Dick Cheney | emptywheel

Benghazi Talking Points: Petraeus’ Revenge

By: emptywheel Saturday May 11, 2013 11:12 am

It has taken three days for the bleating press corps in DC to wade through the roll-out of Benghazi talking point emails and realize that the tension behind the emails — as has been clear from just days after the attack — is that Benghazi was really a CIA, not a State, Mission, and therefore CIA bears responsibility for many of the security lapses. So State, in making changes to the emails, was making sure it didn’t get all the blame for CIA’s failures.

David Corn describes it this way.

The revisions—which deleted several lines noting that the CIA months before the attack had produced intelligence reports on the threat of Al Qaeda-linked extremists in Benghazi—appear to have been driven by State Department spokesperson Victoria Nuland, who, it should be noted, is a career Foggy Bottomer who has served Republican and Democratic administrations [ed: including Dick Cheney], not a political appointee. Her motive seems obvious: fend off a CIA CYA move that could make the State Department look lousy.

Yet it’s only now, several days into this frenzy, that some reporters are coming to report this.

And they’re still not noting ways in which the CIA’s initial emails were self-serving. For example, when the CIA said,

Since April, there have been at least five other attacks against foreign interests in Benghazi by unidentified assailants, including the June attack against the British Ambassador’s convoy. We cannot rule out the individuals has [sic] previously surveilled the U.S. facilities, also contributing to the efficacy of the attacks.

They might have also said, “since February, people tied to CIA’s mission have twice been harassed by militia members, suggesting our OpSec was so bad they knew we were in Benghazi.”

And when CIA’s talking points said,

The crowd almost certainly was a mix of individuals from across many sectors of Libyan society. That being said, we do know that extremists with ties to al-Qa’ida participated in the attack.

They might also have said that the “trusted” militia, February 17 Brigade, trained by David Petraeus’ CIA, whose career legacy is based on false claims of successfully training locals, appears to have allowed the attack to happen (and, critically, delayed CIA guards from heading to the State mission to help).

Note that Congressman Frank Wolf is just now showing some interest in why CIA’s vetting of the militia central to the mission’s defense was so bad. Maybe if CIA had included that detail in their self-serving initial talking points, Congress would have turned to this issue more quickly, particularly since we’re currently training more potentially suspect militias in Syria.

In other words, the story CIA — which had fucked up in big ways — wanted to tell was that it had warned State and State had done nothing in response (which, perhaps unsurprisingly, is precisely the story Darrell Issa and Jason Chaffetz are trying to tell). The truthful story would have been (in part) that CIA had botched the militia scene in Benghazi, and that had gotten the Ambassador killed.

Yet that appears to be just the half of the self-serving function this email release has had for CIA.

Consider how this rolled out. Continue reading →

Which Came First, Unilateral Strikes or Signature Strikes?

By: emptywheel Tuesday April 9, 2013 4:53 pm

I realized something as I was writing this post on Mark Mazzetti’s latest installment from his book. Signature strikes — those strikes targeted at patterns rather than identified terrorists — purportedly preceded our unilateral use of drone strikes in Pakistan.

At least that’s what appears to be the case, comparing this article, which dates General Ashfaq Parvez Kayani’s approval of signature strikes to a January 9, 2008 meeting with DNI Mike McConnell and Michael Hayden.

The change, described by senior American and Pakistani officials who would not speak for attribution because of the classified nature of the program, allows American military commanders greater leeway to choose from what one official who took part in the debate called “a Chinese menu” of strike options.

Instead of having to confirm the identity of a suspected militant leader before attacking, this shift allowed American operators to strike convoys of vehicles that bear the characteristics of Qaeda or Taliban leaders on the run, for instance, so long as the risk of civilian casualties is judged to be low.

[snip]

The new agreements with Pakistan came after a trip to the country on Jan. 9 by Mike McConnell, the director of national intelligence, and Gen. Michael V. Hayden, the C.I.A. director. The American officials met with Mr. Musharraf as well as with the new army chief, Gen. Ashfaq Parvez Kayani, and offered a range of increased covert operations aimed at thwarting intensifying efforts by Al Qaeda and the Taliban to destabilize the Pakistani government. [my emphasis]

With Mazzetti’s latest, which dates unilateral strikes to a July 2008 meeting with Kayani (note, Mazzetti doesn’t say whether Hayden and Stephen Kappes, or someone else, “informed” Kayani).

