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The Standards for CIA Crimes

In the interest of describing why CIA’s efforts to invent a reason to torture Janat Gul are so important, I wanted to do a very quick summary of what I understand CIA’s legal means of avoiding criminal prosecution was.

Torture began — certainly at surrogates overseas — long before anyone even thought of having OLC write memos for it. At that point, the legal cover for the torture would have been only the Presidential Finding signed September 17, 2001 (which said nothing explicit about torture; but then, it probably also said nothing about killing US citizens with drones though it did cover the use of killing high value Al Qaeda figures with drones).

I believe Ali Soufan’s complaints about the methods used at the Thai black site created a problem with that arrangement. When he — an FBI Agent — came away saying what they were doing was “borderline torture,” it created legal problems for the CIA, because an FBI Agent had witnesses a crime. I think Soufan’s reaction to the coffin-like box they intended to use with Abu Zubaydah caused particular problems.

All that came to a head in July 2002, when lawyers responding to “an issue that had come up” asked for a pre-declination memo from Chertoff, even while they were trying, among other things, to get approval to use “mock burial.” I don’t know that Criminal Chief Michael Chertoff was all that squeamish about torture, except with Soufan’s complaint about the coffin, it made mock burial (and with it, I suspect, mock execution) unsupportable by DOJ.

On July 13, 2002, three things happened. John Rizzo presented the torture techniques to people at DOJ. Having had that presentation, Chertoff refused to pre-decline to prosecute. So John Yoo wrote a fax that CTC would ultimately use in crafting the legal direction to torturers (and in recommending against prosecution in the future).

Three days later, David Addington appears to have told Yoo to include presidential immunity language in more public OLC memos. All the important work was being negotiated via back channels (remember, Jay Bybee was busy protecting Cheneys’ Energy Task Force from any oversight); the front channels involving Condi Rice were in a large part show.

But that led to the position where CIA was working off a two page fax that Yoo had freelanced to produce which provided absolutely no description of or limitation on techniques. But DOJ held CIA it to the August 1, 2002 memo.

Within short order, CIA was using techniques that had never been approved. Importantly, they hosed down Gul Rahman before he froze to death, not waterboarding, per se, but an additional technique not approved by DOJ.

When Inspector General John Helgerson started investigating in early 2003, DOJ told him he could develop the fact pattern to determine if any crimes had been committed. So CTC worked with Jennifer Koester and John Yoo to develop their own legal guidelines that not only would include some more of the torture techniques they had used but not approved, but also include a “shock the conscience” analysis. That’s what the IG used to assess whether any crimes had been committed, which is important, because he found that torture as executed did humiliate detainees (and therefore violated the Constitution), but could point to (invalid) legal analysis pre-approving this. (Remember, Dick Cheney got an early review of all this.)

The problem was, DOJ’s OLC refused to accept that document. In June 2003, Patrick Philbin refused. And in May 2004, Jack Goldsmith did again.

So it was not just that Goldsmith withdrew the Bybee Memos (though said CIA could use all the torture techniques except waterboarding while he worked on a replacement). It’s that DOJ refused to accept CIA’s own legal analysis as DOJ’s official opinion. CIA was more anxious about getting some document judging the torture didn’t violate the Constitution. That’s what (as I’ll show) CIA was demanding when they raised the case of Janat Gul to get the Principals to reauthorize the use of torture in July 2004.

Just on the case of Janat Gul — who was detained based off a fabricated claim of election year plotting — CIA got OLC’s Daniel Levin to authorize all the old techniques (including waterboarding) as well as the 4 that CIA had used but not approved. Significantly, that included water dousing, the “technique” that had contributed to Gul Rahman’s death.

But that left two other concerns: the constitutional problem, and the use of techniques in combination, which (among other things) had led to severe hallucinations in 2004. That’s what the 2005 memos were meant to do: use the torture Hassan Ghul and Janat Gul had survived in 2004 to provide a rubber stamp on both the combination issue and the Constitutional one, and provide it roughly in time to be able to use to torture Abu Faraj al-Libi (though the third 2005 memo actually got signed after al-Libi’s torture began).

Neither Hassan Ghul (who was very cooperative before torture) nor Janat Gul should have been tortured. The latter probably was largely just to have one tortured body, any body, on which to hang new OLC memos.

Jim Comey’s Learned Helplessness about the Torture Report

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Dianne Feinstein used the Federal Law Enforcement Appropriations hearing as an opportunity to implore Jim Comey to read the Torture Report.

I’m surprised neither by her request nor by her plaintive manner, given how most Federal Agencies have simply blown off the Report. But I am interested in the content of the exchange (my transcription).

Feinstein: One of my disappointments was to learn that the six year report of the Senate Intelligence Committee on Detention and Interrogation Program sat in a locker and no one looked at it. And let me tell you why I’m disappointed. The report — the 6,000 pages and the 38,000 footnotes — which has been compiled contains numerous examples of a learning experience, of cases, of interrogation, of where the Department could learn — perhaps — some new things from past mistakes. And the fact that it hasn’t been opened — at least that’s what’s been reported to me — is really a great disservice. It’s classified. It’s meant for the appropriate Department. You’re certainly one of them. I’d like to ask if you open that report and designate certain people to read it and maybe even have a discussion, how things might be improved by suggestions in the report.

Comey: And I will do that Senator. As you know, I have read the [makes a finger gesture showing how thick it was] Executive Summary. You asked me to do it during my confirmation hearing, I kept that promise and read it. There’s a small number of people at the FBI — as I understand it — who have read the entire thing. But what we have not done — and I think it’s a very good question, is have we thought about whether there are lessons learned for us? There’s a tendency for me to think “we don’t engage in interrogation like that, so what’s there to learn?”

