Andrew Sullivan is newly convinced — but surprised and confused — that President Obama is permitting John Brennan to hold up the release of the Senate Torture Report.
It is becoming clearer and clearer that one major power-broker in Washington is resisting the release of the Senate Intelligence Committee’s allegedly devastating report on the torture program run by the Bush-Cheney CIA. That major power-broker is the Obama administration.
You might be surprised by this, given the president’s opposition to torture and abolition of it. But the evidence is at this point irrefutable
Brennan answers to the president, who has urged the release of the report.
So why the hold-up? That is the question.
Why is Obama allowing Brennan to undermine Obama’s own position? Why is the president allowing the CIA to prevent the very transparency he once pledged to uphold? I don’t know. But what I do know is that it is now Obama who is the main obstacle to releasing the Senate Report on Torture.
The explanation for Obama’s silence on this report seems pretty obvious if you read both Stephen Preston’s answers to Mark Udall’s questions and Obama’s past actions on torture. In short:
With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.
Indeed, I wonder whether the evidence in the Senate report showing CIA lied to the White House is not, in fact, cover for things some in the White House ordered CIA to do.
This is, I imagine, how Presidential Findings are supposed to work: by implicating both parties in outright crimes, it builds mutual complicity. And Obama’s claimed opposition to torture doesn’t offer him an out, because within days of his inauguration, CIA was killing civilians in Presidentially authorized drone strikes that clearly violate international law.
Again, I think this is the way Presidential Findings are supposed to work: to implicate the President deeply enough to ensure he’ll protect the CIA for the crimes he asks it to commit.
But it’s not the way a democracy is supposed to work.
[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. — Bob Woodward, Bush at War
On September 15, 2001, George Tenet presented Cofer Black’s plan to respond to 9/11 to George Bush. It included rendering suspects to allied torturers including Egypt, partnering with rogue regimes including Bashar al-Assad’s, and ultimately capturing and torturing suspects ourselves.
On September 17, 2001, George Bush implemented that plan by signing a Memorandum of Notification reflecting vague outlines of it.
George Bush’s signature on that document led directly the torture of Ibn Sheikh al-Libi in Omar Suleiman’s hands and Binyam Mohammed’s torture in Pakistani custody, both before DOJ’s Office of Legal Counsel gave its sanction to torture. In addition, it led to Maher Arar’s torture in Assad’s hands outside the terms permissible in our rendition program.
Yet as these details of George Bush’s personal implication in torture became clear, President Obama hid it, both with repeated state secrets invocations and by hiding official confirmation of the existence of that document with Bush’s signature on it. The Administration succeeded in hiding that official confirmation by arguing — just last year! — that it was still relying on that document that also endorsed partnering with Assad. (There’s reason to believe that that document which authorized partnering with Assad also served to authorize some of our drone assassinations, including at least the first attempt against Anwar al-Awlaki.)
Meanwhile, the most independent assessment of the August 21 chemical weapons strike — from Human Rights Watch — still has the same gap as every other case does: while it concludes the CW were launched by Assad’s regime, it provides no evidence that it was launched on his orders.
The evidence examined by Human Rights Watch strongly suggests that the August 21 chemical weapon attacks on Eastern and Western Ghouta were carried out by government forces. Our basis for this finding is:
- The large-scale nature of the attacks, involving at least a dozen surface-to-surface rockets affecting two different neighborhoods in Damascus countryside situated 16 kilometers apart, and surrounded by major Syrian government military positions.
- One of the types of rockets used in the attack, the 330mm rocket system – likely Syrian produced, which appear to be have been used in a number of alleged chemical weapon attacks, has been filmed in at least two instances in the hands of government forces. The second type of rocket, the Soviet-produced 140mm rocket, which can carry Sarin, is listed as a weapon known to be in Syrian government weapon stocks. Both rockets have never been reported to be in the possession of the opposition. Nor is there any footage or other evidence that the armed opposition has the vehicle-mounted launchers needed to fire these rockets.
- The August 21 attacks were a sophisticated military attack, requiring large amounts of nerve agent (each 330mm warhead is estimated to contain between 50 and 60 liters of agent), specialized procedures to load the warheads with the nerve agent, and specialized launchers to launch the rockets
Obviously Assad has not yet publicly named — much less condemned — anyone within his regime for doing this (but then, only about 14 Americans have ever paid a price the systematic torture authorized by that Bush signature). If this deal with the Russians actually happens, naming and prosecuting the persons responsible for the August 21 attack should be part of the agreement.
But there is a fundamental problem with America launching a war against Assad for the August CW attack based on chain of command arguments (or “common sense,” as its most recent incarnation has it). That’s because, with all the legal problems surrounding any intervention on our part (especially without UN sanction, which may change under the Russian deal), there are such clear and ongoing instances where, even with clear evidence of human rights violations done under nothing but Presidential authorization, the US doesn’t hold its own responsible.
