Harman’s Letter

TPMM has a copy of Jane Harman’s letter to then CIA General Counsel Scott Muller and his reply (h/t BayStateLiberal). As Paul Kiel notes, Muller blows off Harman’s warning not to dispose of the Zubaydah tape.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

Muller simply doesn’t acknowledge her advice in his return letter.

But even without a response, Harman’s advice is instructive. It reveals that–at least in February 2003–CIA premised the destruction of the torture tapes on the completion of Helgerson’s IG inquiry into interrogation methods. That confirms my earlier suspicions that the torture tapes were intimately connected with the IG inquiry–and makes the May 2004 White House discussion of whether or not to destroy the tapes all the more damning. After all, they can’t very well deny that the IG reported that the tapes showed methods that may have been illegal if they claimed the torture tape destruction tied to the inquiry itself? So once the report came out, they would be bound to keep the tapes since they would have verified or refuted the IG report.

Also note, Harman mentions only Zubaydah, not al-Nashiri. Did Muller just neglect to mention the latter AQ detainee? Or are we getting a somewhat fickle depiction of what tapes were kept?

Just as interesting is the partial blow-off that Muller gives Harman on the issue of the policy wisdom of torturing detainees, as distinct from the legal implications. She asks,

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? [my emphasis]

A very good question indeed. Particularly pertinent given the approval process described by Harman:

At the briefing you assured us that the [roughly 16 character redaction] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

She names AG Ashcroft, lawyers at the CIA (including, presumably, Muller himself), DOJ (those pesky OLC lawyers) and National Security Council (Bellinger). Absolutely no mention of two people I guarantee you were intimately involved: David Addington and Alberto Gonzales (and probably Tim Flanigan).

In response to Harman’s question about the White House and specifically the President, Muller offers this full blow-off:

As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. 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. [my emphasis]

It seems to me a perfectly fair question: this may (emphasis on may) be legal, but is the President really saying it’s a good idea? Unfortunately, given the confusion about the sub-fourth branches within the Executive Branch, Muller obscures the issue.

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99 replies
  1. klynn says:

    Amazing. And yet, not the least bit surprising…these days. On KO, Turley said there is no “may be legal” about it. He clearly pointed out it IS NOT. Did you see the commentary yesterday?

      • klynn says:

        bmaz, I know, I know! Don’t you know, your opinions come way before Turley! He just seems to compliment everything you say. My regrets. You are by far my superior “in-house” legal opinion. But, I was just watching KO and…well…sorry…

  2. klynn says:

    I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

    So, do we now shake our heads in agreement with Cheney’s understanding of his role in the Executive Branch? This is one of those, “Pow! Right in the kisser,” moments documented no less!

  3. MadDog says:

    [roughly 16 character redaction]

    EW, how did you come up with the number 16?

    The phrase “enhanced interrogation techniques” is more than 16. The phrase “interrogation techniques” is also more than 16.

    Since Scott Muller’s response letter uses the phrase “interrogation techniques”, I’m guessing that this was the phrase redacted in Jane’s letter.

    • emptywheel says:

      Count the letters directly above or below the redaction. It’s very rough bc Times Roman is proportional and there are some big letters (O and C) in there. But it’s a rough estimate designed to rule out some obvious things, like interrogation techniques.

      Incidentally, “_water-boarding_” might fit–except it doesn’t fit grammatically; the word must be plural noun.

      • MadDog says:

        Using the text under the redacted passage, I come up with the number 19 or thereabouts which would fit with the phrase “enhanced techniques”.

      • phred says:

        It could have been waterboardings (14) or water-boardings (15), not particularly elegant writing, but it would certainly get the point across.

    • looseheadprop says:

      That cannot be the phrase since it is used elsewhere in the letter. Why redact in the first paragragh and then not redact it later?

  4. Ann in AZ says:

    Unfortunately, given the confusion about the sub-fourth branches within the Executive Branch, Muller obscures the issue.

    Isn’t that exactly what Muller intended to do?

    Given the fact that Harmon warned them that “Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.” I don’t see how we can avoid the conclusion that whatever was on those tapes was evidence of something worse than whatever bad was reflected by the destruction of the tapes.

