buddy I find it boring.”
  • 444 words admitting that Fredman did not specifically disavow the quote that Wittes claims he did, and shifting the emphasis slightly on what he says Fredman’s memo was disavowing.
  • 1238 words that at times seems to miss the entire headline of my post–which is that Fredman’s actions prove his memo is false–but ultimately seems to accept all the evidence that it is false, though he finds that uninteresting.

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:

  • The torturers started using sleep deprivation, with the approval of Fredman’s office, months before DOJ got involved.
  • When the torturers exceeded Fredman’s office’s original limits on sleep deprivation, his office just retroactively authorized what they had already done, apparently without any input from DOJ.
  • When Fredman translated DOJ’s guidance for the Abu Zubaydah torturers, he used not the definitive and binding legal analysis from DOJ, but instead a fax John Yoo had sent, one he purportedly wrote without the input or approval of Jay Bybee.
  • After a detainee died after being subjected to a torture technique that had not been approved by DOJ, CIA’s lawyers — including Fredman’s office — tried to snooker OLC into accepting that another document crafted with Yoo outside official channels constituted “definitive and binding legal analysis.” That effort failed.

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

Garbage In, Garbage Out: The Problem with a FISA Drone Court

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.

The Torture Apologists Ignore the 4,000 Americans They Killed

A bit of a row has started between Jay Rosen and Will Saletan for the latter’s attempt to “see how [the torturers] saw what they did” in this post. Frankly, I think Rosen mischaracterizes the problem with Saletan’s post. It’s not so much that Saletan parrots the euphemisms of the torturers. It’s that he accepts what John Rizzo, Michael Hayden, Jose Rodriguez, and Marc Thiessen said – in a presentation with multiple internal contradictions even before you get to the outright demonstrable lies — as the truth.

I’m particularly troubled by the way Saletan takes this assertion (which is based on the pseudo science behind the torture):

EITs were used to break the will to resist, not to extract information directly. Hayden acknowledged that prisoners might say anything to stop their suffering. (Like the other panelists, he insisted EITs weren’t torture.) That’s why “we never asked anybody anything we didn’t know the answer to, while they were undergoing the enhanced interrogation techniques.

And concludes this, which I take to be Saletan’s belief, not the torturers’:

Fourth, the right question to ask about the EIT program isn’t whether people lie under torture but whether using torture to train human beings in obedience is wrong despite the payoffs.

In an effort to take the torturers’ comments — and very notable silences, which Saletan doesn’t discuss — in good faith, Saletan presumes we might treat obedience among detainees being exploited as one of its “payoffs.”

Doing so ignores how the Bush Administration used torture to get detainees to tell useful lies, the most important of those being that Iraq had ties to Al Qaeda, which is one of the key pieces of “intelligence” that was used to get us into the Iraq War. That lie from Ibn Sheikh al-Libi — extracted through the use of mock burial and waterboarding, the two main forms of torture discussed in the panel – contributed directly to the unnecessary deaths of 4,000 Americans, to say nothing of hundreds of thousands of Iraqis.

Hayden’s claim we always knew the answer to questions we asked under torture

Here’s the full exchange from which Saletan takes as truthful the assertion that torture is about “learned helplessness” (no one here uses Mitchell and Jessen’s term, but that’s what we know they called it).

MR. THIESSEN: Mike, one of the – one of the scenes, you have the interrogator throws the – whoever the detainee is down and starts pouring water over his face and starts shouting, when’s the last time you saw bin Laden? And I think that gets to a deep misunderstanding of how interrogation actually worked. And one of the things you explained to me when I was working on my book and on the president’s speech was that there’s a difference between interrogation and debriefing, and the purpose of interrogation was not – we actually didn’t ask questions that we didn’t know the answers to. It was to ascertain whether they were being truthful or not. (So if you ?) walk through that?

[snip]

MR. HAYDEN: I’m almost willing to make an absolute statement that we never asked anybody anything we didn’t know the answer to while they were undergoing the enhanced interrogation techniques. The techniques were not designed to elicit truth in the moment – which is what was, you know, tell me this or I’ll hurt you more, I’m not your friend – for about a third of our detainees. By the way, for two thirds of our detainees, this wasn’t necessary. Now, I’m willing to admit that the existence of the option may have influenced the two-thirds who said, well, let’s talk, all right? I mean – I mean, let’s be candid with one another. But for about a third, techniques were used not to elicit, again, information in the moment, but to take someone who had come into our custody absolutely defiant and move them into a state or a zone of cooperation, whereby – and then you recall the scene in the movie after the detainee is cleaned up and they’re having this lengthy conversation – for the rest of the detention, and in some cases it’s years – it’s a conversation. It’s a debriefing. It’s going back and forth with the kind of dialogue that you saw in that scene about a – about a third of the way through the movie.

