Jose Rodriguez

Using Pensions to “Punish” “Leaks” Will Subject Clearance Holders to Arbitrary Power

The Senate Intelligence Committee’s new anti-leak laws are the part of the Intelligence Authorization that will generate the most attention. Greg Miller already got Dianne Feinstein to admit there’s no reason to think one of the new provisions–permitting only the most senior intelligence officials to do background briefings–will limit leaks.

Feinstein acknowledged that she knew of no evidence tying those leaks or others to background sessions, which generally deal broadly with analysts’ interpretations of developments overseas and avoid discussions of the operations of the CIA or other spy services.

Another of the provisions–requiring intelligence committee heads to ensure that every sanctioned leak be recorded–ought to be named the Judy Miller and Bob Woodward Insta-Leak Recording Act.

(a) RECORD REQUIREMENT.—The head of each element of the intelligence community shall ensure that such element creates and maintains a record of all authorized disclosures of classified information to media personnel, including any person or entity under contract or other binding agreement with the media to provide analysis or commentary, or to any person or entity if the disclosure is made with the intent or knowledge that such information will be made publicly available.

I’m sure someone can think of some downside to this provision, but I can’t think of it at the moment (which is why Obama will probably find some way to eliminate it). It will end some of the asymmetry and abuse of classification as it currently exists.

In addition, there are a bunch of provisions that are just dumb bureaucracy.

But it’s this one that is deeply troubling. Among the other provisions making nondisclosure agreements more rigorous is a provision that would allow an intelligence community head to take away a person’s pension if they “determine” that an individual violated her nondisclosure agreement.

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The First Torture Cover-Up Was Covered Up By The First Torture Cover-Up Lawyer

Document Exploitation blog has read Jose Rodriguez’ book so I don’t have to!

Seriously, I will eventually get around to reading Rodriguez’ book, when I can get it cheaper than toilet paper. But until then, I’m glad a document wonk has done the work.

One of the more interesting observations from DocEx pertains to Judge Hellerstein’s apparent misreading of CIA’s promises to fix their contemptuous document responses. Click through for that. (Though now that I understand that Hellerstein was unsuccessfully trying to expose that the President had authorized all this torture, perhaps he believed he had achieved a just result.)

But the real “ah ha” for me was this–showing that the CIA lawyer that reviewed the already-damaged torture tapes and found evidence of that damage not noteworthy

This report appears to show McPherson admitting that he saw some of the tapes were partially blank, or had snow on them.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

Though he claims not to have noticed that two of the tapes were broken (though perhaps they were broken later). When asked why he had not reported the blank tapes in his report, McPherson said he didn’t find that “noteworthy.”

… Was also the lawyer who provided the original, contemptuous FOIA response.

Rodriguez’s account also sheds new light on a crucial lynchpin in the ACLU FOIA case by identifing the CIA attorney from the Office of General Counsel (OGC) who viewed the videotapes in Nov. 2002 as “one of the assistant general counsels” whom Rodriguez calls “a very senior Agency officer.”  The attorney was later interviewed by the CIA Office of Inspector General (OIG) about that review. Rodriguez’s small, but important details corroborate earlier reporting by the AP and WashPo that the OGC attorney was John L. McPherson, who based on unrelated court filings, was an Assistant General Counsel as of 2001 and later became an Associate General Counsel.

Why is this significant? Hellerstein found the tapes subject to FOIA because they were “identified and produced to” the CIA’s OIG “as part of its investigation into allegations” of unauthorized interrogations and human rights violations. Yet Hellerstein stopped short of finding the CIA in contempt in part because “the individuals responsible for processing and responding to plaintiffs’ FOIA requests may not have been aware of the videotapes’ existence before they were destroyed.”

Remarkably, however, the crucial FOIA response from the CIA regarding the records of the OIG in April 2005 (ergo, 7 months prior to the destruction of the tapes) was written by none other than John L. McPherson. Continue reading

“Remember, an FBI agent [like Ali Soufan] always keeps his notes.” Why Won’t Obama Admin Release Them?

As Ali Soufan has been making the rounds rebutting Jose Rodriguez’ self-serving lies, he has said something, repeatedly, that hasn’t gotten a lot of attention.

Soufan has notes that prove Rodriguez is lying.

He actually first mentioned them publicly (AFAIK) in his book, Black Banners.

