I’m just now getting around to the GOP rebuttal to the Senate Report. While it does raise a few decent points, it engages in a whole slew of the kind of word games the Bush Administration used to hide torture in the first place (I honestly would love to read a serious study of this whole project as an epistemological exercise).
Thus far, however, I most adore this paragraph on Congressional oversight.
The Study claims, “[t]he CIA did not brief the Senate Intelligence Committee leadership on the CIA’s enhanced interrogation techniques until September 2002, after the techniques had been approved and used.”88 We found that the CIA provided information to the Committee in hearings, briefings, and notifications beginning shortly after the signing of the Memorandum of Notification (MON) on September 17, 2001. The Study’s own review of the CIA’s representations to Congress cites CIA hearing testimony from November 7, 2001, discussing the uncertainty in the boundaries on interrogation techniques.89 The Study also cites additional discussions between staff and CIA lawyers in February 2002.90 The Study seems to fault the CIA for not briefing the Committee leadership until after the enhanced interrogation techniques had been approved and used. However, the use of DOJ-approved enhanced interrogation techniques began during the congressional recess period in August, an important fact that the Study conveniently omitted.92 The CIA briefed HPSCI leadership on September4, 2002. SSCI leadership received the same briefing on September 27, 2002.93
I am somewhat sympathetic to the first claim. As it notes, at a briefing for what appears to be the Senators (as opposed to staff) on November 7, 2001, Deputy Director of Operations said something that should have set off alarm bells.
Deputy Director of Operations (DDO) James Pavitt assured the Committee that it would be informed of each individual who entered CIA custody. Pavitt disavowed the use of torture against detainees while stating that the boundaries on the use of interrogation techniques were uncertain—specifically in the case of having to identify the location of a hidden nuclear weapon.2447
2447 “We’re not going to engage in torture. But, that said, how do I deal with somebody I know may know right now that there is a nuclear weapon somewhere in the United States that is going to be detonated tomorrow, and I’ve got the guy who I know built it and hid it? I don’t know the answer to that.” (See transcript of Senate Select Committee on Intelligence MON briefing, November 7, 2001 (DTS #2002-0611);
Pavitt effectively said, just as the government started to round up people like Ibn Sheikh al-Libi in Afghanistan, “we’re not going to torture but then again maybe we will.” And while it is crystal clear he failed to meet the terms he laid out — Congress was not informed about each detainee, there was never a detainee in custody who had set a nuclear bomb nor even a ticking time bomb scenario, much less Abu Zubaydah, who was put on ice for over a month before the worst of the torture — his contemplation of using torture in case of a ticking time bomb should have been the moment for Congress to say, “Whoa! Stop!”
There’s no reason to believe the February briefing discussed the torture.
Which brings us to the September briefings.
Now, first of all, elsewhere in their rebuttal, the GOP note that Abu Zubaydah was subjected to torture in April (largely, but not entirely, sleep deprivation). They make much — some of it justified – of the Report for not dealing with this as torture. But here, they adopt the same approach the Report did and ignore that torture and point out that the DOJ-approved torture (that is, the torture that had some authorization beyond the Memorandum of Notification, rather than the torture that relied exclusively on it) started during Congressional recess, so whatever was the poor CIA to do about Richard Shelby and Bob Graham being on vacation? (FWIW, Graham remained actively involved in the Joint Inquiry into 9/11 during that period; it’s when he first started getting incensed about Saudi Arabia’s role in the attack.)
Schools out for summer!
Except it wasn’t out.
As the official schedule from the period makes clear, the Senate met (marked by strike-through) on August 1, the day the torture memos were signed. Under the National Security Act, the Gang of Four, at least, are supposed to be briefed before a covert op. Clearly the Executive knew enough about what they planned to do with Abu Zubaydah on August 1 to be able to brief it before they started on August 4. (In case you’re wondering, the Senate was also in session in April to be briefed.)
I am, however, rather interested that the GOP is adopting the argument that CIA had to wait until September to roll out a new product, just as Andy Card was doing with the Iraq War at that same time. Especially given the way both Nancy Pelosi and Bob Graham have noted that the Executive was lying about both in that same period.
Finally, there’s the final claim — that Bob Graham and Richard Shelby got the same briefing that Nancy Pelosi and Porter Goss did. The claim commits another of the crimes the rebuttal accuses the Report of — insisting you can’t find out what happened at a briefing without interviewing the participants, which the GOP did no more than the SSCI staffers did.
But from the available evidence, we can be pretty sure Graham and Shelby did not get the same briefing that Pelosi and Goss did.
As I’ve laid out, someone(s) in the Pelosi and Goss briefing noted that the torture described in the briefing — which CIA had already done, though they didn’t tell Pelosi and Goss that — would be illegal in another country. The next day, CIA ramped up discussions of destroying the torture tapes that depicted that illegal torture. The next, Jose Rodriguez and a lawyer altered their record of the briefing to take out that reference to illegality. And, for some reason, the Graham and Shelby briefing, which had been scheduled for September 9, got postponed until the end of the month. Rodriguez did not attend the SSCI briefing, as he had the HPSCI one. And it appears to have been held in less secure space.