Feinstein: You did. And Bob Mueller pulled your people out, which is a great tribute to him.

Comey: Yeah. So the answer is yes, I will think about it better and I will think about where we are in terms of looking at the entire thing. I don’t know enough about where the document sits at this point in time and you mentioned a lock box, I don’t know that well enough to comment on it at this point.

Feinstein and Comey appear to have differing understandings of whether anyone at FBI has actually read the report, with Comey believing someone has read it — and professing ignorance about a “lockbox” — and Feinstein referring to a report that no one has read it, a belief that may come in part from the responses the government is making to FOIA requests. Is FBI lying about whether anyone has opened this in its FOIA responses?

But I’m also interested both that Comey hasn’t read further and that he hasn’t considered whether FBI might have anything to learn from it.

Tellingly, Comey suggests FBI would have nothing to learn because “we don’t engage in interrogation like that, so what’s there to learn.” But as Feinstein corrects, FBI did engage in “interrogation like that,” but then Bob Mueller withdrew his interrogators. Remember that Ali Soufan was present at the Thai black site for Abu Zubaydah’s first extreme sleep deprivation and long enough to see the torturers bring out a coffin-like box. His partner, Steve Gaudin, stayed even longer. That stuff doesn’t appear in the summary (the report’s silence on this earlier phase of Abu Zubaydah’s torture is one of CIA’s legitimate complaints). Moreover, there are moments later in the torture program when one or another FBI Agent (including Soufan) were present for other detainees’ interrogation, particularly for isolation. Comey wanted to suggest FBI was never involved in torture, but Feinstein reminded him they were.

Still, Feinstein seems to believe that Mueller withdrew Agents out of some kind of squeamishness. I think the record (especially from FBI Agents in Iraq who declined to write certain things down) suggests, instead, that Mueller withdrew his Agents to ensure that the FBI would never be witness to crimes committed against detainees which might force them to investigate those crimes. Indeed, it seems that in summer 2002 — at a time when US Attorney Jim Comey was relying on Abu Zubaydah’s statements to detain Jose Padilla — DOJ found a way to bracket the treatment that had already occurred and remain mostly ignorant of that which would occur over the next several years. Feinstein should know that but seems not to; Comey almost certainly does.

Which makes Comey’s explanation all the more nonsensical. There’s stuff like the anal rape, even in the Executive Summary, that probably wasn’t investigated (though the statute of limitations probably has expired on it). There’s probably far, far more evidence of crimes that have never been investigated in the full report. And yet … the premier law enforcement agency may or may not have taken the report out of storage in a lock box?

Consider me unconvinced.

Besides, Comey’s claim that “we don’t engage in interrogation like that” ignores that FBI is supposed to be the lead agency in the High Value Interrogation Group, about which there have been numerous hints that things like food and sleep deprivation have been used. His explanation that “we don’t engage in interrogation like that,” is all the more curious given FBI’s announcement earlier this week that the guy in charge of one HIG section just got assigned to lead the Dallas Division.

Director James B. Comey has named Thomas M. Class, Sr. special agent in charge of the FBI’s Dallas Division. Mr. Class most recently served as section chief of the High Value Detainee Interrogation Group in the National Security Branch (NSB) at FBI Headquarters (FBIHQ). In this position, he led an FBI-lead interagency group that deploys worldwide the nation’s best interrogation resources against significant counterterrorism targets in custody.

Who’s in charge of HIG, then? And is it engaging in isolation?

Finally, I am specifically intrigued by Comey’s apparent lack of curiosity about the full report because of his actions in 2005.

As these posts lay out (one, two), Comey was involved in the drafting of 2 new OLC memos in May 2005 (though he may have been ignorant about the third). The lies CIA told OLC in 2004 and then told OLC again in 2005 covering the same torture were among the worst, according to Mark Udall. Comey even tried to hold up the memo long enough to do fact gathering that would allow them to tie the Combined memo more closely to the detainee whose treatment the memo was apparently supposed to retroactively reauthorize. But Alberto Gonzales’ Chief of Staff Ted Ullyot told him that would not be possible.

Pat [Philbin] explained to me (as he had to [Steven Bradbury and Ted Ullyot]) that we couldn’t make the change I thought necessary by Friday [April 29]. I told him to go back to them and reiterate that fact and the fact that I would oppose any opinion that was not significantly reshaped (which would involve fact gathering that we could not complete by Friday).

[snip]

[Ullyot] mentioned at one point that OLC didn’t feel like it would accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

At the end, he said that he just wanted me to know that it appeared the second opinion would go [Friday] and that he wanted to make sure I knew that and wanted to confirm that I felt I had been heard.

Presuming that memo really was meant to codify the oral authorization DOJ had given CIA (which might pertain to Hassan Ghul or another detainee tortured in 2004), then further details of the detainee’s torture would be available in the full report. Wouldn’t Comey be interested in those details now?

But then, so would details of Janat Gul’s torture, whose torture was retroactively authorized in an OLC memo Comey himself bought off on. Maybe Comey has good reason not to want to know what else is in the report.

The Debate about Torture We’re Not Having: Exploitation

We’re an empire now, and when we act, we create our own reality

Partly by design, the debate about torture that has already started in advance of tomorrow’s Torture Report release is focused on efficacy, with efficacy defined as obtaining valuable intelligence. Torture apologists say torture provided intelligence that helped to find Osama bin Laden. Torture critics refute this, noting that any intelligence CIA got from those who were tortured either preceded or long post-dated the torture.

Even setting aside my belief that, even if torture “worked” to elicit valuable intelligence, it still wouldn’t justify it, there’s a big problem with pitching the debate in those terms.

