Dianne Feinstein

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Dianne Feinstein Invokes Torture’s Covert Status on Declassification

Five years ago, I reported (BREAKING) that the Bush Administration (aka Dick Cheney) made the torture program a Special Access Program in unusual fashion. Rather than CIA Director George Tenet make torture a SAP, as mandated by the Executive Order governing such things, unnamed people in the National Security Council did so.

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a “special access program” as “a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.

[snip]

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA “shall” “exercise” the function of creating special access programs pertaining to intelligence. But then the very next paragraph says “NSC officials established a special access program.” One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it.

Since that time, I’ve asked experts in classification and they agree that something funky went down (note, too, that torture wasn’t a SAP at the very beginning).

I believe torture’s odd SAP status is one of the things that has implicated the Presidency, which the Obama Administration went to some lengths to cover up.

But it also should dictate the White House take the lead on declassification of the torture program.

Don’t take my word for it — take Dianne Feinstein’s word. In a letter to the White House, she invoked torture’s status as a “covert action program under the authority of the President and National Security Council” to call for the White House to lead declassification.

In a letter to the President dated April 7 and obtained by McClatchy, Dianne Feinstein, D-Calif., called for swift action on the summary and the findings and conclusions of the report, which members voted last week to declassify. The summary, Feinstein said, should be released “quickly and with minimal redactions.”

“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” the letter reads.

Note, Dianne Feinstein has just formally confirmed the same detail the Obama Administration appealed to keep secret: torture was authorized by the President, not by OLC, not by George Tenet, not by John Rizzo. The President.

Which is why the President should take responsibility for releasing the report.

 

In Defending Dianne Feinstein, Ron Wyden Reminds that Michael Hayden Lied to Congress

Like Harry Reid and Mark Udall, Ron Wyden has defended Dianne Feinstein against Michael Hayden’s suggestion that she’s too “emotional” to investigate torture.

But unlike Reid and Udall — who attack Hayden for being a sexist pig (though not in that language) — Wyden attacks Hayden for being a liar.

General Hayden’s suggestion that Chairman Feinstein was motivated by ‘emotion’ rather than a focus on the facts is simply outrageous. Over the past five years I watched Chairman Feinstein manage this investigation in an extremely thorough and professional manner, and the result is an extraordinarily detailed report based on millions of pages of internal CIA records, including operational cables, internal memos, and interview transcripts.

General Hayden unfortunately has a long history of misleading the American public – he did it on domestic surveillance when he was the head of the NSA, and he did it on torture when he was the CIA Director. The best way to correct this culture of misinformation is to give the American people a chance to review the facts for themselves, and I’ll be working with my colleagues and the administration to ensure that happens quickly.

Mind you, Wyden focuses on Hayden’s lies to the American people.

But it’s as good a time as any to recall the lies Hayden told the Senate Intelligence Committee on April 12, 2007, when he said the following:

While FBI and CIA continued unsuccessfully to try to glean information from Abu Zubaydah using established US Government interrogation techniques, all of those involved were mindful that the perpetrators of the 11 September attacks were still at large and, according to available intelligence reportedly, were actively working to attack the US Homeland again. CIA also knew from its intelligence holdings that Abu Zubaydah was withholding information that could help us track down al-Qa’ida leaders and prevent attacks. As a result, CIA began to develop its own interrogation program, keeping in mind at all times that any new interrogation techniques must comply with US law and US international obligations under the 1984 UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

A handful of techniques were developed for potential use; these techniques are effective, safe, and do not violate applicable US laws or treaty obligations. In August 2002, CIA began using these few and lawful interrogation techniques in the interrogation of Abu Zubaydah. As stated by the President in his speech on 6 September 2006, “It became clear that he (Abu Zubaydah) had received training on how to resist interrogation. And so the CIA used an alternative set of procedures … the procedures were tough, and thy were safe, and lawful, and necessary.”

Prior to using any new technique on Abu Zubaydah, CIA sought and obtained from the Department of Justice an opinion confirming that none of these new techniques violated US statutes prohibiting torture or US obligations under the UN Convention Against Torture.

