Zero Dark Thirty

Philip Mudd: Sitting Across from KSM Was Useful So Waterboarding Him 183 Times Was Too

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Philip Mudd — who was a top CIA analytical official until 2005 and then became a Deputy Director of FBI — has written a defense of torture in anticipation of the release of the Senate Torture Report.

The argument is actually fairly crafty. He acknowledges he probably will “question [the Report's] merits” once it comes out.

I don’t know what’s in the report, and I wasn’t approached during its preparation. I can only guess that I would be among those who question its merits once it enters the public domain.

Given that he effectively admitted to Steven Colbert back in September, above, he was responsible for inserting the tortured claim from Ibn Sheikh al-Libi that Iraq had ties to al Qaeda, and given that he left government after being denied a promotion because his analysts pushed for more torture [correction from Nada Bakos: the claim his analysts pushed for more torture floated when he retired is not accurate], what he likely means is that the Report is going to show very damning evidence about his actions.

But then Mudd appears to say nice things about democracy — as he did with Colbert.

This judgment, though, isn’t particularly relevant. In our system of checks and balances, there will often be times when overseers and officials from executive branch agencies don’t agree, and both parties have a right to speak on a matter that is of such interest to the public. We’re in a finger-pointing Beltway battle between two entities nobody much trusts. Let the people sort it out, after they see what both sides say; let the public decide where the pendulum rests.

There are key points that might get lost in this ugly rumble. Primary among them is the quality of the Senate report, which the CIA evidently argues is profoundly flawed and therefore misleading. This may well be true, but it’s not clear it should stand in the way of the report’s release. The agency has its perspective; the overseers have theirs.

[snip]

Time the release of the Senate report to coincide with the release of a CIA rebuttal. Give both sides their say, and then let the public weigh in. [my emphasis]

But in fact, Mudd’s defense of democracy — let the people sort it out! — is instead an appeal for a relativism in which there is no truth, only competing truths. Mudd suggests that since both sides get to have their say, we’ll come to an adequate outcome.

Of course, Mudd is full of shit on this point. FIrst, because Mudd, a torture defender, has for years been permitted by CIA to go on TV and write Daily Beast columns. He and other torturers have had opportunity to give uncontested rebuttals for years, even with the help of Hollywood. CIA’s torture critics, however, have been and even still are getting ominous warnings not to talk to the press. We’ve had 5 years in which only the torture fans get to defend torture, and that’s what Mudd considers a fair fight.

But also because while John Brennan’s CIA may argue the report is flawed, whoever drafted the Panetta Report actually agreed with the Senate Report. Let’s have that report as CIA’s rebuttal, what say you, Mudd?

The “CIA” doesn’t think the report was flawed; the CIA’s institutional defenders do.

Then, couched in another apparent nod to democracy, Mudd suggests that torture was useful.

Do Americans, and their representatives in lawmaking bodies, want their security services to interrogate prisoners using these tactics? Do they believe these tactics represent American values?

If the answer is “no,” the question of whether the tactics are successful becomes moot. Let’s assume, for the moment, that we all accepted as fact that the tactics were hugely successful in eliciting valuable intelligence. Would this then change the argument? I hope not: If you want to judge that these programs aren’t appropriate for a democratic society, that judgment shouldn’t come with a sliding scale. So why waste time on the question of the program’s utility? Why pretend that the answer would sway those who believe America should never again return to the tactics the CIA used?

As an intelligence officer who was at the CIA’s Counterterrorist Center during the early 2000s, and was once its deputy director, my views of this debate are not complex, and they won’t be changed by this report. The al Qaeda prisoners we held at CIA facilities helped us understand the adversary. A lot? A little? Somewhere in between? Outside observers can debate it, but it’s hard to argue that sitting across from the most senior leaders of your adversary, over a long period of time, isn’t helpful to understanding how they think and act. It is.

This judgment, though, is as irrelevant today as it will be the day this Senate report appears in public.

One of America’s top analysts lays out the defense for torture efficacy this way:

“Sitting across from the most senior leaders of your adversary [is] helpful to understanding how they think and act.”

Therefore,

Torture is useful.

