Mary McCarthy and the Terror Tapes

In this post, I speculated that the torture tapes were destroyed to protect the European country on whose soil we conducted waterboarding. I say that for several reasons. First, in its description of how Bush was compartmented out of details of the program, it specifies that Bush didn’t know the location of secret prisons.

The tapes documented a program so closely guarded that President Bush himself had agreed with the advice of intelligence officials that he not be told the locations of the secret C.I.A. prisons. [my emphasis]

Second, it suggests that after Dana Priest’s story on the black sites, the detainees were moved to a new location.

Yet in November 2005, Congress already was moving to outlaw “cruel, inhuman and degrading” treatment of prisoners, and The Washington Post reported that some C.I.A. prisoners were being held in Eastern Europe. As the agency scrambled to move the prisoners to new locations, Mr. Rodriguez and his aides decided to use their own authority to destroy the tapes, officials said.

Couple that with the news that the tapes were always stored in the country where the interrogations took place, and it seems highly likely that one source of urgency behind the destruction of the tapes was to hide evidence of torture occurring within Europe.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

This revelation made me think of Mary McCarthy, who was fired for allegedly serving as a source for Priest’s story. At the very least, the way in which McCarthy was investigated and fired challenges some of the stories on the torture tapes. More importantly, it suggests she may have been fired because she’s a witness to the fact that the CIA lied to Congress in the period leading up to the tapes’ destruction.

First some background. McCarthy was Deputy Warning Office in 1991, and took over as Warning Officer in 1994. In 1996, she joined the Clinton White House to help review presidentially-approved clandestine operations. In that role, she got into some public squabbles with the Directorate of Operations, including with James Pavitt (who was head of Operations until 2004). After Bush became President, she moved around, first in a WH position, then in the Technology and Science Division. In Summer, 2004, CIA’s IG John Helgorsen recruited McCarthy to oversee an investigation into wrong-doing in Iraq. Note, this article (from which I’ve gotten this chronology) suggests McCarthy was aware of the April 2004 IG investigation finding that the CIA’s interrogation methods amount to cruel and inhuman treatment, but the timing suggests she didn’t start as Deputy IG until after the report was done.

But that’s significant nonetheless. Mary McCarthy, as the Deputy IG under Helgorsen, was at least knowledgeable about the report that finds the CIA has tortured detainees (though it doesn’t use the term). That would suggest she learned of the torture (and the locations of the black sites) in the IG’s office.

The CIA said in a statement last week that omitted McCarthy’s name that the officer was fired for discussing operational intelligence matters with journalists. Officials have said the journalists included Washington Post correspondent Dana Priest, who last week was awarded a Pulitzer Prize for national security reporting that included the revelation of secret, CIA-run prisons for suspected terrorists in Eastern Europe and elsewhere.

Indeed, the suggestion that she leaked something she learned as Deputy IG was perceived as all the more galling at the CIA.

Several former intelligence officials said they were particularly alarmed about McCarthy’s alleged involvement in any leaks because of where she worked at the CIA. L. Britt Snyder III, who was CIA inspector general from 1997 to 2000, said if McCarthy leaked information while working in the IG office, "we would have considered that a fairly egregious sin." The IG, he said, "gets into everything, including personal things. That makes it a little different than other places."

Now, McCarthy denies leaking to Priest.

But McCarthy, in e-mails to friends, has denied leaking anything classified. She has not denied speaking to Priest but has said she was unaware that the CIA had secret prisons in Eastern Europe, the most attention-getting detail in Priest’s articles last year. Her lawyer has said the same thing publicly.

And indeed, reports say that McCarthy failed a lie detector test; most reports admit that she never admitted to leaking information to Dana Priest. Though that didn’t stop Jennifer Millerwise Dyck–then spokesperson for the CIA and a former press flack for Dick Cheney–from claiming McCarthy had admitted to leaking to Priest.

CIA spokeswoman Jennifer Millerwise Dyck, without naming McCarthy, denied that the firing was meant to suppress dissent. She said it was provoked solely by the officer’s admission to CIA investigators to having provided classified information to the media. "You can’t ignore an officer ignoring their secrecy agreement," Dyck said.

