I’m beginning to agree with Rayne’s comment of the other day that the only explanation for the length of the WaPo series on contractors is to please the Pulitzer committee. The other most (perhaps more) likely explanation for the style of the piece is that editors have tried so hard not to piss off the security establishment–and to stop short of voicing the conclusions that Dana Priest and William Arkin’s work support–that they’ve turned Priest and Arkin’s work into a bunch of disembodied fluff.
Take a look at the logic of this passage–which points out the drawbacks of using contractors–to see what I mean:
Since 9/11, contractors have made extraordinary contributions – and extraordinary blunders – that have changed history and clouded the public’s view of the distinction between the actions of officers sworn on behalf of the United States and corporate employees with little more than a security badge and a gun.
Contractor misdeeds in Iraq and Afghanistan have hurt U.S. credibility in those countries as well as in the Middle East. Abuse of prisoners at Abu Ghraib, some of it done by contractors, helped ignite a call for vengeance against the United States that continues today. Security guards working for Blackwater added fuel to the five-year violent chaos in Iraq and became the symbol of an America run amok.
Contractors in war zones, especially those who can fire weapons, blur “the line between the legitimate and illegitimate use of force, which is just what our enemies want,” Allison Stanger, a professor of international politics and economics at Middlebury College and the author of “One Nation Under Contract,” told the independent Commission on Wartime Contracting at a hearing in June.
Misconduct happens, too. A defense contractor formerly called MZM paid bribes for CIA contracts, sending Randy “Duke” Cunningham, who was a California congressman on the intelligence committee, to prison. Guards employed in Afghanistan by ArmorGroup North America, a private security company, were caught on camera in a lewd-partying scandal.
It starts with a classic “on the one side, on the other” piece of cowpie: a sentence that even linguistically refuses to take sides. Contractors, you see, are extraordinary in all ways!!!
Then watch the shift into an almost agent-less soft-pedaling of the problems contractors have caused. Abuse of prisoners happened. But apparently, only at Abu Ghraib, not at Bagram, not at Gitmo, not at firebases where detainees died. And the names of those contractors? Their role in the abuse? The WaPo stops short of telling you, for example, that a CACI interrogator was the one instructing the grunts at Abu Ghraib to abuse detainees. The WaPo also doesn’t tell you the CACI contractors never paid any price for doing so. The WaPo doesn’t mention that DOD believed they had no way of holding contractors accountable for such things (though the case of David Passaro, in which a detainee died, of course proved that contractors could be prosecuted).
Then there’s Blackwater. What’d they do? Why they, “added fuel to the five-year violent chaos in Iraq and became the symbol of an America run amok.” No mention of Nisour Square. No mention of the Iraqi Vice President’s murdered security guard. No mention of the contractors killed in Fallujah–who were left exposed by Blackwater. No mention of the illegal gun smuggling. And definitely no mention of the most recent allegations that Blackwater has been involved with assassination squads. Instead, we get Allison Stanger’s quote–alluding to contractors doing the actual killing, but never actually spelling that out for those who don’t read Jeremy Scahill (or, frankly, Erik Prince).
And then, after alluding to the CACI interrogators who avoided the legal consequences the Abu Ghraib guards paid, after alluding to Blackwater’s fueling of chaos but not mentioning its many legal problems, only then does this story say,
Misconduct happens, too.
Which, grammatically and logically, suggests the CACI and Blackwater crimes were not actually misconduct.
And even here there’s some real fudging. According to the WaPo, there was only one contractor involved in the Duke Cunningham story: MZM. (And even there, WaPo makes no mention of MZM’s involvement in CIFA’s spying on American citizens.) No mention of the other contracting scandal exposed in the Duke Cunningham case, wherein the third most senior guy at CIA, Dusty Foggo, went to jail for sending contracts to his childhood buddy Brent Wilkes in exchange for prostitutes and–possibly–a plush job after he left the CIA. That kind of revolving door corruption is one of the real and repeated problems with reliance on contractors. The such a senior person at CIA sold out security for an expensive whore ought to serve as a cornerstone for this morality tale. But according to the WaPo, it didn’t happen.