While the spy agencies had had a fraught relationship since the beginning of the Afghan war, the first major breach came in July 2008, when C.I.A. officers in Islamabad paid a visit to Gen. Ashfaq Parvez Kayani, the Pakistani Army chief, to tell him that President Bush had signed off on a set of secret orders authorizing a new strategy in the drone wars. No longer would the C.I.A. give Pakistan advance warning before launching missiles from Predator or Reaper drones in the tribal areas. From that point on, the C.I.A. officers told Kayani, the C.I.A.’s killing campaign in Pakistan would be a unilateral war.

The decision had been made in Washington after months of wrenching debate about the growth of militancy in Pakistan’s tribal areas; a highly classified C.I.A. internal memo, dated May 1, 2007, concluded that Al Qaeda was at its most dangerous since 2001 because of the base of operations that militants had established in the tribal areas. That assessment became the cornerstone of a yearlong discussion about the Pakistan problem. Some experts in the State Department warned that expanding the C.I.A. war in Pakistan would further stoke anti-American anger on the streets and could push the country into chaos. But officials inside the C.I.A.’s Counterterrorism Center argued for escalating the drone campaign without the I.S.I.’s blessing. Since the first C.I.A. drone strike in Pakistan in 2004, only a small number of militants on the C.I.A.’s list of “high-value targets” had been killed by drone strikes, and other potential strikes were scuttled at the last minute because of delays in getting Pakistani approval, or because the targets seemed to have been tipped off and had fled.

So, in July 2008, when the C.I.A.’s director, Michael Hayden, and his deputy, Stephen Kappes, came to the White House to present the agency’s plan to wage a unilateral war in the mountains of Pakistan, it wasn’t a hard sell to a frustrated president. [my emphasis]

Now, Mazzetti dates the urgency to use unilateral strikes to a May 1, 2007 report that said al Qaeda was reconstituting in the tribal lands. The report was likely an early draft of or precursor to the July 17, 2007 NIE on “The Terrorist Threat to the Homeland.”

Let’s take a step back and contextualize that.

Continue reading →

Dick Cheney’s Biggest Strategic Failure

By: emptywheel Tuesday March 19, 2013 1:06 pm

Dick Cheney’s biggest failures are surely moral. The hundreds of thousands of Iraqis killed, senselessly. The thousands of Americans killed, senselessly. The hundreds of thousands, perhaps over a million, on both sides, maimed and poisoned and scarred both physically and mentally.

Senselessly.

See Juan Cole and Tomas Young (who will shortly die from wounds suffered in the Iraq War) for an accounting of that cost.

But there has been far too little accounting of the cost of Dick Cheney’s strategic choices.

Dick Cheney spent the first several months of the Bush Administration assessing where the US would get its energy in future years and how that would sustain our hegemonic role in the world. In his autobiographical novel, published in 2011, he had this to say about his Energy Task Force.

The report is one I am very proud of. I commend it to anyone looking to understand America’s energy challenges still today.

[snip]

The environmental groups that criticized the report are all too often, in my experience, opposed to any increase in the production of conventional sources of energy. They don’t want to drill anyplace. They don’t want to mine coal anyplace. They seem to believe we can depend on alternative sources of energy, such as solar or wind. It’s my view — and it’s the view reflected in the report — that while we should develop alternative sources, in the final analysis, we can’t effectively address our energy problems in the near term nor can we remain competitive in the global economy unless we also produce more energy from conventional, domestic sources.

Right now, none of the alternative sources of energy can compete economically with petroleum and coal and other conventional sources. It’s also the case that time and time again, we have found that developing alternative sources has undesirable, unanticipated consequences. The push for ethanol fuel produced from corn, for example, resulted in driving the price of a bushel of corn up significantly. This had a huge impact on people who used corn for purposes other than fuel — purposes that weren’t subsidized. Cattleman, for example, were suddenly faced with significantly higher feed prices. [my emphasis]

While Cheney’s report did have a chapter on “Nature’s Power,” (which is not, interestingly, one of the two he accused critics of having not read), just one paragraph on any alternative source of power but hydropower shows up on the chapter on “Energy for a New Century.”