All of which raises the possibility (discussed publicly at the time) that McCarthy was fired as a scapegoat and political attack on a known Kerry supporter. Which makes it all the more interesting that Porter Goss personally oversaw the investigation, rather than having DOJ conduct the investigation.

Since Bush appointed a Republican ally and former lawmaker, Porter J. Goss, to replace George J. Tenet as the agency’s chief in September 2005, Goss has repeatedly criticized the media for writing about sensitive intelligence matters and called for reporters to be forced to reveal their sources to grand juries. He personally oversaw the leak investigation that led to McCarthy’s dismissal, rather than asking the Justice Department to do it — as previous directors had requested in similar probes.

Curiously, Goss’ resignation (May 5) came just weeks after McCarthy’s own April 20, 2006 firing.

So McCarthy was fired, allegedly for leaking details of the IG report finding the CIA used cruel and inhuman methods in its interrogation.

But here’s what I find so interesting. McCarthy’s own explanation for her dispute with CIA brass points to her discomfort with lies the CIA was telling Congress–in 2005, earlier in the year before the torture tapes were destroyed.

A senior CIA official, meeting with Senate staff in a secure room of the Capitol last June, promised repeatedly that the agency did not violate or seek to violate an international treaty that bars cruel, inhumane or degrading treatment of detainees, during interrogations it conducted in the Middle East and elsewhere.

But another CIA officer — the agency’s deputy inspector general, who for the previous year had been probing allegations of criminal mistreatment by the CIA and its contractors in Iraq and Afghanistan — was startled to hear what she considered an outright falsehood, according to people familiar with her account. It came during the discussion of legislation that would constrain the CIA’s interrogations.

That CIA officer was Mary O. McCarthy, 61, who was fired on April 20 for allegedly sharing classified information with journalists, including Washington Post journalist Dana Priest. A CIA employee of two decades, McCarthy became convinced that "CIA people had lied" in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading.


In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA’s detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (Calif.), the senior Democrat.

McCarthy also told others she was offended that the CIA’s general counsel had worked to secure a secret Justice Department opinion in 2004 authorizing the agency’s creation of "ghost detainees" — prisoners removed from Iraq for secret interrogations without notice to the International Committee of the Red Cross — because the Geneva Conventions prohibit such practices. [my emphasis]

So whether or not McCarthy was one of Priest’s sources (recall that Priest had about a million sources), she was also witness to the fact that someone had gone before both houses of Congress and lied about what kind of practices the CIA had engaged in. There are just a few candidates for who that official (or officials) might be. They include, at least, acting General Counsel John Rizzo, DCI Porter Goss, Director of Operations Jose Rodriguez, Director of Counter-Terrorism Robert Grenier (though he’s unlikely, since he is rumored to have been opposed to torture).

In any case–you see where I’m going with this. Mary McCarthy says that someone came before two committees of Congress, right in the middle of debates on whether to outlaw torture for the CIA, and lied about what the CIA was and had been doing. And that person is likely to be one of the people closely involved in discussions about destroying the torture tapes that would have proved that he lied.

Gosh. It sure seems like before Congress decides why the torture tapes were destroyed, they ought to figure out whether they were evidence that someone lied to them in 2005, huh?

26 replies
  1. Rayne says:

    Leaking isn’t the same as whistleblowing, but that’s a perspective that might not be shared by those on the wrong side of the whistleblowing…

  2. freepatriot says:

    kinda funny that george went to such great lenghts to ensure that he has “Plausibile Deniability”

    to bad george didn’t take a look at International Law before he came up with that idea

    if george didn’t know about it, george is just as guilty as if he DID know

    those who do not know their past are doomed to repeat it

    and george bush’s failure to know the history of the NAZI party in germany is about proof of that

    but why do the rest of us gotta suffer thru this with preznit numbnutz

  3. Mary says:

    As always, I’m still in the camp that what is illegal, as a matter of longstanding common law, cannot be “classified” and I think that is something that no one at DOJ really wants to litigate. Hard to stand up and say, “hey, I’ve been helping commit crimes, but I think the court should make sure I can cover it up by stamping it classified” OK, given what they have stood up and sai, not that hard perhaps.

