Tag Archives: Michael Mukasey

Obama Administration Not Meeting Transparency Standard Set by Bush Lawyer Steven Bradbury

By:  Friday February 22, 2013 12:07 pm

Glenn Greenwald has a great post on the Administration’s refusal to say whether it can kill Americans inside the US. But he misstates how extreme Obama’s refusal to share Office of Legal Counsel memos is. That’s because he equates an Administration sharing OLC memos with the intelligence committee and sharing them with the public.

Critically, the documents that are being concealed by the Obama administration are not operational plans or sensitive secrets. They are legal documents that, like the leaked white paper, simply purport to set forth the president’s legal powers of execution and assassination. As Democratic lawyers relentlessly pointed out when the Bush administration also concealed legal memos authorizing presidential powers, keeping such documents secret is literally tantamount to maintaining “secret law”. These are legal principles governing what the president can and cannot do – purported law – and US citizens are being barred from knowing what those legal claims are.

[snip]

You know who once claimed to understand the grave dangers from maintaining secret law? Barack Obama. On 16 April 2009, it was reported that Obama would announce whether he would declassify and release the Bush-era OLC memos that authorized torture. On that date, I wrote: “today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law.” When it was announced that Obama would release those memos over the vehement objections of the CIA, I lavished him with praise for that, writing that “the significance of Obama’s decision to release those memos – and the political courage it took – shouldn’t be minimized”. The same lofty reasoning Obama invoked to release those Bush torture memos clearly applies to his own assassination memos, yet his vaunted belief in transparency when it comes to “secret law” obviously applies only to George Bush and not himself.

But it is not the case that Bush always sat on OLC memos. In fact, as Dianne Feinstein noted in John Brennan’s confirmation hearing, at least by the last year of the Bush Administration, Democrats had gotten Steven Bradbury to start turning over even the most sensitive OLC memos to Congress.

I wanted to talk about, just for a moment, the provision of documents. Senator Wyden and others have had much to do about this. But our job is to provide oversight to try to see that the CIA and intelligence communities operate legally.

In order to do that, it is really necessary to understand what the legal — the official legal interpretation is. So the Office of Legal Counsel opinions becomes very important.

We began during the Bush administration with Mr. Bradbury to ask for OLC opinions. Up til last night, when the president called the vice chairman, Senator Wyden and myself and said that they were providing the OLC opinions, we have not been able to get them. It makes our job to interpret what is legal or not legal much more difficult if we do not have those opinions.

Which made it possible to — as DiFi did in an exchange with Michael Mukasey on April 10, 2008 — force the (Bush) Administration to publicly disavow some of the more extreme positions endorsed by John Yoo.  Continue reading →


FISA Amendments Act: “Targeting” and “Querying” and “Searching” Are Different Things

By:  Monday June 11, 2012 3:36 pm

Steven Aftergood suggests there’s disagreement among Senate Intelligence Committee members about whether or not the FISA Amendments Act allows the government to get US person content without a warrant.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

I don’t think there is a conflict. Rather, I think DiFi simply responded to Wyden and Udall’s assertions with the same spin the government has used for some time. That’s because DiFi is talking about “targeting” and Wyden and Udall are talking about “searching” US person communications.

DiFi quotes much of the language from Section 702 earlier in her statement on FAA, repeating, repeating the word “target” three times.

In enacting this amendment to FISA, Congress ensured there would be important protections and oversight measures to safeguard the privacy and civil liberties of U.S. persons, including specific prohibitions against using Section 702 authority to: “intentionally target any person known at the time of acquisition to be located in the United States;” “intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;” “intentionally target a United States person reasonably believed to be located outside the United States;” or “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” As an additional measure the law also requires that an acquisition under Section 702 “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” [my emphasis]

Her specific retort to the problem Wyden and Udall differentiates clearly between “querying information collected under Section 702 to find communications of a particular United States person” and “conduct[ing] queries to analyze data already in its possession” and “targeting.”