In early 2008, in a conference room that is referred to as a sensitive compartmented information facility (SCIF), I gave a classified briefing on Abu Zubaydah to staffers of the Senate Select Committee on Intelligence. The staffers present were shocked. What I told them contradicted everything they had been told by Bush administration and CIA officials.

When the discussion turned to whether I could prove everything I was saying, I told them, “Remember, an FBI agent always keep his notes.” Locked in a secure safe in the FBI New York office are my hand-written notes of everything that happened with Abu Zubaydah [redacted] (434-435; my emphasis)

He mentions them again later in the book, almost begging someone to go get them.

It was apparent from the [torture] memos that the introduction of EITs was based on lies. The proof resides in my notes–locked, as noted earlier, in FBI vaults. (526)

Soufan repeated this emphasis on his notes in a piece explaining why Jose Rodriguez’ lies might help Abd al Rahim al-Nashiri in his military commission.

Nonetheless, the government has my investigative notes, as well as daily reports, and the inspector general also found instances where Rodriguez’s team went far beyond what they had approval for and the legal guidelines set forth by the George W. Bush administration, including holding a drill to Nashiri’s head. [my emphasis]

And in the Q&A with Amy Davidson, Soufan again mentions that documentary proof that Rodriguez is lying.

The claim about waterboarding leading to unmasking of K.S.M. as the mastermind of the September 11, 2001, attacks is similarly false. We got that information in April, 2002, before the contractors hired by the C.I.A. Counterterrorism Center even arrived at the site. One by one, the successes claimed by E.I.T. proponents have been shown to be false.

I went before the Senate Judiciary Committee and under oath recounted what happened. And, as I note in “The Black Banners,” I sent daily reports from the secret interrogation location, to Washington, recording what happened, which the U.S. Government has in its possession.

[snip]

The tapes also contained our interrogations, done with traditional techniques. The tapes would have shown under which circumstances Abu Zubaydah coöperated and when he stopped coöperating. But while the tapes were destroyed, our daily reports from the location are luckily safe and still in the government’s possession. [my empahsis]

Notes, notes, notes and daily reports, daily reports, daily reports.

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Big Boy Pants and the Presidency

Frankly, I think Jose Rodriguez was being naive when he claimed that having Jay Bybee’s signature on a memo authorizing some, but not all, of the torture the torturers had already done by August 1, 2002 constituted full authority for what they had done.

But before moving forward, Jose Rodriguez got his superiors, right up to the president – to sign off on a set of those techniques, including waterboarding.

Jose Rodriguez: We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed.

Lesley Stahl: Their big boy pants on–

Jose Rodriguez: Big boy pants. Let me tell you, I had had a lot of experience in the agency where we had been left to hold the bag. And I was not about to let that happen for the people that work for me.

Lesley Stahl: There wasn’t gonna be any deniability on this one?

Jose Rodriguez: There was not gonna be any deniability. And I tell you something. In August of 2002, I felt I had all the authorities that I needed, all the approvals that I needed. The atmosphere in the country was different. Everybody wanted us to save American lives.

After all, to this day, these counterterrrorism programs are being run on a Memorandum of Notification that not only doesn’t comply with the terms of the National Security Act, but shields the President (Obama even more so than Bush) from any direct accountability, a carefully crafted deniability that the CIA has worked to preserve.

Lesley Stahl was apparently not up to the task of asking Rodriguez about the torture the torturers actually used which exceeded the terms of the authorization. She describes waterboarding as laid out in the Bybee Memo, without acknowledging that the torturers didn’t follow those guidelines. Stahl asserts as fact that the CIA kept Abu Zubaydah up for 3 straight days, when evidence suggests his sleep deprivation lasted longer, perhaps as long as 11 days. Had Stahl laid out the degree to which the torturers were known to have exceeded guidelines (both before and after those guidelines were codified in the Bybee Memo), she might have noted the underlying problem with this exchange.

Lesley Stahl: Oh, you had rules for each thing?

Jose Rodriguez: Yes, we had rules. And not only that, but every time we did any of this, we had to ask permission. The field had to ask permission of headquarters.

Lesley Stahl: Each time.

Jose Rodriguez: Each time.

As she herself pointed out, Rodriguez was not doing the torture. He wasn’t in the field. He was at HQ. In fact, he was one of the guys sitting in Langley giving the oral permissions for individual torture techniques both before and after Bybee signed his memo, the techniques that exceeded the rules laid out in Bybee. You’d think Stahl might have pointed that out.