As CIA’s efforts to implement these authorities got underway in 2002, the majority and minority leaders of the Senate, the Speaker and the minority leader of the House, and the chairs and ranking members of the intelligence committees were fully briefed on the interrogation procedures.

After the use of these techniques, Abu Zubaydah became one of our most important sources of intelligence on al-Qa’ida. [my emphasis]

The lies here include:

  • FBI was successful at getting intelligence from Abu Zubaydah
  • CIA never considered the Convention against Torture until after the CIA IG Report in 2004
  • CIA knew Abu Zubaydah had lied under torture in the past
  • CIA did not receive DOJ authorization before starting the torture, which started before August 1
  • CIA used techniques outside those approved by DOJ
  • Only the Gang of Four got briefed on Abu Zubaydah’s torture, and even then they were not fully briefed until February 2003

It is highly likely that Hayden knew that most of these were lies, but for most I can’t prove that. I also doubt Zubaydah had information on the whereabouts of al Qaeda’s leadership.

But as I showed in this post, I can prove that he did know only the Gang of Four got briefed on torture.

That’s because the day before Hayden testified at the SSCI hearing, in a memo addressed to him entitled “Information for 12 April SSCI Hearing,” CIA laid out all the briefings they had done on torture and rendition. And CIA’s own records–records Hayden received the day before he made these statements in preparation for the hearing–show that:

  • Tom Daschle, Senate Majority Leader from the time the torture began until the end of 2002, and Minority Leader until the end of 2004, was never briefed on the torture program.
  • Trent Lott, Senate Minority Leader until the end of 2003, was never briefed on the torture program while in leadership (though as a member of SSCI, he was briefed on the torture program on March 15, 2006).
  • Denny Hastert, Speaker of the House through the end of 2006, was not briefed on any aspect of the program until July 1, 2005.
  • Dick Gephardt, House Minority Leader through the end of 2003 (and therefore, through the worst torture) was never briefed on the program.
  • Harry Reid, Senate Minority Leader from 2005 until 2007 and Senate Majority Leader thereafter, was not briefed until September 6, 2006, when Bush made the program public.
  • Though Nancy Pelosi had an (incomplete) briefing as House Intelligence Ranking Member in 2002, she did not have a briefing as House Minority Leader.
  • Just Bill Frist, who was first briefed in July 2004, seven months after he took over as Senate Majority Leader, was briefed in timely fashion at all.

The Intelligence Committee heads were briefed, however inadequately. But with the exception of Bill Frist, the CIA barely briefed Congressional Leadership at all.

I had forgotten how blatantly Hayden lied, in what would have been one of the earliest briefings for the full Committee after they first got read into the program.

But it’s clear he did lie. And he lied about information he had just been informed was a lie.

No wonder Hayden seems so desperate to defend his own manhood at this time.

He’s about to be exposed.

Update: While we’re talking about Michael Hayden lies, here’s my new favorite NSA lie, when he had Paul Wolfowitz tell Colleen Kollar-Kotelly that NSA wasn’t collecting content-as-metadata in the Internet dragnet program when they actually were.

The Court had specifically directed the government to explain whether this unauthorized collection involved the acquisition of information other than the approved Categories [redacted] Order at 7. In response, the Deputy Secretary of Defense [Paul Wolfowitz] stated that the “Director of NSA [Michael Hayden] has informed me that at no time did NSA collect any category of information … other than the [redacted] categories of meta data” approved in the [redacted] Opinion, but also note that NSA’s Inspector General [Joel Brenner] had not completed his assessment of this issue. [redacted] Decl. at 21.13 As discussed below, this assurance turned out to be untrue.