Hydropower is, to date, the most successful form of renewable energy. However, some forms of renewable energy generation—wind, geothermal, and biomass— have the potential to make more significant contributions in coming years, and the cost of most forms of renewable energy has declined sharply in recent years. The most important barrier to increased renewable energy production remains economic; nonhydropower renewable energy generation costs are greater than other traditional energy sources. The following chapter discusses renewable and alternative energy in greater detail

Never mind that Cheney’s understanding of the competitiveness of alternatives by 2011, particularly with coal, which the report boosted aggressively, was badly mistaken.

He argued in 2011 — 10 years after 9/11 and 7 years after the Iraq War had descended into a clusterfuck — that alternative energy has some nasty unintended consequences (he might have a point if he talked about how Ethanol contributed to increase food insecurity for actual human beings, which contributes to political instability, but apparently he sees feeding Americans cheap grain fed beef to be a higher priority).

And of course, the nasty unintended consequence that is climate change did not show up in this discussion in the least.

On May 16, 2001, Dick Cheney released a report declaring (based partly on a shortage in CA artificially caused by Enron) an energy crisis, and proposing recommendations to bring more fossil fuels online quickly, as well as nuclear power.

America in the year 2001 faces the most serious energy shortage since the oil embargoes of the 1970s.

[snip]

This imbalance, if allowed to continue, will inevitably undermine our economy, our standard of living, and our national security.

[snip]

Present trends are not encouraging, but they are not immutable. They are among today’s most urgent challenges, and well within our power to overcome. Our country has met many great tests. Some have imposed extreme hardship and sacrifice. Others have demanded only resolve, ingenuity, and clar ity of purpose. Such is the case with energy today.

We submit these recommendations with optimism. We believe that the tasks ahead, while great, are achievable. The energy crisis is a call to put to good use the resources around us, and the talents within us. It summons the best of America, and offers the best of rewards – in new jobs, a healthier environment, a stronger economy, and a brighter future for our people.

Four months later, 19 Arabs, 15 of whom were Saudis, destroyed the World Trade Center and damaged the Pentagon. All of them were motivated, in part, by America’s increasing presence in the Middle East.

Continue reading →

CIA Continues to Cover Up Dick Cheney’s War-Mongering

By: emptywheel Sunday March 17, 2013 1:06 pm

10 years ago today, George Bush gave his final warning to Saddam Hussein to leave Iraq or face war. While the first half of Bush’s speech cited Saddam’s purported refusal to give up his WMD program, the second half of the speech was littered with insinuations about Saddam’s terrorist allies.

If Saddam Hussein attempts to cling to power, he will remain a deadly foe until the end. In desperation, he and terrorists groups might try to conduct terrorist operations against the American people and our friends. These attacks are not inevitable. They are, however, possible. And this very fact underscores the reason we cannot live under the threat of blackmail. The terrorist threat to America and the world will be diminished the moment that Saddam Hussein is disarmed.

[snip]

We are now acting because the risks of inaction would be far greater. In one year, or five years, the power of Iraq to inflict harm on all free nations would be multiplied many times over. With these capabilities, Saddam Hussein and his terrorist allies could choose the moment of deadly conflict when they are strongest. We choose to meet that threat now, where it arises, before it can appear suddenly in our skies and cities.

[snip]

Terrorists and terror states do not reveal these threats with fair notice, in formal declarations — and responding to such enemies only after they have struck first is not self-defense, it is suicide. The security of the world requires disarming Saddam Hussein now. [my emphasis]

We know that Dick Cheney tried, in the days leading up to this speech and an earlier March 14 one, to boost these vague allegations in part by resuscitating the claim that Mohammed Atta met with Iraqi diplomat-spook Ahmad Khalil Ibrahim Samir al-Ani in April 2001. The CIA pushed back hard on the claim. An account of that fight is one of the most significant redactions in the Senate Intelligence Committee’s 2006 assessment of the bullshit lies told to get us into Iraq (see numbered page 96), as explained by Mark Hosenball.