As the Senate Armed Services Committee Report on torture (released over 5 years ago, in far less redacted form than tomorrow’s summary will be) makes clear, the Bush regime embraced torture not for “intelligence” but for “exploitation.” In December 2001, when DOD first started searching for what would become torture, it was explicitly looking for “exploitation.”

As Administration lawyers began to reconsider U.S. adherence to the Geneva Conventions, the DoD Office of the General Counsel also began seeking information on detention and interrogation. In December 2001, the DoD General Counsel’s office contacted the Joint Personnel Recovery Agency (JPRA), headquartered at Fort Belvoir, Virginia, for information about detainee “exploitation.

And as a footnote explaining that reference makes clear, “interrogation is only one part of the exploitation process.”

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Some other things exploitation is used for — indeed the very things the torture we reverse-engineered for our own torture program was used for — are to help recruit double agents and to produce propaganda.

And we have every reason to believe those were among the things all incarnations of our torture were used for. We tortured in Abu Ghraib because we had no sources in the Iraqi resistance and for some reason we believed sexually humiliating men would shame them into turning narcs for the US.

Sami al-Hajj, the Al-Jazeera journalist held at Gitmo for 6 years, says the US wanted him to spy on ties between that outlet and al Qaeda for them.

SAMI AL-HAJJ: Yes, yes, three people, and one translator. And they told me, “Your story is clear. You don’t have anything. But you are now in Guantánamo, and we wait until we get some decisions from Pentagon to release you. Until that time, we want you to be patient and to cooperate with our people.” Later on, someone, he came, and they told me, “You are here to preparing you to cooperate with us in future.” I told him, “What that means?” He said, “You said in Kandahar you are ready to cooperate with us.” I told him, “Yes, I said that. But I said that I mean by ‘cooperate’ to answer question, not to work with you.” He said, “No, we understand you want to be with us, work with us.” And they starting give me some offer to give me a U.S.A. nationality and take care about my family, if I work with them in CIA to continue my job being journalist with Al Jazeera, just send for them some information about the link between Al Jazeera and al-Qaeda and the terrorist people and some people in the Middle East. Of course, I refused to do that. I told them, “I’m journalist, and I will die as a journalist. I will never work as a work, and just only journalist.”

And while I question whether we’ll ever learn the truth about Hassan Ghul, he reportedly agreed to infiltrate al Qaeda for us after we tortured him before he flipped back and got killed in a drone strike.

So one reason the CIA and DOD embraced torture was in hope of recruiting people to become our spies.

The propaganda value of torture, however, will receive far less attention still, because the implications of it are truly horrible. All reports about our torture assume that we “knew” the answers we wanted because we were stupid — we assumed al Qaeda had more plots than they did, or had grander plans than they did.

Or had ties with Iraq.

But when we consider the case of Ibn Sheikh al-Libi, whose torture-induced claim al Qaeda had ties to Iraq’s WMD programs helped drag us into Iraq,

According to al-Libi, the foreign government service [redacted] “stated that the next topic was al-Qa’ida’s connections with Iraq. … This was a subject about which he said he knew nothing and had difficulty even coming up with a story.” Al-Libi indicated that his interrogators did not like his responses and then “placed him in a small box approximately 50cm x 50cm.” He claimed he was held in the box for approximately 17 hours. When he was let out of the box, alLibi claims that he was given a last opportunity to “tell the truth.” When al-Libi did not satisfy the interrogator, al-Libi claimed that “he was knocked over with an arm thrust across his chest and he fell on his back.” Al-Libi told CIA debriefers that he then “was punched for 15 minutes.”216

(U) Al-Libi told debriefers that “after the beating,” he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa’ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa’ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that “this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice the 50 square centimeter box and given food.”217

And when you consider that Abd al-Rahim al-Nashiri claimed his torturers told him he had to claim Osama bin Laden had nukes,

>Number six. Usama bin Laden having a nuclear bomb. [REDACTED]. Then they used to laugh. Then they used to tell me you need to admit to those information. So I used to invent some of the stuff for them to say Usama bin laden had a, had a nuclear bomb. And they use to laugh and they were very happy. They were extremely happy because of the news. Then after that I told them, listen. He has no bomb.

When you consider under torture Abu Zubaydah turned Jose Padilla’s web searches into an active dirty bomb plot.

And when you consider that Dick Cheney wanted to have Iraqi Mukhabarat member Muhammed Khudayr al-Dulaymi waterboarded because he was sure he knew of the tie between Iraq and al Qaeda,

At the end of April 2003, not long after the fall of Baghdad, U.S. forces captured an Iraqi who Bush White House officials suspected might provide information of a relationship between al Qaeda and Saddam Hussein’s regime. Muhammed Khudayr al-Dulaymi was the head of the M-14 section of Mukhabarat, one of Saddam’s secret police organizations. His responsibilities included chemical weapons and contacts with terrorist groups.

[snip]

Duelfer says he heard from “some in Washington at very senior levels (not in the CIA),” who thought Khudayr’s interrogation had been “too gentle” and suggested another route, one that they believed has proven effective elsewhere. “They asked if enhanced measures, such as waterboarding, should be used,” Duelfer writes. “The executive authorities addressing those measures made clear that such techniques could legally be applied only to terrorism cases, and our debriefings were not as yet terrorism-related. The debriefings were just debriefings, even for this creature.”

Duelfer will not disclose who in Washington had proposed the use of waterboarding, saying only: “The language I can use is what has been cleared.” In fact, two senior U.S. intelligence officials at the time tell The Daily Beast that the suggestion to waterboard came from the Office of Vice President Cheney.