  5. MadDog says:

    And EW, I remind you of the 2003 White House plans to coverup lawyering wrt torture enhanced interrogation videotaping by this AP article:

    One official familiar with the investigation said the review so far indicates that Alberto Gonzales, who served as White House counsel and then attorney general, advised against destroying the videotapes as one of four senior Bush administration attorneys discussing how to handle them. The official spoke on condition of anonymity because of the ongoing investigation. Gonzales’ attorney, George Terwilliger, declined comment.

    Another of the administration attorneys, John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers came to a consensus that the tapes should not be destroyed, said a senior official familiar with Bellinger’s account of the 2003 White House discussion. Bellinger could not be reached for comment.

    • scribe says:

      When you quote:

      John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers came to a consensus that the tapes should not be destroyed,

      is it then your contention (by implication) that the policy makers overruled (or, more accurately, disregarded) the advice of their lawyers?

      One cannot use “advice of counsel” as a defense, if one gets the advice and then says “F’ that. I’m gonna do what I want.” and does the exact opposite of the advice.

      • MadDog says:

        I take their “purported” consensus on keeping the Torture Tapes with more than a wee bit of salt.

        By the very nature of these weasels, I’d say there was a whole lot of “wink, wink, wink” going on.

  6. looseheadprop says:

    if you count the spaces in the the ONLY redacting in the letter (17 spaces) and it you allow for 3 spaces (between the word in front, the word in back, and one int he middle) “water boardings” fits the redaction space

    At the briefing you assured us that the [roughly 16 character redaction] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

    SO the sentence would possibly read:
    “At the briefing you assured us that the water boardings approved by the Attorney General have been subject to an intensive review…..

    Which would seem to indicate that the AG signed off on specific uses of Water boarding individually.–As opposed to an opinion of hte the technique generally. This implies to me that these particular uses were seen as an exception to a rule, rahter than consistant with a rule, if you know what I mean.

    Harmaon could be a valuable witness in the Hague someday.

    • scribe says:

      FWIW (and coming around from the long side) – going back to Cold War days and studying the Warsaw Pact (from open sources), one of the things most noteworthy in this context about the stories told by defectors from their intel and military was this. If, say, the KGB had found a guy who was really troublesome, or promised to be, and they wanted to whack him, it required the sign-off from the General Secretary of the Communist Party, i.e. Brezhnev, Andropov, etc. IIRC, this made the alleged non-involvement of the KGB and Soviet government in the attempted whacking of the Pope* more than a little bit risible.

      Back in the days before the Church hearings and such led to the EO prohibiting assassination by (or on behalf of) the US, I believe the President had to sign off on such, um, “executive action”. Not informally, but in a regular document, I believe.

      Could we be looking at a revival of that old methodology, in which the Executive formally orders torture? And, how does the wiring diagram look, when the AG (who’s supposed to investigate and prosecute crimes, after all) is the guy signing off on interrogations, when the terrists are never going to be prosecuted and, indeed, never intended to reach American shores (where they’d be entitled to, um, lawyers, charges, discovery, trials in open court, and all the rest)?

      Let’s try shoehorning in things with Executive and such to see how they
      fit into the missing 16 letters.

      * Somewhere, I have a picture I took of a poster on a wall in Paris, with Andropov’s face on it saying “Wanted for the Attempted Assassination of the Pope”, but I digress.

  7. zAmboni says:

    about the redaction:

    “enhanced methods” would fit, but that doesn’t really make sense since they did not redact “enhanced techniques” later….and I don’t think that she would switch from using “methods” to “techniques” in the same letter. I would think that the redacted portion is a specific technique that she mentioned.

  8. zAmboni says:

    what font is that, New Times Roman? I fired up Word and typed in the paragraph and “water boardings” does not fit, it is one letter too short (using NTR, “approved” starts underneath the d instead of the e in “made” from the line above). Need a word or phrase that has one more letter in it.

  9. LS says:

    So, it looks to me that Harman was told there was a videotape of Zubaydah following his capture (probably because he was wounded)…She doesn’t sound like she is talking about being told that the torture interrogation was filmed…I don’t think that is what she was briefed…sounds to me like they told her they videotaped him because he was hurt and they wanted to cover themselves if he died by destroying the tapes leaving only a written record. She is saying, no..keep the tapes, because they will back up the written record….(problem probably was that the tape(s) was nothing like the written record she was led to believe was the truth)….