13 At a hearing on [redacted] Judge Kollar-Kotelly referred to this portion of the Deputy Secretary’s declaration and asked: “Can we conclude that there wasn’t content here?” [redacted] of NSA, replied, “There is not the physical possibility of our having [redacted] [my emphasis]

The Torture Apologists Raise Brennan’s Torture-Derived Scary Memos

Some time in mid-2004, 8 high ranking National Security officials gave then presiding FISA Court Judge Colleen Kollar-Kotelly a briefing. Their goal was to convince her the then halted and now-discontinued Internet dragnet program was so important, and the terrorist threat against the US so great, she should write a shoddy legal opinion authorizing NSA to restart the program under the authority of the FISA Pen Register statute.

As part of the briefing, they replicated a process they had used for Bush’s illegal wiretap program: to have CIA’s analytical people write what they called a “scary memo” explaining why al Qaeda was so dangerous we had to continue that dragnet.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to’ undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. [my emphasis]

As head of the Terrorist Threat Integration Center (and later as head of the nascent National Counterterrorism Center), John Brennan oversaw that “scary memo.”

Last year, John Brennan admitted that he used information derived from the torture program (he calls it the detention and interrogation  program) for those “scary memos.”

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. [my emphasis]

We can imagine the kind of things Brennan might have used in his “scary memos” and that briefing to Kollar-Kotelly, on which the entire FISC-authorized dragnet .

Hassan Ghul — whom CIA tortured even after he provided critical information about Osama bin Laden’s courier — was already in custody, and given uncertainty about when his torture started, may have provided such information.

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Thanks to Dianne Feinstein and Mark Udall for Seeing Torture Report Through

The Senate Intelligence Committee just voted 11-3 to release the torture report, with 3 ardent GOP critics voting to release the report.

McClatchy (as it has had throughout recent debates over this) has good coverage, including two new details:

  • CIA illegally detained 26 of 119 detainees (this may refer to CIA’s practice of ghosting detainees, and removing some illegally from Iraq, as well as the mistaken detention of people like Khalid el-Masri).
  • “The news media were manipulated with leaks that tended to blunt criticism of the agency.” (We knew that, but glad to see SSCI agrees).

A lot of people on the Senate Intelligence Committee deserve credit for making this happen. It started, after all, under Jay Rockefeller’s tenure.

But Dianne Feinstein and Mark Udall deserve particular attention. Feinstein persisted in this through a lot of opposition from Republicans on the committee. And she oversaw a great deal of work to get it done.

Her statement read, in part,

The report also points to major problems with CIA’s management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important.

The release of this summary and conclusions in the near future shows that this nation admits its errors, as painful as they may be, and seeks to learn from them. It is now abundantly clear that, in an effort to prevent further terrorist attacks after 9/11 and bring those responsible to justice, the CIA made serious mistakes that haunt us to this day. We are acknowledging those mistakes, and we have a continuing responsibility to make sure nothing like this ever occurs again.

While I’m not satisfied simply with admitting error — democracy can’t work when rule of law doesn’t — she’s right that the intel agencies need adequate oversight.

Mark Udall, in the last year, has also made the report a particular focus, particularly with his relentless pressure on the White House, even in a tough reelection year. He repeated that pressure in his statement on the release.

“Following today’s historic vote, the president faces what I believe should be a straightforward question. He can defer declassification decisions to the CIA — which has demonstrated an inability to face the truth about this program — or pass this authority to the Director of National Intelligence or hold on to the redaction pen himself,” Udall added. “The president needs to understand that the CIA’s clear conflict of interest here requires that the White House step in and manage this process.”

Let’s hope Feinstein, Udall, and others persist in their efforts to fight back on what is sure to be CIA criticism of the report.

Update: As I noted earlier, Richard Burr was a yes vote, along with Saxby Chambliss and one other Republican in addition to Collins. Tom Coburn voted “present.”

In Describing CIA’s Attempted Intimidiation of Senate Intelligence Committee, Harry Reid Uses the Word “Unprecedented” Too

Back when Mark Udall first hinted about the CIA’s efforts to intimidate the Senate Intelligence Committee, he said CIA had taken “unprecedented action.”

That’s language Harry Reid repeats in a letter to John Brennan informing him that the Senate Sergeant-at-Arms will conduct a forensic review of the SSCI computers.