And while I’ve only interviewed half the people who attended those briefings, there does seem to be abundant evidence they were different. Not only that they were different, but different because of the reaction someone in the HPSCI briefing had.
Whatever. I guess it’s nice to know that departing Vice Chair Saxby Chambliss and rising Chair Richard Burr both think the CIA should get none of the oversight legally required during recess.
Over four years ago, I wrote a post noting how, in the two days after Jose Rodriguez and one of his Counterterrorism Lawyers briefed Nancy Pelosi and Porter Goss in September 2002 they might use torture prospectively, they 1) moved closer to deciding to destroy the torture tapes and 2) altered their initial record of the briefing to take out one sentence.
As I pointed out in the comments to this thread, someone (I’ll show in my new weedy post why it might be then-Counterterrorism Center Legal Counsel Jonathan Fredman) changed the initial description of the briefing that Jose Rodriguez and two others (I believe Fredman was one of the two) gave to Porter Goss and Nancy Pelosi on September 4, 2002. To see the documents showing discussing the alteration (but not the content of it), see PDF 84 of this set and PDF 11-12 of this set.
That’s suspicious enough. But as the email discussions of destroying the torture tape show (see PDF 3), the briefing and the alteration to the briefing record happened the day before and the day after–respectively–the day “HQS elements” started talking seriously about destroying the torture tapes.
On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.
Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]
So here’s what this looks like in timeline form:
September 4, 2002: Jose Rodriguez, C/CTC/LGL (probably Fredman) and a CTC Records officer brief Porter Goss and Nancy Pelosi on Abu Zubaydah’s treatment. According to both Goss and Pelosi, CIA briefs them on torture techniques, but implies they are hypothetical techniques that might be used in the future, not the past.
September 5, 2002: Unnamed people at CIA HQ discuss destroying the torture tapes, ostensibly because of danger to CIA officers conducting the torture.
September 6, 2002: Someone (possibly Jonathan Fredman or someone else in CTC’s Legal department) alters the initial description of the Goss-Pelosi briefing, eliminating one sentence of it. “Short and sweet” Rodriguez responded to the proposed change.
September 9, 2002: CIA records show a scheduled briefing for Bob Graham and Richard Shelby to cover the same materials as briefed in the Goss-Pelosi briefing. The September 9 briefing never happened; Graham and Shelby were eventually briefed on September 27, 2002 (though not by Rodriguez personally).
September 10, 2002: The altered description of the briefing is sent internally for CTC records. This briefing is never finalized by Office of Congressional Affairs head Stan Moskowitz into a formal Memorandum for the Record.
Or, to put it more plainly, they briefed Pelosi, decided they wanted to destroy the torture tapes (there’s no record Pelosi was told about the tapes), and then tweaked the record about what they had said to Pelosi.
The Torture Report backs my analysis (though doesn’t include the details about the torture tapes or that both Pelosi and Goss said they had been briefed the torture would be used prospectively; see here for backing of the claim this was a prospective briefing). But it adds one more detail.
The sentence Jose Rodriguez and his lawyer eliminated — the day after folks at CIA discussed destroying the torture tapes showing they had already used this torture — recorded that one or both of Pelosi and Goss noted that these techniques would be illegal in another country.
In early September 2002, the CIA briefed the House Permanent Select Committee on Intelligence (HPSCI) leadership about the CIA’s enhanced interrogation techniques. Two days after, the CIA’s [redacted]CTC Legal [redacted], excised from a draft memorandum memorializing the briefing indications that the HPSCI leadership questioned the legality of the program by deleting the sentence: “HPSCI attendees also questioned the legality of these techniques if other countries would use them.”2454 After [redacted] blind-copied Jose Rodriguez on the email in which he transmitted the changes to the memorandum, Rodriguez responded to email with: “short and sweet.”
At least one of these members of Congress (or their staffers) got briefed on torture and said the torture would be illegal if other countries used it, according to CIA’s own records. So CTC’s lawyer eliminated that comment from the CIA’s record, with Jose Rodriguez’ gleeful approval.
And yet he says Congress approved of these techniques from the start.
At the request of some on Twitter, I’m bringing together a Twitter rant of some facts on torture here.
1) Contrary to popular belief, torture was not authorized primarily by the OLC memos John Yoo wrote. It was first authorized by the September 17, 2001 Memorandum of Notification (that is, a Presidential Finding) crafted by Cofer Black. See details on the structure and intent of that Finding here. While the Intelligence Committees were briefed on that Finding, even Gang of Four members were not told that the Finding authorized torture or that the torture had been authorized by that Finding until 2004.
2) That means torture was authorized by the same Finding that authorized drone killing, heavily subsidizing the intelligence services of countries like Jordan and Egypt, cooperating with Syria and Libya, and the training of Afghan special forces (the last detail is part of why David Passaro wanted the Finding for his defense against abuse charges — because he had been directly authorized to kill terror suspects by the President as part of his role in training Afghan special forces).
3) Torture started by proxy (though with Americans present) at least as early as February 2002 and first-hand by April 2002, months before the August 2002 memos. During this period, the torturers were operating with close White House involvement.