Finally, on a related matter, the Committee considered whether querying information collected under Section 702 to find communications of a particular United States person should be prohibited or more robustly constrained. As already noted, the Intelligence Community is strictly prohibited from using Section 702 to target a U.S. person, which must at all times be carried out pursuant to an individualized court order based upon probable cause. Continue reading →


Anonymous DOJ Statement: “Trust Us”

By:  Wednesday March 28, 2012 12:33 pm

The Senate Judiciary Committee is holding a hearing today to review the results of the Schuelke report on the prosecutorial misconduct in the Ted Stevens case and to entertain the Lisa Murkowski bill requiring disclosure. In response, DOJ submitted a statement for the record, opposing any legislation enforcing its discovery obligations.

When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, toensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement–for the first time in the history of the Department of Justice–that every federal prosecutor receive refresher discovery training each year.

In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources.

In short, DOJ is saying, “trust us. We don’t need a law requiring us to do what case law says we need to.”

Right off the bat, I can think of 5 major problem with this statement:

No one has been held accountable

We are three years past the time when Stevens’ case was thrown out. Yet none of the prosecutors involved have been disciplined in any meaningful way.

No doubt DOJ would say that it will hold prosecutors responsible if and when the Office of Professional Responsibility finds they committed misconduct. But in the interim three years, DOJ as a whole has sent clear messages that it prefers protecting its case to doing anything about misconduct. And–as Chuck Grassley rightly pointed out at the hearing–thus far no one has been held responsible.

This statement may claim DOJ is serious about prosecutorial misconduct. But its actions (and inaction) says the opposite.

Even after this training, discovery problems remain

As the DOJ statement lays out, in response to the Stevens debacle, DOJ rolled out annual training programs for prosecutors to remind them of their discovery obligations.

And yet, last year, Leonie Brinkema found that prosecutors in the Jeff Sterling case had failed to turn over critical evidence about prosecution witnesses–one of the problems with the Stevens prosecution. The prosecutor involved? William Welch, whom Schuelke accused of abdicating his leadership role in the Stevens case (note, DOJ says the CIA is at fault for the late discovery; but Welch is, after all, the prosecutor who bears responsibility for it).

If William Welch can’t even get discovery right after his involvement in this case and, presumably, undergoing the training DOJ promises will fix the problem, then training is not enough to fix the problem.

Eric Holder won’t run DOJ forever

The statement focuses on Holder’s quick decision to dismiss the case against Stevens, as if that, by itself, guards against any similar problems in the future. But before Holder was AG, Michael Mukasey was–and Judge Emmet Sullivan grew so exasperated with Mukasey’s stonewalling on this case, he ordered him to personally respond to questions about the case.

Continue reading →


The Government Doesn’t Want to Talk about Collecting Domestic Communications under FAA

By:  Monday February 20, 2012 3:41 pm

On Friday, the government appealed the 2nd Circuit’s decision that Amnesty International and other NGOs and individuals have standing to challenge the FISA Amendments Act. I’ll have a post on the implications of their substantive argument shortly. But in the meantime, I wanted to note what they’re not even addressing.

The image to the left is a fragment of the government’s references to statutes and regulation mentioned in its brief; it’s the part of the list referring to the part of the FAA in question. As you can see, it almost–but not quite–lists every clause of the law.

One clause notably missing from the almost-sequential list above is 1881a(b)(4), which reads,

[An acquisition authorized under subsection (a)] may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

And while it mentions clauses that refer back to this restriction (for example, 1881a(c)(1), 1881a(d), 1881a(g)(2)(A)(i), etc), it never goes back and includes this language–the requirement that the government not intentionally acquire communications that are located entirely within the US–in its argument. (There are other clauses the brief ignores, a number of which pertain to oversight of the certifications the government has made; I may return to these at a future time.)

Or, to put it another way, the government never admits that the FAA permits the purportedly unintentional collection of entirely domestic communication.

And yet that is a part of this lawsuit. The original complaint in this suit invoked this clause:

An acquisition under section 702(a) may not … “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States

[snip]

Moreover, the Attorney General and the DNI may acquire purely domestic communications as long as there is uncertainly about the location of one party to the communications.

And the 2nd Circuit opinion (authored by Gerard Lynch) referenced this clause:

“Targeting procedures” are procedures designed to ensure that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and is designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

[snip]

In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:

[snip]

(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

[snip]

Under the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.