This is what CIA considers crack analysis!!!! It’s useful to sit down with Khalid Sheikh Mohammed, and therefore it was useful to waterboard him 183 times!!!

Apparently one of CIA’s former top analysts doesn’t understand that one can sit down with someone — the FBi had a pretty good track record at doing this — without engaging in medieval torture first. This former top analyst feigns not understanding that “sitting across from” someone is different from “pretending you’re drowning” someone over and over and over and over.

Maybe instead of releasing the report we should just let CIA’s torturers continue to expose just how stupid they really are (or pretend to be). Because while Mudd’s pre-rebuttal was meant to sound all democratic and whatnot, when you look closely it just exposes the stupidity of those who defend torture.

Update: I’ve changed the title of this to match exactly how Mudd characterized the sitting with KSM.

Leon Panetta: Sheep Dipping Secrets

POGO has a story that adds a new twist to an old story.

The old story is Leon Panetta, leaking classified info, in this case, leaking info on the Osama bin Laden raid to a Zero Dark Thirty executive.

In June 2011, when he was director of the Central Intelligence Agency, Panetta discussed the information at a CIA headquarters event honoring participants in the raid that killed Osama bin Laden, according to an unreleased report drafted by the Inspector General’s office and obtained by the Project On Government Oversight (POGO).

“During this awards ceremony, Director Panetta specifically recognized the unit that conducted the raid and identified the ground commander by name,” the draft report says.  “According to the DoD Office of Security Review, the individual’s name is protected from public release” under federal law, the report says.

“Director Panetta also provided DoD information, identified by relevant Original Classification Authorities as TOP SECRET//SI//REL TO USA, AUS, CAN, GBR, NZL, as well as, SECRET/ACCM,” the report says.

This is the investigation Peter King requested in 2011.

The new, but predictable, twist, is that when DOD’s Inspector General tried to investigate this, it apparently got no cooperation from Panetta himself, who had subsequently moved over to head DOD itself. More importantly, the IG stalled the report, apparently until Panetta retired.

The unknown fate of the IG report was the subject of a December 2012 email exchange—obtained by POGO—between a congressional staff member and an employee in the IG’s office.  The congressional aide mentions having heard that someone in the IG’s office was “sitting on it until Secretary Panetta retires” and asks the IG employee for any information about it.

The IG employee replies:  “That effort . . . has been controlled and manipulated since inception by the IG Front Office.”  The employee adds:  “There is a version ready to hit the street, been long time ready to hit the street…but we will see if that happens anytime soon.  Highly unusual tight controls and tactical involvement from senior leadership on this project.”

The employee says the matter reflects broader problems within the IG’s office.

“I have grave concerns that the message and findings are now controlled and subject to undue influence across the board at DoD IG.  I have never experienced or seen so much influence or involvement by outsiders now in developing and issuing oversight reports.”

The IG employee invokes whistleblower status.

“I consider this protected communications on alleged wrong-doings within the Government.”

While it doesn’t say so directly, POGO suggests the Obama Administration may have pulled this off by withholding the nomination for the Acting Inspector General to become its permanent IG.

The Defense Department IG’s job has been vacant since December 2011, and the office has been headed on a temporary basis by Lynne M. Halbrooks, who is now the principal deputy inspector general. She has sought support to be named permanent inspector general, a presidential appointment that traditionally involves the approval of the secretary.

In short, Panetta exposed a classified identity to a movie maker, as well as SIGINT pertaining to the Osama bin Laden raid (perhaps reports on the intercepts the government used to identify the courier?). But rather than being treated like John Kiriakou, for example, Panetta got moved into a position to prevent any release of this information.

The term “sheep dip” has been adopted to refer to the practice of having Special Forces operate under CIA guise, as they did on this OBL raid, to operate under CIA’s covert authorities. It turns out the institutional shell game with the OBL raid served not to keep secrets, nor even to sustain deniability from the Pakistanis (particularly after Panetta identified Shakeel Afridi), but rather to allow the Administration to treat this covert operation just like they do covert operations like drones (Joby Warrick’s book, The Triple Agent, includes a lot on drones that obviously comes from Panetta’s office too), to make them selectively public.