4) Something happened — probably Ali Soufan’s concerns about seeing a coffin to be used with Abu Zubaydah — that led CIA to ask for more formal legal protection, which is why they got the OLC memos. CIA asked for, but never got approved, the mock burial that may have elicited their concern.
5) According to the OPR report, when CIA wrote up its own internal guidance, it did not rely on the August 1, 2002 techniques memo, but rather a July 13, 2002 fax that John Yoo had written that was more vague, which also happened to be written on the day Michael Chertoff refused to give advance declination on torture prosecutions.
6) Even after CIA got the August 1, 2002 memo, they did not adhere to it. When they got into trouble — such as when they froze Gul Rahman to death after hosing him down — they went to John Yoo and had him freelance another document, the Legal Principles, which pretend-authorized these techniques. Jack Goldsmith would later deem those Principles not an OLC product.
7) During both the August 1, 2002 and May 2005 OLC memo writing processes, CIA lied to DOJ (or provided false documentation) about what they had done and when they had done it. This was done, in part, to authorize the things Yoo had pretend-authorized in the Legal Principles.
8) In late 2002, then SSCI Chair Bob Graham made initial efforts to conduct oversight over torture (asking, for example, to send a staffer to observe interrogations). CIA got Pat Roberts, who became Chair in 2003, to quash these efforts, though even he claims CIA lied about how he did so.
9) CIA also lied, for years, to Congress. Here are some details of the lies told before 2004. Even after CIA briefed Congress in 2006, they kept lying. Here is Michael Hayden lying to Congress in 2007
10) We do know that some people in the White House were not fully briefed (and probably provided misleading information, particularly as to what CIA got from torture). But we also know that CIA withheld and/or stole back documents implicating the White House. So while it is true that CIA lied to the White House, it is also true that SSCI will not present the full extent of White House (read, David Addington’s) personal, sometimes daily, involvement in the torture.
11) The torturers are absolutely right to be pissed that these documents were withheld, basically hanging them out to dry while protecting Bush, Cheney, and Addington (and people like Tim Flanigan).
12) Obama’s role in covering up the Bush White House’s role in torture has received far too little attention. But Obama’s White House actually successfully intervened to reverse Judge Alvin Hellerstein’s attempt to release to ACLU a short phrase making it clear torture was done pursuant to a Presidential Finding. So while Obama was happy to have CIA’s role in torture exposed, he went to great lengths, both with that FOIA, with criminal discovery, and with the Torture Report, to hide how deeply implicated the Office of the President was in torture.
Bonus 13) John Brennan has admitted to using information from the torture program in declarations he wrote for the FISA Court. This means that information derived from torture was used to scare Colleen Kollar-Kotelly into approving the Internet dragnet in 2004.
By my count, John Rizzo completes his first lie in his purported “memoir,” Company Man, at the 64th word:
Zubaydah complained in his diary (see page 84) before he was captured in 2002 that he was being called Osama bin Laden’s heir when he wasn’t even a member of al Qaeda. And in his Combatant Status Review Board hearing in 2007 (see page 27), Zubaydah described his interrogators admitting he wasn’t Al Qaeda’s number 3, not even a partner. And in a 2009 habeas document the government calls Zubaydah an Al Qaeda affiliate, not a member (see 35 to 36 and related requests).
And yet Rizzo tells this lie right in the first paragraph of his book.
Granted, I’m more sympathetic to this lie than many of Rizzo’s other lies. I understand why he must continue telling it.
Back in 2002, Rizzo told John Yoo that Abu Zubaydah was a top al Qaeda figure during the drafting of the August 1, 2002 Bybee Memo authorizing torture. And based on that information, Yoo wrote,
As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.
Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.
Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.
If Rizzo were to admit that the representations he made to Yoo back in 2002 were false, then the legal sanction CIA got to conduct torture would crumble.
And unlike a lot of the lies CIA — and John Rizzo in particular — told DOJ during the life of the torture program, I’m not absolutely certain CIA knew this one to be a lie when they told it. CIA (and FBI) definitely believed Zubaydah was a high ranking al Qaeda figure when they caught him. In his CSRT, Zubaydah describes admitting he was al Qaeda’s number 3 under torture. Though it’s not clear whether that was the torture that took place before or after the memo authorizing that torture got written, raising the possibility that CIA presented lies Zubaydah told under torture to DOJ to get authorization for the torture they had already committed. But by the time of the memo, CIA had also had 4 months to to read Zubaydah’s diaries, which make such matters clear (and had it in their possession, so that by itself should invalidate the memo). So they should have and probably did know, but I think it marginally conceivable they did not.
Still, that doesn’t excuse journalists who have these facts available to them yet treat Rizzo as an honest interlocutor, as James Rosen is only the latest in a long line of journalists to do.
So as a service to those journalists who aren’t doing the basic work they need to do on this story, I thought I’d make a list of the documented lies Rizzo tells just in the first 10 pages of his “memoir.” These don’t include items that may be errors or lies. These don’t include everything that I have strong reason to believe is a lie or that we know to be lies but don’t yet have official documentation to prove it. They include only the lies that are disproven by CIA and other official documents that have been in the public domain for years.