    If you’re going to focus a little on McCarthy, don’t overlook this part from that article:

    McCarthy also told others she was offended that the CIA’s general counsel had worked to secure a secret Justice Department opinion in 2004 authorizing the agency’s creation of “ghost detainees” — prisoners removed from Iraq for secret interrogations …the Geneva Conventions prohibit such practices … The draft opinion, written by the [Goldsmith] and dated March 19, 2004…permits the CIA to take Iraqis out of the country to be interrogated for a “brief but not indefinite period.”
    Some specialists in international law say the opinion amounts to a reinterpretation of one of the most basic rights of Article 49 of the Fourth Geneva Convention, which protects civilians during wartime and occupation, including insurgents who were not part of Iraq’s military.

    The treaty prohibits the “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . regardless of their motive.”

    Just like the Goldsmith footnote on the torture opinion, this was a great way to placate torturers and keep an illusory fig leaf of coverage – circulating the memo for reliance but leaving it in draft form.…..Oct23.html

    Here’s in part why I think you need to focus on the shipments just as much as on the cruel, inhumane and degrading treatment. To start with, the US war crimes act applies with respect to signficant breaches of the Geneva Conventions and those same conventions define violation of article 49 as a —- you got it – grave breach.

    I’m not sure what, if anything, Goldsmith sells as his story on the Article 49 memo, but it contained rationale at least as stupendously nuts as the Bybee torture memo (and the Goldsmith footnote for that matter). It’s a memo that has caused several international law scholars to put Goldsmith on the possible war criminals list. Not only that, but this same article 49 comes significantly into play with regard to GITMO and to anyone who helped send someone who was not al-Qaeda, and was instead a civilian – a protected person – to be disappeared into years of abuse at GITMO. Without even having to get to the issue of that person “proving” the CID (which with the liar’s culture at DOJ and the rampant destruction of evidence throughout the administration and the military and the overwhelming willingness of loyal Bushies in DOJ, intel and military to lie under oath, would always be a tough call), the transport out of country alone stands as a prima facie war crime under the US war crimes act.

    Enter Goldsmith and his opinion.…..Oct23.html

    At the request of the CIA, the Justice Department [Golsmith at OLC is listed as author]drafted a confidential memo that authorizes the agency to transfer detainees out of Iraq for interrogation — a practice that international legal specialists say contravenes the Geneva Conventions

    One intelligence official familiar with the operation said the CIA has used the March draft memo as legal support for secretly transporting as many as a dozen detainees out of Iraq in the last six months
    …International law experts contacted for this article described the legal reasoning contained in the Justice Department memo as unconventional and disturbing.

    The CIA, Justice Department and the author of the draft opinion, Jack L. Goldsmith, former director of the Office of Legal Counsel, declined to comment for this article.

    Off to do errands, but this point about Article 49 violations is one I keep trying to make in several settings – especially GITMO, but even though no one seems interested, I’m not letting it go.

    The disappearance of a protected person out of country, even without proof of abuse after being disappeared, is prima facie a war crime.

    • Jeff says:

      the Goldsmith footnote on the torture opinion

      Just a sidenote: I think I’ve seen you refer to this a number of times, and if you are referring to footnote 8 in the December 2004 OLC opinion that replaced the August 1 2002 torture memo, it’s worth noting that that was not drafter by Goldsmith, who was long gone from OLC by that point and who did not submit a replacement opinion for the August 1 2002 opinion he withdrew before he resigned. The December 2004 OLC opinion was written by Dan Levin, the guy who underwent waterboarding, and abcnews reported at one point relatively recently that that footnote was inserted into the opinion at the insistence of the White House. It’s true that Goldsmith in his book expresses pleasure at seeing that footnote, in part because it meant, on his account, that the entire constitutional-dictatorial apparatus of the original torture memo was completely unnecessary to rationalize and legitimize the specific techniques the CIA was using. I disagree in the sense that I think that footnote stinks, and in fact some of the specific techniques were of course out of all civilized, constitutional and legal bounds. But the basic point is that Goldsmith did not write that footnote and that opinion, Dan Levin did.

    • klynn says:


      Totally agree. Last time I tried to bring this up at the Lake, I received many “war crimes will not be upheld in our courts or in an international court setting..”

      Nonetheless, I still agree with you.