Did Zero Dark Thirty Accidentally Tell the Most Dangerous Truth?

Update: Let me make this clear: I am not commenting on the content of the movie. I am commenting on the content of John Rizzo’s reactions to the movie, particularly his depiction about when and how and by whom “the box” was approved, which — as I say several times — get to the core of the legal problems with torture. 

In a development I could have predicted, one of former CIA Acting General Counsel John Rizzo’s chief complaints with Zero Dark Thirty has to do with how the movie depicted “the box.” (This exchange comes from the first comments Rizzo made at an AEI event with him, Dick Cheney flack Marc Thiessen, former CIA Director Michael Hayden, and the director of the torture program, Jose Rodriguez).

MR. RIZZO: The interrogation scenes – I mean, they were – they were striking. They were hard to watch for me, having lived through this and how the – how the actual techniques came to be, and all the safeguards we put on them, all the monitoring by medical personnel during the course of the interrogation – you know, again, it’s a movie, so you know, the character in the movie, the interrogator, seemingly making stuff up as you went along, you’re not talking – OK, bring on the water and –

MR. : (Off mic) – get the buckets.

MR. RIZZO: – and get the buckets – now, the box – people have asked me about the box. And since this whole thing has been declassified now, most of you probably know that one of the techniques was a box, putting a detainee in a box for a – for a limited duration. Now, the box in the movie is not the kind of box that was – that was used. When I say all this, I don’t want to downplay or leave any impression that the actual program, the actual – the actual waterboarding was, you know, was tame or benign. I mean, it was a very aggressive technique, as were all the – all the others. But – so on the whole, I mean, I went into it – I went into it telling myself it was going to be a movie. I was frankly relieved that there were no lawyers involved in the movie. (Laughter.) I would have just spent the next four years at cocktail parties explaining why I wasn’t that lawyer. So I was – so I mean, on the whole, it’s as they said. It was a mixed bag, but it was a terrific movie. And you know, I think it did really take no sides and Miss Bigelow and Mr. Boal, I think, skillfully teed up the complicated moral questions of all of this we’re facing, especially in those first few scary months after the 9/11 attacks.

MR. THIESSEN: Can I – just to follow up on that. I mean, you know, you were the chief legal officer at the time. I mean, would you have authorized the interrogation techniques the way they were depicted? I mean, explain the difference in the box – (chuckles) – explain the – you know, explain that you – do people just throw somebody on a mat and start pouring water over their heads? I mean –

MR. RIZZO: No, no, the – first of all, you know, it was – it was “Mother, May I.” Those interrogators were not allowed to adlib. There were certain specific –as the memos – OLC memos show at the time, I mean, it was a – there was a meticulous procedure to undertake. And before the use of the waterboard – they will confirm this – the interrogators at the site would have to come back in writing, explain why they thought the waterboard was necessary, it would be approved at headquarters. During the time the waterboard was used, which was only until mid-2003, it took the CIA director to approve the use. So it was a much more modern program. Now, the box – I mean, a box is not pleasant. First of all, there is – there was a big box authorized that the detainee could stand in and a smaller box. It wasn’t – it didn’t appear to me to be quite as small as what was depicted in the movie. But yes, there was a box technique. But again, the – I mean, when I – you know, everyone can look at this in a different way. I just had the impression from the scene that the guy was sort of, you know adlibbing as he went along, which was, believe me, far from the – far from the reality. [my emphasis]

The box — particularly the apparent portrayal (I haven’t yet seen the movie) that the torturer ad-libbed when he introduced the box — is as big a concern of Rizzo’s as waterboarding is.

Of course it is.

That’s because the coffin — later dubbed a small box to give it legal cover — used to conduct a mock burial with Abu Zubaydah is the at the heart of the legal problems with torture.

As these posts lay out (one, two, threefour), one of several main reasons CIA asked the Office of Legal Counsel for a memo authorizing torture is because Ali Soufan saw Abu Zubaydah’s torturers prepare to put Abu Zubaydah in a coffin (it’s unclear whether he or his partner Steve Gaudin saw them actually use the coffin). That is one of the things — perhaps the thing — that Soufan labeled “borderline torture.” And because an FBI officer had told CIA’s contractors he might need to prosecute them for what he had seen, CIA needed more durable legal cover than the daily approvals given by Alberto Gonzales every night.