    Even worse is the fact that he had been shot 3 times while being captured, and they torture interrogated him on top of that.

    • scribe says:

      No!
      Harman was told there was videotape. Not “a videotape”.
      There’s a wide difference of meaning there – what Harman says she was told: “You discussed the fact that there is videotape of Abu Zubaydah following his capture”, means that any number of individual tapes could have been made, covering any amount of time. Not just one tape.

      That would be consonant with taping him 24/7/365.

  10. MadDog says:

    Ok, how about this for the redacted part: “President’s orders”

    I’m guessing something like that would never, ever, get pass the White House censors. Admitting that Junya explicitly ordered Torture is a big White House No-No!

    • looseheadprop says:

      Ok, how about this for the redacted part: “President’s orders”

      Except I don’t see anyone in gov’t putting that cart before the horse. AG’s don’t “approve” a President’s Order, cause the President outranks the AG.

      But the AG, DID approve warrenless wiretapping (ie, and “Exception” to FISA) until Come put a stop to it.

      Don’t forget the famous torture memo which AGAG says means waterboarding is not torture.

      • JimWhite says:

        My money is on Executive Orders.
        From the OLC website:

        The Assistant Attorney General in charge of the Office of Legal Counsel assists the Attorney General in his function as legal advisor to the President and all the executive branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

        All Executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President’s formal approval.

        http://www.usdoj.gov/olc/

        • looseheadprop says:

          Yeah, but that all happens BEFORE the President issues an order. The OLC issues opnions in response to a query from the Office of the PResident about something where the POTUS might be considering issueing an order (or taking some other action)

          Once it already an order, the AG would not “Approve” it’s ultra vires, that is “beyond the power” of his office

      • MadDog says:

        Except I don’t see anyone in gov’t putting that cart before the horse. AG’s don’t “approve” a President’s Order, cause the President outranks the AG.

        I can’t help it if Jane Harman’s wordsmithing leaves the right wrong impression, can I? *g*

  11. mainsailset says:

    Pretty gutsy letter Jane. Bush was full throttle with his Axis of Evil, war machines were warming up, orange alert beacons were strobbing and yet she called a spade a spade.

    • drational says:

      “Pretty gutsy letter Jane. Bush was full throttle with his Axis of Evil, war machines were warming up, orange alert beacons were strobbing and yet she called a spade a spade.”

      Marty Lederman has a different take:

      Harman does not assert that the CIA techniques were torture or cruel treatment.

      She does not insist that they were illegal, and breaches of at least two treaties — and does not insist that they be terminated immediately.

      She does not ask how it’s possible that waterboarding is not intended to result in severe physical suffering. She does not ask how the CIA can avoid the conclusion that “stress positions” and severe sleep and sensory deprivation are “cruel treatment.”

      She does not insist on seeing all the OLC opinions that reached the absurd conclusions that the techniques were legal.

      She does not threaten to inform any of her colleagues in Congress about the shocking illegal conduct of which she has learned.

      She does not begin a public debate about whether such conduct is lawful and, if not, whether the U.S. should amend the law and therefore breach its treaty obligations.

      Although Harman may be proud of her “oversight”, I think Lederman has it right: Harman is a part of a dysfunctional oversight mechanism that has been central in enabling this Administration to do anything they want, Constitution and Law be damned.

      I am not so excited about her principled stand….

  12. scribe says:

    Re the 16 letters missing:

    How about “waterboardings” or “water boardings” in quotes.

    It’s only because it’s been so often discussed, described and portrayed that anyone has any idea what it is – and that the word has even entered the common vocabulary. In 2003, it would have been quite logical to put such a then-strange word in quotes.

  13. BayStateLibrul says:

    “Our country is at war and our government has the obligation to protect the American people,” Bush said at a news conference with Panama’s President Martin Torrijos.
    “And we are aggressively doing that. We are finding terrorists and bringing them to justice.”
    “Anything we do to that end in this effort, any activity we conduct, is within the law. We do not torture.”

    November 13, 2005

  14. zAmboni says:

    I have to correct myself, I think it is a half space too short. I think it is two words with a space inbetween them.