These lies, like Rizzo’s lie about Abu Zubaydah’s role in 9/11, also serve important purposes in the false narrative the torturers have told.
I’ve gone through this exercise (I’m contemplating a much longer analysis of all the lies Rizzo told, but it makes me nauseous thinking about it) to point out that any journalist who treats him as an honest interlocutor, accepting his answers — he made some of the same claims to Rosen as he made here — as credible without real challenge is just acting as a CIA propagandist.
Don’t take my word for it — take the CIA’s word, as many of Rizzo’s claims are disproven by CIA’s own documents!
Update, April 21: Ben Wittes, in his review of this tract: “Rizzo is just being honest.” To be fair, Wittes appears to have meant it to describe Rizzo’s unvarying viewpoint, always serving his loyalty to the CIA. But in a review that doesn’t mention Rizzo’s serial lies, it’s embarrassing.
(1) Abu Zubaydah was not CIA’s first significant “catch.” Ibn Sheikh al-Libi was, though the CIA outsourced his torture to the Egyptians.
(3) Correspondence describes tapes of Abu Zubaydah’s torture in April 2002, not July 2002, as Rizzo claims. (see PDF 1)
(3-4) Obviously, CIA had another option besides torture: to let the FBI continue interrogating Zubaydah. Even if you don’t believe FBI had the success they claim to have had, they were an alternative that Rizzo makes no mention of.
(4) The first torture memo was not the August 1, 2002 one. Yoo wrote a shorter fax on July 13, 2002, which (according to the OPR Report) is actually the memo CTC’s lawyers relied on for their guidance to the torturers.
(5) Jose Rodriguez did not decide to destroy the tapes in October; he decided on September 5, the day after first briefing Nancy Pelosi on torture (without having told her they had already engaged in it).
(5) CIA did not follow the guidelines laid out in the Bybee memo for waterboarding, as CIA’s IG determined in 2004, and at least by the time the CIA IG reviewed the tapes, there was a great deal censored via damage, turning off the camera, or taping over of the content.(see PDF 42 and this post)
(6) The Gang of Eight was not briefed in 2002; only the Gang of Four (the Intelligence Committee heads) was. According to CIA’s own records, only one Congressional leader got a timely briefing, Bill Frist in 2004 (though Pelosi was briefed as HPSCI Ranking Member in 2002).
(8) John McPherson did not review the tapes after Christmas, 2002; he reviewed them about a month earlier. (see this post and linked underlying documents)
(8) Jay Rockefeller was not briefed in January 2003; only a staffer of his was. See this post for all the lies they told Pat Roberts in that briefing.
(9) While John Helgerson did not write about techniques that had not been authorized, he did describe that the waterboard as performed did not follow the guidelines given by DOJ. (see PDF 42) Rizzo also doesn’t note Helgerson’s observations about the tampering done to the tapes, which may have hidden unauthorized techniques.
(10) It is false that the 9/11 Commission Report relied heavily on Abu Zubaydah’s interrogations. They are cited just 10 times, and at least one of those was not corroborated.
But much of this has been clear for even longer, having been exposed in some form in 2009-10.
Yet much of that got lost in CIA’s aggressive attack on Congress — one that anticipated what we’ve seen and will surely continue to see with the release of the Torture Report. At the time, CIA attempted to claim Congress had been fully briefed on torture, and therefore shouldn’t criticize the agency. Yet it gradually became clear how laughable CIA’s claims were. Along the way details of the lies CIA told in briefings came out.
The lies CIA told Congress in its first several years of the torture program include that it,
There are a number of claims CIA made that are almost certainly also false — most notably with regards to what intelligence came from torture — but most of that didn’t get recorded in the CIA’s records. I fully expect we’ll find details of those in the Senate Intelligence Committee report.
September 17, 2001: Bush signs “Gloves Come Off” Memorandum of Notification that authorizes capture and detention of top al Qaeda leaders, but leaves CIA to decide the details of that detention
Before I focus on the briefings, some background is in order.
Torture started as a covert operation authorized by the September 17, 2001 Memorandum of Notification. Under the National Security Act, the Intelligence Committees had to be briefed on that Finding and they were. However, the Finding was structured such that it laid out general ideas — in this case, the capture and detention of senior al Qaeda figures — and left the implementation up to CIA. As a result, key members of Congress (notably, Jane Harman, who was Ranking Member of the House Intelligence Committee for much of the period during which the program operated) apparently had no idea that the Finding they had been briefed on in timely fashion actually served as the Presidential authorization for torture until years later. Also, since that September 17, 2001 Finding authorized both torture and the outsourcing of nasty jobs to foreign intelligence partners, the earliest torture, such as that of Ibn Sheikh al-Libi in Egyptian custody starting in February 2002 and Binyam Mohamed in Pakistani custody starting in April 2002, should be considered part of the same covert op.