Because an FBI officer had labeled the things approved by the White House, on the President’s authority, illegal.

Which is why John Rizzo and John Yoo started writing first the July 13, 2002 memo generally authorizing torture (this memo is what the CIA would ultimately rely on to claim things like the murder of Gul Rahman were legal) and then, several weeks later, the Bybee Memo laying out the approved torture techniques in detail.

John Rizzo tried to get John Yoo to approve the technique that had already been used on Abu Zubaydah, the one Ali Soufan had labeled illegal. He tried to get mock burial approved as a technique; he kept trying right up until the last days before the Bybee Memo was finalized. But for some reason — I suspect, because Michael Chertoff had already agreed with the FBI that the mock burial Ali Soufan complained about was illegal — it was not included in the final list.

Instead, John Yoo and Jay Bybee approved “small box confinement.” Something that, if everyone remained silent about the intent and desired effect of shoving someone in a coffin-shaped box and leading them to believe they’d be buried alive, would both retroactively approve the use of a coffin that Abu Zubadayh’s (and Ibn Sheikh al-Libi’s) torturers had already used, but also let them use mock burial in the future, in spite of the fact that John Yoo – even John Yoo – had deemed it illegal.

One of the main things an FBI officer judged illegal — mock burial, a technique that had already been used, on the authority of the President — is the only single torture technique John Yoo ever deemed illegal.

Again, I have not yet paid to see the CIA’s propaganda effort. But John Rizzo, at least — the man who tried so hard to get the OLC to approve mock burial — is very concerned both about the size of the box in question (the SERE document used to label it “small box confinement” prescribed size and time limits), but more importantly that torturer in the movie is depicted as using the coffin-shaped box without first getting approval for it.

The movie, it seems, shows a torturer using a coffin before John Yoo and John Rizzo would have deliberated for weeks and decided to call it small box confinement. The movie, it seems, shows a torturer using a coffin to conduct a mock burial [Update: I've been told they don't do a burial in the movie, though it does depict adlib], and doing so in terms that make it clear that the coffin preceded the DOJ approval for it.

I’m extrapolating from Rizzo’s comments, but it seems likely that his problem with the box is that ZD30 depicts its use in precisely the terms that make it illegal, the one act of torture labeled illegal as it was happening, one of the main acts of torture the OLC memos were designed to provide legal cover for.

Frankly, I’m sympathetic to Rizzo’s complaint that this depiction of a torturer ad-libbing by using a coffin is inaccurate (though not to his claim that it was an OLC memo that limited the torture). After all, we know that the White House was responding to the torturers’ “Mother, May I” on a daily or near-daily basis.

We know that the White House was renewing its Gloves Come Off Memorandum of Notification approval for things like mock burial at each step of the process. So it’s not like the torturers executed a mock burial without approval.

The problem, however, is that they executed a mock burial with the President’s approval, weeks and months before the DOJ would deem that one torture technique illegal.

Senate Intelligence Torture Report: CIA Lied to the White House and the Public

I’m going to have a few more posts on Ron Wyden’s letter to John Brennan in advance of Brennan’s confirmation hearing.

In light of the Zero Dark Thirty debate and Dianne Feinstein’s spat with Michael Morell, I find this passage rather interesting.

I am particularly interested in getting your reaction to the report’s revelation that the CIA repeatedly provided inaccurate information about its interrogation program to the White House, the Justice Department, and Congress, and your view on what steps should be taken to correct inaccurate statements that were made to the public.

Frankly, it shouldn’t be a “revelation” that CIA lied to the Justice Department and Congress, at least. As I was able to show from publicly released documents, CIA was running an op on Congress. And it presented misleading documents to DOJ, both in terms of details about the techniques CIA would use as well as the crimes committed under the torture program (though I think both Congress and especially DOJ allowed themselves to be lied to at various points).

Nevertheless, it is apparently a significant conclusion of the torture program that CIA was lying to every potential avenue of oversight over their program.