[snip]

But the government has not asserted, and the statute does not clearly state, that the FISC may rely on these assessments to revoke earlier surveillance authorizations.

Now, to some degree, the government might argue it ignored the clause prohibiting intentional–but not accidental–targeting of domestic communications because the plaintiffs’ primary basis for establishing standing is their frequent communication with likely targets overseas. As I’ll show, the government wants to make this case about a particular definition of a target, and key to that argument is a claim that it is impossible for the plaintiffs to be targets.

Yet therein lies one of the key problems with their argument, given that 1881a(b)(4) only prohibits the plaintiffs from being intentional targets; the FAA very pointedly did not prohibit the government from keeping US person information it “unintentionally” collected. In fact, Mike McConnell and Michael Mukasey started issuing veto threats when Russ Feingold tried to restrict the ongoing use of domestic communications identified as such after the fact.

Finally, in the one case that approved this kind of collection (though under the Protect America Act, not the FAA) used targeting procedures to substitute for particularity required under the Fourth Amendment. Under PAA, those procedures were not mapped out by law; under FAA they are, partly in the clause the government wants to ignore.

And yet, remarkably, the government doesn’t want that clause to be part of its discussion with SCOTUS. Seeing as how even the FISA Court of Review finds that substitute for particularity–the targeting procedures–to be a key part of compliance with the Fourth Amendment, you’d think that would be relevant.


The NYPD Profiles Everyone’s Favorite Terrorist Group, MEK

By:  Friday February 3, 2012 8:34 am

As I noted yesterday, the latest installment of Goldman and Apuzzo’s exposure of the CIA-on-the-Hudson relies on a 2006 document laying out plans to profile Iranians and Shiites (and Palestinians) in anticipation of heightened US-Iranian conflict.

New York City has always been a prime target for terrorist groups and as the possibility of military action taken against Iran grows stronger, so does the danger of the City being attacked by agents of the Iranian government or its sympathizers.

Based on that premise, they lay out a bunch of groups to profile.

Among those, however, is the MEK, the Iranian opposition group designated as a foreign terrorist organization. Here’s what the document has to say about them:

Mujahedin-e-Khalq Organization (MEK), designated by the US Department of State as a terrorist group, has presence in NYC. MEK is strongly opposed to the current Iranian administration and it is not believe [sic] not to pose a threat of retaliation should the US engage Iran military. The group’s actions here are typified by several incidents where suspected MEK members disrupted speeches and protested against Iranian officials visiting and/or present in US.

Now, at one level, the MEK actually is a designated terrorist organization, regardless of how sensible that designation remains. So it makes sense to see them profiled by the NYPD. Though it is telling by itself that 5 years into the CIA-on-the-Hudson program, they apparently hadn’t been, yet. That is, the NYPD doesn’t appear to have been pursuing terrorist organizations in general. (Indeed, it did not include Colombians–who might be of interest because of terrorist organizations FARC and AUC–among its ancestries of interest.)

But in spite of the fact that according to the NYPD, the MEK doesn’t pose a threat, it does appear to have included the MEK in their Iranian profiling. Among its recommended actions, it suggests,

  • Expand and focus intelligence collection at locations affiliated with the MEK.
  • Identify leads with subjects or locations having ties to Hamas, Hezbollah, PIJ, MEK, or the Alavi Foundation.

An excellent use of taxpayer dollars!

Granted, this document was written in 2006, so the NYPD’s profiling priorities may have been improved in the interim six years. But I wonder. When such prominent New Yorkers as Michael Mukasey and Rudy Giuliani joined the MEK speaking tour (technically committing material support for terrorism under Holder v. HLP) did the NYPD start collecting intelligence on them, too?

In any case, the NYPD’s belated decision to profile a designated terrorist organization at the time when they were deemed not to pose a threat sure embodies the kind if idiotic decisions that appear to lie behind the CIA-on-the-Hudson’s intelligence program.


Michael Mukasey’s Torture Apologies

By:  Friday July 1, 2011 6:20 am

After the Osama bin Laden killing, Michael Mukasey rather shamelessly took the lead in claiming torture had some role in finding OBL.

I thought then that the sheer volume of the torture apologists’ wails suggested that John Durham’s torture investigation might actually move forward in some way.