According to two sources familiar with the blacked-out portions of the Senate report that discuss the CIA cable’s contents, the document indicates that White House officials had proposed mentioning the supposed Atta-Prague meeting in a Bush speech scheduled for March 14, 2003. Originated by Czech intelligence shortly after 9/11, the tendentious claim was that in April 2001, Atta, the 9/11 hijack leader, had met in Prague with the local station chief for Iraqi intelligence. The sources said that upon learning of the proposed White House speech, the CIA station in Prague sent back a cable explaining in detail why the agency believed the anecdote was ill-founded. Continue reading →

Ah, But Are You Like George W. Bush?

By: emptywheel Thursday March 14, 2013 1:59 pm

I’ve been in an car dealer service waiting room all morning, so I’m late to the story about Barack Obama telling Jello Jay Rockefeller he’s not as bad as Dick Cheney.

Sen. Jay Rockefeller (D-W.Va.) confronted the president over the administration’s refusal for two years to show congressional intelligence committees Justice Department Office of Legal Counsel memos justifying the use of lethal force against American terror suspects abroad.

[snip]

In response to Rockefeller’s critique, Obama said he’s not involved in drafting such memos, the senators told POLITICO. He also tried to assure his former colleagues that his administration is more open to oversight than that of President George W. Bush, whom many Democratic senators attacked for secrecy and for expanding executive power in the national security realm.

“This is not Dick Cheney we’re talking about here,” he said, according to Democratic senators who asked not to be named discussing the private meeting.

Aside from the fact that — as I’ve pointed out — Obama is actually worse than the last year of the Bush Administration, when Acting OLC head Steven Bradbury was sharing OLC memos with Congress, I’m struck that Obama seems to forget he is the President, not the Vice President.

The comparison still is inapt. George Bush didn’t write any Executive Orders pretending to be transparent and his classification Executive Order effective empowered Dick Cheney to classify and instadeclassify at will (an authority that John Brennan seemed to use while he was in the White House).

But like Bush, Obama has people working for him who are as allergic to oversight as Dick Cheney. I pointed out yesterday, for example, that Obama’s Director of National Intelligence, James Clapper, thinks he shouldn’t even answer questions in open session and tried to stop publishing the number of people with security clearances.

Under Bush, DOD hid pictures of coffins; under Obama DOD just started hiding numbers of drone strikes.

Cheney went to the mat to hide who he had met with on his Energy Task Force. Obama’s National Security Council went to the mat to hide any mention that the President had authorized the torture program — and they hid it, they explained, because they were still using that very same authorization (though to do thinks like engage in targeted killings).

Obama seems to be hiding behind his own stated good intention (even while he admitted to Democratic Senators he would feel the way they do now if he were still in the Senate) just like Bush hid by his stated good intention that no one would leak the name of a CIA officer. Both, meanwhile, were either ignoring or pretending to ignore the sheer paranoia about secrecy of the men that work for them.

John Yoo and the Obama White Paper and Killing Americans in America and Yemen

By: emptywheel Friday February 22, 2013 9:59 pm

Just for shits and giggles, compare this paragraph:

In the normal domestic law enforcement context, the use of deadly force is considered a “seizure” under the Fourth Amendment. The Supreme Court has examined the constitutionality of the use of deadly force under an objective “reasonableness” standard. See Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985). The question whether a particular use of deadly force is “reasonable” requires an assessment of “the totality of the circumstances” that balances ‘”the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’” Id. at 8-9 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Because “[t]he intrusiveness of a seizure by means of deadly force is unmatched,” id. at 9, the governmental interests in using such force must be powerful. Deadly force, however, may be justified if the danger to the officer’s or an innocent third party’s life or safety is sufficiently great. See Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games (Aug. 19, 1996).

With this one:

The Fourth Amendment “reasonableness” test is situation-dependent. Cf Scott, 550 U.S. at 382 (“Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.”‘). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations differs substantially from what would be reasonable in the situation and circumstances discussed in this white paper. But at least in circumstances where the targeted person is an operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack against the United States, and those conducting the operation would carry out the operation only if capture were infeasible, the use of lethal force would not violate the Fourth Amendment. Under such circumstances, the intrusion on any Fourth Amendment interests would be outweighed by the “importance of the governmental interests [that] justify the intrusion,” Garner, 471 U.S. at 8-the interests in protecting the lives of Americans.