    • bigbrother says:

      Thank you for a legal clarification. It is obvious. DAG John Yoo started all this move to legalise torture. The Levin memo, the Bybee memo both DAGs and the Military Commissions Act shows that Bushco and Congress acted in complicity in lowering the legal bar to allow torture. Probably ex post facto approval of torture requiring a massive pardon and relieving the whole administration from the rule of law.

      The massive criminal actions by bushco justified in their attempt by war, state secrets and other rationalization no just court would consider even as mitigating circumstances for the offending party.

      Two standards of justice not codified: one for the wealthy priveledged for whom it is not enough to have the advantage of the finest representation versus the rif raf who have either public defenders or the less able to represent them. Now one class of criminal is “Above the Law” entirely.

      Judge Kennedy is ruling on these issues soon and whether the State has impunity from it’s own ….laws. The notion of priveledge obfuscates the purpose of the rule of lawe and the constitution. The Magna Carta, The Rights of Man and what has developed so excruciatingly is now what Bushco wants to overturn.

      So what country wants our brand of democracy? No surprises here.

      • Hmmm says:

        bigbrother makes an interesting point. The Administration, once it passed the Rubicon by allowing torture, was in a position where literally the only way out was via pardon. Which they probably concluded — not unrealistically in my view — was obtainable due to the unique circumstances of the Sept. ‘01 attacks — cf. Rudy, Mitt, or Hil would certainly be more than willing go all Gerry Ford given the opportunity to be king Pres. Once the Administration was in that complete-jeopardy position, logical analysis showed that the shackles of law no longer applied, since either (a) a “full and complete pardon” fixes all, or (b) in the unlikely event that no pardon would in the end be forthcoming, well, the penalties to be paid simply couldn’t get any worse, could they?

        Potentially explains a lot.

        • rapt says:

          If you carry that one step further…the perps are “probably” in a position where they have no choice, and haven’t for some time. Let’s say hypothetically that part of the objective is to eliminate the constraints of law, and that some means was set up to protect the perps, at least from their perspective, but to feed them to the sharks if they failed in their mission.

          Other objectives are continuous war – no winning – , elimination of useless eaters, concentration of wealth, destruction of the economy, etc. All of these missions are in process now. But a deadline approaches and the plan gets ever more tattered with each passing day. That would explain the desperate and ever less secretive moves we’ve been seeing.

          The only thing keeping them alive now is that most of the govt is shackled with threats and blackmail. Can this be undone?

  4. Rayne says:

    I wonder, then, Mary, why the EU has not already begun a formal inquiry with intent to prosecute war crimes under Article 49, leaving Italy all on its own. Too great a loss of face with more than 25% of the Council of EU nations implicated?

    There’s certainly enough information reported by Council of EU’s Committee on Legal Affairs and Human Rights in its report, “Alleged secret detentions in Council of Europe member states” to begin chasing Article 49 violations.

  5. WilliamOckham says:

    I think that prosecuting these war crimes is the single most important thing that we need to do to restore the rule of law in this country. I’m not talking about the ’interrogators’ either. Bush, Rumsfeld, Yoo, and Bybee are clearly linked by a solid paper trail to the commission of war crimes. Ashcroft, Gonzales, Goldsmith, and Levin are arguably at risk of prosecution. Unfortunately, the most guilty parties, Cheney and Addington, will be the hardest to prosecute.

    If the next administration doesn’t prosecute, we’ll continue down the path to tyranny.

    • TheraP says:

      I sure agree with you, WO. It’s a crime we have done against the rest of the world. Unless we prosecute these crimes, we will never be trusted. And it will remain as a stain on our national character. I find it hard to see how we can restore a true balance of powers internally, if we fail to address the imbalance of power in what we have done externally.

      This is like the role of the prophets of the Old Testament. Some people have to keep crying out against injustice and lamenting the current conditions.

      It’s disheartening and frustrating to live through this. And how can we call ourselves a “country of laws” and do nothing in the face of all these crimes, particularly the crimes against humanity?

  6. LabDancer says:

    Will you people just stop with all this incessant posting? I’m trying to concentrate on turning the Skins’ QB into a moron & getting the Vikes’ QB to channel Joe Montana.