Frankly, any approach to Brennan’s confirmation hearings that doesn’t also demand public release of the torture report would be yet more dereliction of Congress’ oversight role (either in his role in the White House or his prospective role at CIA, John Brennan would seem to have a significant role in Classification Authority for the torture program, so it should be a fair demand). Sadly, we probably won’t get it.

But even as a slew of journalists and film critics debate whether ZD30 is a CIA effort to pitch their torture program in the best light or not, we have yet more confirmation that CIA lied … to everyone (except maybe Cheney and Addington?).

Even as Wyden asks Brennan what steps he’ll take to make sure CIA doesn’t lie to every entity exercising oversight over it, Zero Dark 30 continues to pack theaters and convince squishy liberals torture worked.

The Dianne Feinstein-Jose Rodriguez Grudge Match

It cannot be sheer coincidence that Dianne Feinstein released two letters to acting CIA Director Michael Morell just hours before WaPo published yet another fact-free defense of torture from Jose Rodriguez.

In addition to demanding proof for assertions Morell made–after DiFi sent her first letter–in a letter to CIA employees about Zero Dark Thirty…

In your December 21, 2012, statement to CIA employees regarding the film, Zero Dark Thirty, you state that “the film creates the strong impression that enhanced interrogation techniques” were “the key to finding Bin Ladin” and that this impression “is false.” However, you went on to refer to multiple streams of intelligence that led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad and stated that “Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.”

DiFi also noted (in her first letter) that the false assertions in the film tracked public claims made by Michael Hayden and Rodriguez.

As you know, the film depicts CIA officers repeatedly torturing detainees. The film then credits CIA detainees subjected to coercive interrogation techniques as providing critical lead information on the courier that led to the UBL compound. While this information is incorrect, it is consistent with public statements made by former Director of the CIA Counterterrorism Center, Jose Rodriguez, and former CIA Director Michael Hayden.

DiFi sent her first letter December 19. Morell made his incorrect claims two days later. Then DiFi demanded he back his claims on Monday.

Then here we are, on Thursday, with Rodriguez both denying the brutal aspects of the torture depicted in the movie resemble what the CIA did, while claiming (as DiFi predicted) that torture was central to finding Osama bin Laden.

I guess this is why the name of Jane Harman–who may have been terrible on a number of points but pushed back on the Bush Administration’s torture regime–got floated in the last few days as CIA Director, instead of Morell, who had previously been a lock?

In addition to preventing Morell from officially directing the CIA, DiFi does have another way to respond to this insubordination: to release her long report showing that torture not only didn’t work, but did resemble the brutal scenes in the movie.

Mind you, she’s going to face an increasingly fierce battle over classification. Does CIA retain primary classification authority for the program–in which case they’ll fight her? Or does Obama–and will the CIA’s godfather, John Brennan, allow the report to be released?

In any case, this seems a clear moment when DiFi’s authority (indeed, when Congress’ authority) on an issue on which she has been productive, is being challenged head on.

We shall see whether the Congressional overseer or the torturer wins this battle.

Admiral McRaven: Taxpayers Should Learn about Special Operations from Hollywood Movies

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Most of the coverage of Admiral William McRaven’s letter to the special operations community telling them to shut up has focused on McRaven’s insinuation that the recent flurry of activity stems entirely from a desire for personal or political gain. But I find McRaven’s comments about what forms of publicity about special ops are appropriate just as interesting (thanks to Josh Rogin for linking a copy).

McRaven notes the importance of books on special operations as a learning tool.

Few senior SOF officers have benefited more from reading about the exploits of our legendary heroes than I. My thesis at the Naval Postgraduate School was based on a rigorous examination of the available literature, without which I could never have written my book on “The Theory of Special Operations.”

Most of these books were wonderful accounts of courage, leadership, tough decision making, and martial skill all of which benefited me as I tried to understand of our past and how it could affect missions in the future.

And he suggests that movies “provide public insights into life in special operations … that can’t be garnered anywhere else.”

Movies that portray the heroics of service members are also well worth watching and often provide the public insights into life in special operations or the service that can’t be garnered anywhere else.

Personally, I was motivated to join special operations after watching the movie, “The Green Berets”, starring John Wayne. To this day my Army brethren still wonder where I went wrong…

Countless stories have been told through the medium of film that needed to be told and I am thankful that they were.