The first paragraph comes from this October 23, 2001 Office of Legal Counsel Memo authored by John Yoo. The second comes from the Obama Administration’s November 8, 2011 White Paper on targeted killing.

The Yoo paragraph was a bit of an odd diversion in a memo otherwise laying the groundwork to allow DOD to conduct searches in the US; as far as I know, it was primarily used to enable the National Security Agency (which, after all, is part of DOD) to conduct warrantless searches of US person communications collected within the US. But along the way, Yoo threw in deadly force — within the US — because he had already suspended the Fourth Amendment in the memo and so why not?

The White Paper paragraph would be a relatively uncontroversial paragraph among other more controversial ones authorizing the President to kill an American with no due process. Except that it collapses the distinction between laws that apply to the military and laws that apply to the CIA.

And then, perhaps unsurprisingly, the Fourth Amendment discussion in paragraph 21 (the first in section IIB) only applies to those targeting the US, not members of an AUMF enemy per se.

Similarly, assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United States would result in a “seizure” under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posited here.

But wait! The passage goes on to cite two domestic law enforcement cases, Tennessee v. Garner and Scott v. Harris. That’s a problem, because Article II authorities are going to be a covert operation, and therefore the CIA, which is prohibited from serving as a law enforcement agency.

Nevertheless, these respective paragraphs — insofar as they apply domestic law enforcement precedents to purported real threats — are somewhat reasonable expansions of the authority, confirmed in Tennessee v. Garner, to kill an American in hot pursuit, within the context of more controversial memos.

There are two reasons to look further than that, however.

The Posse Comitatus Question

First, there’s Yoo’s analysis, which was treated as law for 7 years, that in the War on Terror, the Posse Comitatus Act did not apply.

Both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function.

[snip]

Because using military force to combat terrorist attacks would be for the purpose of protecting the nation’s security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.

Armando Llorens and Adam Serwer have debated — specifically in the context of whether the President could kill Americans within the US – whether PCA applies in this war. And while they’re staging an interesting argument (I think both are engaging the AUMF fallacy and therefore not discussing how a President would most likely kill Americans in the US), what the Yoo memo shows, at the least, is that the folks running the Executive Branch believed, for 7 years, the PCA did not apply.

To be clear, this memo was withdrawn in October 2008 (though not without some pressure from Congress). While the PCA aspect of the opinion is one of the less controversial aspects in the memo, as far as we know it has not been replaced by similar language in another memo. So while this shows that PCA was, for all intents and purposes, suspended for 7 years (as witnessed by NSA’s wiretapping of Americans), it doesn’t mean PCA remains suspended.

Update: Read this post. Bradbury didn’t withdraw the memo. He urged people to use caution before relying on Yoo’s earlier memo. And while he specifically takes apart Yoo’s language on PCA, he leaves intact the military purpose doctrine, including for the use of military force.

The Lackawanna Six and the First Dead American

The earlier Yoo memo is also interesting to review in light of the debate the Bush Administration had in 2002 about whether they ought to use it to declare the Lackawanna Six enemy combatants.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

Dick Cheney espoused doing so because, DOJ worried, the government didn’t have a strong enough case against the Six.

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Call me crazy, but there’s reason to believe DOJ believed any case against Anwar al-Awlaki had similar weaknesses.

The Lackawanna Six, under pressure of being named enemy combatants, all plead guilty to material support; all have or are reaching the end of their sentence.

Which is where this comes full circle.

Because just months after Dick Cheney contemplated sending the military to capture 5 guys outside of Buffalo (the sixth was in Bahrain getting married), the US killed the first American in a drone strike in Yemen, Kamal Derwish, purportedly the recruiter for the Six.

The same impetus that first contemplated using military force in the US ended in the first drone death of an American. And now, in discussion of the memo authorizing the death of another American (or three) in Yemen, we’re back to discussing whether the President can authorize targeted killings within the US.