    & before I leave for the next sets of downs [This is SO stressful on Fans of the Purple.] – can I just tell you all how annoying I find:

    [1] Ms E Wheel’s ability to see thru these war criminals &

    [2] the continued use of the terms “tapes” & “videotapes” by the ass-coverers who spoke to Mazetti & Shane – & I’m reserving my judgment on those two pipeline workers too.

    Oh – one thing more:

    Is it possible the JRod of 2008 could turn out the J Dean of 1974?

    Jeez – see what you made me do: I went & missed an entire set of downs!

  7. Youffraita says:

    I promise I’ll go back and read the whole thing closely. But when you mentioned Mary McCarthy, all I could think of was the author who famously said of Lillian Hellman, “Every word she ever wrote was a lie, including ‘and’ and ‘the.’”

    Substitute “he” for “she” and “spoke” for “wrote” and you could be talking about Shrubbie.

  8. Hmmm says:

    Oh dear, I just had a terrible thought. What if W has already secretly granted a “fully and complete pardon” to himself and all Loyal Bushies, in exchange for their personal loyalty oaths?

    I feel ill.

  9. earlofhuntingdon says:

    The destruction of McCarthy’s career is of a piece with the destruction of Valerie Plame’s. It is intended to silence a critic (and by extension, all critics) and destroy her credibility.

    For longtime intelligence analysts, this method of bureaucratic warfare is especially personally destructive, since it means loss of the security clearance essential to continue decades of work in the public or private sector. (In egregious cases, it may also lead to loss of all government benefits, heightening the victim’s – and all potential victims’ – vulnerability.) It is, therefore, inherently and personally vicious unless the result of overwhelming evidence of guilt. I haven’t seen that published.

  10. JohnLopresti says:

    I had drawn a vector between the sotu-16 words and the tenure of McCarthy in IG but actually have no information whether she might have examined that as part of an investigation. I know Jeff and ew both researched that extensively. Today the Australians have let the gitmo transferred person who was said to be a terrorist in Asia free on parole with a gag order effective until end of March 2008, though the Australia AG is stating the gag is unenforceable; the released prisoner says he is sick from five years in gitmo and restoring health is the first effort in his agenda, though the photo offers no clue of whether it is a sick young man; Australia had incarcerated him upon transfer from gitmo. Austrialia is another country whose voters have pushed back when their image became entangled in countering the recent US foreign policies in response to terrorism, at least that was my reading of one factor in the recent elections’ outcome in Australia.

  11. Mary says:

    Jeff @ 5 – yes, I get into shorthand references and try to throw things down quickly, but here is my understanding (and you are absolutely correct about Levin)

    There were probably at least 3 memos. The broad stroke memo, the Bybee August memo which Goldsmith withdrew and for wich the replacement was not generated until after he was gone, has the footnoted reference. It is my understanding that this was the OLC decision from the time that the original opinion was withdrawn, however, i.e., that there would be “clearance” recognized for prior actions, particular those that were specifically addressed in the other two memos.

    Again, my understanding (and feel free to correct details) is that in addition to the broad stroke memo, OLC generated at least two other memos, one for DOD and one for CIA. Those memos authorized specific abuses of detainees. Again, it is my understanding that Goldsmith did not withdraw the CIA memo at all and that he withdrew the DOD memo only in a “kinda sorta” way – with a replacement memo that pretty much allowed and encouraged and solicited all the same abuses, but just with what he viewed as better reasoning and not relying on the withdrawn Bybee memo (iow, a freestanding abuse memo that didn’t need the Bybee memo for its underpinnings, so the Bybee memo could be nominally withdrawn to fanfare, without affecting the authorized abuses under Goldsmith’s replacement classified memo).

    With all the secrecy, it’s hard to say what really is or isn’t, but that’s my understanding to date. Although I refuse to buy a book in order to have a public servant who was “paid and placed” reveal what he did in office, it would be interesting to know if he mentions his article 49 draft that was floating around. Does that get acknowledged in his book?

    • drational says:

      I know of no Goldsmith-authored OLC memo that approves torture. Regarding the Bybee memo, since you won’t buy the book, this is what Goldsmith says:

      “After many conversations with Philbin, I decided that I should not withdraw the opinions until I could affirmatively inform the Defense Department and CIA precisely what interrogation practices were legally available under proper analysis… I hoped that providing replacement guidance when I withdrew the opinions would minimize the expected panic [by the CIA and DOD interrogators who had tortured based on Bybee green light] throughout the government about the consequences of withdrawal.”