And that’s how the miracle of modern MSM editing presents the downsides of contractors as largely disembodied chaos rather than security contracts getting doled out for reasons that have nothing to do with security, rather than contractors abusing their quasi-immune status to engage in really counterproductive crimes.
The AP story on the Salt Pit death makes it clear that–at a time when Dusty Foggo was Executive Director of CIA–he was involved in an internal review of the death.
The current U.S. official insisted that the case was adequately scrutinized. The official also said a CIA accountability review board was held in connection with the death.
The CIA declined to discuss whether the two agency officers cited in the inspector general’s report were punished.
But when the case was put before Kyle D. Foggo, the CIA’s third-ranking officer at the time, no formal administrative action was taken against the two men, said two former intelligence officials with knowledge of the case.
This review must have happened some time after fall 2004, when Foggo started in the ExDir position (it seems to have been a follow-on to the CIA IG Report). That means that Foggo’s decision not to act against any of the people in the Salt Pit killing came at around the same time that his girlfriend was hired at CIA’s Office of General Counsel over the objections of staffers within OGC. That’s significant because among the people in the chain of authorization between the Bybee Memo and the torture was then OGC head John Rizzo, who intervened to make sure Foggo’s girlfriend got and stayed hired.
Details of how Foggo got his girlfriend hired appeared in the sentencing documents for his conviction in the Brent Wilkes/Duke Cunningham case (they were included not just to show Foggo’s corruption, but also because, over the course of the case, Foggo had repeatedly claimed to be happily and faithfully married).
As William Mitchell of the CIA Inspector General’s office described, Foggo’s girlfriend, ER, was at first rejected by OGC because she had previously been investigated for having an affair with her boss (elsewhere the sentencing materials include Foggo’s claim that “she didn’t fuck him”), and then destroyed evidence to cover up the affair. But after OGC rejected her application, Foggo harassed the Managing Associate General Counsel of CIA, who then passed on Foggo’s concern to then Acting General Counsel John Rizzo.
The AP has a long article out providing details behind the Salt Pit death of a detainee named Gul Rahman–a former militant associated with Gulbuddin Hekmatyar who was captured on October 29, 2002 at the home of Hekmatyar’s son-in-law, Dr. Ghairat Baheer, along with the Baheer and three others. A week later, Rahman was separated from the others. He was subjected to stress positions and water dousing and–on November 20–left in 36 degree cold, only to die a few hours later.
Aside from finally providing details on a story that has long been known, the story is interesting for the way it shows the how the CIA’s torture system fit with DOJ’s approvals in the Bybee Memos. The Rahman death shows that CIA’s managers (probably in the Counterterrorism Center) were involved in direct guidance on a technique that got someone killed. That technique was specifically not approved in the Bybee Two memo. But when CTC worked to exonerate the guy in the field–the manager of the Salt Pit–they pointed to the intent language of the Bybee One memo, and claimed that anything short of intending severe pain could not qualify as torture. Ultimately, CIA’s managers used the Get Out of Jail Free Card that John Yoo had written them to prevent accountability for themselves when they gave approval for a technique that got someone killed.
Gul Rahman died from water dousing
The AP describes how, in response to Rahman’s resistance to US guards (he threw a latrine bucket), he was subjected to stress positions and dousing.
At one point, the detainee threw a latrine bucket at his guards. He also threatened to kill them. His stubborn responses provoked harsher treatment. His hands were shackled over his head, he was roughed up and doused with water, according to several former CIA officials.
The exact circumstances of Rahman’s death are not clear, but the Afghan was left in the cold cell on the morning of Nov. 20, when the temperature dipped just below 36 degrees. He was naked from the waist down, said two former U.S. officials familiar with the case. Within hours, he was dead.
Though the AP doesn’t say it, the language used here makes it clear CIA thought of this as water dousing–a technique that would not be approved by DOJ for use until August 26, 2004. After Rahman died, the CIA tried to invent the Legal Principles document as a way to authorize murder and other crimes, but Jack Goldsmith would go on to not only refuse to consider that document OLC authorization, but to refuse to approve water dousing specifically in March 2004.