I’m not saying the white paper is as outrageous as the Yoo memo. In some ways it is more defensible. In others–specifically in its application to the CIA–it is more of a stretch.

But, as this relatively reasonable paragraph from less reasonable memos makes clear, we really haven’t moved that far beyond where Dick Cheney was in 2002.

Did Zero Dark Thirty Accidentally Tell the Most Dangerous Truth?

By: emptywheel Thursday January 31, 2013 9:26 pm

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, three, four), 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.

Praising by Damned Faintness: The NSAs, SoSs, and SoDs Who Didn’t Endorse Chuck Hagel

By: emptywheel Thursday January 24, 2013 9:15 pm

Ever since this letter, in which a bunch of former Directors of Central Intelligence–but not Poppy Bush–came out against torture investigations, I’ve been more interested in who doesn’t sign these endorsement letters than who does.

For example, did you notice that Harold Koh did not vouch for John Brennan’s respect for the rule of law the other day, even though his counterpart at DOD, Jeh Johnson, did?

The same is true of this letter–signed by a bunch of former National Security Advisors and Secretaries of Defense and State in support of Chuck Hagel’s nomination to be Defense Secretary.

Here’s who did endorse:

Hon. Madeleine Albright, former Secretary of State

Hon. Samuel Berger, former National Security Advisor

Hon. Harold Brown, former Secretary of Defense

Hon. Zbigniew Brzezinski, former National Security Advisor

Hon. William Cohen, former Secretary of Defense

Hon. Robert Gates, former Secretary of Defense

Hon. James Jones, former National Security Advisor

Hon. Melvin Laird, former Secretary of Defense

Hon. Robert McFarlane, former National Security Advisor

Hon. William Perry, former Secretary of Defense

Hon. Colin Powell, former Secretary of State and National Security Advisor

Hon. George Shultz, former Secretary of State

Hon. Brent Scowcroft, former National Security Advisor

Which leaves–in addition to currently serving Tom Donilon, Leon Panetta, and Hillary Clinton–these non-endorsers:

Stephen Hadley

Condi Rice (both NSA and State)

Anthony Lake (Lake directs UNICEF right now, which may preclude such endorsements)

~~Frank Carlucci (both NSA and Defense Secretary)~~ [Update: Thanks to Justin Raimundo for correcting me--while Carlucci did not sign this letter, he did sign a LTE in support of Hagel]

John Poindexter

William Clark (NSA for Reagan)

Richard Allen (NSA for Reagan)

Henry Kissinger (both NSA and State)

Donald Rumsfeld

Dick Cheney

James Schlesinger

James Baker III

Jeebus, White House, get on your game! You want people to vote for Hagel? Release the list of all the corporatist warmongers who didn’t endorse Chuck Hagel. Hagel may not be my first choice, but there is no clearer praise than the list of non-endorsers Hagel has racked up.

Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused

By: emptywheel Saturday December 29, 2012 1:34 pm

Sadly, whoever liberated the White House talking points on the FISA Amendments Act extension didn’t get them to TechDirt until after most of the so-called debate was over.

Particularly given this explanation for why the White House opposed Pat Leahy’s efforts to shorten the extension to three years, which would have made the next extension coincide with the PATRIOT Act extension that will be debated in the year before a Presidential election.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

TechDirt suggested the White House thinks Congress is stupid.

Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

But I think this talking point is far more telling. Because, in fact, there is a great deal of circumstantial evidence that FAA and one of the three things that will be up for extension in 2015–Section 215–are not at all distinct.

Section 215, remember, is the “Business Records” provision that allows the government to get any tangible thing that is relevant to a national security investigation. We know Section 215 has been used to collect records of acetone and hydrogen peroxide purchases, and there’s abundant reason to believe the government has used Section 215 to get cell geolocation data.

Moreover, Ron Wyden and Mark Udall have pointed to Section 215 as part of the “secret law” they’ve been complaining about, even while they also point to FISA Court opinions tied to that “secret law.”

Historically, too, there seems to be a chronological tie. In the weeks after the May 11, 2004 hospital confrontation, Cheney had a secret meeting with just Robert Mueller; FBI started bypassing DOJ’s Office of Intelligence Policy Review to get Section 215 orders; and FBI obtained its first ever Section 215 order. Then, in the months after the revelation of the illegal program in 2005 (and during that year’s debate on PATRIOT renewal), the government used Section 215 to get subscriber information on trap and trace orders.