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Feinstein and Levin: Hassan Ghul Revealed Abu Ahmed al-Kuwaiti’s Role, and Then We Tortured Him

Dianne Feinstein and Carl Levin have released a statement that basically says Jose Rodriguez’ Big Boy Pants are on fire for the lies he has told about the torture program.

The statement is interesting for two reasons. First, it gets closer and closer to saying that the torture program was successful primarily in eliciting false confessions.

Further, it’s worth repeating, as discussed in the Senate Armed Services Committee’s 2008 report, the SERE techniques used in the CIA’s interrogation program were never intended to be used by U.S. interrogators. Rather, the techniques – which are based on Communist Chinese interrogation techniques used during the Korean War to elicit false confessions – were developed to expose U.S. soldiers to the abusive treatment they might be subjected to if captured by our enemies. An overwhelming number of experts agree, the SERE techniques are not an effective means to illicit accurate information. [my emphasis]

It’s really time for them to be as clear as their leaking aides are in saying, anonymously, that the torture program got–and was designed to get–false confessions.

Hopefully, as Jose Rodriguez’ torture tour continues, they’ll get over this reticence.

The statement also confirms what was described in this AP report: that the CIA detainee who provided the most important intelligence leading to Osama bin Laden–who has been reported as Hassan Ghul–did so before we tortured him.

The CIA detainee who provided the most significant information about the courier provided the information prior to being subjected to coercive interrogation techniques.

So we tortured Khalid Sheikh Mohammed and he gave up invented locations for OBL (while hiding the courier). But we got key evidence from Ghul that might have led to OBL and … we tortured him anyway.

I wonder how many books Rodriguez is going to sell claiming that this program was effective?

Jose Rodriguez’ Mushroom Cloud of Torture

I suspect it will be a full time job keeping up with all the Jose Rodriguez’ lies we’ll hear as he sells his book and his excuse for torture. But for the moment, look at this detail:

Jose Rodriguez: We were flooded with intelligence about an imminent attack. That al Qaeda had an anthrax program, and that they were planning to use it against us. And that they were seeking nuclear materials to use in some type of nuclear weapon. So we were facing a ticking, time bomb situation and we were very concerned.

I’ll come back to the anthrax later. But note that Rodriguez claims that we had to use torture because Al Qaeda was seeking nukes to use in some type of weapon.

In part, Rodriguez is doing the same thing Maureen Mahoney did when trying to protect Jay Bybee: pointing to intelligence Abu Zubaydah gave up under torture–regarding a Jose Padilla dirty bomb plot–as justification for the torture of AZ to get that same information.

But it also highlights how this program was designed to obtain false confessions. Here is Abd al Rahim al-Nashiri’s description of how his torturers invited him to give a false confession about 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. [my emphasis]

Jose Rodriguez says we had to torture because there were rumors of nukes (the same apparently unfounded claim the current Administration uses to justify drone strikes). Nashiri reveals that his torturers told him he had to confirm that rumor.

When he did, they laughed.

Did they need to torture because they had rumors of nukes? Or did they need to torture because they needed claims of nukes?

Right on Cue, the Counter-Argument to the Torture Apology Comes Out

Three years ago, I rather sheepishly gave Dianne Feinstein kudos for the seriousness of the Senate Intelligence Committee inquiry into torture. I said then–and I maintain now–that reports of the investigation make it sound like a far more substantive investigation than I had at first worried it would be.

But I will say that the apparent timing of its release seems unfortunate. Because it is likely to come out in the wake of the Jose Rodriguez propaganda, the SSCI report is being portrayed as the other side of a two-sided debate rather than the result of the sustained, exhaustive inquiry it is.

A nearly three-year-long investigation by Senate Intelligence Committee Democrats is expected to find there is little evidence the harsh “enhanced interrogation techniques” the CIA used on high-value prisoners produced counter-terrorism breakthroughs.

[snip]

President Barack Obama and his aides have largely sought to avoid revisiting Bush administration controversies. But the debate over the effectiveness of enhanced interrogations, which human rights advocates condemn as torture, is resurfacing, in part thanks to a new book by a former top CIA official.

In the book, “Hard Measures,” due to be published on Monday, April 30, the former chief of CIA clandestine operations Jose Rodriguez defends the use of interrogation practices including water-boarding, which involves pouring water on a subject’s face, which is covered with a cloth, to simulate drowning.