April to July 2002: CIA tortures Abu Zubaydah based solely on Presidential authorization
By now there is no dispute: the CIA started torturing Abu Zubaydah well before the August 1, 2002 memo that purportedly prospectively authorized that treatment. CIA even exceeded early verbal guidance on things like sleep deprivation, after which CIA unilaterally authorized what CIA had done retrospectively. The CIA appears to have gotten in real trouble when they moved to conduct mock burial with Abu Zubaydah, to which Ali Soufan objected; his objections appear to be the reason why mock burial (and by extension, mock execution) was the only technique John Yoo ultimately rejected. On July 13, after Michael Chertoff refused to give advance declination of prosecution to CIA for things they were ostensibly talking about prospectively but which had in fact already occurred, Yoo wrote a short memo, almost certainly coached by David Addington but not overseen by Yoo’s boss Jay Bybee, that actually served as the authorization CIA’s CTC would rely on for Abu Zubaydah’s torture, not the August 1 memos everyone talks about. As a result, CIA could point to a document that did not include limits on specific techniques and the precise implementation of those techniques as their authorization to torture.
CIA had, in internal documents, once claimed to have briefed the Gang of Four (then Porter Goss, Nancy Pelosi, Richard Shelby, and Bob Graham) in April 2002. But after being challenged, they agreed they did not conduct those briefings. This, then, created a problem, as CIA had not really briefed Congress — not even the Gang of Four — about this “covert op.”
Septmber 4, 2002: CIA provides initial trial balloon briefing to Pelosi and Goss, then starts destroying evidence
On September 4, 2002, 7 months after Egypt started torturing Ibn Sheikh al-Libi at America’s behest, almost 5 months after CIA started torturing Abu Zubaydah, and over a month after the OLC memo that purportedly started a month of torture for Abu Zubaydah, Jose Rodriguez, a CTC lawyer, and Office of Congressional Affairs head Stan Moskowitz first briefed Congress on torture techniques.
The record supports a claim that CIA provided some kind of description of torture to Nancy Pelosi and Porter Goss. It supports a claim that neither objected to the techniques briefed. Both Pelosi and Goss refer to this briefing, however, as a prospective briefing. Goss referred to the torture techniques as “techniques [that] were to actually be employed,” not that had already been employed, and when asked he did not claim they had been briefed on techniques that had been used. Pelosi claimed,
I was informed then that Department of Justice opinions had concluded that the use of enhanced interrogation techniques was legal. The only mention of waterboarding at that briefing was that it was not being employed.
Those conducting the briefing promised to inform the appropriate Members of Congress if that technique were to be used in the future.
Thus, at least as far as Goss and Pelosi are concerned, over a month after they first waterboarded Abu Zubaydah (and many more after Egypt had waterboarded al-Libi for us), CIA implied they had not yet done so with any detainee.
As striking as the evidence that CIA only briefed prospectively on torture that had been used for as many as 7 months, however, is what happened next. CIA moved to destroy evidence.
The day after that initial briefing in which CIA told Congress it might torture in the future, it “determined that the best alternative to eliminate those security and additional risks is to destroy these tapes.” Then, the following day, CTC altered its own notes on the substance of the briefing, taking out a sentence (it’s not clear what that sentence said). CIA’s Office of Congressional Affairs never finalized a description for this, and at one time even listed Jane Harman as the attendee rather than Pelosi. In fact, in a list of the briefings on torture compiled in July 2004, it did not treat this briefing as one covering torture at all.
In addition, for some reason a briefing for Bob Graham and Richard Shelby initially scheduled for September 9 got rescheduled for the end of the month, September 27. According to available records, Jose Rodriguez did not attend. According to Bob Graham’s notoriously meticulous notes, the briefing was not conducted in a SCIF, but instead in Hart Office Building, meaning highly classified information could not have been discussed. Graham says it chiefly described the intelligence the CIA claimed to have gotten from their interrogation program. Graham insists waterboarding did not come up, but Shelby, working off memory, disputes that claim.
February 4 and 5, 2002: CIA gets Republican approval to destroy the torture tapes, kills SSCI’s nascent investigation, and refuses to explain torture’s Presidential authorization
By November 2002, Bob Graham had started to hear vague rumors about the torture program. He did not, he says, receive notice that CIA froze Gul Rahman to death after dousing him with water or even hear about it specifically. But because of those rumors, Graham moved to exercise more oversight over the torture program, asking to have another staffer read into the program, and asking that a staffer see a Black Site and observe interrogation. That effort was thwarted in the first full briefing CIA gave Congress on torture on February 4, 2002, when CIA told Pat Roberts (who had assumed Senate Intelligence Chair; newly Ranking Member Jay Rockefeller was not present at this briefing, though a staffer was) they would not meet Graham’s requests. CIA claims — but Roberts disputes — that he said he could think of “ten reasons right off why it is a terrible idea” to exercise such oversight.
In addition to getting Roberts to quash that nascent assessment, CIA gave Roberts the following false information:
The Memorandum of Understanding of this briefing appears to be one of only two that got finalized (it actually included a reference that Goss and Harman had been briefed on the torture tape, but not that Harman warned against destroying it).
The February 5, 2003 briefing involving Porter Goss and Jane Harman is just as interesting, though CIA has refused to release their notes from it.