But I was particularly struck by Mukasey’s prominence. Unlike most of the other torture apologists, Mukasey was not complicit with the torture itself, but merely with the cover-up.

With that in mind, I wanted to return to the discussion in Mukasey and Mark Filip’s letter on the OPR report, particularly their argument against the OPR report’s recommendation that DOJ review the prosecution declinations.It’s interesting, first of all, because Mukasey and Filip initially lump the recommendation for review in among the list of issues they claim OPR has made errors on.

Nonetheless, we are concerned that the current proposed findings of professional misconduct, recommendation for reconsideration of prosecutorial declinations, and request that the Department review certain memoranda signed by Steven Bradbury, are based on factual errors, legal analysis by commentators and scholars with unstated potential biases, unsupported speculation about the motives of Messrs. Bybee and Y00, and a misunderstanding of certain significant Department of Justice and Executive Branch interagency practices.

But in their section on the recommendation for review, Mukasey and Filip don’t describe any errors.

The Draft Report recommends that “the Department reexamine certain declinations of prosecution regarding incidents of detainee abuse referred to the Departmentby the CIA OIG.” [Id at 9.] As the Draft Report itself recognizes, the question whether to prosecute matters addressed in the CIA OIG report has been addressed independently by two sets of prosecutors, first in the Counterterrorism Section (then located in the Criminal Division) and later in the U.S. Attorney’s Office for the Eastern District of Virginia. In both cases, the declinations were based on a variety of prosecutorial considerations, many of which seemingly would be unaffected by any information in the Draft Report and most of which seemingly would have been known to prosecutors at the time of their decisions. 11 Indeed, prosecutors in the Eastern District of Virginia made their decision to decline prosecution in 2005, well after the 2002 Bybee Memo had been withdrawn by the Department. In addition, if and when OPR’s report is finalized (whether with or without any professional misconduct referrals), the prosecutors could be given access to it, and could re-evaluate their decisions as they saw fit. In light ofthese facts, we believe it is unnecessary for OPR to recommend reconsideration.

Mukasey and Filip do suggest the OPR report might be ignoring the “variety of prosecutorial considerations” that guided the original declination decision. Except they admit that OPR has discussed some of them in its report.

11 Some of these considerations arc discussed in classified portions of the Draft Report.

But aside from that, the opposition to the recommendation to revisit the declination decisions seems to lie in the risk that a different prosecutor–not one of the ones involved in the 2003 or 2005 declinations–would review the cases. Just make the report available, Mukasey and Filip suggest, and let one of the prosecutors who has already wrestled with it choose to read the review and determine whether a reconsideration is merited (never mind the fact that some of the key prosecutors–people like Paul McNulty–were no longer in government).

That by itself is notable.

All the more so considering what happened afterwards: Eric Holder had John Durham, the independent prosecutor that Mukasey himself selected to investigate the torture tape destruction, review the declinations.

All of which makes me wonder whether Mukasey is such a shrill torture apologist not just because he had to agree not to investigate torture to get his swank AG gig. But also because he bears responsibility for picking Durham in the first place.


Is Mukasey Suggesting We Ignored Information Mohammed al-Qahtani Gave Us?

By:  Tuesday May 17, 2011 12:13 pm

I’ve been having difficulty finding the time to get through the entire AEI torture extravaganza that took place yesterday (“Moderated” by John Yoo). But by the time I read this Greg Sargent piece, I had gotten through the point at about 3 minutes in where Michael Mukasey said,

Was there a memo in the file beforehand [before KSM uttered the name of courier Abu Ahmad al-Kuwaiti] that contained that name? Yes, but it was disregarded because it came from somebody insignificant and it was not regarded as significant.

Which in and of itself seems an admission (one reflected in the CIA IG Report) that CIA wasn’t accrediting intelligence from more minor figures adequately in their assessments of efficacy.

But there may be another problem with Mukasey’s statement. According to the NYT, KSM was reported to have been asked about al-Kuwaiti months after his waterboarding, in fall 2003.

And as you may have seen in reporting, al-Kuwaiti’s name comes up in a curious reference in Mohammed al-Qahtani’s Gitmo file. Note I’m showing the quotes themselves and the sources. And as you read this, remember that KU-10024 is KSM’s detainee number, so the email training described involves KSM, al-Kuwaiti, and al-Qahtani.