In other words, three years and our third review of this case later, and DOJ still hasn’t decided whether wetting someone down in close to freezing temperatures is a crime, even though this was a torture technique that DOJ had not approved at the time.
The Salt Pit manager relied on the advice of his superiors
Now, the guy who wet down Rahman apparently wasn’t working off a list of approved techniques. Rather, he was asking for guidance from his superiors.
The [Inspector General's] report found that the Salt Pit officer displayed poor judgment in leaving the detainee in the cold. But it also indicated the officer made repeated requests to superiors for guidance that were largely ignored, according to two former U.S. intelligence officials.
That raised concerns about both the responsibility of the station chief and the CIA’s management in Langley. Similar concerns about CIA management were later aired in the inspector general’s review of the CIA’s secret interrogation program.
In fact, John Yoo, appears to blame the people interpreting the Bybee Memos for any untoward results from torture. For example, he refers to a written document (probably cables to the field) that appear to be derivative of the Bybee Memo, suggesting those didn’t properly account for pain that might amount to death.
The Memo says that the pain must rise to the level that “would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.” Bybee Memo at 6. There is no way to interpret this sentence other than that if the pain is equivalent to the pain that accompanies those conditions, the infliction qualifies as torture, whether or not it actually does result in those conditions. It certainly would not be so misinterpreted by the sophisticated legal audience at which the Bybee Memo was directed–especially given the analysis in the Classified Bybee Memo, which carefully examined the level of physical pain caused by the individual interrogation techniques even though none of those techniques cause death, organ failure, or serious impairment of bodily functions. See Classified Bybee Memo at 9-10 (“With respect to physical pain, we previously concluded that ’severe pain’ within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.”)40
40 [long redaction] But, of course neither Professor Yoo nor Judge Bybee have anything to do with writing or reviewing [redacted] and they could reasonably assume their own work product would be read in good faith and consistently with its terms by a sophisticated audience even if a particular reader did not read it carefully or willfully disregarded its terms. [emphasis original]
That is, Yoo seems to blame whoever both read the Bybee Memo and–having interpreted the memo in a “sophisticated” manner–passed on authorization for techniques that did result into death.
There’s a keystone to understanding the story from David Johnston (who frequently regurgitates highly motivated leaks) and Mark Mazzetti (CIA’s guy at NYT) on Dusty Foggo’s role in setting up the black sites run by the CIA: Foggo’s testimony in the torture tape investigation. Early this year, remember, DOJ and CIA told the ACLU that they couldn’t FOIA information pertaining to the disappearing torture tapes because John Durham’s investigation of their destruction was ongoing and would be for perhaps two more months.
And then, just as Dusty Foggo was about to go to jail, John Durham said he needed to interview Foggo. And since then, as far as we know, Durham’s investigation continues, now four months beyond when he thought he’d finish up. As recently as a month or so ago, Durham was flying people back from remote locations to appear before the grand jury. While we can’t be sure, it does seem likely that Foggo’s testimony provided new information that has sustained it.
And, thanks to Johnston and Mazzetti, we now know why Foggo would have something pertinent to say about the torture tapes–because he was the guy who set up the black sites.
In March 2003, two C.I.A. officials surprised Kyle D. Foggo, then the chief of the agency’s main European supply base, with an unusual request. They wanted his help building secret prisons to hold some of the world’s most threatening terrorists.
“It was too sensitive to be handled by headquarters,” he said in an interview. “I was proud to help my nation.”
With that, Mr. Foggo went on to oversee construction of three detention centers, each built to house about a half-dozen detainees, according to former intelligence officials and others briefed on the matter.
Early in the fight against Al Qaeda, agency officials relied heavily on American allies to help detain people suspected of terrorism in makeshift facilities in countries like Thailand. But by the time two C.I.A. officials met with Mr. Foggo in 2003, that arrangement was under threat, according to people briefed on the situation. In Thailand, for example, local officials were said to be growing uneasy about a black site outside Bangkok code-named Cat’s Eye. (The agency would eventually change the code name for the Thai prison, fearing it would appear racially insensitive.) The C.I.A. wanted its own, more permanent detention centers.