Then it raises the really horrible possibility that Cheney pushed torture because it would produce the stories he wanted told. It would be difficult to distinguish whether Cheney believed this stuff and therefore that’s what the torture produced or whether Cheney wanted these stories told and that’s what the torture produced.

As Steven Kleinman said in an important Jason Leopold and Jeff Kaye story on this subject, the torture CIA used was designed to get false confessions, not accurate information.

“This is the guidebook to getting false confessions, a system drawn specifically from the communist interrogation model that was used to generate propaganda rather than intelligence,” Kleinman said in an interview. “If your goal is to obtain useful and reliable information this is not the source book you should be using.”

The people who approved torture had the means of knowing — should have known — it would elicit false confessions. It’s just that no one can prove whether that was the entire point or not.

In this respect, then, the debate we’ll resume tomorrow is similar to the debate about the phone dragnet, where the government has not fully described the purposes it serves (indeed, in both cases, the government is hiding their use of the program to obtain spies).

It’s not just a question of whether torture is “effective” at obtaining intelligence. It’s also whether the entire point of it was to produce spies and propaganda.

The CIA’s Excuse: Hiding the Double Agents

Adam Goldman and Greg Miller offer the CIA’s excuse for removing documents from the SCIF where they had been made available to Senate Intelligence Committee staffers: they had to hide their double agents.

After the CIA provided a massive cache of documents in 2009 to Senate staffers investigating the agency’s detention and interrogation program, the agency realized it might have a problem.

Within those documents, agency employees feared, were details that could lead to the exposure of CIA sources, former U.S intelligence officials said. Among them were top assets who had been recruited while being held at a secret CIA facility on Guantanamo Bay called “Penny Lane,” according to one of the officials.

So great was the concern that the sources’ identity would be disclosed that the CIA withdrew some of the documents from a special facility that had been set up for members of the Senate Select Committee on Intelligence.

[snip]

Two employees of the CIA’s Counterterrorism Center and a lawyer were assigned to scrub the documents for sensitive sources, including the asset who agreed to work for the CIA after his capture and transfer to Guantanamo, the official said.

The assets went through a recruitment program at Guantanamo that began in early 2003 and ended several years later. Some of those who took part in the program have provided key information to the CIA, helping the agency kill a number of top terrorists.

Let’s take the CIA at its word for a minute and consider the implications of this from the standpoint of oversight.

By removing the names of those the CIA had flipped while at Gitmo, the CIA permitted politically motivated people — including the guy who had a key role in “releasing” them — to call those detainees “recidivists.”  While it might be great cover to have Dick Cheney screaming about what dangerous people these people were, it was lethal for Obama’s effort to close Gitmo.

By hiding the names of the double agents, the CIA also hid the true details about the actions those double agents would go on to commit. Which may have permitted CIA to use those double agents in ways that weren’t just intelligence gathering.

Hiding double agents also hid how corrupt the entire military commission program was, because it hid the degree to which detainees had been implicated — and were still being held years after their capture — solely through the testimony of informants.

I wonder. Has CIA yet given its oversight committees a full list of all those CIA believes to have flipped? For a number of reasons, I doubt they have.

Removing details on the effort to flip detainees also hides evidence about the purpose of torture, which wasn’t really to obtain intelligence, but to exploit detainees, whether that involved propaganda (such as eliciting the justification for the Iraq War) or developing assets. Until we understand that that was one of the reasons we embraced torture and other kinds of humiliation, we won’t be able to account for the full human waste of it all.

One more detail: by claiming it took back evidence of flipping detainees, CIA can obscure what happened with Hassan Ghul, whose cooperation with the US Miller first broke. If this report ever comes out in any halfway revelatory form, Ghul’s treatment may well be one of the most unjustifiable (particularly since he had already given up Osama bin Laden by the time we started torturing him). How convenient, then, that CIA is prepping to claim SSCI doesn’t know everything about Ghul’s treatment.

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

The traditional media is catching up to my post the other day focusing on Robert Eatinger, the CIA lawyer who referred Senate Intelligence Committee staffers for criminal investigation. Welcome traditional media!!

Just to expand the discussion of how deeply involved CTC’s lawyers — including, but not limited to, Eatinger — have been in torture, I thought I’d expand on my post from the other day with a timeline of CTC documents and consultation, most from its legal team, that might be among the 1,600 mentions of Eatinger in the Senate Torture Report that Dianne Feinstein referred to the other day.

I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

Note, some of this information relies on the OPR report; at least three of CTC’s lawyers refused to cooperate with that report, two based on advice of counsel. Remember too that, just as happened with the SCIF CIA made the Senate Intelligence Committee use, between 10 and 61 torture documents disappeared from DOJ’s OLC SCIF during the period when OPR was working on its report.

April 2002: Months before the first torture memo, CTC’s lawyers, in consultation with NSC and DOJ, approved 24-48 hours of sleep deprivation for use with Abu Zubaydah (who, remember, was still recovering from life-threatening bullet wounds). The torturers promptly exceeded those limits. So CTC, on its own, approved the new amounts because, they claimed, Abu Zubaydah hadn’t suffered any adverse consequences. (See PDF 113-114)

After consulting with the NSC and DOJ, CTC[redacted] originally approved 24-48 hours of sleep deprivation.

In April 2002 CTC[redacted] learned that due to a misunderstanding, that time frame had been exceeded.

However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucinations (thereby disrupting profoundly Abu Zubaydah’s senses or personality) it was within legal parameters.

After August 1, 2002: After the Bybee Memos laid out which torture techniques were permitted, then, CTC chief lawyer Jonathan Fredman sent out legal guidance to the torturers in Thailand. Rather than relying on the Bybee Memos, he relied on a July 13, 2002 John Yoo memo, purportedly prepared without the knowledge of Bybee (but, given the timing, probably written in response to Chertoff’s refusal to provide pre-declination andwith coaching from David Addington). The earlier memo lacked some of the key caveats of the later ones.