(S//NF) Detainee received computer training from al-Qaida member Abu Ahmad al-Kuwaiti in preparation for his mission to the US.

(S//NF) Detainee stated while at Abu Shem’s house in Karachi in July 2001, KU-10024 had al-Kuwaiti teach detainee to send email. KU-10024 informed detainee when someone went on a mission, he would need to know how to send messages and email was safer than talking on the phone. Al-Kuwaiti took detainee to a local internet cafe for his training.42

(S//NF) Abu Ahmad al-Kuwaiti was a senior al-Qaida facilitator and subordinate of KU-10024. Al-Kuwaiti worked in the al-Qaida media house operated by KU-10024 in Kandahar and served as a courier.43

(S//NF) Al-Qaida facilitator Hassan Ghul stated al-Kuwaiti, Hamza al-Ghamdi and Abd al-Rahman al-Maghrebi traveled with UBL.44 (Analyst Note: Al-Kuwaiti was seen in Tora Bora and it is possible al-Kuwaiti was one of the individuals detainee reported accompanying UBL in Tora Bora prior to UBL’s disappearance.)

(S//NF) Detainee stated he was not very skilled in the use of email and al-Kuwaiti told KU-10024 it would be difficult for the detainee to fully understand computers or how to use the internet for the purpose of emailing. (Analyst Note: Detainee attended a computer course in Saudi Arabia and received a certificate upon graduating. It is doubtful detainee would not be able to grasp the concept and procedures necessary for internet email, especially with Arabic websites that offered the service. Detainee stated KU-10024 provided him with a code to use when he reported success obtaining his visa.)45

42 IIR 6 034 1194 03

43 IIR 6 034 0226 05, TD-314/04398-05, TD-314/39130-02

44 TD-314/29012-04, TD-314/30205-04, Analyst Note: For additional information see TD-314/05730-05, IIR 6 034 0226 05, TD-314/45991-05, TD-314/63199-04, TD-314/04398-05, TD-314/56328-04, TD-314/55744-04, TD- 314/49162-04, TD-314/45296-04, TD-314/24351-04, TD-314/04950-04, TD-314/39130-02, IIR 6 034 0760 03

45 IIR 6 034 1194 03, 000063 SIR 30-MAY-2003, IIR 6 034 1205 03 [my emphasis]

First, note the argument they’re making here. To support the claim that Mohammed al-Qahtani must be an important al Qaeda figure, they use his own description of being trained on using email by Abu Ahmad al-Kuwaiti, and then link that up with all the information the folks at Gitmo knew about al-Kuwaiti in 2008, thereby showing associatively that al-Qahtani was being trained by people–KSM and al-Kuwaiti–who had close ties to OBL.

Some of this information to support this argument was obviously collected after al-Qahtani’s earlier interrogations (and notably, after the most intense part of his torture, which lasted from November 23, 2002 to January 15, 2003) and from other detainees. The information about al-Kuwait’s role as a facilitator and courier (see footnote 43) is sourced to two intelligence reports from 2005, and one from 2002. Given that there’s nothing that says al-Qahtani explained this detail himself, that 2002 report might be the report from the detainee held by another country.

Then there’s the intelligence given by Hassan Ghul, dated 2004 (see footnote 44), stating that al-Kuwaiti traveled with OBL. One of the two 2005 reports also cited is one of the same reports named in footnote 45.

It’s the information that came from al-Qahtani himself–which takes the form, “detainee stated”–that’s more interesting. The three pieces of intelligence that appear to come from al-Qahtani (see footnotes 42 and 45) are all dated 2003. More interesting, one of them is named 000063 SIR 30-MAY-2003. The appearance of al-Qahtani’s detainee number, 063, seems confirmation this intelligence came from him. And the report is dated May 30, 2003, at least three months before KSM is reported to have talked about al-Kuwaiti, but more than five months after his torture ended.

Now, it’s possible that al-Qahtani didn’t use al-Kuwaiti’s nickname. But it at least appears that al-Qahtani was using it several months before KSM was. Mind you, he didn’t say anything about al-Kuwaiti traveling with OBL (which came two years later from Hassan Ghul) or being a courier (which may have come from that detainee in another country). Just that some guy with ties to KSM tried to teach him to use email.