Five days after the briefing, Harman wrote a letter questioning whether torture had been reviewed from a policy perspective and advising against destroying Abu Zubaydah’s torture tape. In addition, she asked if the President had signed off, revealing that she didn’t know that the Finding she had been briefed on included torture. The CIA and the White House met to decide how to respond. In the end, CIA General Counsel Scott Muller’s response didn’t really answer any of Harman’s questions, nor note her warning against destroying the torture tape.
Also note: in the month before these briefings, the CIA prepared what appears to be a tear-line document on Abu Zubaydah. While it’s not certain the document was prepared to brief the Gang of Four, it matches what we know to have been said to Roberts, especially as regards to the torture tapes. But it also reveals real discrepancies between the tear-line (Secret) claims and the Top Secret claims it was based on, notably inflating the value of Abu Zubaydah’s intelligence below the tear-line.
September 4, 2003: An innocuous briefing left off some of the tracking
We don’t really know what happened in the September 4, 2003 briefings of both Goss and Harman and Roberts and Rockfeller, which is a shame because it would have covered Khalid Sheikh Mohammed’s treatment (and that of Ammar al-Baluchi, whom we now know may have been treated even worse than his uncle). In fact, it was left off lists of “sensitive” briefings at different times.
July 2004: CIA has to tell Congress even CIA(‘s IG) thinks they lied
On May 7, 2004, CIA’s IG John Helgerson completed his report finding that the torture had exceeded guidelines and questioning the value of the intelligence obtained using it. On June 23, the Roberts and Rockefeller got copies (it’s not clear whether Goss and Harman got advance copies). On July 13, 2004, CIA briefed Goss and Harman again.
The briefing did include some details from CIA IG John Helgerson’s report on the program — that it violated the Convention Against Torture and did not comply with the OLC memos. He also explained that both Abu Zubaydah and Khalid Sheikh Mohammed’s waterboarding was problematic, the first in execution and the second in number.
As part of that briefing (or by reading the IG Report), Harman learned that the Finding authorized this torture; in the briefing she pointed out the Finding had only authorized detention and capture, not interrogation.
But CIA persisted in a narrow dodge and two false claims:
There are few details on the briefing CIA gave Roberts and Rockefeller on July 15.
These are just the details of the lies CIA itself has documented and released CIA telling Congress. There are other allegations of CIA lies in briefings, though those records were not released under FOIA. And things started getting really funky in 2005, as Dick Cheney started participating in CIA briefings to try to defeat the Detainee Treatment Act. In addition, CIA briefed Pete Hoekstra (who had become the Chair of the House Intelligence Committee) on the morning they destroyed the torture tapes; the content of that briefing has never been revealed.
None of this excuses Congress, of course: the knew enough to know this was problematic.
But it is clear that CIA lied to them both to boost the value of the torture they were doing and to diminish the problems and abuses.
I’ve been out addressing an imminent toner cartridge emergency and taping Al Jazeera English (it’ll be on tonight at 7:30). So I haven’t yet done my timeline of the varying authorizations to kill Anwar al-Awlaki.
But I wanted to look at one citation in the white paper which I find particularly amusing.
In addition, the United States retains its authority to use force against al-Qa’ida and associated forces outside the area of active hostilities when it targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. See Hamdan v. Rumsfeld, 548 US 557 628-31 (2006) (holding that a conflict between a nation and a transnational non-state actor, occurring outside the nation’s territory, is an armed conflict “not of an international character” (quoting Common Article 3 of the Geneva Conventions) because it is not a “clash between nations”). Any US operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities. See John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at the Program on Law and Security, Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws (Sept . 16, 2011) (“The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.”
There are a number of things that noted legal scholar John Brennan said in this speech DOJ claims authorizes John Brennan (who presumably is the “informed, high-level official” described as judge and jury in this white paper) to kill Americans.
Now, I am not a lawyer, despite Dan’s best efforts.
There’s his argument that only by adhering to the rule of law will we beat the terrorists, because it provides an alternative to the twisted world view of Al Qaeda.
Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress. President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.
For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.
When we uphold the rule of law, our counterterrorism tools are more likely to withstand the scrutiny of our courts, our allies, and the American people. And when we uphold the rule of law it provides a powerful alternative to the twisted worldview offered by al-Qa’ida. Where terrorists offer injustice, disorder and destruction, the United States and its allies stand for freedom, fairness, equality, hope, and opportunity.
In short, we must not cut corners by setting aside our values and flouting our laws, treating them like luxuries we cannot afford. Indeed, President Obama has made it clear—we must reject the false choice between our values and our security.
There’s his suggestion that rule of law depends on transparency.
Our democratic values also include—and our national security demands—open and transparent government. →']);" class="more-link">Continue reading
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. →']);" class="more-link">Continue reading
I only noticed two things that might generously be considered typos (as opposed to outright falsehoods or lies of omission) in Dick Cheney’s entire infernal tome. There’s this reference to an October 10, 2002 speech from Jello Jay Rockefeller in support of the Iraq war:
One of the most eloquent statements of the necessity of removing Saddam came from Senator Jay Rockefeller, the vice chairman of the Senate Intelligence Committee. (393)
On October 10, 2002, of course, Jello Jay was not yet Ranking Member of SSCI. Rather, Bob Graham was Chair. On October 10, 2002, Graham was saying the following about the war:
With sadness, I predict we will live to regret this day, Oct. 10, 2002, the day we stood by and we allowed these terrorist organizations to continue growing in the shadows.