  15. looseheadprop says:

    briefing you assured us that the water boardings approved by the Attorney General have been
    subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of
    Justice

    If you type this section in Times New roman in 11 point font–left justification only, the sentnce breaks and words line up over each other EXACTLY the way they do in the PDF of HArmon’s letter.

    • MadDog says:

      That might fit with this from this January 29, 2005 NYT article:

      Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.

      ~snip~

      Mr. Chertoff’s division was asked on several occasions by the intelligence agency whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the Justice Department sought to avoid giving unconditional approval.

      One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning.

      • looseheadprop says:

        That Chertoff would give that opinion does not surprise me in the least. This guy has always been empathy free

    • scribe says:

      Sounds reasonable to me. Let’s consider this one “solved” for the time being (though we can keep an open mind on what the words are).

      Now, on to the next issue: what’s the chain of authorizing a waterboarding? Does the President have to give an individualized OK each time (viz. mine above @22), or did he delegate that to Ashcroft (and Gonzo)?

      And, did Bush initially authorize the torture program against the advice of the consensus of executive branch attorneys, or not?

      • looseheadprop says:

        It may be, and I’m just guessing here, that the AG actually signed off on individual water boardings (like the signing off on the warantless wiretapping) in which case there is some kind of paper trail—oooohhh, let me see the paper baybay!

        Or that she is merely referring to the famous torture memo and has inartfully described that as = to “approval”

        • scribe says:

          I’m against the “inartful letter-writing” school of analysis some are positing – Harman’s letter is about as well-written a letter as any practicing lawyer wanting to be precise without showing too many cards (to the un-cleared) could be. I stand on my prior that she put waterboarding in quotes b/c it was a then-unfamiliar word.

          Seriously O/T, but worth it. You all gotta go read the Vanity Fair takedown (Princess Judi-style) of Richard Mellon Scaife and his on-going divorce saga. If only for the humor value of his saying that he and Bill Clinton “have philandering in common.”

          I cannot recall the last time I saw “guttersnipe” in an article in a major magazine.

          • MadDog says:

            In the end, deducing the redacted part is mostly busywork on our part.

            That’s because there is no doubt in my mind (and I suspect many others here), that Jane Harman was in fact referring to waterboarding and/or other enhanced interrogation techniques otherwise known to the world at large as Torture!

            • emptywheel says:

              Point very well taken. I mostly included the rough character number bc it ruled out the most obvious redactions: “enhanced techniques” and the like.

              • MadDog says:

                Now that I think about it, I mean not to denigrate our efforts to figure our the redacted text.

                It may well be that the redaction is just bureaucratic overkill (possible but not highly likely) or it may be that there is a particular reason the Administration wants the redacted text to remain hidden.

                It could be something like Jane Harman’s use of a code-word for the program which spooks always want to remain hidden, or it could be that the redacted text is something the Administration dearly would not like the rest of the world to know about.

                Something offensive, something criminal, something that puts folks in legal jeopardy.

            • scribe says:

              We and the whole world all know it is torture, but that does not change the necessity of getting the exact words out there.

              By way of comparison, when Abu Gonzo dismissed various provisions of the Geneva Conventions as “quaint”, he was using the same word as Nazi Field Marshal Keitel had written into the margins of documents he was reviewing, also dealing with treatment of prisoners and the then-current Hague Conventions. Keitel was hanged for his crimes.

              Words matter.

              • TheraP says:

                Words matter.

                Yes. But so many people avoid the truth. Some want to see. Some can’t bear to. And how things are worded has a lot to do with the emotional underpinnings.

                In high school I looked at the history of the word to describe economic downturns. Panic… that was let go. Depression…. let go also. Now it’s “recession.”

                Same thing in wars and so forth. Find a new word. Use an old innocuous word. Or if you want to turn people against something, find an emotional word or phrase that is negative.

                So we should say, not just torture but “sadistic torture.” Better yet, “sadistic torture of helpless prisoners.”

                • scribe says:

                  So, let’s see what her exact words were.

                  My bet is starting to lean toward “torture” methods, as zAmboni suggested @67, though “waterboarding(s)” also fits, at least for me.

                  If she called it “torture”, that tells me the briefing was likely a little more contentious than we’ve been led to believe.

                  As a side note, we need to keep reminding people (when they say “but the Democrats knew and did nothing”) that in 2002, 03, 04, there wasn’t really that much they could do given the makeup of the Congress.