There was a time when US violations of human rights norms weren’t so clearly documented (though the definitely existed). But now that they are, to claim we have the moral authority to hold Bashar al-Assad responsible based on a chain of command argument when we won’t even hold our own responsible for partnering with him in human rights crimes is particularly problematic.
As human rights hypocrites ourselves, that makes us not even global policemen, but rather simple enforcers when it serves our geopolitical interests.
As part of the discussion in his book explaining how the CIA shifted from torture to killing, Mark Mazzetti tells the story of how the CIA balked at engaging in further torture after the Detainee Treatment Act.
After President Bush signed the bill into law, then-CIA Director Porter Goss wrote the White House saying the CIA would refuse to torture unless and until they got a guarantee they wouldn’t be prosecuted for doing it. In response, the Bush Administration sent Andy Card to the CIA to try to calm them down.
Card drove out to Langley intending to soothe the fears at CIA headquarters, but his visit was a disaster. Inside a packed conference room, Card thanked the assembled CIA officers for their service and their hard work but refused to make any firm declarations that agency officers wouldn’t be criminally liable for participating in the detention-and-interrogation program.
The room became restless. Prodded by his chief of staff, Patrick Murray, Porter Goss interrupted Card.
“Can you assure these people that the politicians will not walk away from the people who carried out this program?” Goss asked. Card didn’t answer the question directly. Instead, he tried to crack a joke.
“Let me put it this way,” he said. “Every morning I knock on the door of the Oval Office, walk in, and say, ‘Pardon me, Mr. President.’ And of course, the only person the president can’t pardon is himself.”
Card giggled after he said this, but his joke landed with a thud. The White House chief of staff, when asked whether President Bush would protect CIA officers from legal scrutiny, had suggested that the most they might be abel to rely on is a presidential pardon after the indictments and convictions were handed down. (127-128)
Goss effectively repeated a request the CIA had made, unsuccessfully, as early as July 13, 2002 (when, it should be said, Goss was ostensibly in charge of overseeing the program at the House Intelligence Committee, though there’s no reason to believe he knew about the earlier request): for an Administration guarantee that everyone involved in the torture program would be shielded from criminal consequences for kidnapping and torturing.
And in response, Card implied to these CIA officers and executives two things:
Now, Card wouldn’t have even tried such a joke unless he knew his audience knew that the torture program was based on a Presidential Finding — what we know to be the September 17, 2001 Gloves Come Off Memorandum of Notification.
There’s fairly clear evidence that CIA’s officers did know about it.
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.
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.
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.
I know it’s probably easy for Obama supporters, if not members of the Administration, to dismiss the warnings of lawyers who fought within the Bush Administration to cloak our counterterrorism policy in legal sanction as trolling.
I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo?” This article was not intended as partisan criticism but rather as a cautionary note, based on my own eight years of experience explaining US counter-terrorism policies.
At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration. But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation. This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies. I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law. The Administration is increasingly on the back foot internationally in explaining and defending the legal aspects of the drone program. It needs to step up its efforts.
These are not starry-eyed hippies. They’re solidly conservative lawyers. And yet it seems their warnings are being treated with the seriousness they would if I had made them.
One more point. As I traced last year, the White House’s unusual efforts to keep all mention of the “Gloves Come Off” Memorandum of Notification that authorizes many of these counterterrorism programs mapped closely to the exposure of Binyam Mohammed’s torture through an effort very nearly parallel to the suit Bellinger discusses in his post: Noor Khan’s suit against the UK for cooperating in the drone strike that killed his father.
The UK has used various strategies to try to hide its role in US covert operations: effectively a Glomar in this case, and a larger effort to create a secret court to hide our counterterrorism programs.
Maybe these British efforts will work. Maybe this particular ally will succeed in hiding the things we work hard to hide.
But not all of them will be.
The Administration seems increasingly committed to claiming all of this was a covert op, immune even from full disclosure to the Intelligence Committees, to say nothing of ordinary citizens. Perhaps it is so committed in an effort to avoid embarrassing our allies like this.
But it’s not fooling anyone.
In response to John Brennan’s nomination, PBS sent out the clip from their 2006 interview in which he endorsed taking the gloves off. I find that clip, plus the complete interview transcript, all the more instructive given what has transpired with the Gloves Come Off Memorandum of Notification in the last two years and, I suspect, in last week’s opinion refusing to release the targeted killing memo. (Here’s a post describing the MON, and here’s the entire series: post 1, post 2, post 3, post 4, post 5, post 6,post 7, post 8, post 9, plus post 10 and post 11.) The short version of those posts is that the Executive Branch doesn’t consider the OLC memos the authorizing documents for its counterterrorism program–it considers this MON that document. But it is written such that it permits both the Agency and the Executive to avoid all accountability for these law-breaking programs.