You know a lot of people kind of reflexively say – they’ll say anything to make you stop, which may actually be true. That’s why we didn’t ask them questions while this was going on. Again, as John said, I mean, you know – these things weren’t gentle or kind, but the impact – and I think Jose’s written very thoughtfully about this – the impact was psychological. The impact is you are no longer in control of your destiny, all right? You are in our hands, and therefore, that movement into the zone of cooperation as opposed to the zone of defiance. But Jose’s got more of the fine print on that. [my emphasis]

As I mentioned the other day, I still haven’t seen the movie, so I’m not sure. But Thiessen’s effort to dismiss the claim that we asked detainees where Osama bin Laden was while being waterboarding may be an effort to rebut Khalid Sheikh Mohammed’s assertion that he lied about OBL’s location to get them to stop waterboarding him — all while hiding the importance of the courier, Abu Ahmed al-Kuwaiti, who would eventually lead to OBL.

Now, Hayden’s claim is so obviously false as to be almost pathetic.

The ticking timebomb that blows up Hayden’s claim

It’s a claim that Rodriguez — in the very same appearance — undermines, when he describes turning to torture out of sheer ignorance.

MR. THIESSEN: Follow-up, Jose. I mean, take us back to – since we’re pulling the broader picture – take us back to September 11 th , 2001. You know, we’ve just been hit – there’s smoke in the ground in New York, buildings have fallen, the Pentagon is broken. And what do we know about al-Qaida? I mean, did we know that KSM was the operational commander of al Qaida or that he had this – or that members of his network – or all this information that we take for granted that we know now?

MR. RODRIGUEZ: Yeah, we didn’t know that much. Continue reading

Did Zero Dark Thirty Accidentally Tell the Most Dangerous Truth?

Update: Let me make this clear: I am not commenting on the content of the movie. I am commenting on the content of John Rizzo’s reactions to the movie, particularly his depiction about when and how and by whom “the box” was approved, which — as I say several times — get to the core of the legal problems with torture. 

In a development I could have predicted, one of former CIA Acting General Counsel John Rizzo’s chief complaints with Zero Dark Thirty has to do with how the movie depicted “the box.” (This exchange comes from the first comments Rizzo made at an AEI event with him, Dick Cheney flack Marc Thiessen, former CIA Director Michael Hayden, and the director of the torture program, Jose Rodriguez).

MR. RIZZO: The interrogation scenes – I mean, they were – they were striking. They were hard to watch for me, having lived through this and how the – how the actual techniques came to be, and all the safeguards we put on them, all the monitoring by medical personnel during the course of the interrogation – you know, again, it’s a movie, so you know, the character in the movie, the interrogator, seemingly making stuff up as you went along, you’re not talking – OK, bring on the water and –

MR. : (Off mic) – get the buckets.

MR. RIZZO: – and get the buckets – now, the box – people have asked me about the box. And since this whole thing has been declassified now, most of you probably know that one of the techniques was a box, putting a detainee in a box for a – for a limited duration. Now, the box in the movie is not the kind of box that was – that was used. When I say all this, I don’t want to downplay or leave any impression that the actual program, the actual – the actual waterboarding was, you know, was tame or benign. I mean, it was a very aggressive technique, as were all the – all the others. But – so on the whole, I mean, I went into it – I went into it telling myself it was going to be a movie. I was frankly relieved that there were no lawyers involved in the movie. (Laughter.) I would have just spent the next four years at cocktail parties explaining why I wasn’t that lawyer. So I was – so I mean, on the whole, it’s as they said. It was a mixed bag, but it was a terrific movie. And you know, I think it did really take no sides and Miss Bigelow and Mr. Boal, I think, skillfully teed up the complicated moral questions of all of this we’re facing, especially in those first few scary months after the 9/11 attacks.