This timid resolution, I fear, will only increase the chance of Americans being killed, and that is not a burden of probability that I am prepared to take. Therefore I will vote no.
Yeah, Cheney’s misattribution probably wasn’t a typo, but instead a cynical attempt to pretend that the Democrat who had reviewed the intelligence behind the war most closely had backed the war, rather than correctly predicted it would heighten the threat of terrorism.
But I don’t think the grammatical error in the following passage, describing the relationship between Cheney’s illegal wiretap program and the PATRIOT Act (which turns 10 today), is really a typo either.
One of the first efforts we undertook after 9/11 to strengthen the country’s defenses was securing passage of the Patriot Act, which the president signed into law on October 2001.
Thus begins the passage in which Cheney describes the genesis of his illegal wiretap program. Of course, the passage should either say, “which the president signed into law on October 26, 2001,” or “which the president signed into law in October 2001.”
A minor point, but one that might suggest Cheney once had the date in there and then took it out.
You see, including the actual date would have really disrupted Cheney’s narrative, which suggests Congress passed the PATRIOT Act and only then did he begin thinking about how to use NSA to fight terrorism, which (implicitly) is why he didn’t include the illegal program in PATRIOT. After a description of how PATRIOT broke down the wall between intelligence and law enforcement in the first paragraph, Cheney continues,
I also thought it important to be sure the National Security Agency, or NSA, which is responsible for collecting intelligence about the communications of America’s adversaries, was doing everything possible to track the conversations of terrorists, so I asked George Tenet whether the NSA had all the authorities it needed. Tenet said he would check with General Mike Hayden, who was then director, and a short time later both of them came to see me in my office in the White House. Hayden explained that he had already made adjustments in the way NSA was collecting intelligence. Those adjustments were possible within NSA’s existing authorities, but additional authorities were needed in order to improve the coverage and effectiveness of the program.
A few paragraphs later, he continued.
With [Bush's] approval, I asked Dave Addington to work with General Hayden and the president’s counsel, Alberto Gonzales, to develop a legal process by which we could ensure the NSA got the authorizations Hayden needed.
It’s only five paragraphs after Cheney’s description of PATRIOT that he provides the date that–had he actually included the date of the PATRIOT Act–would have made clear that the illegal program started before the signing of the PATRIOT Act.
On October 4, 2001, the president, on the recommendation of the director of central intelligence and the secretary of defense, which the determination of the attorney general that it was lawful to do so, authorized the program for the first time.
Of course, Cheney leaves out some key details along the way, such as that Hayden briefed the House Intelligence Committee about what he was already doing on October 1, which elicited some questions from Nancy Pelosi, then the Ranking Member on HPSCI. Cheney doesn’t mention that Bush clamped down on briefing Congress on October 5. And he doesn’t mention that Pelosi raised questions about minimization, in writing, on October 11, but never got answers to those questions.
Cheney also doesn’t mention that David Kris, who was busy drafting the PATRIOT Act, got an OLC opinion on September 25 approving the one change to FISA he deemed necessary to make with the PATRIOT.
To reveal those details–the briefings to Congress, Pelosi’s questions, Kris’ ability to get FISA changed under PATRIOT–would have made it clear that the rest of the “legal approval” process Cheney describes could have–should have–instead been done with Congress as part of the PATRIOT Act. I may be nitpicking here, writing an absurdly long post about Cheney’s use of the wrong preposition. But Cheney’s choice to bypass Congress even as it was making changes to FISA remains the biggest piece of evidence that he knew he was engaging in an illegal program that Congress would not entirely approve.
There will be a number of retrospectives in “honor” of PATRIOT Act’s birthday today. ACLU’s got a nifty infographic (the image above is just one part of it).
But ACLU’s other “tribute” to the PATRIOT–a lawsuit to force the government to reveal its secret interpretation of PATRIOT Act–and Cheney’s typographical tell that he recognizes he deliberately chose not to get Congressional approval for the illegal wiretap program are even more important.
As horrible as the PATRIOT Act is, after all, both the Bush Administration and the Obama Administration have exceeded the plain meaning of the act. For ten years, then, it has not been enough that Congress has eagerly dealt away our civil liberties. But the Executive Branch will take even what Congress won’t give.
I’m going to deal with John Rizzo’s purported “mea culpa” in three posts, one each for each of his regrets.
Rizzo’s first regret is that the CIA did not push the White House to allow it to brief the entire intelligence committees so they could, as Rizzo said, “allow the committees—compel them, really—to take a stand on the merits to either endorse the program or stop it in its tracks.”
It’s an argument I totally agree with. But to make his argument, Rizzo mobilizes some of the same lies about the CIA’s briefing of the torture program, notably about Nancy Pelosi. He does so, however, with a really spooky move.