September 6, 2002: On September 4, 2002, Jose Rodriguez and a lawyer from CTC briefed Nancy Pelosi and Porter Goss on torture. The following day, CIA started discussing destroying the torture tapes. Then, on September 6, a lawyer from CTC altered the record of the briefing to Pelosi and Goss. (see PDF 84 and PDF 11-12)

October 2, 2002: CTC top lawyer Jonathan Fredman briefs Gitmo about torture and says a number of inflammatory things about detainee treatment.

December 24, 2002: CTC completes memo advocating for destruction of torture tapes.

Early 2003: After DOJ told CIA’s Inspector General to develop its own set of facts for review of any criminal liability in torture, John Yoo and Jennifer Koester start freelancing with CTC’s lawyers to develop the “Legal Principles” or “Bullet Points” document which expanded on the analysis officially approved by OLC. Koester told DOJ’s Office of Professional Responsibility the document would be used to assess the legality of the torture.

She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.

June 16, 2003: In her review, Koester took out language CIA had included saying that “comparable, approved techniques” to those approved in the Bybee Memo did not violate law or the Constitution. But when CTC’s lawyers sent the “Bullet Points” back to OLC in 2003 as an attempted fait accompli, that language had been inserted back into the memo.

April 2004: Eatinger takes over as top CTC lawyer.

Unknown date: CTC’s lawyers write a declination memo recommending against charges for Salt Pit manager Matt Zirbel in the murder of Gul Rahman based on (according to Jay Bybee’s characterization) an entirely intent-based exoneration. (see footnote 28)

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

May 11, 2004: White House meeting, possibly attended by Eatinger, at which White House lawyers tell CIA not to destroy torture tapes.

June 2004: According to John Rizzo, Eatinger attends White House meeting at which White House lawyers instruct not to destroy torture tapes.

August 4-5, 2004: CTC lawyers provide Daniel Levin additional information on waterboarding; the Torture Report found this information to be inaccurate.

August 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 5, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture report found to be inaccurate.

February 2, 2005: A CTC lawyer worked closely with Daniel Levin to try to finish the Combined Memo before Levin moved to NSC. At that point, the Memo did not include waterboarding. Nevertheless, Levin did not complete it, and Steve Bradbury would add waterboarding back in when he completed the memo that April.

Febraury 14, 2005: CTC panics because Congress might hold hearings into detainee treatment.

March 1, 2005: Steven Bradbury’s main contact for Combined and other torture memos is a CTC attorney. The Torture Report found information used in these memos to be inaccurate.

March 2, 2005: CTC sends Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. John Rizzo says CTC lawyers were involved in drafting this document.

April 15, 2005: CTC sends Briefing Notes on the Value of Detainee Reporting to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. Rizzo says CTC lawyers were involved in drafting this document.

May 10, 2005: Steven Bradbury completes two OLC memos — the Techniques Memo and Combined Memo — that the Torture Report found are based on inaccurate information.

May 30, 2005: Bradbury completes a third OLC memo — the CAT Memo — that the Torture Report found is based on inaccurate information.

November 8, 2005: The day CIA destroyed the torture tapes, someone from CTC/LGL gave HPSCI Chair Pete Hoekstra a briefing with no staffers present. (see page 32) The briefing was included in a summary of all Congressional briefings completed that day.

November 8, 2005: Eatinger and another CTC lawyer claim there is no legal reason to retain the torture tapes, in spite of several pending legal requests covering the videos. Jose Rodriguez orders their destruction.

January 25, 2006: Another letter from a lawyer other than John Rizzo that Torture Report may have found to be inaccurate.

April 19, 2006: Fax from a lawyer other than Rizzo that Torture Report may have found to be inaccurate.

May 18, 2006: Letter from a lawyer other than Rizzo, claiming torture techniques would be used for safety reasons, the Torture Report may have found to be inaccurate.

Update: h/t to DocEx blog for some additions to this timeline.

Did CIA Lie to DOJ about When They Tortured Hassan Ghul?

As I noted in January, comments Mark Udall made in the course of confirming Stephen Preston to be DOD General Counsel make it clear that CIA’s lies about a detainee generally believed to be Hassan Ghul are one of the new revelations in the Torture Report. For a number of reasons, I believe one thing CIA lied to DOJ about is when they tortured Ghul.

As I’ll show in a follow-up post, the question of when they tortured Hassan Ghul may reflect not just on the torture program, but also on the dragnet.

The public record claiming Ghul was tortured in July and August, 2004

We can lay out a rough timeline of the torture of the detainee believed to be Ghul based on several data points. First, Jay Bybee’s response to the Office of Professional Responsibility report (see page 22) makes it clear a July 2, 2004 Principals Committee meeting pertained to detainee “Janat Gul,” custody of whom CIA had reportedly (see PDF 59) just obtained (Bybee would not have been at the meeting — he had become a Circuit Court Judge over a year earlier — so he must be relying on what the OPR report says).

In addition, we can trace back the documents leading up to a reference to “Gul” in the May 30, 2005 CAT memo (see page 7). That reference describes an August 25, 2004 letter that asked for permission to use — among other things — water dousing and abdominal slaps. The approval to that request, dated August 26, 2004, cites the August 25 letter, an August 2, 2004 letter from John Rizzo, and a July 30, 2004 letter. An August 6, 2004 letter approving waterboarding also cites the August 2 Rizzo letter.