MR. THIESSEN: Can I – just to follow up on that. I mean, you know, you were the chief legal officer at the time. I mean, would you have authorized the interrogation techniques the way they were depicted? I mean, explain the difference in the box – (chuckles) – explain the – you know, explain that you – do people just throw somebody on a mat and start pouring water over their heads? I mean –

MR. RIZZO: No, no, the – first of all, you know, it was – it was “Mother, May I.” Those interrogators were not allowed to adlib. There were certain specific –as the memos – OLC memos show at the time, I mean, it was a – there was a meticulous procedure to undertake. And before the use of the waterboard – they will confirm this – the interrogators at the site would have to come back in writing, explain why they thought the waterboard was necessary, it would be approved at headquarters. During the time the waterboard was used, which was only until mid-2003, it took the CIA director to approve the use. So it was a much more modern program. Now, the box – I mean, a box is not pleasant. First of all, there is – there was a big box authorized that the detainee could stand in and a smaller box. It wasn’t – it didn’t appear to me to be quite as small as what was depicted in the movie. But yes, there was a box technique. But again, the – I mean, when I – you know, everyone can look at this in a different way. I just had the impression from the scene that the guy was sort of, you know adlibbing as he went along, which was, believe me, far from the – far from the reality. [my emphasis]

The box — particularly the apparent portrayal (I haven’t yet seen the movie) that the torturer ad-libbed when he introduced the box — is as big a concern of Rizzo’s as waterboarding is.

Of course it is.

That’s because the coffin — later dubbed a small box to give it legal cover — used to conduct a mock burial with Abu Zubaydah is the at the heart of the legal problems with torture.

As these posts lay out (one, two, threefour), one of several main reasons CIA asked the Office of Legal Counsel for a memo authorizing torture is because Ali Soufan saw Abu Zubaydah’s torturers prepare to put Abu Zubaydah in a coffin (it’s unclear whether he or his partner Steve Gaudin saw them actually use the coffin). That is one of the things — perhaps the thing — that Soufan labeled “borderline torture.” And because an FBI officer had told CIA’s contractors he might need to prosecute them for what he had seen, CIA needed more durable legal cover than the daily approvals given by Alberto Gonzales every night.

Because an FBI officer had labeled the things approved by the White House, on the President’s authority, illegal.

Which is why John Rizzo and John Yoo started writing first the July 13, 2002 memo generally authorizing torture (this memo is what the CIA would ultimately rely on to claim things like the murder of Gul Rahman were legal) and then, several weeks later, the Bybee Memo laying out the approved torture techniques in detail.

John Rizzo tried to get John Yoo to approve the technique that had already been used on Abu Zubaydah, the one Ali Soufan had labeled illegal. He tried to get mock burial approved as a technique; he kept trying right up until the last days before the Bybee Memo was finalized. But for some reason — I suspect, because Michael Chertoff had already agreed with the FBI that the mock burial Ali Soufan complained about was illegal — it was not included in the final list.

Instead, John Yoo and Jay Bybee approved “small box confinement.” Something that, if everyone remained silent about the intent and desired effect of shoving someone in a coffin-shaped box and leading them to believe they’d be buried alive, would both retroactively approve the use of a coffin that Abu Zubadayh’s (and Ibn Sheikh al-Libi’s) torturers had already used, but also let them use mock burial in the future, in spite of the fact that John Yoo – even John Yoo – had deemed it illegal.

One of the main things an FBI officer judged illegal — mock burial, a technique that had already been used, on the authority of the President — is the only single torture technique John Yoo ever deemed illegal.

Again, I have not yet paid to see the CIA’s propaganda effort. But John Rizzo, at least — the man who tried so hard to get the OLC to approve mock burial — is very concerned both about the size of the box in question (the SERE document used to label it “small box confinement” prescribed size and time limits), but more importantly that torturer in the movie is depicted as using the coffin-shaped box without first getting approval for it.

The movie, it seems, shows a torturer using a coffin before John Yoo and John Rizzo would have deliberated for weeks and decided to call it small box confinement. The movie, it seems, shows a torturer using a coffin to conduct a mock burial [Update: I've been told they don't do a burial in the movie, though it does depict adlib], and doing so in terms that make it clear that the coffin preceded the DOJ approval for it.

I’m extrapolating from Rizzo’s comments, but it seems likely that his problem with the box is that ZD30 depicts its use in precisely the terms that make it illegal, the one act of torture labeled illegal as it was happening, one of the main acts of torture the OLC memos were designed to provide legal cover for.

Frankly, I’m sympathetic to Rizzo’s complaint that this depiction of a torturer ad-libbing by using a coffin is inaccurate (though not to his claim that it was an OLC memo that limited the torture). After all, we know that the White House was responding to the torturers’ “Mother, May I” on a daily or near-daily basis.

We know that the White House was renewing its Gloves Come Off Memorandum of Notification approval for things like mock burial at each step of the process. So it’s not like the torturers executed a mock burial without approval.