Whether the timing–coming out just as Mitt Romney and his torturer-advisors face off against Obama in the General Election–was planned or not, the effect will be to turn torture into a campaign issue with two sides treated as legitimate by a spineless press, rather than one side with self-preservation in mind and the other with exhaustive study.

And sadly, that will probably mean the most interesting (and politically explosive) result of the investigation gets lost, relegated to paragraph 26 of 27.

Critics also say that still-classified records are likely to demonstrate that harsh interrogation techniques produced far more information that proved false than true.

Dana Priest reveals that, when Jose Rodriguez tried to persuade her not to publish news of the black sites in 2005, he tried to argue torture “was producing real results and helping to keep the country safe.” We’re about to get validation that the example of Ibn Sheikh al-Libi was not unique (though his treatment was included in the scope of the SSCI study). If torture “was producing real results” those results were false confessions, not real intelligence.

If we’re going to have a debate about torture, the fact that Cheney and his torturers used it to create false stories to–among other things–get us into the Iraq War should be at the center of that debate.

Inadequate Briefing on the Drone Program Shows Congress Hasn’t Fixed the Gloves Come Off MON

I need to finish my series (post 1, post 2, post 3, post 4, post 5, post 6) on the Obama Administration’s efforts to hide what I’ve dubbed the “Gloves Come Off” Memorandum of Notification. As I described, the MON purportedly gave CIA authority to do a whole slew of things, but left it up to the CIA to decide how to implement the programs Bush authorized. And rather than giving the Intelligence Committees written notification of the details of the programs, CIA instead gave just the Gang of Four deceptive briefings on the programs, which not only gave a misleading sense of the programs, but also prevented Congress from being able to limit the programs by refusing to fund the activities.

Yet, as MadDog and I were discussing in the comments to this post, these aspects of the MON set up did not entirely elude the attention of Congressional overseers. In fact, the very first Democrat to be briefed that torture had been used (remember, Pelosi got briefed it might be used prospectively) asked questions that went to the heart of the problem with the structure of the MON.

The CIA won’t tell Jane Harman whether the President approved torture from a policy standpoint

Jane Harman was first briefed on the torture program, with Porter Goss, on February 5, 2003. We don’t actually know what transpired in that briefing because CIA never finalized a formal record of the briefing. But five days after the briefing, Harman wrote a letter to CIA General Counsel Scott Muller. In addition to using a word for the torture program CIA has redacted and objecting to the destruction of the torture tapes, Harman asked questions that should have elicited a response revealing the Gloves Come Off MON was what authorized the torture program.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

The whole point of a MON, after all, was to get the President on the record asserting that the programs authorized by it are “necessary to support identifiable foreign policy objectives of the United States and [are] important to the national security of the United States.” Here, Harman was asking whether the President was part of a policy review on torture.

Just over a week after Harman sent this letter, the CIA met with the White House to decide how to respond to Harman’s letter.

Now, granted, Harman’s question did not explicitly ask about a MON. But the CIA did not even answer the question she did ask. Muller basically told her policy had “been addressed within the Executive Branch” without saying anything about Bush’s role in it.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

Kudos to Harman for actually asking questions. But at this point, she should have known that there was something funky about the legally required MON for the torture program.

Two years later, she was still trying to get answers about the MON. In her third briefing on torture (PDF 29-31; see also this post)–on July 13, 2004, which was almost 3 weeks after Harman should have received the Inspector General Report–Muller first claimed that the legal foundation for the torture program were the Bybee Memos (he provided this explanation in the context of explaining considerations of whether the program complied with Article 16 of the Convention against Torture).

The General Counsel said that the effort was working effectively under the DOJ 1 August 2002 memo which was the legal foundation for the debriefings and interrogations.

But later in the briefing, Harman appears to have noted that the MON didn’t authorize torture, it only authorized capture and detention.

Rep. Harman noted that the [redaction] did not specify interrogations and only authorized capture and detention. Continue reading

Why Jose Rodriquez Should Be In Prison, Not On A Book Tour

As Marcy noted, Adam Goldman and Matt Apuzzo of the AP have gotten their hands on an early copy of Jose Rodriquez’s new screed book, “Hard Measures”. The one substantive point of interest in their report involves the destruction of the infamous “torture tapes”. What they relate Rodriquez saying in his book is not earth shattering nor particularly new in light of all the reporting of the subject over the years, but it is still pretty pretty arrogant and ugly to the rule of law:

The tapes, filmed in a secret CIA prison in Thailand, showed the waterboarding of terrorists Abu Zubaydah and Abd al-Nashiri.