Here, when the interviewer asks Brennan about “the Dark Side”–the title of the program–Brennan responds instead by talking about “taking the gloves off.”
Why would the vice president, and even the secretary of defense, want to talk about or have the country or want to warn the country about going to “the dark side”?
I don’t know. You’d have to ask them. … The point is the war or the campaign against terrorism can be a long one, and that the opposition, whether it be Al Qaeda, or whether it be Iraq, doesn’t play by the Marquis de Queensbury rules. Therefore, the U.S. in some areas has to take off the gloves. And I think that’s entirely appropriate. I think we do have to take off the gloves in some areas, but within balance, and at the right time and the right way, and for the right reason and with full understanding of what the consequences of that might be. [emphasis mine]
As I observed, the interviewer asks about “the Dark Side”, but then Brennan offers up the term “gloves come off” instead. He does so, notably, with regards to both al Qaeda–the terrorists–and Iraq (in 2006!)–the nation-state against which we trumped up a war. He not only endorses the notion that the Iraq war was part of the war on terror, but also that the US could “take its gloves off” even in a war with another nation-state purportedly governed by the traditional law of war.
In the phrase, John Brennan is endorsing “taking the gloves off,” in the name of terrorism, with any country we happen to be fighting that might–maybe–play dirty.
Then the interviewer asks Brennan–first and foremost–about the Bybee memo, but also about the AUMF. Brennan responds by talking about Findings.
One of the things that [the administration does] right away is get lots of legal justifications lined up, from the Bybee memo [the so-called "torture memo"] to everything, commander-in-chief power, the War Authorization Act. Would there have been very much difference between what Tenet believed the CIA should do in terms of renditions and all of it and what we can assume the vice president and the president and others would want the CIA to do? Was Tenet especially more careful, more cautious, more anything than they were sounding like they were?
I think George had two concerns. One is to make sure that there was that legal justification, as well as protection for CIA officers who are going to be engaged in some of these things, so that they would not be then prosecuted or held liable for actions that were being directed by the administration. So we want to make sure the findings and other things were done appropriately, with the appropriate Department of Justice review. [brackets original; my emphasis]
At least one and probably two courts have said that no sitting Administration official has admitted that all the law-breaking in pursuit of terrorists was authorized not by an OLC memo, but first and foremost a Finding.
Oh yes one has.
And he did so in a conversation framed precisely in the same way Cofer Black, author of the Gloves Come Off MON, did.
I don’t mean to be ungrateful that the NYT wrote an editorial about the 2nd Circuit’s decision to help the CIA hide its torture documents from FOIA. I’m not! I’m glad they’re noting how the courts are collaborating in hiding our government’s crimes from us.
But I’m going to be a bit pedantic about it.
As almost every outlet has when covering the 2nd Circuit decision, the editorial focuses primarily on the picture of Abu Zubaydah after he was tortured. That makes sense. A picture is so concrete, so easy to understand.
It does, however, also mention the court’s ruling hiding what the government has all-but confirmed is mention of the Gloves Come Off Memorandum of Notification. But it interprets those references to “concern the origins” of the torture program (I’m also grateful that NYT used the word “torture,” btw).
The court also said the C.I.A. was justified in withholding two passages in Justice Department memos that appear to concern the origins of the Bush torture program.
Now, I don’t blame the NYT for not saying this is the Gloves Come Off MON–while both Judge Alvin Hellerstein and DOJ have all-but confirmed that, that’s not adequate proof for the NYT. But these passages either represent more than “the origins of the torture program,” or we’re still in the torture business.
That’s because in his opinion, Judge Richard Wesley makes it clear that the references are to an ongoing activity.
We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.
In the middle of an opinion discussing torture, Wesley said some activity relating to torture is still active.
Now, I’m not saying I think torture (well, waterboarding, anyway) is still ongoing. As I have noted, all the evidence suggests the government is hiding this very short reference to the Gloves Come Off MON because releasing it might amount to admission of all the other covert programs either explicitly or implicitly included in it–including the drone program, but also including things like buying the services of the Egyptian intelligence services.
Furthermore, we reject the district court’s suggestion that certain portions of the redacted information are so general in relation to previously disclosed activities of the CIA that their disclosure would not compromise national security. It is true that the Government has disclosed significant aspects of the CIA’s discontinued detention and interrogation program, but its declarations explain in great detail how the withheld information pertains to intelligence activities unrelated to the discontinued program.
But until the Administration explains all this, what we’ve got is a Circuit Court judge saying that he can’t release a half sentence phrase–one appearing in the title of Torture Guidelines–because that half sentence phrase relates to an activity that is still ongoing.
Which is it folks? Torture? Or simply a whole bunch of equally terrible things?