The problem, however, is that they executed a mock burial with the President’s approval, weeks and months before the DOJ would deem that one torture technique illegal.

The New Gitmo Memorandum of Understanding: Obama Finally Figured Out How to Close Down Gitmo!

Yesterday, the NYT weighed in on a new practice at Gitmo: the requirement that lawyers whose clients have lost their habeas case sign new memoranda of understanding governing the terms of access to their client.

The Obama administration’s latest overuse of executive authority at Guantánamo Bay is a decision not to let lawyers visit clients in detention under terms that have been in place since 2004. Because these meetings pose little risk and would send a message about America’s adherence to the rule of law, the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing.

[snip]

Four years after the Supreme Court ruled that “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” the government may be calculating that it can decide what “meaningful” means.

But if the wars where detainees were captured have been to defend American interests, surely the country has an interest in an unequivocal commitment to the rule of law, including full legal representation for detainees.

The NYT got closer to ascribing a motive and envisioning the impact of the policy than Lawfare’s several posts on the subject. But I think both are missing what I suspect is the point.

Aside from giving detainees little recourse over issues affecting their own treatment (which is most urgent, in my opinion, to monitor the mental health of the detainees), the MOU will have three effects:

  • Gutting Obama’s own promise to provide Periodic Reviews to detainees
  • Eliminating the risk that detainees will pursue justice internationally
  • Burying Obama’s biggest failed promise

Gutting the Periodic Review Boards

As Jack Goldsmith reminded back in April, a year earlier Obama had issued an executive order promising a Periodic Review Board for all detainees.

In March 2011, the Obama administration issued an Executive Order (13567) that created a process of Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.”  The “review and hearing” process was designed to operate on top of the habeas review process and the other internal review processes for GTMO detainees, and to facilitate release of detainees who were not “a significant threat to the security of the United States.”     Bobby analyzed the EO here and here, as did Tom Nachbar here.

The EO states: “For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order” (emphasis added).  I have heard little about these reviews since last Spring, and the deadline for their commencement passed last month.  Has the administration carried out its pledges under the EO?

Irrespective of the delay, it was crystal clear by April that Obama didn’t put much stock in his promise to tie continued detention to the risk a detainee posed. After all, the Administration was willing to gut habeas with a detainee who, on multiple occasions, under both the Bush and Obama Administration, was cleared for release. When Obama did release the PRB guidelines, the timing involved–providing for just 4 months of election season during which the PRB would function (one of which has already elapsed)–made it clear it wasn’t actually supposed to function.

But the whole thing is supposed to be driven by new information; it’s not a reconsideration of information already in the files. And not only does the PRB determine the priority in which they’ll consider cases, they get to decide whether any information from the detainee is relevant.

Any additional relevant information (as defined in the Glossary) that has become available since the later of the Reference (k) review or prior PRB review, including information discovered as a consequence of information presented by the detainee’s personal representative or private counsel.

[snip]

(1) The personal representative and private counsel, if any, shall be provided with advance notice of the PRB review, as well as a reasonable opportunity to meet or talk to the detainee to discuss the PRB process and the information the detainee may wish to submit.

(2) The personal representative and private counsel, if any, may prepare a written submission for the PRB, which may include a written statement from the detainee. The written submission shall include all factual information that the detainee intends to present in the PRB proceedings. Such submission shall only contain information relevant and material to the determination of whether continued law of war detention of the detainee is necessary to protect against a continuing significant threat to the security of the United States. Relevance of the information is determined by the PRB.

And now the MOU warns that lawyers cannot assist their client for PRB matters under the MOU. Continue reading

Hesham Abu Zubaydah Dates FBI Investigation of Mohammed Osman Mohamud a Year Earlier

The most recent hearing in the Mohammed Osman Mohamud case provided the following details, which the FBI claimed described the beginning of their investigation into Mohamud.

February 2009: Samir Khan and Mohamud start emailing

August 31, 2009: Mohamud’s father, Osman Barre, calls the FBI to say he’s worried his son is being brainwashed

Early November 2009: Mohamud investigated in–but exonerated for–a date rape allegation

December 2009: Mohamud and Amro Alali exchange coded emails

The entire hearing was supposed to serve as the FBI’s proof that the date rape allegations didn’t mark the start of their interest in Mohamud–the Khan emails and Mohamud’s father’s call did.

Except that Jason Leopold’s mammoth investigation into Abu Zubaydah’s brother Hesham suggests the investigation started perhaps as much as a year before Samir Khan’s emails.