In the August 10, 2005 Techniques memo, some of these same documents are cited; the memo also reveals its subject was obese and had heart problems. Although the Techniques memo approved waterbaording, it said it was not used with the subject of the memo because of a medical contraindication.

All of this would seem to give the following chronology for Hassan Ghul’s torture (assuming he is the detainee referred to as Gul):

July 2, 2004: CIA obtains custody and in a Principals Committee meeting discusses his torture

July 7, 2004: Goldsmith provides guidance on acceptable techniques

July 22, 2004 (5 days after Goldsmith’s departure): John Ashcroft approves the use of all Bybee Memo techniques, except for waterboarding

July 30, 2004: Letter to Daniel Levin including description of torture techniques

August 1, 2004: Government raises threat level in advance of election year threats, announces surveillance of financial institutions, though reports are years old

August 2, 2004: Letter from John Rizzo to Levin, including details on when the CIA would use waterboarding and a medical and psychological assessment of Ghul

August 6, 2004: Daniel Levin advises that subject to reservations, CIA’s use of waterboarding not illegal

August 19, 2004: Letter to Daniel Levin detailing new limits on waterboarding

August 25, 2004: In letter to Daniel Levin asking to water douse Ghul, CIA claims the CIA believed (when it got custody) Ghul had actionable intelligence on “pre-election” threat to United States, had extensive connections to various al Qaeda leaders, members of the Taliban, and Zarqawi, and had tried to set up a meeting “at which elements of the pre-election threat were discussed”

August 26, 2004: Levin approves four new techniques with Ghul, including water dousing

This chronology suggests DOJ repeatedly told CIA waterboarding was not permissible in the weeks after Jack Goldsmith withdrew the Bybee Memo, but after the National Security establishment raised the threat level on August 1 because of years-old surveillance in the US, DOJ relented and approved waterboarding with Ghul. Subsequently, it appears, CIA decided Ghul was not healthy enough — either because of his heart condition or his obesity — to undergo waterboarding, so they instead water doused him in near-freezing temperatures.

The problem with this chronology

There is just one problem with that chronology: the CAT memo discusses two detainees (see page 6). The description of the first detainee — someone involved in the alleged 2004 pre-election threat — mentions the August 25 letter which elsewhere in the memo ties to Gul by name.

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The Senate Torture Report and CIA’s Lies about Hassan Ghul’s 2004 Torture

Update, March 12, 2015: We know from the Torture Report that the detainees treated in July and August 2004 were not Hasan Ghul, but Janat Gul and two others.
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In my last post, I noted that in his report that Hassan Ghul served as a double agent before we offed him with a drone, Aram Roston stated, without confirming via sources, that Ghul is the person whose name was not entirely redacted on the bottom of page 7 in the May 2005 Convention Against Torture (CAT) torture memo. I noted that if Ghul is the detainee (and I do think he is, contrary to what sources told AP when the CIA was hunting Ghul down with drones in 2011), then we’re going to be hearing about him — and arguing about his treatment — quite a bit more in the coming weeks.

That’s because, according to information released by Mark Udall, the detainee named in the CAT memo is one of the detainees about whose treatment the CIA lied most egregiously to DOJ. This is apparently one of the key findings from the Senate Intelligence Committee Torture Report that CIA is fighting so hard to suppress.

Mark Udall’s list of torture lies

Back in August, Mark Udall posed a set of follow-up questions to then CIA and now DOD General Counsel Stephen Preston. Udall was trying to get Preston to endorse findings that appeared in the Torture Report that hadn’t appeared elsewhere (in his first set of responses about CIA’s lies to DOJ, Preston had focused on CIA’s lies about the number of waterboardings, which the CIA IG Report had first revealed). Udall noted that that lie (“discrepancy”) was known prior to the Torture Report, and asked Preston to review the “Representations” section of the Torture Report again to see whether he thought the lies (“discrepancies”) described there — and not described elsewhere — would have been material to OLC’s judgements on torture.

Udall gave Preston this list of OLC judgements that might have been different had CIA not lied to DOJ. (links added)

The 2002 memo is the original Abu Zubaydah memo, the lies in which (pertaining to who AZ was, what the torture consisted of, what had already been done to him, and whether it worked) I’ve explicated in depth elsewhere. The 2006 memo authorizes torture in the name of keeping order in confinement and the 2007 memo authorizes torture (especially sleep deprivation); both of these later memos not only rely on the 2005 memos, but on the false claims about efficacy CIA made in 2005 in their support. The lies in them pertain largely to the purpose CIA wanted to use the techniques for.

Which leaves the claims behind the 2004 letters and the 2005 memos as the key lies CIA told DOJ that remain unexplored.

The 2004 and 2005 lies to reauthorize and expand torture

I’m going to save some of these details for a post on what I think the lies told to DOJ might be, but there are two pieces of evidence showing that the 2005 memos were written to retrospectively codify authorizations given in 2004, many of them in the 2004 letters cited by Udall.

We know the 2005 memos served to retroactively authorize the treatment given to what are described as two detainees in 2004, purportedly in the months after July 2004 (though this may be part of the lie, in Ghul’s case) when DOJ and CIA were trying to draw new lines on torture in the wake of the completion of the CIA IG Report and Jack Goldsmith’s withdrawal of the Bybee Memo.

We know the May 10 Combined Memo was retroactive because Jim Comey made that clear in emails raising alarm about it.

I just finished a long call from Ted Ullyot. He said he was calling to tell me that “circumstances” were likely to require that the second opinion “be sent over tomorrow.” He said Pat had shared my concerns, which he understood to be concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.

[snip]

He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

This memo probably, though not definitely, refers to a detainee captured in August 2004 in anticipation of what the Administration claimed (almost certainly falsely) were election-related plots in the US.