You are no doubt aware of the grave and unprecedented concerns with regards to constitutional separation of powers this action raises.

The language Reid uses in a letter to Eric Holder is even stronger.

As Majority Leader of the Senate, I have a responsibility to protect the independence and effectiveness of our institution. The CIA’s decision to access the resources and work product of the legislative branch without permission is absolutely indefensible, regardless of the context. This action has serious separation of powers implications. It is immaterial whether this action was taken in response to concerns about the Committee’s possession of a disputed document; this stands as a categorically different and more serious breach.

[snip]

In my capacity as the leader of the U.S. Senate, the CIA’s actions cause me great concern. The CIA has not only interfered with the lawful congressional oversight of its activities, but has also seemingly attempted to intimidate its overseers by subjecting them to criminal investigation. These developments strike at the heart of the constitutional separation of powers between the legislative and executive branches. Left unchallenged, they call into question Congress’s ability to carry out its core constitutional duties and risk the possibility of an unaccountable Intelligence Community run amok. The CIA cannot be permitted to undermine Congress’s ability to serve as an effective check on executive power as our nation’s Founders intended.

For all the talk of interbranch conflict, however, the letter to Brennan includes hints of partisan conflict. He asks Brennan to keep his staffers away from Senate staffers except the Sergeant-at-Arms.

To ensure its [the Sergeant-at-Arms review] independence, I ask that you take whatever steps necessary to ensure that CIA personnel refrain from further interaction relating to this issue with Senate staff other than the Segeant-at-Arms staff conducting the examination while the examination is underway.

This suggests there has been such contact. And there’s no reason to believe anyone from the Democratic side would be working back channel with Brennan’s spooks.

As I noted last week, the Republicans — especially Richard Burr, who would become Intelligence Chair if Republicans retake the Senate — have been going after Mark Udall aggressively. In the interim we’ve seen fairly obvious hit jobs that use the CIA-SSCI dispute to focus on Udall’s electoral prospects in November.

So while I believe everything Reid says about separation of powers — while I believe he regards this as an unprecedented threat to separation of powers — this also reeks of an attempt to prevent the collaboration of Republicans and the CIA.

We’ll see whether it has the other probable goal: giving DOJ an easy way to back out of any entanglement in this dispute.

Did CIA’s Handsomely Paid Contractors Doctor Its Log Books, Again?

I wanted to return to one other detail of John Brennan’s (designed to be made public, I believe) January 27 letter to Dianne Feinstein explaining the urgent need to continue the “investigative, protective, or intelligence activity” targeted at CIA’s overseers.

In the letter, Brennan describes the original basis for CIA’s claimed suspicion into SSCI this way:

CIA maintains a log of all materials provided to the Committee through established protocols, and these documents do not appear in that log, nor were they found in an audit of CIA’s side of the system for all materials provided to SSCI through established protocols. Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and review audit data to determine whether anyone had access the files. [my emphasis]

The original basis CIA used to justify investigating their overseers was a log purportedly recording which documents they had been given.

Recall that CIA worked with contractors — SAIC, as I understand it — to review and re-review each document before they turned it over to SSCI.

CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff.

This process accounts for much of the $44 million cost of the report.

The log must have come out of this process: contractors, being paid handsomely by the CIA to slow the investigation, recording each document that they claimed to hand over to investigators.

So at the base of Brennan’s claim is a log, made by self-interested contractors employed by CIA, about torture.

The CIA’s contractors don’t have a very reliable history recording issues relating to torture.

Recall that — contrary to much of the public reporting on the matter — the destruction of the torture tapes did not just destroy ugly images of torture inflicted on Abu Zubaydah.