After 9/11, public claims about his brother, and a failed American marriage, Hesham found it almost impossible to get citizenship, even after marrying another American woman. Finally, the FBI came to him and suggested if he turn informant, they would help him get his citizenship.

After he agreed, they showed him a bunch of pictures of people of attendees at the Masjed As-Saber mosque in Portland. Including, in 2008, Mohamud.

Hesham said he would do “whatever it takes” to “prove to you that I am a good person and fix my situation.”

Gray called him two weeks later and they met again. She brought an envelope with about ten photographs. A majority were Somalis. But there were also photographs of Iraqis and Saudis, Hesham said.

Do you recognize any of these people?” Gray asked Hesham.

“Nope,” he said.

“I’d like you to go to the mosque and find out what these people are up to,” Gray said. “Find out if any of those people are helping terrorists.”

“I will keep my eyes open,” Hehsam said.

[snip]

Hesham said one of the photographs Gray showed him was of a young Somali named Mohamed Osman Mohamud who attended the Masjed As-Saber mosque. Mohamud, who was the subject of an FBI sting operation, was arrested in November 2010 on terrorism charges for allegedly attempting to detonate what he believed was a car bomb at a Christmas tree lighting ceremony in Portland. Hesham said he recalls being shown a photograph of Mohamud in 2008, two years before that incident, when Mohamud was just 16.

Samir Kahn’s success in leaving the US, when in similar circumstances other young men were stopped or prevented, has always been rather incredible. That’s made worse by the fact that Khan was clearly being investigated by the FBI when he was allowed to leave the US (remember, even Mohamud wasn’t allowed to go to Alaska for a summer job while he was being investigated).

But if Hesham’s memory is correct, it shows several things. First, the FBI’s currently operative story–which has changed several times already–would be proven incomplete again. Moreover, it might suggest that Khan (whose family got an apology when he died) had an ongoing relationship with the FBI after they allowed him to slip out of the US as they prevented so many others from doing.

And, finally, it would suggest the FBI first started targeting Mohamud well before he turned 18. It would suggest as a teenager, Mohamud withstood 2 years of that treatment before being entrapped trying to blow up the FBI’s own bomb.

Again, all this rests on Hesham’s memory. But his memory is utterly damning for the FBI’s case against Mohamud.

Bashar al-Assad, Gitmo Judge and Jury

As Steven Aftergood reported, Syrian Gitmo detainee Abdulhadi Omer Mahmoud Faraj has challenged the government’s inane policy prohibiting detainee attorneys from refuting the claims made in Gitmo files. The motion argues that letting the claims go unrebutted jeopardizes any chance Faraj might have for repatriation or resettlement, and even endangers his family in Syria.

Abu Zubaydah’s Evidence

One problem, the motion argues, is the allegations in his Gitmo file come from, “unreliable claims made by individuals under conditions that amount to coercion, if not torture.” Faraj’s Gitmo file includes the following claims:

  • In a 2002 CIA report, Abdurahman Khadr (Omar’s brother, who was then working as a CIA informant) said the Syrian guesthouse in Kabul at which Faraj stayed conducted document forgery
  • In a 2002 CIA report, Abu Zubaydah said he helped fund the Syrian guesthouse
  • In a 2002, 2003, and 2005 CIA reports, Abu Zubaydah said one person at the guesthouse was an expert forger, another was a bomber with ties to Abu Musab al-Zarqawi, and a third met with him in 2001; only the third, Maasoum Abdah Mouhammad, is among the group of 4-5 Syrians with whom Faraj allegedly had the closest ties, and he was transferred to Bulgaria in 2010
  • Mohammed Basardah, notorious for falsely implicating a large number of detainees, claimed that another of the Syrians Faraj had ties with was fighting with him at Tora Bora

In other words, many of the claims against Faraj constitute claims made by the two most unreliable Gitmo witnesses–and another who was then on the CIA payroll–implicating others associated with Faraj. Most of those claims were minimized or ignored in Faraj’s most recent Administrative Review Board.

Syrian Military Intelligence Evidence

The motion discusses the other problem with his Gitmo file more obliquely, with a reference to Syrian human rights violations, including its dubious allegations that opposition figures are Islamic extremists.

According to Human Rights Watch, “Syrian security services regularly arrest men suspected of Islamist affiliation or sympathies” and torture them to obtain confessions.

[snip]

Given the current violent response by the Syrian government to pro-democracy protesters, the unchallenged narrative depicting Mr. Faraj as a “terrorist” only increases the risk of harm to him and his family.