      Next para synopsis:
      The 24 approved DOD interrogation techniques were all approved by Philbin and Goldsmith as consistent with the Geneva Conventions and not in violation of the “torture statute or any other applicable law.”
      The techniques do not include waterboarding.

      Next Para:
      I told Ashcroft in dec 2003 I was going to withdraw the March 2003 OLC [an opinion for the DOD interrogation based on the Bybee 2002 memo] opinion, but allow the DOD to continue the 24 techniques. “Ashcroft was not terribly surprised and did not resist”. “I didn’t inform the White House about my decision… I knew that running the matter by Gonzales and Especially Addington would make it much harder to fix the opinions. I technically didn’t need White House approval, so I didn’t seek it.”

      Next para:
      regarding informing Haynes about the March 2003 OLC withdrawal.
      “The 24 techniques you approved are legal, but please come back for additional legal guidance before approving any other technique, and do not rely on the March 2003 opinion for any reason.”

      Next para: about how Haynes acted promptly on Goldsmith’s advice.

      Next para: The subsequent paras are the setup for withdrawal of the bybee 2002 OLC memo, upon which the CIA techniques were based.
      “The 2002 opinionand the attendant CIA techniques, unlike the ones approved by the Pentagon, had been vetted in the highest circles of government.”
      “I wasn’t as confident that the CIA techniques could be approved under a proper legal analysis”.

      Next para: about Abu Ghraib;
      “My october 2003 decision [written after becoming OLC head] that all Iraqis, including Iraqi citizens who were members of al Qaeda, were “protected persons” under the Fourth Geneva Convention included an exception for members of al Qaeda in Iraq who were not Iraqi citizens…. wondered whether anyone had exploited this loophole as a justification for abusing non-Iraqi al Qaeda members found in Iraq.”

      Next Para:
      talks about the press reports June 7 of the Draft March 2003 DOD memo relying on the 2003 OLC memo. Then the WaPo article about the Bybee memo on June 8.
      “I was under pressure from all quarters in the Administration to stand by and affirm the August 2002 opinion [Bybee memo]….But 5 months earlier I had withdrawn the March 2003 OLC opinion after concluding that the identical legal analysis of torture contained in the August 2002 opinion was flawed beyond repair.”

      “When I finally informed John Ashcroft and David Ayres about my decision on Tuesday morning, June 15, 2004, they were understandably shaken….. I sensed for the first time that he [Ashcroft] might be questioning my judgement, and I wondered when I left his office whether he would agree with my decision or exercise his prerogative to overrule me.”

      Ashcroft had accepted Goldsmith decision to withdraw.

      “In the same meeting I handed the Attorney General my resignation…. Comey and I agreed that this timing would make it hard for the White House to reverse my decision without making it seem like I had resigned in protest.”

      So Mary. The article 49 references are to the October 2003 OLC memo of his making non-Iraqi citizen al Qaeda in Iraq non-protected persons. This is a bit different than how you characterize it (wherein Goldsmith specifically said all Iraqis, including Iraqi members of al Qaeda in Iraq are protected persons.) But it is indeed a loophole.

      And the other point that needs made are Goldsmith’s authorship of Torture Memos. Quite simply put, there are none. He withdrew the OLC 2003 (for DOD) and the OLC 2002 (Bybee).

      Where he failed miserably was waiting 7 months to withdraw the Bybee memo. He knew in December 2003 that it was flawed, but sat on it until Abu Ghraib precipitated his concerns.

      At any rate, I really think you should read the book as if nothing else it will help hone your criticisms.

  12. Mary says:

    bigbrother @9 –

    So what country wants our brand of democracy?

    I’ve been reading Three Cups of Tea (highly recommended) and one of the things that keeps striking me is how Mortenson was treated by first the Iranian mullahs, and later by the “Shariat” and how he compares this with the treatment of detainees at GITMO by our government. How shocking is it when an “infidel” in a lawless land gets more justice from Sharia than we give to a London bipolar chef who was mistakenly and secretively labelled an “al-qaeda General” and disappeared into years of solitary confinement?