The AP caught something rather curious.
Dusty Foggo, heading off to prison for his role in schemes involving Brent Wilkes, has a date to talk with John Durham, who is investigating the torture tape destruction, and because of that date, he’ll get to put off reporting to prison for a week.
Mr. Foggo seeks this brief continuance because he has agreed to be interviewed by Special Prosecutor John H. Durham concerning the destruction of videotaped evidence by the Central Intelligence Agency. The interview is scheduled to be held in Washington, D.C. on April 8, 2009. However, Mr. Foggo is currently scheduled to report to USP McCreary in Pine Knot, Kentucky on April 7, 2009.
Special Prosecutor Durham has consulted with the government and has informed counsel for Mr. Foggo that the prosecution team has no objection to the proposed continuance.
I find this curious for a few reasons.
First, Durham was reportedly almost done with his inquiry, having determined that he could not bring charges. Yet here he is just now interviewing the third-ranking CIA guy during the period the tapes were destroyed.
More interestingly, Foggo would likely badly like to get revenge on some of the people who allowed him to face criminal charges, whether in the Bush Administration or CIA or former CIA witnesses.
A former US intelligence source thought that Brent "nine fingers" Bassett was the Goss staffer who recommended the hire of Foggo as ExDir.
He said that Goss lied in his testimony, that he was not aware about the problems with Foggo when he hired him for executive director. He said that a major fight had broken out between Goss staffer Patrick Murray and then associate deputy director of operations Michael Sulick about the Foggo hiring. "Murray told ADDO/Counterintelligence Mary Margaret that if Dusty’s background got out to the press, they would know who to come looking for. Mary Margaret tried to warn them that Dusty Foggo had a problematic counterintelligence file. Sulick defended Mary Margaret. Goss told [deputy director of operations Steve] Kappes he had to fire Sulick." After that, Kappes and Sulick quit. "Goss bears major responsibility here," the former intelligence official says. It was finally the "White House that demanded that Goss fire Dusty and he refused." Continue reading
Note: see the update below for issues relating to the accuracy of this post as originally posted. I’ve retained what seems to be supported by other data: mostly that the CIA is trying to spin Foggo’s additional charges as proof of the Agency’s own ability to investigate itself, spin that the timing involved seems to belie.
A number of you have pointed out that Dusty Foggo got some charges slapped onto his existing indictment.
A federal grand jury has accused a former top CIA official of pulling strings to get a high-level CIA job for his mistress, as part of a new indictment against the official in an existing corruption case.
The new indictment against Kyle "Dusty" Foggo, a former No. 3 official at the spy agency and a onetime senior CIA ethics officer, alleges that he pressured CIA managers into hiring the woman after she was turned down for a position in the CIA’s general counsel office. He also allegedly made false statements about her qualifications, the indictment states.
Foggo, the CIA’s executive director from 2004 to 2006, specifically told agency officials he had a "special interest" in seeing the woman hired, and he later berated them when they initially rejected her application. "When the ExDir has a special interest, you had better take notice," Foggo told the general counsel’s staff, according to an indictment filed late Tuesday by the U.S. attorney’s office in Alexandria.
[Update: RJ Hillhouse has deleted the post that I linked to substantively here and--at her request, I'm removing the citation of her blogpost. Her note on why she deleted her blogpost is here. The substance of the text--which Hillhouse does not stand by any longer--included some history on earlier events potentially related to these new charges.]
What’s so hilarious about this is that–in Joby Warrick’s article–the CIA is spinning that Foggo’s additional indictments prove how good CIA is at policing itself.
The initial filing of criminal charges against Foggo in 2006 prompted questions about internal security at the CIA, which is supposed to have an elaborate system of checks to limit the risk of malfeasance by agency insiders. But agency officials insisted yesterday that the system works and said that the CIA has played a key role in investigating Foggo.
"It demonstrates a willingness by the CIA to investigate itself," said an official who declined to be identified by name because the charges have not been tried in court.
[text deleted, see above]
But that was, presumably, over two years ago, back before Foggo had to resign from the CIA and back before–over a year ago–Foggo was indicted for bribery.