And we know the May 10 Techniques and May 30 CAT memos are retroactive because we can trace back the citations about the treatment of one detainee, the detainee who appears to be Ghul, to the earlier letters from 2004.

Just as an example, the August 26 letter cited in Udall’s list relies on the August 25 CIA letter that is also cited in the CAT Memo using the name Gul (the July 22 and August 6 letters are also references, at least in part, to the same detainee).

So we know the 2005 memos served to codify the authorizations for torture that had happened in 2004, during a volatile time for the torture program.

The description of Hassan Ghul in the lying memo

There are still some very funky things about these memos’ tie to Hassan Ghul (again, that’s going to be in a later post), notably that Bush figures referred to the Ghul of the August letters as Janat Gul, including in a Principals meeting discussing his torture on July 2, 2004; sources told the AP after OBL’s killing that this Janat was different than Hassan and different than the very skinny Janat Gul who had been a Gitmo detainee.

But this description — the timing of the initial references and the description of his mission to reestablish contact with Abu Musab al-Zarqawi — should allay any doubts that Ghul is one of two detainees referenced in the CAT memo.

Intelligence indicated that prior to his capture, [redacted] “perform[ed] critical facilitation and finance activities for al-Qa’ida,” including “transporting people, funds, and documents.” Fax for Jack Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted] Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [redacted] played an active part in planning attacks against United States forces [redacted] had extensive contacts with key members of al Qaeda, including, prior to their captures, Khalid Sheikh Mohammed (“KSM”) and Abu Zubaydah. See id. [redacted] was captured while on a mission from [redacted] to reestablish contact with al-Zarqawi. See CIA Directorate of Intelligence, US Efforts Grinding Down al-Qa’ida 2 (Feb 21, 2004).

Ghul was captured by Kurds around January 23, 2004, carrying a letter from Zarqawi to Osama bin Laden.

So while there are a lot of details that the Senate Torture Report presumably sorts out in detail, it seems fairly clear that Ghul is the subject of some of the documents in question, and that, therefore, there are aspects of the treatment he endured at CIA’s hands that CIA felt the need to lie to DOJ about.

We’ve known for years that CIA lied to DOJ about what they had done and planned to do with Abu Zubaydah. But a great deal of evidence suggests that CIA lied to DOJ about what they did to Hassan Ghul, a detainee (the Senate Report also shows) who provided the key clue to finding Osama bin Laden before he was tortured.

If that’s the case, then I find the release of a story that, after that treatment, he turned double agent either directly or indirectly in our service to be awfully curious timing given the increasing chance we’re about to learn more about these lies and this treatment with any release of the Torture Report.

Drones and Double Agents: Hassan Ghul

On September 30, 2011, a drone killed Anwar al-Awlaki, a person long suspected of being a US double agent gone bad.

On October 1, 2012, a drone killed Hasan Ghul (see this post for background on Ghul), whom a new report from Aram Roston reports was a double agent gone bad.

In 2006, the U.S. sent Ghul back to Pakistan, where he was taken into custody by the Inter-Service Intelligence agency, the country’s version ofthe CIA. The next year, the ISI quietly set him free, with the full agreement of American intelligence authorities, according to a Pakistani insider. “He was released and both parties agreed on this,” he says. “Both countries were on board in releasing him.”

The insider declined to discuss Ghul’s status as an informant. But three intelligence sources with knowledge of the issue say Ghul was one of those who agreed to cooperate and provide information about terrorists if he was released.

[snip]

Yet another source says that Ghul initially agreed to the project while he was still in American custody, before he was released to the Pakistanis. “Hassan Ghul,” says one former counterterrorism official who is familiar with the case but declined to discuss it in depth, “may have been, probably, one of the highest penetrations of Al Qaeda.”

[snip]

Whatever Ghul’s agreement with the Americans or Pakistanis, by the time Bin Laden was killed, it appears to have ended. One Pakistani source with knowledge of the case says that Ghul eventually “vanished” and that “the deal was rescinded.” Yet he would not say anything about exactly when after his release Ghul lost contact with the ISI.

Now, there are a number of aspects of this story that are unclear, which (if clarified) might explain this further. For example:

  • The report does not note the chronology of Ghul’s torture. According to Dianne Feinstein and Carl Levin, Ghul was cooperative right after being captured in 2004. Yet we proceeded to torture him. This chronology would suggest Ghul was cooperative, then tortured, then cooperative, then not cooperative.
  • The report makes no mention of Ghul’s alleged ties to Lashkar-e-Taiba, a crucially important detail when you’re discussing whether the US or the Pakistanis were running him as a double agent. We would have a real incentive to recruit Ghul to inform on LET (which is, after all, what we did with David Headley and may have been what Ray Davis was trying to do, recruit LET informants). But the Pakistanis would never stand for it. If Ghul indeed was a “triple agent,” his ties to LET (and Pakistani interest in obscuring LET to us) may explain that entirely.
  • The report states, without citing any source, that Ghul is the person referred to in a May 2005 OLC memo (sources told the AP in 2011 he was not that detainee; though Roston also states he was a large man, which would support the claim). I will show why, in an follow-up post I’ve been noodling for months, why this is so crucially important. But suffice it to say that if Ghul is the detainee in the memo, anonymous sources have a very significant incentive to spin his torture positively right now (and we will be hearing far far more about him in the coming weeks).

In any case, the report presents important new explanations and questions about Hassal Ghul.

It also makes you wonder how many of our drone strikes have been used to take out our former informants.

That Pirate May Be the Missing Link We Should Drone Kill

As I mocked last night, 60 Minutes decided to use pirate data collected under EO 12333 to demonstrate how it conducts call chaining on US citizen data collected under Section 215. But the exchange is rather interesting for the way the NSA analyst, Stephen Benitez, describes finding a potentially key player in a network of pirates.