  13. Mary says:

    klynn @ 7 – the thing is, we don’t really have much “enabling” legislation for the Geneva Conventions, so that may have been part of what they were getting at. But we do have some very direct enabling legislation for “grave breaches” in the form of the War Crimes Act – – – the only thing that stands in the way of criminal prosecution under that statute is a corrupt DOJ.

    And notice how silent all the recent stories are about DOJ? The FBI is a part of DOJ – do you really think an FBI agent threatens to arrest CIA interrogators and Mueller never hears about it? Or that Coleman’s very vocal objections to the Zubaydah torture never come to his ears? And isn’t Cloonan on the record that Mueller was given his concerns about the al-Libi transfer? And isn’t Fallon on the record that during 2002 or so, the FBI had a scheme going to render some detainee(s) from GITMO to a place where they could be more thoroughly tortured and that his team had to intervene – – so Mueller never heard about that either? That Mueller didn’t know his FBI agent’s delcaration in the Padilla case was based on torture? That Mueller never discussed any of these things with his boss, Ashcroft then AGAG or his pal Comey?

    And that Scott Muller at CIA, who petitioned DOJ directly to allow for morebetter rights to designate missionary flights to be shot from the sky with ensuing deaths of women and children, never really talked to anyone in DOJ? Or that the extensive review Comey says was done prior to the Padilla press conf never generated any of the info about Zubaydah’s and Binyam Mohammed’s torture?

    The dogs that aren’t barking have my attention more than the ones that are – and the crimes of not turning over info for years before it was destroyed – – -plus the likely destruction of a long list of other info – have my attention just as much as the references to the tapes that were destroyed. The ED of VA lawyers filing apologies with Brinkema couldn’t have drafted their redacted letter more narrowly.

  14. Rayne says:

    Is this McCarthy cited in this report dd. 22-JAN-06?

    81. In an interview with Dana Priest (The Washington Post) published in March 2005, another CIA official involved in “renditions” described other countries’ “assurances” as “a farce”28, and admitted that it was widely understood that interrogation practices that would be illegal in the United States were being used29. In the same interview, he said that “They say they are not abusing them, and that satisfies the legal requirement, but we all know they do”30.

  15. Mary says:

    Thanks drational, but I’m not sure I follow how your first paragraph is Re: the Bybee memo – – it seems to be referring to the DOD and CIA procedures memos, not the Bybee memo, …decided that I should not withdraw the opinions until I could affirmatively inform the Defense Department and CIA precisely what interrogation practices were legally available
    but if you are focused more on the last part, I hoped that providing replacement guidance when I withdrew the opinions would minimize the expected panic … throughout the government about the consequences of withdrawal.” that is pretty much exactly what I mean.

    It was the policy to make sure that, even while the Bybee memo was being withdrawn, it would be done in a manner that relieved anyone who tortured under the Bybee and specific CIA and DOD memos with comfort that they were scott free. So while Levin authored the replacement memo with footnote reprieve, it was a follow through on decided policy. The miserable failure I see isn’t so much the waiting 7 months to withdraw, as the set policy of making sure all the withdrawals were done in ways that were calculated to best let torturers off scott free.

    The excerpt you reference on the DOD memo, I told Ashcroft in dec 2003 I was going to withdraw the March 2003 OLC [an opinion for the DOD interrogation based on the Bybee 2002 memo] opinion, but allow the DOD to continue the 24 techniques is, I think, pretty much exactly what I said above isn’t it? That while he withdrew the DOD opinion, he then went ahead and approved all the same things?

    If you haven’t read the Mayer piece on Alberto Mora and his fights on this front, then I guess we may not be on the same page as to whether or not those 24 techniques (almost all of which were absolute clear violations of the Uniform Code of Military Justice) constitute torture. IMO, yes they did and so the Goldsmith replacement DOD memo is a torture memo. What happened is that that same things were allowed, but based on the internal reasoning of the replacement memo and not on the Bybee memo.

    I’m not sure if the Oct 2003 memo that you reference is the Article 49 draft memo, but I think it is and if so, you missed my point entirely on that memo.