In other words, it seems possible that in response to Jim Comey and Jack Goldsmith’s efforts to stop the data mining of US person call records collected without any legal basis, the government started collecting call records under FBI orders to accomplish the same result and they repeatedly turned to Section 215 to provide legal cover for the illegal collection they refused to stop.

In fact, (I’m trying to track this down) Jeff Merkley made a speech on Thursday that invoked the Section 215 relevance standard at one point, not the FAA foreign standard. So Merkley, at least, does seem to think there’s a tie between Section 215 and FAA.

It seems, then, that the White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under FAA, and part of it under Section 215.

Continue reading →

Petraeus: Sex Under the Desk with Broadwell Less Dangerous than Intercourse with the Kagans

By: emptywheel Wednesday December 19, 2012 7:29 am

Rajiv Chandrasekaran has a fascinating story about how the NeoCons–in the form of Fred and Kim Kagan–kept control of the strings on our Generals in (Chandrasekaran’s story is limited to) Afghanistan. The Kagans effectively moved to Afghanistan and served as private, high level advisors for Petraeus, all funded by the defense contractors funding AEI and Institute for the Study of War.

The four-star general made the Kagans de facto senior advisers, a status that afforded them numerous private meetings in his office, priority travel across the war zone and the ability to read highly secretive transcripts of intercepted Taliban communications, according to current and former senior U.S. military and civilian officials who served in the headquarters at the time.

The Kagans used those privileges to advocate substantive changes in the U.S. war plan, including a harder-edged approach than some U.S. officers advocated in combating the Haqqani network, a Taliban faction in eastern Afghanistan, the officials said.

The pro-bono relationship, which is now being scrutinized by military lawyers, yielded valuable benefits for the general and the couple. The Kagans’ proximity to Petraeus, the country’s most-famous living general, provided an incentive for defense contractors to contribute to Kim Kagan’s think tank. For Petraeus, embracing two respected national security analysts in GOP circles helped to shore up support for the war among Republican leaders on Capitol Hill. [my emphasis]

Perhaps more frightening than that is the way the Kagans threatened Stanley McChrystal to be allowed to check his work in Afghanistan.

The Kagans should have been thrilled, but they soon grew concerned. They thought McChrystal’s headquarters was not providing enough information to them about the state of the war. The military began to slow-roll their requests to visit Afghanistan. In early 2010, they wrote an e-mail to McChrystal, copying Petraeus, that said they “were coming to the conclusion that the campaign was off track and that it was not going to be successful,” Fred Kagan said.

To some senior staff members in McChrystal’s headquarters, the e-mail read like a threat: Invite us to visit or we will publish a piece saying the war is lost.

Worried about the consequences of losing the Kagans, McChrystal authorized the trip, according to the staff members.

The story notes that John Allen has afforded them access as well.

So effectively, Neocons who have repeatedly led the cry to escalate our wars have been given personal access to the war, paid for by the people profiting off these escalations.

As fascinating as the story is, it doesn’t yet tell the full narrative of what the Kagans were doing.

For example, why is Chandrasekaran just reporting it now? Has David Petraeus’ star fallen sufficiently for sources to start revealing what was apparent to all of us watching, he was a NeoCon puppet? Or is it surfacing because of the review by military lawyers, bolded above?

Or is it coming to light now because of the close scrutiny Petraeus’ communications and actions received after he was caught diddling his biographer? Chandrasekaran’s sources claim the people running the war didn’t know Neocon advisors were camped out with SCI clearances reading Taliban intercepts (hey! didn’t we try to make peace with the Taliban?!?!).

The extent of the couple’s involvement in Petraeus’s headquarters was not known to senior White House and Pentagon officials involved in war policy, two of those officials said.

So if they just discovered it after the Paula Broadwell affair, it would make sense that it is now leaking.

Then there’s a temporal feint Petraeus’ allies are trying to pull off. A former aide suggests Petraeus brought the Kagans in simply because he had less knowledge of Afghanistan than he had in Iraq.