Now, I’m grateful that McRaven has criticized OPSEC’s attempt to politicize the Osama bin Laden raid (though it does suggest a double standard). But these comments are rather troubling.

First, note that McRaven’s thesis depends on at least two first person narratives of special ops soldiers–those of Otto Skorzeny and Jonathan Netanyahu (though Netanyahu’s consists of his letters published after his death). So McRaven’s citation of his thesis hardly discredits Matt Bissonnette’s decision to publish his own first person account of his SEAL exploits.

I’m even more troubled by McRaven’s suggestion that we should turn to Hollywood to learn of stories “that need[] to be told.”

One reason he may do so is to legitimize the Administration’s cooperation with the Zero Dark Thirty team. If the Commander of SOCOM suggests Hollywood is the proper venue for special ops stories, it serves to distinguish the Administration’s push for publicity for the Osama bin Laden raid from that of the SEALs. (Though since Bissonnette’s already  shopping his book, I expect McRaven’s position on movies may soon change.)

Of course, in doing so McRaven also suggests that fictional stories are all taxpayers should learn about these “stories that need to be told.” Not just fictional ones, either, but sensational ones. The better to inspire a future head of SOCOM to join the military, just like John Wayne did for McRaven!

Of course, that says taxpayers should only have a false understanding of the wars being fought in their names, which is a profoundly contemptuous view. I have no idea whether Bissonnette’s narrative will be accurate (the Pentagon has gotten a copy and is reading it now, so they may seize it before we get to see). But if it is accurate, why should a Hollywood movie be a more valid telling of the OBL story than the kind of firsthand account McRaven himself has relied upon?

Plus, by endorsing sensational Hollywood narratives, McRaven effectively endorses the kind of special ops hero that would, himself, seek publicity. You can’t have Hollywood serve as the legitimate venue for discussing special operations without feeding the system that would lead a SEAL to want to write his own book and sell the rights to Steven Spielberg. Hollywood created the market for such books; you can’t expect veterans not to feed it.

If the Commander of SOCOM believes the stories of special ops need to be told, then he should declassify them so they can be told in a format that is factual, sober, and complete. This endorsement of Hollywood flicks–while it may serve the Administration’s immediate interests–makes the Administration’s abuse of information asymmetry even worse. It defends not only the Administration getting exclusive control over how to the tell the stories, but suggests it should do so using fictional and sensational means.

Emptywheel Twitterverse
bmaz @armandodkos You know I love you right?
2mreplyretweetfavorite
bmaz @armandodkos Heh, Yes, I, of all people, am Mr. Beltway. Good one!
2mreplyretweetfavorite
bmaz @armandodkos Attacking and scolding people that agree with you seems a poor use of time.
8mreplyretweetfavorite
bmaz @armandodkos I dunno, I think fact I agree w/King decision+think it should prevail does that sufficiently. Just not belligerent enough for U
9mreplyretweetfavorite
emptywheel Wonder if a futile suit against the President will lead Congress to do something about expansive immunity claims? Prolly not.
28mreplyretweetfavorite
emptywheel @granick If they get handset ID because you're sitting next to me, is that CDR? Not traditionally, no. But it is included in permitted IDs.
41mreplyretweetfavorite
emptywheel @granick We know they intend to use track burners. So if they're doing that analysis why would we believe they're not using location?
43mreplyretweetfavorite
emptywheel @granick Not at all. They have to return to a CDR at each step. Says nothing about what they do to get there.
44mreplyretweetfavorite
emptywheel @LemonSlayerUS I'm talking NGOs, not members of Congress.
45mreplyretweetfavorite
emptywheel Fairly certain we've known for over 5 years Powell was not briefed on torture until September 16, 2002.
46mreplyretweetfavorite
emptywheel Maybe I'm wrong and NSA doesn't intend to do contact chaining on location. But wouldn't it be smart to get something in writing first?
53mreplyretweetfavorite
emptywheel Bunch of privacy NGOs just supported legislation w/o first getting promised assurances for ODNI it doesn't put NSA in our smartphones.
55mreplyretweetfavorite
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