    “My october 2003 decision [written after becoming OLC head] that all Iraqis, including Iraqi citizens who were members of al Qaeda, were “protected persons” under the Fourth Geneva Convention included an exception for members of al Qaeda in Iraq who were not Iraqi citizens…. wondered whether anyone had exploited this loophole as a justification for abusing non-Iraqi al Qaeda members found in Iraq.”

    So Mary. The article 49 references are to the October 2003 OLC memo of his making non-Iraqi citizen al Qaeda in Iraq non-protected persons. This is a bit different than how you characterize it (wherein Goldsmith specifically said all Iraqis, including Iraqi members of al Qaeda in Iraq are protected persons.) But it is indeed a loophole.

    I don’t think you followed how I was characterizing the Article 49 memo, since I wasn’t talking about the clear and “grave” Geneva Conventions breach in that memo, without regard to having to prove any kind of abuse occuring after the Article 49 violation. Article 49 of the Geneva Conventions says that no protected persons may be taken out of country by the invading/occupying forces. Yes Goldsmith did agree that Iraqis were protected persons – that is so clear it would be mindboggling to reach any other conclusion. That’s why the draft memo was so atrocious.

    Let me try again to explain. Despite the fact that Article 49 says no protected persons can be taken out of country for any reason or motive, the draft Goldsmith memo that has been referenced says that while all Iraqis are protected persons, it is perfectly ok to violate Article 49 and disappear them out of country to be interrogated, as long as its not forever. See the problem? And it has been reported (I gave links above) that the draft opinion (does Goldsmith say whether or not he signed it out?) was relied on by the CIA and others to violate Article 49 and to take Iraqis out of country for interrogation.

    Now, our US War Crimes Act applies to grave breaches of the Geneva Conventions, but without necessarily giving a complete listing of what those are. But the Conventions themself refer to violations of Article 49 as grave breachs. And while Goldsmith’s memo went to Iraqi protected persons (and authorized a “temporary” grave breach of Article 49 against those protected persons), my other point is that Article 49 also applies to all the civilians who were non-combatants in Afghanistan or elswhere and who were illegally purchased and shippped to GITMO. One reason that all the CSRTs “had” to find that every single person was a combatant, was that if any one of them were not found to be a “combatant” the mere shipment of them to GITMO, even without hard evidence of abuse there, is a breachof Article 49 and therfore a grave breach of the Conventions and therefor a war crime under our domestic War Crimes Act.

    So I went off on two tangents there – what Goldsmith’s draft memo did (authorizing the violation of Article 49 on a “nonpermanent” basis with respect to Iraqi protected persons) and what Article 49 violations in general mean vis a vis GITMO detentions. But I didn’t say or characterize the Article 49 memo as a torture memo (and the fact that Goldsmith says he worried over whether the fact that he excluded non-Iraqi al qaeda might mean they were abused as non-protected persons is I guess interesting, but since that was being done on a broad basis based on the original non-combatant/not covered by Geneva Conventions memo – which was never withdrawn and was instead overruled by the court in Hamdan – I’m not sure I know how he thought that memo would impact in one way or another on that front.

    I do know that Article 49 is about as crystal clear as it gets and there is no authorization for forcing protected persons out of country and the draft memo saying that “oh sure, you can violate Article 49, as long as you don’t leave them out of country permanently” (an oversimplification, but that’s the highlighed point) is just ridiculous.

    Hope that helps – so far I’m not seeing anything from those passages that would change my criticism though.

  16. Mary says:

    Really, the whole Article 49 issue above shows why I am leery of relying on Goldsmith’s piece. From the excerpts you provided, it sounds as if he tried very hard to set up a totally straw man argument (some people are claiming that I let there be a torture loophole when I didn’t call non-Iraqi al-Qaeda members protected persons – but golly, I went as far as I could with the protected persons definition) when no one was making any kind of claim on that front. What they have said is that after saying Iraqis were protected persons (and they clearly are) is that the draft memo (and no one is giving info on whether it was ever finalized) authorized commiting what the Conventions themself call a “grave breach” (taking protected persons out of country for interrogation) as long as they aren’t disappeared out of country permanently.

    It’s like the Bush straw arguments (some people say I shouldn’t go after terrists) and of course, it leaves you with a different feel than the real argument.

Comments are closed.