And it has taken up until now–[text deleted]–to get added to Foggo’s indictment? Continue reading
Tommy K has now joined Duke Cunningham in prison, with Tommy K being sentenced
to more than eight years and more than a million dollar fine. That leaves Dusty Foggo–presently due to be tried for bribery and then some in the fall in Virginia and currently squabbling over discovery with the government. And Brent Wilkes, who is trying to negotiate bail while he prepares to appeal his conviction.
These guys were all indicted for the gaming of our defense and intelligence contracts using bribes. But the housing crisis has added a nice touch of irony to the equation. Brent Wilkes has had trouble making bail because his southern California real estate has declined in value so much it’s no longer enough to back the $2 million he originally posted for bail.
Burns reinstated the $2 million bail, but wanted current appraisals of any real estate Wilkes would put up to secure $1.4 million of that amount.
Wilkes was short about $600,000 at first. The crash in the real estate market had devalued property previously used to secure the bail.
And Judge Larry Burns was none too happy that–after Tommy K signed a plea deal with the government–he continued to engage in massive mortgage fraud.
Burns also took into account that Kontogiannis continued breaking the law after he pleaded guilty.
“Here you are with your rear end on fire over this Cunningham thing, and you’re out there making bad loans?” Burns said. “I think that’s just brazen.”
So two and a half years after this little bribery ring first became public, its perpetrators are beginning to go to jail.
Howie’s got a good post on the secrecy surrounding Tommy K’s sweet plea deal. Like Howie, I hope that we begin to learn why the government almost gave Tommy K a pass on bribing a Congressman because–they claim–he was cooperating on some counter-terrorism investigation. We saw how Chiquita Bananas similarly got a pass on their crimes, courtesy of Michael Chertoff. I just wonder how many of the folks ripping off middle class home owners in the last several years will, like Tommy K almost did, similarly get a pass.
The government has agreed to move the Dusty Foggo trial–the last remaining indictment from the Duke Cunningham scandal–to Eastern District of VA to make it easier for the CIA and its friends to testify in the trial (h/t chrisc). But the really interesting part of the news is the indication that prosecutors have found more potential charges against Foggo at precisely the same time as they announce they’re dropping charges against Brent Wilkes in the same case.
Federal prosecutors agreed Thursday to move the corruption case of former Central Intelligence Agency official Kyle “Dusty” Foggo to Virginia and hinted he will face more charges in the future.
In addition, prosecutors said they will drop charges in that case against Foggo’s lifelong friend and co-defendant, former Poway defense contractor Brent Wilkes.
For the past several months, Foggo’s Washington, D.C.-based lawyers have asked Burns to transfer the case out of California. They said it made sense because 90 percent of the actions alleged in the complaint took place in that area and not in Southern California, and virtually all the witnesses and documents are based there.
While Burns agreed the case should be moved, both prosecutors and Wilkes balked. But on Feb. 1, Wilkes dropped his objections to the move.
The government followed suit Thursday. In a brief court filing they said that “the government has recently uncovered evidence to support additional charges” against Foggo.
Call me crazy, but it sure looks like–faced with the possibility of a 60 year jail sentence–Brent Wilkes all of a sudden remembered some evidence against Foggo that he had previously forgotten.
Duke Cunningham. The gift that keeps on giving.
Update: I’m wrong–it doesn’t look like Wilkes flipped. Perhaps Michael did, but not Wilkes.
What’s happening is a big game over venue. Foggo originally asked for venue in ED VA. The court never finally ruled on that. But then Foggo switched his request, asking that it be moved to DC. Here’s why:
Defendants Kyle Dustin Foggo and Brent Roger Wilkes have jointly moved for transfer of venue in this case to the District of Columbia, on the basis of convenience to the parties pursuant to Fed. R. Crim. P. 21(b). Defendant Wilkes has also moved for transfer pursuant to Fed. R. P. 21(a). Defendant Foggo previously filed a motion to transfer the case to the Eastern District of Virginia (“EDVA”), which was denied without prejudice, and then renewed that motion, Continue reading