Metadata has become one of the most important tools in the NSA’s arsenal. Metadata is the digital information on the number dialed, the time and date, and the frequency of the calls.  We wanted to see how metadata was used at the NSA.  Analyst Stephen Benitez showed us a technique known as “call chaining” used to develop targets for electronic surveillance in a pirate network based in Somalia.

Stephen Benitez: As you see here, I’m only allowed to chain on anything that I’ve been trained on and that I have access to. Add our known pirate. And we chain him out.

John Miller: Chain him out, for the audience, means what?

Stephen Benitez: People he’s been in contact to for those 18 days.

Stephen Benitez: One that stands out to me first would be this one here. He’s communicated with our target 12 times.

Stephen Benitez: Now we’re looking at Target B’s contacts.

John Miller: So he’s talking to three or four known pirates?

Stephen Benitez: Correct. These three here. We have direct connection to both Target A and Target B. So we’ll look at him, too, we’ll chain him out. And you see, he’s in communication with lots of known pirates. He might be the missing link that tells us everything. [my emphasis]

Compare the language Benitez uses here with that which Gregory McNeal used to describe drone targeting back in February.

Networked based analysis looks at terrorist groups as nodes connected by links, and assesses how components of that terrorist network operate together and independently of one another.  Those nodes and links, once identified will be targeted with the goal of disrupting and degrading their functionality.  To effectively pursue a network based approach, bureaucrats rely in part on what is known as “pattern of life analysis” which involves connecting the relationships between places and people by tracking their patterns of life. This analysis draws on the interrelationships among groups “to determine the degree and points of their interdependence.” It assesses how activities are linked and looks to “determine the most effective way to influence or affect the enemy system.”

[snip]

Viewing targeting in this way demonstrates how seemingly low level individuals such as couriers and other “middle-men” in decentralized networks such as al Qaeda are oftentimes critical to the successful functioning of the enemy organization. Targeting these individuals can “destabilize clandestine networks by compromising large sections of the organization, distancing operatives from direct guidance, and impeding organizational communication and function.” Moreover, because clandestine networks rely on social relationships to manage the trade-off between maintaining secrecy and security, attacking key nodes can have a detrimental impact on the enemy’s ability to conduct their operations. [my emphasis]

That is, the language describing the process behind signature strikes closely matches the language describing NSA’s targeting for wiretapping. Both these analyses are doing the same thing: trying to find the key nodes in networks of people (though the drone targeting appears to draw in additional intelligence about someone’s observed actions and locations).

Now, as I said, when Benitez used the word “target,” he was presumably discussing only targeting for surveillance, not for drone killing (besides, thus far we haven’t drone killed any pirates I know of).

But it is very easy to see what kind of role metadata analysis would play in the early stages of targeting a signature strike, because that’s precisely how the intelligence community identify the nodes that, McNeal tells us, they’re often targeting when they conduct signature strikes. Wiretap the person at that node and you may learn a lot (that’s also probably the same kind of targeting they do to select potential informants, as we know they do with metadata), kill that person and you may damage the operational capabilities of a terrorist (or pirate) organization.

When the WaPo reported on NSA’s role in drone killing, it focused on how NSA collected content associated with a known target — Hassan Ghul — to pinpoint his location for drone targeting.

But NSA probably plays a role in the far more controversial targeting of people we don’t know for death, with precisely the kind of contact chaining it uses on US persons.

Note, in related news, Richard Leon has just ruled for Larry Klayman in one of the first suits challenging the phone dragnet (with the injunction stayed pending appeal). I’ll have analysis on that later.

NSA Silenced Our Rendition Secret

In a story pre-empting one Glenn Greenwald and Jeremy Scahill are reportedly working, the WaPo details how NSA helps CIA target drone strikes. A key part of the story reflects NSA documents that bragged about finding Hassan Ghul through an email he sent to his wife and verifying he was dead after the fact.

In Ghul’s case, the agency deployed an arsenal of cyber-espionage tools, secretly seizing control of laptops, siphoning audio files and other messages, and tracking radio transmissions to determine where Ghul might “bed down.”

The e-mail from Ghul’s wife “about her current living conditions” contained enough detail to confirm the coordinates of that household, according to a document summarizing the mission. “This information enabled a capture/kill operation against an individual believed to be Hassan Ghul on October 1,” it said.

[snip]

“The most critical piece” came with a discovery that “provided a vector” for compounds used by Ghul, the document said. After months of investigation, and surveillance by CIA drones, the e-mail from his wife erased any remaining doubt.

Even after Ghul was killed in Mir Ali, the NSA’s role in the drone strike wasn’t done. Although the attack was aimed at “an individual believed to be” the correct target, the outcome wasn’t certain until later when, “through SIGINT, it was confirmed that Hassan Ghul was in fact killed.”

Much of the rest of the story (bylined by Greg Miller, along with Barton Gellman and Julie Tate) describes Ghul’s history: how he served as a courier, got picked up bringing a message from Pakistan to Abu Musab al-Zarqawi, was interrogated successfully by the Kurds giving us the key detail to find Osama bin Laden, only thereafter to be tortured in a black site in Eastern Europe (known to be Romania), then sent back to Pakistan, released, and re-engaged with perhaps Al Qaeda and perhaps Lashka-e-Taiba (ties to which are probably what got him sprung in the first place). Here’s how WaPo describes the last two steps.

The George W. Bush administration’s decision to close the secret CIA prisons in 2006 set off a scramble to place prisoners whom the agency did not regard as dangerous or valuable enough to transfer to Guantanamo Bay. Read more