But the Gitmo file clearly reveals the problem: some of the key allegations against Faraj come from two CIA reports, dating to 2001, recording claims passed on by Syrian Military Intelligence.

Syrian authorities dismantled terrorist cells in Damascus and Hamah, SY in 2000, arresting fifteen members of the cells while some cell members, including SY-327, escaped. The Syrian Military Intelligence (SMI) stated that those who escaped were believed to have fled to Afghanistan.

Continue reading

Either Torture Is Ongoing Or the Administration Is Hiding Something Else

I don’t mean to be ungrateful that the NYT wrote an editorial about the 2nd Circuit’s decision to help the CIA hide its torture documents from FOIA. I’m not! I’m glad they’re noting how the courts are collaborating in hiding our government’s crimes from us.

But I’m going to be a bit pedantic about it.

As almost every outlet has when covering the 2nd Circuit decision, the editorial focuses primarily on the picture of Abu Zubaydah after he was tortured. That makes sense. A picture is so concrete, so easy to understand.

It does, however, also mention the court’s ruling hiding what the government has all-but confirmed is mention of the Gloves Come Off Memorandum of Notification. But it interprets those references to “concern the origins” of the torture program (I’m also grateful that NYT used the word “torture,” btw).

The court also said the C.I.A. was justified in withholding two passages in Justice Department memos that appear to concern the origins of the Bush torture program.

Now, I don’t blame the NYT for not saying this is the Gloves Come Off MON–while both Judge Alvin Hellerstein and DOJ have all-but confirmed that, that’s not adequate proof for the NYT. But these passages either represent more than “the origins of the torture program,” or we’re still in the torture business.

That’s because in his opinion, Judge Richard Wesley makes it clear that the references are to an ongoing activity.

We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.

In the middle of an opinion discussing torture, Wesley said some activity relating to torture  is still active.

Now, I’m not saying I think torture (well, waterboarding, anyway) is still ongoing. As I have noted, all the evidence suggests the government is hiding this very short reference to the Gloves Come Off MON because releasing it might amount to admission of all the other covert programs either explicitly or implicitly included in it–including the drone program, but also including things like buying the services of the Egyptian intelligence services.

Furthermore, we reject the district court’s suggestion that certain portions of the redacted information are so general in relation to previously disclosed activities of the CIA that their disclosure would not compromise national security. It is true that the Government has disclosed significant aspects of the CIA’s discontinued detention and interrogation program, but its declarations explain in great detail how the withheld information pertains to intelligence activities unrelated to the discontinued program.

But until the Administration explains all this, what we’ve got is a Circuit Court judge saying that he can’t release a half sentence phrase–one appearing in the title of Torture Guidelines–because that half sentence phrase relates to an activity that is still ongoing.

Which is it folks? Torture? Or simply a whole bunch of equally terrible things?

Emptywheel Twitterverse
emptywheel @GregoryMcNeal Just to be clear, my offer for beer for someone finding WHITE HOUSE saying that still stands.;p @jacklgoldsmith
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emptywheel @GregoryMcNeal And here I was letting them off easy (and have been noting WH has not claimed Sony was CI). @jacklgoldsmith
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emptywheel @jacklgoldsmith Problem is CI-based approach, while it might help prioritize, runs into several problems I think this demonstrates.
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emptywheel @jacklgoldsmith Reason I raise it is Obama had at least aspired to getting CI up to speed. So MAY (though doubt) that's why it was missed
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emptywheel @TyreJim Still drives me nuts that Shubert dec came in DAY (probably) THAT FISC SHUT DOWN PRTT DRAGNET. Nuts nuts nuts. @CathyGellis
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emptywheel @TyreJim Not all that interested. I Just Know that their state secrets claims have to be rocky right now. @CathyGellis
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emptywheel @joshgerstein He's prolly thinking FBI can pretend to be Politico when they're planting malware w/Belgian security researchers. #HowTheyRoll
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emptywheel @CathyGellis That's why I'm interested. Cause several past SS invocations coincide w/adverse FISA rulings.
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emptywheel @CathyGellis How was it? I'm particularly interested in NSA's new secret briefs.
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emptywheel @jacklgoldsmith In any case, I'm quite interested in how critical infrastructure in 1 day got expanded to include multinational film co.
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emptywheel @jacklgoldsmith You're assuming they saw it come in & did nothing? Interesting Q bc I think def of "critical infrastructure" may be issue
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emptywheel @CathyGellis Did you? Was it a Counsel issue?
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