In addition, by destroying the torture tapes, CIA destroyed evidence that:

  • The CIA’s contractors used torture on Abu Zubaydah that exceeded the guidelines provided by DOJ
  • The CIA’s contractors’ descriptions of those torture techniques — in written cables and logs — did not match what they had actually done to Abu Zubaydah
  • By the time CIA shut down the Thai black site and decided to stop taping their torture, someone (the CIA’s contractors?) had already destroyed or sabotaged a number of the torture tapes, including ones depicting waterboarding

That is, one of the likely reasons why CIA destroyed the torture tapes is that their handsomely paid self-interested contractors produced a substantively inaccurate log about torture.

And at the base of the CIA’s witch hunt into SSCI staffers is a log about torture presumably made by handsomely paid self-interested contractors.

John Brennan’s Parallel “Investigative, Protective, or Intelligence Activity”

Yesterday, Jack Goldsmith defended CIA lawyer Robert Eatinger for referring Senate Intelligence Committee staffers for criminal investigation. Eatinger had no choice but to refer his Agency’s overseers, you see, because EO 12333 required it.

I knew Eatinger a bit when I was at OLC a decade ago, and based on that experience I agree with John Rizzo that “[h]e doesn’t have a political bone in his body” and “[i]f he made this referral, it’s because he felt it was the right and necessary thing to do.”

It might be useful to articulate the standard for the “right and necessary thing to do,” because I think that standard is at the bottom of this corner of the controversy.  The standard comes from Section 6.1(b) of E.O. 12,333, which imposes a duty on the CIA Director to:

Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;

I believe that the CIA Director delegates this duty to the CIA General Counsel.

Note how low the bar is for the referral—possible violations of federal law.  Think about what that low standard means.  It means that CIA often has a duty to refer a matter to DOJ that it is reasonably confident does not violate federal law, simply because the matter possibly violates federal law.  As John Radsan noted in his study of the CIA General Counsel’s Office, the low standard results in CIA making “several referrals to the Justice Department in a typical month.”  It might seem that these frequent referrals are signs of lawlessness, but in fact they are a mechanism of accountability. The very soft trigger of “possible” as opposed to “likely” or “actual” violations promotes significant over-reporting and allows another Agency, DOJ, to decide the appropriate action in the first instance.” [my emphasis]

Nice try.

But there’s a significant problem with that. In response to Ron Wyden’s question about whether CIA is subject to the Computer Fraud and Abuse Act — a polite way of suggesting CIA hacked the Committee server — John Brennan told Wyden,

The statute does apply. The Act, however, expressly “does not prohibit any lawfully authorized investigative, protective, or intelligence activity … of an intelligence agency of the United States.” 18 U.S.C. § 1030(f).

In other words, Brennan implicitly asserts the CIA snooping on SSCI was legal because CIA was engaged in lawfully authorized “investigative, protective, or intelligence activity.”

Side note: what are the chances that Brennan, who likes to remind that he’s not a lawyer when he gets legally dangerous questions, consulted with CIA’s Acting General Counsel Robert Eatinger in crafting this response to Wyden?

But let’s look at when and how Brennan chose to engage in what he claims is either “investigative, protective, or intelligence activity” and when and how Eatinger found SSCI’s oversight of CIA reached the “low bar” that merited referral.

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Aspiring Senate Intelligence Chair Richard Burr Goes After Mark Udall

Yesterday, I predicted the CIA and its Republican apologists would try to use the torture crisis to knock off a few Democrats in an attempt to retake the Senate. If that happened, Richard Burr, who would become Senate Intelligence Chair, would surely kill the Torture Report as one of his first acts.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

It sure didn’t take long to be proven right.

Republicans say that not only has the committee’s chairwoman, Sen. Dianne Feinstein (D-Calif.), provided selective information to the public about improper CIA conduct, but they are also now pointing the finger at Sen. Mark Udall (D-Colo.).

The Colorado Democrat, Republicans say, shouldn’t have disclosed internal Senate proceedings over the CIA investigation — something that some Republicans privately say should warrant an ethics committee review.

[snip]

“I think Mark did make some public releases that were committee-sensitive information, but that’s for the committee internally to handle,” said Sen. Richard Burr (R-N.C.), a member of the committee. “That’s being reviewed right now.”