      • MadDog says:

        And, did Bush initially authorize the torture program against the advice of the consensus of executive branch attorneys, or not?

        I can’t imagine any “appointed” executive branch attorneys standing on that side of the fence, can you?

        That would mean that Deadeye didn’t do his job of stacking the deck against the Constitution.

        • scribe says:

          Well, IIRC, there was some indication in the document and the thread that the consensus of Executive Branch attorneys was against waterboarding. But, we all know that One Addington outweighs any number of other attorneys.

          • MadDog says:

            Ahhh…you were referring to lawyers at the WH.

            Now I’m with you. When you referred to Executive Branch, I took that to mean inclusive of the DOJ.

  16. CTuttle says:

    As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law.

    I think this is very telling, and,the fact it was Sept. ‘02…

  17. TheraP says:

    as rigorously examined as the legal questions

    Harmon, in her letter, suggests that he legal questions have been more rigorously examined and the policy questions. IANAL, however the legalities seem to be resting on “toothpicks,” so far as I can tell. If the legalities are so frail, well… then the policy questions must really be in bad shape!

    JMHO, FWIW.

    • emptywheel says:

      IIRC, the reports on her opposition had to do with efficacy as much as anything else. Plus, it seems like a good response to fascists–yeah, so what, the President claims he can torture! Only an idiot would torture.

    • TheraP says:

      For the record, the whole sentence reads:

      what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions

      typo in 42… “and” in first sentence, should read “than”

      Type in haste; repent at leisure.

  18. emptywheel says:

    President’s orders, executive orders and water boardings are all syntactically wrong, IMO. President’s orders bc if she knew they were the President’s orders, she wouldn’t have asked about the involvement of the WH. Ditto executive orders.

    As for water boardings–normal usage appears to be “water-boarding” with or without a hyphen, but it’s a concept, not a singular noun. Furthermore, she seems to be talkign primarily about Abu Z, so singular again (If I’m not mistaken, the letter precedes KSM’s capture).

    • looseheadprop says:

      As for water boardings–normal usage appears to be “water-boarding” with or without a hyphen, but it’s a concept, not a singular noun. Furthermore, she seems to be talkign primarily about Abu Z, so singular again (If I’m not mistaken, the letter precedes KSM’s capture).

      Unless she is referring to multiple specific instances. In which case the syntax makes sense.

      • emptywheel says:

        Probably still not. First, as I pointed out, historically it is not entirely likely she would be (unless Ramzi bin al-Shibh or al-Nashiri were waterboarded too, but then why not mention al-Nashiri’s torture?) and if she’s referring to A specific, it’s just Abu Z. Further, the following sentence implies a general approval (NSC, CIA, and DOJ). Given that context, there would be almost no reason to refer to “water-boardings.”

        Not to mention the fact that we know the discussion was much wider than just water-boarding, and it would be surprising she would distinguish just that.

        Just MO, but it doesn’t make any sense to me that that would be water-boardings, for a list of reasons.

  19. zAmboni says:

    lhp, unless I have Word configured differently than you do, I am still coming up a space short when using water boardings, using either 11 pt font or 12 pt (which I originally used) if you capitalize the W and B, it fits, but I dont see why she would have in the letter.

    To see what I am talking about I took a couple of screenshots of what I have.

    http://members.arstechnica.com…..harman.jpg

    I want to sleuth some more, but the wife is whining about dinner so I have to get to cooking

    • looseheadprop says:

      OK you are confusing me. When you use 11 point, you are getting the same sentence breaks I am.

      • zAmboni says:

        lhp, the devil is in the details,
        when using water boardings, look at the “have” after General. the ending e is inbetween the h and e in “the” from the line above.

        In the Harman letter, that e is slightly after the e in “the”

        The difference is slight but it is important.

  20. zAmboni says:

    hrmm…I just tried something and it works (for me at least) and would be something redacted definitely by the administration.

    torture technique

    • scribe says:

      To fit, it has to be plural.

      “Executive Orders” does not make sense. The Attorney General would not be approving “Executive Orders”. The AG would be executing them.

  21. TheraP says:

    One Addington outweighs any number of other attorneys.