“Petraeus relied on the Kagans for a fresh set of eyes . . . because he didn’t have the same nuanced understanding of Afghanistan that he had of Iraq,” a former aide to Petraeus said.

That is, Petraeus wants to suggest this arrangement existed only in Afghanistan (not insignificantly, the period of time when Petraeus’ communications would be under review because of the Broadwell scandal).

But Chandrasekaran makes it clear it goes back further. Petraeus started providing Neocons access back in Iraq, and he did so, in part, because they served as publicists for the publicity hound General.

The Defense Department permits independent analysts to observe combat operations, but the practice became far more common when Petraeus became the top commander in Iraq. He has said that conversations with outside specialists helped to shape his strategic thinking.

The take-home benefit was equally significant: When the opinion makers returned home, they inevitably wrote op-eds, gave speeches and testified before Congress, generally imparting a favorable message about progress under Petraeus, all of which helped him sell the war effort and expand his popularity. [my emphasis]

These think tankers, funded by defense contractors, were selling Petraeus right along with their escalating wars.

Besides, we know Fred Kagan, at least, was getting this kind of access during Iraq and using it to sell the escalation. As I noted in 2008, the back channel between Dick Cheney–who after being instructed by the Saudis, was pushing the surge–and Petraeus through Jack Keane is the untold story of the official narrative of Iraq.

And then there’s the curious near-total absence of Dick Cheney from the first three-fifths of the book, the part describing the debates over a new strategy in Iraq, even while Woodward admits Cheney continued to “offer[] his views directly to the president.” Cheney’s absence is particularly problematic given the reports that Saudi Arabia’s King Abdullah “summoned Cheney” to Riyadh to express displeasure (andissue threats) about the Iraq Survey Group’s proposals just before the time when–Woodward reports–Bush made up his mind to support a troop escalation.

According to Hadley, that moment [when Bush decided in favor of a surge] had come when the president called him in mid-December 2006 and said, “I’m getting comfortable with my decision, but I don’t want to give a speech yet.”

Particularly given Woodward’s portrayal of the way Cheney later fiercely guards his back channel access through Jack Keane to David Petraeus–breaking the chain of command to protect the surge from all regional considerations–the description of Cheney as distanced from the decision to support the surge seems odd.

Woodward made it clear, though, that AEI (that is, Kagan) was getting classified information to build his theory of the surge.

So this puppet mastery is in no way new to Afghanistan. It’s just that the Afghan story is coming out, without yet being connected to the escalation that still remains the fictional success story orchestrated by the heroic General Petraeus and his merry band of think tanker-publicists.

And aside from my point above–that their access to Taliban intercepts means the Kagans would have had a view on any peace negotiations–there’s Chandrasekaran subtle suggestion that the Kagans dictated the surge in Afghanistan, too, advocating for the targeting of the Haqqani network at a time when President Obama was trying to reel in the war.

Their immersion occurred at an opportune time. Petraeus was fond of speaking about the importance of using troops to protect Afghan communities from insurgents, but he recognized that summer that the Obama White House wanted to narrow the scope of the war. As a consequence, the general decided to emphasize attacking insurgent strongholds — and so did the Kagans.

[snip]

The Kagans believed U.S. commanders needed to shift their focus from protecting key towns and cities to striking Haqqani encampments and smuggling routes, according to several current and former military and civilian officials familiar the issue.

In the late summer of 2010, they shared their views with field officers during a trip to the east. “They implied to brigade commanders that Petraeus would prefer them to devote their resources to killing Haqqanis,” said Doug Ollivant, a former senior adviser to the two-star general in charge of eastern Afghanistan.

But Petraeus had not yet issued new directives to his three-star subordinate or the two-star in the east.

The suggestion is the Kagans drove the new focus on the Haqqanis–indeed, were even issuing orders to officers before Petraeus was doing–just at the time Obama was trying to de-escalate the war.

The implications of this story are quite sobering, though Chandrasekaran has just begun to map it all out. Paid representatives of the war industry twice intervened with David Petraeus to get him to extend and expand the war. And in the case of Afghanistan (and I suspect even in the case of Iraq) they did so by bypassing the entire chain of command.