Of course, this doesn’t clear up the torture debate at all (aside from the fact that torture is illegal and immoral and, in the case of al-Qahtani, has made it impossible to try him for his presumed role in 9/11). After all, it appears that, like KSM, al-Qahtani started to talk about al-Kuwaiti five months after being tortured. And note, it appears, though is not certain, that al-Qahtani did not give this information to the FBI or DOD before he was tortured, when they didn’t know who he was.

But it does appear to be fatal for Mukasey’s story. It’s one thing to claim that a detainee in some other country is so minor no one paid attention to the intelligence he offered. But you can’t make the claim al-Qahtani–the assumed 20th hijacker–was insignificant.

Which leads to the bigger question: why did it take CIA at least three months after al-Qahtani talked about being trained for 9/11 by al-Kuwaiti before they asked KSM about him?


Michael Mukasey Doubles Down on the Sophism

By:  Friday May 13, 2011 5:00 am

The most interesting aspect of Michael Mukasey’s retort to John McCain’s op-ed calling him a liar is not the content–that’s the same old trite sophism–but rather the publication details of it.

It appears not under Mukasey’s byline, but under Dick Cheney’s speech-writer’s byline, complete with a picture. And when he introduces Mukasey’s words, Marc Thiessen doesn’t use any of those trappings of grammar or publication we normally use to indicate direct quotations from others, like quotation marks or a blockquote. Rather, Thiessen just says “here is his statement:” and then launches right into “Senator McCain described as “false” my statement that Khalid Sheikh Mohammed broke under harsh interrogation…”

The seamlessness between Thiessen and Mukasey speaking in the first person all has the wonderful effect of emphasizing that Mukasey’s original statement was simply another product of Dick Cheney’s torture apologist PR campaign. In a bid to salvage the moral capitulations Mukasey made to become Attorney General, he now speaks in the voice of Dick Cheney’s flack.

And note the rather incredible ethical lapse here? McCain’s op-ed, remember, was published in the WaPo, the same paper Mukasey–I mean Thiessen’s–response is in. At current count, McCain’s op-ed has 778 Tweets and 5837 recommendations–22 times as many recommendations as Thiessen’s own op-ed on torture published two days earlier. [Update: And Greg Sargent did a post on McCain's Senate speech, which itself has 6661 recommends at this point.] Whether McCain’s op-ed made Fred Hiatt vomit or not, it has brought the WaPo a great deal of traffic and attention, precisely what newspapers generally like to do with their op-ed pages. Generate controversy, influence debate, get traffic.

But Thiessen didn’t link McCain’s op-ed! He prevented the WaPo from enjoying the stickiness that a heated debate conducted within its own pages can give.

Of course, he also made it a lot more difficult for his–um, I mean Mukasey’s–readers to compare Mukasey’s rebuttal with McCain’s own op-ed. Thiessen–um, I mean Mukasey–must hope that readers don’t see that McCain’s claim had everything to do with whether torturing Khalid Sheikh Mohammed led to Osama bin Laden, whereas Thiessen’s–um, I mean Mukasey’s rebuttal–clings to KSM’s use of a nickname that the US already knew. Or maybe Thiessen–um, I mean Mukasey–didn’t want his readers to know that KSM lied under torture and actually hindered the hunt for OBL, even after Thiessen’s–um, I mean Mukasey’s–cherished torture was used.

Or maybe Thiessen–um, I mean Mukasey–is hiding the much more powerful argument McCain made (which, as Amy Davidson lays out, was unfortunately diminished by McCain’s call for no prosecutions), in which McCain talks about the moral imperative not to torture.

As we debate how the United States can best influence the course of the Arab Spring, can’t we all agree that the most obvious thing we can do is stand as an example of a nation that holds an individual’s human rights as superior to the will of the majority or the wishes of government? Individuals might forfeit their life as punishment for breaking laws, but even then, as recognized in our Constitution’s prohibition of cruel and unusual punishment, they are still entitled to respect for their basic human dignity, even if they have denied that respect to others.