    In the forthcoming Boardgame, Constitutional Conflict, that will be a rule.

  22. zAmboni says:

    yea i know it has to be plural to make sense, what I wrote was sorta joking at that time, but something that seems to work also would be:

    “torture” methods

    and I think that if she would have used that phrase, that she would have used the quotes around torture.

    • JimWhite says:

      I’ve been playing around in TNR 12 point, since the pdf is from a photocopy that is slightly reduced.
      Before reading your comment, I was using
      harshest methods
      and the spacing was close, but not quite. Your
      “torture” methods
      lines things up better than anything I’ve tried and appears to match exactly.

  23. zAmboni says:

    Not sure if it is mentioned above, Executive Orders or Presidential orders makes no sense in the context of the letter since Harman asks in the next paragraph if the enhanced techniques were approved by the President. She wouldn’t have asked if the techniques were approved by the president if she was talking about an executive order in the previous paragraph (unless she thinks that someone is drafting executive orders without the knowledge/approval of the president)

  24. scribe says:

    A little O/T: The FBI will be leading the investigation of CIA re these tapes. The IHT notes (waiting until the 2d paragraph, even) there’s likely to be some sense of payback, in that the FBI was opposed to the CIA’s use of torture techniques, etc., etc.

  25. JimWhite says:

    My final entry, since I agree that Harman probably wouldn’t use the word torture. I get the same perfect alignment of letters when I use
    harshest practices
    I think that fits the syntax of the sentence and the overall issues that have been pointed out, as well.

  26. pdaly says:

    For what it’s worth, Harmon’s own website has Feb “2007″ typed on Harmon’s letter. Seems someone retyped it for her website. Found the PDF file instead that emptywheel pointed out.

    Wondering why Harmon cannot publish her letter in its entirety. Who has declassification powers in this case? If she wrote the letter, doesn’t she have some ability to declassify it? Who’s going to come after her if she did? Especially if it is derogatory to the White House, does that fall within her Constitutional powers to hold them in check?

  27. Mary says:

    16 space gap – maybe “harsh procedures” There was a lot more than waterboarding going on and more people involved that Zubaydah and Nashiri. You were also getting all kinds of field agent level complaints by FBI and NCIS types by then – yet Mueller (not Muller) never seems to have put in any 2 cents.

    But it’s interesting that they aren’t, at that briefing, referencing the OLC as much as the AG specifically. I wonder if they had a sign off set up for the torture they way they did for the surveillance?

    I love how they think they’ve parsed the “President is not above the law” into “yeah, well, like, no one said the CIC isn’t above the law.”

    The policy issue reminds of the Yoo/Mora exchange, where Mora said things were torture, illegal, against conventions and the War Crimes Act, yada yada and Yoo primped out a “nuh uh, cuz the OLC is like, ya know, the Executive Branch’s new, improved, judiciary branch” and Mora pressed him to then have the policy discussion and he scooted out.

  28. WilliamOckham says:

    I’m sad to say I’ve been swamped at work and missed out on all this redaction action. I’ve just got enough time to mention that there has to be a reason for the redaction, although not necessarily a valid reason. Most of the suggestions here don’t seem to make sense from that perspective. I’m gonna guess that the redaction was made because the sentence would directly put the AG at risk of war crimes prosecution. Whatever goes in that space must imply that the AG personally signed off on a specific act of torture.

  29. Leen says:

    Strong emphasis…Muller “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.”

  30. zAmboni says:

    I went back through and tried all of the suggestions that were in the thread so far and decide to group them and comment.

    Either too long or too short:
    waterboardings
    waterboarding
    water boarding
    water-boarding
    water boardings
    water-boardings
    “water boardings”
    enhanced methods
    enhanced techniques
    President’s Orders
    Executive orders
    harshest procedures
    harsh techniques

    Closest matches:
    Executive Orders
    harshest methods
    harshest practices
    “torture” methods
    torture techniques
    “waterboardings”
    President’s orders
    extreme measures

    I think earlier arguments in the thread have ruled out Executive Orders, President’s orders, and “waterboardings” By looking at things through Word, I am confident to say that harshest methods and harshest practices are actually a half space too short to fit into the redacted area. That leaves the words:

    “torture” methods
    torture techniques
    extreme measures

    I am going to rule two of these out for the sake of consistency in the rest of the letter. I am going to rule out “torture” methods and extreme measures because Harman later uses the word phrase “enahanced techniques”. I don’t think that she would use the word methods or measures and then switch up in the next paragraph and use the word techniques. I will go even further and rule out torture techniques, because for consistancy again….why would she use the word “torture” and then the next paragraph soften it up and use the right-wing approved (TM) phrase “enhanced techniques.” In addition I dont think that they would have redacted the phrase “extreme measures”…..although I do think they would have redacted the word torture.