Shortly thereafter, almost seven years after CIA first informed her about its employment of waterboarding and the other EITs, the Speaker of the House of Representatives, Nancy Pelosi, stood before the cameras and claimed that all CIA ever told her was that waterboarding was being “considered” as an interrogation tactic, not that it would be ever employed. Confronted with evidence to the contrary, the Speaker subsequently conceded that she had been informed about EITs from the outset but insisted she was always opposed to them but powerless to do anything to stop them. None of which was true, but in hindsight the Speaker’s moonwalk was hardly unforeseeable.
It’s the same old story turning the question of whether Pelosi was briefed prospectively or historically into a claim that “she had been informed about EITs from the outset” without mentioning that even Porter Goss’ version of the briefing is consistent with Pelosi’s claim that CIA didn’t tell them in September 2002 that they had already started using torture. Rizzo’s use of this tired tactic is all the worse considering that 1) it appears that he was not at the briefing in question, and 2) the CIA changed its record of the briefing after the fact.
In other words, Rizzo’s attack on Pelosi is total bullshit. Furthermore, the attack falsely suggests that CIA briefed Congress before torture started.
But his use of Pelosi to make this point is rather intriguing. Rizzo makes no mention of Bob Graham’s attempt to exercise oversight over the torture program, which was discouraged by the CIA and thwarted by Pat Roberts.
More significantly, Rizzo makes no mention of Jane Harman, who did object to the program but proved unable to “stop it in its tracks.”
Rizzo’s silence about CIA’s briefing to Harman–and her objection to the torture program–is more significant given something else he asserts in this piece.
A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.
Rizzo starts by invoking the September 17, 2001 Presidential Finding that authorized the CIA to capture and detain al Qaeda members. He tells us–this may be news, actually–that that Finding was briefed to the entire intelligence committees and to appropriations committees. But then he says that the torture part of that program “could only be shared” with the Gang of Eight.
The detail is interesting, by itself, for the way it contradicts Rizzo’s later (false) claim that “every other member of Congress” “would be kept in the dark” about the torture program. After all, the Leaders are also members of Congress, but if the CIA’s own error-ridden briefing list is to be believed, the only Leader who ever got briefed in that role was Bill Frist (while Appropriations Subcommittee Republicans Duncan Hunter, Ted Stevens, and Thad Cochran also got briefings, as well as John McCain).
The comment is more interesting for what it says about the Finding itself. The CIA has long suggested (and reporting has repeated) that that Finding authorized the torture program. But Rizzo is making it clear here that that Finding did not include authorization for the torture program. The oral briefings the Gang of Four got were the only way the way the President informed Congress about the torture program.
While it’s significant that Rizzo is here admitting that fact, we already knew it. We knew it because Jane Harman twice asked about a Finding on torture, once implicitly in 2003 when she asked “Have enhanced techniques been authorized and approved by the President?” and once in the briefing CIA gave her on July 13, 2004, when she,”noted that the [redacted--almost certainly the Finding] did not specify interrogations and only authorized capture and detention.”
In other words, Rizzo basically admits that the point Jane Harman appears to have made repeatedly was correct: the torture program had not been formally included in a Finding briefed to Congress.
Rizzo’s lies about briefing Congress don’t appear to be the issue here. Rather, the problem is that the Administration did not issue the legally required Finding to Congress.
At today’s presidential fundraiser in San Francisco, several attendees sang a song to Obama protesting Bradley Manning’s treatment. (From the White House pool report)
Mr. Obama was in the middle of his remarks when a woman in a white suit stood up and said, Mr. President we wrote you a song. POTUS tried to get her to wait until later, but she persisted and the table of 10 broke into a song that pointed out they’d just spent $5,000 donating to his campaign and went on to protest the treatment of Pfc. Bradley Manning.
The woman stayed standing as they sang. Mr. Obama looked to Ms. Pelosi and asked, Nancy did you do this? Ms. Pelosi had a look on her face, as she stared at the singing group, that definitely said she did not.
The 10 singers then passed around 8.5×11 signs that said “Free Bradley Manning” or had a photo of him.
Then the woman in the white suit stripped off her jacket to reveal a black T-shirt that said Free Bradley Manning, with an image of him.
“We paid our dues. Where’s our change?” they sang.
USSS and WH staff had moved near the table at this point. The woman was escorted out. Two others left on their own. (The rest stayed and applauded at the end of POTUS’s speech.)
“That was a nice song,” a displeased Mr. Obama said.
“Now where was I?” POTUS asked.
As was indicated by that song, “Over the last 2 and a half years, change turned out to be tougher than we expected,” POTUS said.
Also, WTF? Why is Obama’s first instinct to blame Pelosi for this? Granted, Pelosi often takes stands in support of political prisoners, but to suggest a master fundraiser like Pelosi would embarrass the President at a fundraiser like this is just a real misunderstanding of her. (Even if it were only a lame attempt at deflection/humor, it is disrespectful and a tad dishonest.)
Not to mention the suggestion that people, particularly in liberal San Francisco, might not have the free will to craft a protest on their own.
Follow developments after the jump. . . . →']);" class="more-link">Continue reading