All of these arguments have the force of right, but they are beside the most important point. Ultimately, this is more than a utilitarian debate. This is a moral debate. It is about who we are.

You see, this is all about Thiessen–um, I mean Mukasey–engaging in another round of sophism, of setting facts loose in a haze of illogical statements to confuse readers. To allow readers to see a clear assertion that torture violates America’s claims to moral standing might clarify what Thiessen and those he speaks for are trying so desperately to muddle.


Why Did the Torture Apologists Come Out of their Caves?

By:  Friday May 6, 2011 2:40 pm

I don’t really have the heart to refute Michael Mukasey’s apology for torture. In it, he contradicts assertions made by torture apologists who were closer to the torture. He includes extraneous (and false) details to fluff up his case. He falsely pretends the torture described in the torture memos accurately described what happened to the detainees he claims led to OBL. And he doesn’t even have the amusing self-contradiction that Rummy had, which at least made Rummy’s psychological pretzel interesting to read.

In short, for Mukasey, the capture of OBL is not time to celebrate, but rather an opportunity to launch a hackish political attack on President Obama.

But the piece did lead me to reflect on why the torture apologists are so desperately trying to give torture the credit for finding OBL.

There’s the big reason, of course, hinted at by Jose Rodriguez. He stated that the most valuable piece of intelligence Abu Faraj al-Libi revealed under torture was that OBL’s courier only communicated with the outside world every two months. From that, Rodriguez concluded that OBL was only a figurehead, no longer the active head of al Qaeda (a conclusion that may have been proven false by the intelligence found at OBL’s compound). Later that year, CIA would shutter the group focusing on finding bin Laden because–they had concluded–al Qaeda was no longer the hierarchy that had made OBL such a key figure earlier.

In other words, it’s not just that the torture apologists’ claims about torture–that it would immediately yield the information that would lead to OBL, allowing them to bypass the years of intelligence gathering it ultimately took to find OBL–proved so wrong. It’s that one of the chief torturers seems aware that the best piece of intelligence they got under torture is intelligence that led him to stop searching for OBL.

Then there’s the laughable reason Mukasey seems to be animated by: because Obama’s being mean to the torturers.

Yet the Justice Department, revealing its priorities, had gotten around to reopening investigations into the conduct of a half-dozen CIA employees alleged to have used undue force against suspected terrorists. I say “reopening” advisedly because those investigations had all been formally closed by the end of 2007, with detailed memoranda prepared by career Justice Department prosecutors explaining why no charges were warranted. Attorney General Eric Holder conceded that he had ordered the investigations reopened in September 2009 without reading those memoranda. The investigations have now dragged on for years with prosecutors chasing allegations down rabbit holes, with the CIA along with the rest of the intelligence community left demoralized.

[snip]

We also need to put an end to the ongoing investigations of CIA operatives that continue to undermine intelligence community morale.

Mukasey’s concern is laughable, of course, because no one really believes these ongoing investigations exist for any reason except to shield the US from torture investigations conducted by countries like Spain and Poland. After all, if you won’t charge Jose Rodriguez for destroying evidence that the torture conducted by his contractors exceeded the torture memos, you’re not going to file charges against anyone. Moreover, the statutes of limitation are expiring as we wait.

Though perhaps this is the real reason motivating Mukasey:

Immediately following the killing of bin Laden, the issue of interrogation techniques became in some quarters the “dirty little secret” of the event. But as disclosed in the declassified memos in 2009, the techniques are neither dirty nor, as noted by Director Hayden and others, were their results little. As the memoranda concluded—and as I concluded reading them at the beginning of my tenure as attorney general in 2007—the techniques were entirely lawful as the law stood at the time the memos were written, and the disclosures they elicited were enormously important. [my emphasis]

Mukasey sullied his reputation as a tough but fair judge when he agreed not to pursue torture in exchange for getting the Attorney General job. And since that time, the fiction he has been telling himself–that John Yoo’s analysis was even remotely serious, that the torturers didn’t exceed the guidelines of the memo, and that the torture proved valuable–has been exposed as a sordid lie. And ultimately, OBL’s death makes clear, it wasn’t worth it. The torture just impeded the real intelligence work that ultimately yielded OBL.