    Thus, I believe that all of our guesses so far have been wrong. Currently I think what was redacted was some specific form(s) of torture they dont want shown in the wild. A second thought that I got an idea from WilliamOckham, what if what was redacted was something along the lines of “CIA interrogations” but NOT done by the CIA but someone else and signed off by the AG, but I cant think of what would fit.

    BTW…for analysis purposes, I took a screenshot of the pdf, a screenshot of Word using the phrase “torture techniques” and overlayed it in Photoshop (with slight enlarging to match size and rotation). It fit exactly…with the preceding “the” and following “approved”. This is not to say that was the words that were redacted, but it does give an exact size that needs to fit inside of the redacted space.

    I’m all out of ideas, I’ll let the other sleuths take over for now

    • zAmboni says:

      too short.

      here is a quick and easy way to figure out the right size needed. Open up notepad/wordpad/Word if on a Windoze machine. Set font to New Times Roman and font size to 12 (dont think the font size is that important).

      one one line type in torture techniques, next line type in extreme measures. Both of these have the same length needed.

      Type in your guess on the line underneath, if it matches the two words above it then you are golden. I wouldn’t completely rule out a word/phrase that is a half space short/long of this, but I am confident that the length of “extreme measures” is the exact length that is needed.

  31. pdaly says:

    I came up with “DO interrogations”
    This fit nicely, and gets at “materials and methods”–as if we didn’t know that the CIA’s Directorate of Operations interrogates…

    I pasted the block of text into Word.
    Used Times New Roman 12 point (instead of 11 point) and changed the right hand margin to 6 and 3/8.

    I should mention, the ‘of’ from ‘Department of Justice’ sits on the last line of the paragraph instead of the next to last line, but all the other formatting looks like it reproduces the original PDF file.

    • zAmboni says:

      DO interrogations does fit nicely. I’m not up on the torture stuff as others here, but would that be something that they would have redacted? I’m not sure if they didn’t redact it, it would be an tacit admission of something they have never owned up to in public.

      I really like the “DO interrogations” as being the redacted part because it fits in nicely with the how you would write a letter like that. Start of general and identify who is doing what. She mentions the CIA early, then you get more specific — DO interrogations — and then hone in with the next paragraph — enhanced techniques….and hone further in the last paragraph — videotapes of the techniques and interrogations.

      I think you may have something there

  32. kspena says:

    Thanks for your explanation. How about ’stressful positions’? I’m looking for a term that leaks toward violation of the Geneva Conventions. I do appreciate the search for a term that would implicate a group or persons in the CIA.

  33. kspena says:

    As I read Harman’s letter the ‘redaction’ = ‘these practices’ in the next paragraph. She’s asking if ‘these practices’ = US policies and principles.

    • zAmboni says:

      first off “stressful positions” would fit within a half space. It is too tough to tell if it fits perfectly with what Harman wrote. It would fit also.
      Again though…I wonder if it would be something that they would have redacted?

      I am assuming that the redaction was made immediately prior to the declassification of the letter. I just did a search for the use of “stressful positions” (I have heard it more commonly called just stress positions) and saw that right after the Abu Graib photos hit the streets articles were written saying

      Rumsfeld told a Senate committee that Pentagon lawyers had approved methods such as sleep deprivation and dietary changes as well as rules permitting prisoners to be made to assume stressful positions.

      If the redaction was right before the declassification why would they redact something that they have argued publicly was legal? The only reason I could think of is they redacted it because the letter may screw with the timeline of when Rumsfeld may have said the techniques were approved.

      BTW…after reading through the letter again I kinda agree with you but I posit this…

      Does “these practices” refer to “that what was described” or what was redacted. If the redacted wording is basically “that what was described” then why did she not use the redacted wording again?

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