Udall said “No way” when asked Wednesday if he was involved in the leaking of sensitive information, saying he’s “done absolutely nothing wrong here.”

“If some of my colleagues on the Intelligence Committee really want to press the case that in referring to an executive branch abuse in my March 4 letter – what I called an ‘unprecedented action’ that the CIA had taken in relation to the internal CIA review – I have somehow violated Committee rules, I am more than happy to have that debate,” Udall said.

Udall added: “In fact, the only thing I’ve done is exercise vigorous oversight over senior intelligence officials who are all too often unwilling to cooperate with Congress.”

[snip]

Several Intelligence Committee Republicans also asserted that ethics charges should be filed against Udall for his public statements about the CIA’s interrogation program and about the agency’s reaction to the panel’s investigation into that program, including the March 4 letter.

But others on the panel, said the matter should be handled internally by the Intelligence Committee — not by the Ethics Committee.

Burr added: “If you look historically, the committee has cleaned up any mistakes that members have made. Members can do whatever they want to. My concern is that the release of information could potentially causes the losses of life to Americans. That to me, is a threshold that should be addressed.”

As I noted on Twitter, Burr is the distant relation of noted assassin Aaron Burr (which he joked about once when Treasury Secretary Jack Lew testified). He sure seems to take to the assassination role well. He’s now suggesting Mark Udall might potentially cause the loss of American life because he revealed that in 2009 the CIA agreed with what Senate Democrats (and John McCain) would ultimately conclude, that the CIA’s torture program was ineffective and they lied about it.

Right. Knowing the truth about CIA’s torture will kill us all.

In any case, this is all proceeding, very quickly, as I predicted. The Republicans will try to make this an election issue, helped in the background by CIA’s torturers, with the understanding that they will not only kill the Torture Report if Republicans take the Senate, but give CIA free rein.

But honest, the Intelligence Community has adequate oversight.

Robert Eatinger and CIA’s Counterterrorism Center Lawyers’ Lies about Torture: A Timeline

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.

Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.

What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.

I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.

Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.

If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.

Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.

Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues  to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).

But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.

Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.

Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)

Then FP turns to DOJ’s potential role in this dispute.

The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.

Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.

There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.

Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.

Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.

I meant that very, very literally.

Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.

Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.

I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.

Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.

I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.

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Emptywheel Twitterverse
JimWhiteGNV Oh my! I think the militants in the tribal areas just got called cockroaches by Pakistan Today: http://t.co/SPyFiWTnrR
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JimWhiteGNV RT @declanwalsh: 'In Pakistan, they used to censor journalists – now they shoot us' - @mohammedhanif on Hamid Mir and the ISI: http://t.co
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bmaz @runtodaylight Doubt it will go criminal, too many complications.But I do have a client who is a Dr. there from a previous matter.
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bmaz @FalguniSheth @adamsteinbaugh @emptywheel No calves. I have my cows all grazing on Uncle Sam's land up in Nevada. Beer smooth.
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bmaz @adamsteinbaugh @emptywheel @FalguniSheth Never had Founder's beer before. Pale ale is killer.
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bmaz .@emptywheel @FalguniSheth My Founder's beer from our patio bar seat tonight: http://t.co/T9gB3HT7iB
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bmaz @steve_vladeck @ACLU_NCA Yeah, and neither will the FISC and other courts apparently.
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bmaz In the not even close to news dept, breaking or otherwise, The Blue Angels are a bunch of rowdy fighter jocks http://t.co/17tfetOJAh
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bmaz @gideonstrumpet @nancyleong @ntswanson Is that a hospital in CT is it?
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bmaz RT @erinscafe: If you come to the premiere of Follow Friday the Film Friday at 5:45 pm, you can meet @LynsieLee, my fav stripper. http://t.…
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bmaz @yvonnewingett @barrettmarson @JimSmall Hey, I think I made that point already!
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bmaz I'd love to convict this Blackwater fuckstic; but the Stated Dept tanked the case w/Garrity statements at the get go http://t.co/d1zH3nNR2k
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