After all, ultimately the torture apologists staked their reputation on a certain approach to terrorism. That’s their legacy. It’s all they’ve got.

And, ultimately, I guess there’s one more reason the torture apologists came out of their caves. Either because of the media’s own complicity, or because the media has to sow controversy where celebration should suffice, the media is inviting them out of their caves; scheduling Condi Rice, Michael Chertoff, Michael Hayden, Rudy Giuliani, Rummy, and the pulse-less wonder himself for the Sunday shows. (The last time the Sunday shows featured a crowd like this, they were lying about mushroom clouds to gin up a war to distract us from beating al Qaeda.)


Are 95% of People Investigated Under New FBI Guidelines Innocent, but Entered into Database?

By:  Saturday March 26, 2011 8:11 pm

The NYT liberated the specific answer to a question that Russ Feingold asked in March 2009, but which DOJ didn’t respond to until November 2010, when Feingold was a lame duck Senator. At issue were new investigative guidelines Attorney General Michael Mukasey issued in late 2008, on his way out the door, which allowed the FBI to investigate Americans for First Amendment reasons so long as that First Amendment reason was not the only reason they were being investigated.

Here’s how the ACLU described the new guidelines:

Under the new “assessment” authority, FBI agents can investigate anyone they choose, so long as they claim they are acting to prevent crime, protect national security, or collect foreign intelligence, with absolutely no requirement of a factual connection between their authorizing purpose and the conduct of the individuals they are investigating. FBI agents can start “assessments” without any supervisory approval, and without reporting to FBI headquarters or the Department of Justice. The Guidelines do not require the FBI to keep records regarding when “assessments” are opened or closed and “assessments” have no time limitation. The FBI can even start an “assessment” of you simply to determine if you would make a good FBI informant. Innocence no longer protects ordinary Americans from being subjected to a wide range of intrusive investigative techniques. The techniques include:

  • collecting information from online sources, including commercial databases.
  • recruiting and tasking informants to gather information about you.
  • using FBI agents to surreptitiously gather information from you or your friends and neighbors without revealing their true identity or true purpose for asking questions.
  • having FBI agents follow you day and night for as long as they want.

So in response to Feingold’s questions about how many assessments had been initiated and closed, FBI responded:

The FBI has initiated 11,667 Type 1 and Type 2 assessments, 3,062 of which are ongoing. 427 preliminary and full investigations have been opened based upon information developed in these Type 1 and Type 2 assessments. 480 Type 3, 4, 5, and 6 assessments have been initiated, of which 422 remain open.

To do the math, 95% of the Type 1 and 2 assessments that have been closed have resulted in no further investigation, suggesting the FBI was on a wild goose hunt.

But here’s the tricky thing: the FBI records on those people can be entered into FBI’s investigative databases!

Even if information obtained during an assessment does not warrant opening a predicated investigation, the FBI may retain personally identifying information for criminal and national security purposes. In this context, the information may eventually serve a variety of valid analytic purposes as pieces of the overall criminal or intelligence picture are developed to detect and disrupt criminal and terrorist activities. In addition, such information may assist FBI personnel in responding to questions that may subsequently arise as to the nature and extent of the assessment and its results, whether positive or negative. Furthermore, retention of such information about an individual collected in the course of an assessment will alert other Divisions or Field Offices considering conducting an assessment on the same individual that the particular individual is not a criminal or national security threat. As such, retaining personally identifying information collected in the course of an assessment will also serve to conserve resources and prevent the initiation of unnecessary assessments and other investigative activities.

So that says the FBI may be entering those 95% innocent people into a database with personally identifiable information.

Now, to be fair, FBI also mandates that these personally identifying information contain a warning that the person “does not warrant further FBI investigation at this time.”

As a result: (i) when records retained in an assessment specifically identify an individual or group whose possible involvement in criminal or national security threatening activity was checked out through the assessment; and (ii) the assessment turns up no sufficient basis to justify further investigation of the individual or group, then the records must be clearly annotated as follows: “It is noted that the individual or group identified during the assessment does not warrant further FBI investigation at this time. It is recommended that this assessment be closed.”

And, as Charlie Savage notes, the numbers FBI gave Feingold may not be all that accurate.

Some aspects of the statistics are hazy, officials cautioned.

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