Especially after the Abu Ghraib prison abuse scandal, Rodriguez writes, if the CIA’s videos were to leak out, officers worldwide would be in danger.

“I wasn’t going to sit around another three years waiting for people to get up the courage,” to do what CIA lawyers said he had the authority to do himself, Rodriguez writes. He describes sending the order in November 2005 as “just getting rid of some ugly visuals.”

As you may recall, specially assigned DOJ prosecutor John Durham let the statute of limitations run out on prosecuting Jose Rodriquez, and others directly involved, including four Bush/Cheney White House attorneys (David Addington, Alberto Gonzales, John Bellinger and Harriet Miers) involved in the torture tapes destruction, as well as two CIA junior attorneys, on or about November 9, 2010. There was really never any doubt about what Rodriquez’s motivation was in light of the fact he destroyed the tapes of Abu Zubaydah and al-Nashiri within a week of Dana Priest’s blockbuster article in the Washington Post on the US “black site” secret prisons.

But, just as there was no doubt, then or now, as to the motivation of Rodriquez and/or the others, there was similarly never any doubt about the legitimate basis for criminal prosecution. The basic government excuse was they could not find any proceeding in which the torture tapes were material to so as to be required to have been preserved. For one thing, Judge Alvin Hellerstein determined the tapes were indeed material to the ACLU FOIA suit and within the purview of their evidentiary hold (even though he refused to hold CIA officials in contempt under the dubious theory they may not have had notice).

More important, however, was the immutable and unmistakable fact that the torture tapes were of specific individuals, al-Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri, who, at the time of destruction of the tapes, were in detention awaiting trial, whether it be in an Article III Continue reading

Jose Rodriguez’ Idea of “Ugly Visuals”: Blank and Altered Tapes

Jose Rodriguez, not exactly a squeamish guy, is spreading a myth that the reason he destroyed the torture tapes was because the torture depicted on them was so bad that people would kill CIA officers in response to the violence

Especially after the Abu Ghraib prison abuse scandal, Rodriguez writes, if the CIA’s videos were to leak out, officers worldwide would be in danger.

“I wasn’t going to sit around another three years waiting for people to get up the courage,” to do what CIA lawyers said he had the authority to do himself, Rodriguez writes. He describes sending the order in November 2005 as “just getting rid of some ugly visuals.”

Except there’s a problem with that claim.

The problem with the torture tapes is not what they showed, but what they didn’t show. Such as the two separate waterboarding sessions that were, for some reason, not captured on tape at all.

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

Or the way many of the tapes showed some sign of tampering that hid their content.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

In other words, the tapes probably didn’t show the worst torture sessions. On the contrary, the tapes were enduring proof that the torturers tampered with the tapes to make sure they didn’t show the torture sessions.

Apparently, Jose Rodriguez thinks a bunch of snowy taped over tapes–proof that the torturers covered up evidence of what they did–constitutes “ugly visuals.” And I guess it does, but not in the way he’s claiming in his book.

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bmaz @brahmresnik @LarrySabato It always has been, despite flaky polls.
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bmaz @maassive I do not think the deadline is the entire law. You also have to consider breadth and enforceability.
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bmaz .@GregMitch In a single series, Bumgarner doesn't even top Bob Gibson in 1967. May not beat Gibson overall either.
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emptywheel Can someone explain why Mike Allen thinks McCain would get SASC, when Inhofe is Ranking? http://t.co/NKUm1X5zMB
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bmaz @armandodkos @emptywheel And, if other things equal, I don't relish Cornyn/Cruz over McConnell necessarily
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bmaz @armandodkos @emptywheel I'd be happy for McConnell to lose (think odds slim of that tho); just think such a loss doesn't change much.
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emptywheel @armandodkos Not true that it hurts on nothing else. Inhofe, Burr, in particular, concern me. @bmaz @sahilkapur
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bmaz @emptywheel @armandodkos @sahilkapur ...get deals cut if he wants them, or people that will never deal?
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bmaz @emptywheel @armandodkos @sahilkapur Would you rather have a Majority Leader that is at least capable of making deals+has discipline to...
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bmaz @nickmartin She should be. Ebola is scary, but there is simply no factual basis as to her case. America needs to stiffen its spine a bit.
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