Conyers Invokes the CIA Inspector General Report on Torture

In a HuffPo column arguing for a Commission to look into Bush era crimes, John Conyers mentions something people on the Hill rarely talk about: the 2004 CIA Inspector General report on torture.

Nor do I agree that the relevant facts are already known. While disparate investigations by Committees of congress, private organizations, and the press have uncovered many important facts, no single investigation has had access to the full range of information regarding the Bush administration’s interrelated programs on surveillance, detention, interrogation, and rendition. The existence of a substantially developed factual record will simplify the work to come, but cannot replace it. Furthermore, much of this information, such as the Central Intelligence Agency’s 2004 Inspector General report on interrogation, remains highly classified and hidden from the American people. An independent review is needed to determine the maximum information that can be publicly released.

Conyers links to this Jane Mayer interview about the report by way of explaining the significance of the report.

One of the lingering mysteries in Washington has been what happened to the CIA internal probe into homicides involving the program. You note that CIA Inspector General (IG) John Helgerson undertook a study and initially concluded, just as the Red Cross and most legal authorities in the United States and around the world, that the program was illegal and raised serious war crimes issues. Helgerson was summoned repeatedly to meet privately with Vice President Cheney, the man who provided the impetus for the program, and it appears as a result of these meetings the IG’s report was simply shut down. Would those probes have brought into question the Justice Department’s specific approval of torture techniques used by the CIA–approval that involved not just John Yoo, but much more specifically Michael Chertoff and Alice Fisher, the two figures who ran the criminal division?

The fact that John Helgerson—the inspector general at the CIA who is supposed to act as an independent watchdog—was called in by Cheney to discuss his tough report in 2004 is definitely surprising news. Asked for comment, Helgerson through the CIA spokesman denied he felt pressured in any way by Cheney. But others I interviewed have described the IG’s office to me as extremely politicized. They have also suggested it was very unusual that the Vice President interjected himself into the work of the IG. Fred Hitz, who had the same post in previous administrations, told me that no vice president had ever met with him. He thought it highly unusual.

Helgerson’s 2004 report had been described to me as very disturbing, the size of two Manhattan phone books, and full of terrible descriptions of mistreatment. The confirmation that Helgerson was called in to talk with Cheney about it proves that–as early as then–the Vice President’s office was fully aware that there were allegations of serious wrongdoing in The Program.

We know that in addition, the IG investigated several alleged homicides involving CIA detainees, and that Helgerson’s office forwarded several to the Justice Department for further consideration and potential prosecution. The only case so far that has been prosecuted in the criminal courts is that involving David Passaro—a low-level CIA contractor, not a full official in the Agency. Why have there been no charges filed? It’s a question to which one would expect that Congress and the public would like some answers. Sources suggested to me that, as you imply, it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned. Chertoff’s role in particular seems ripe for investigation. Alice Fisher’s role also seems of interest. Much remains to be uncovered.

There’s more (badly transcribed) from Mayer’s book here, and here’s an earlier post reflecting on ties between the report and the destruction of the torture tapes.

Now, Conyers’ mention of the IG report takes up just one line in a larger argument in favor of an independent Commission (click through to read the whole thing), so it’s not like he is focusing exclusively on this report. But, as I said before, when I’ve raised this report with staffers on the Hill they usually just look at me blankly, without acknowledging that such a report exists (or existed). Heck, Conyers himself barely mentions the report in his almost 500-page report on Bush’s abuse of power (see page 128 for what I believe is the only reference to the CIA IG report).

And yet Conyers links to an account of the report that focuses on the role of Michael Chertoff and Alice Fisher–as DOJ officials, solidly in the jurisdiction of the House Judiciary Committee–as the prime example of secrets that remain hidden behind classification practices. 

That sure seems to support my suspicion that the report is one key to unraveling the Bush Administration authorization of–and subsequent cover-up of–torture.

  1. scribe says:

    The short answer to why no one wants to talk about, let alone know about, the IG report is this:

    “There is no statute of limitations on murder.”

  2. JimWhite says:

    Not to worry, EW. If those interrogators acted in good faith under an assurance that they were clear of legal problems, then Mr. Holder won’t go after them. Murder’s just an unfortunate byproduct of well-meaning programs.


    • emptywheel says:

      One of the places this leads, of course, is what it means that John Yoo consulted with Chertoff to get some guidance on what Crim would charge at DOJ–and that was written into his torture memos.

      It doesn’t change the protection for the torturers. But it does get to the way that OLC opnions were designed, first and foremost, to make illegal behavior impossible to charge.

      • scribe says:

        Which sort of conduct, IIRC, falls under the definition of “conspiracy”, “misprision of felony” or both.

        I’ll have to look again.

        • scribe says:

          Yup. About what I thought.

          Here’s the relevant definition and some commentary:

          From Title 18, US Code, Crimes and Criminal Procedure:

          § 4. Misprision of felony
          Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

          OK. What does this mean? A little commentary is available:

          This offense requires active concealment of a felony, rather than a mere failure to report it.

          The problem is, this is so rarely charged that there is little to no case law available. IMHO, “aiding and abetting” is much easier to prove and therefore much more frequently charged.

          Thank you, Google Books. From Clark, “A Treatise on The Law of Crimes”, section 439 at pages 679-680:

          439. Misprision of felony. One who sees another commit a felony, or knows of its commission, and uses no means to apprehend him, or to bring him to justice, or to prevent the felony, is guilty of a misdemeanor known as “misprision of felony”.

          As was shown in a previous chapter, one who sees another commit a murder or another felony is not guilty of the felony as a principal in the second degree, merely because he takes no steps to prevent the felony, or to apprehend him or bring him to justice. Nor is he guilty as an accessory after the fact to the felony because of his mere neglect to make known the commission of the crime. He is guilty, however, of a misdemeanor – misprision of felony. To be guilty of misprision only, he must no aid or abet the felony, or receive, relieve or assist the felon, for in such cases he is guilty of the felony, as a principal in the second degree or accessory before or after the fact.

          So, this sort of behavior falls into the area of helping by ignoring.

          Now, before one gets too excited about shoehorning Yoo’s, Chertoff’s and/or Fisher’s conduct into this box, remember: 1) this book is a treatise on the common law of crimes. While it is instructive as to what can and cannot be considered a crime under the statutory system, it is not determinative. 2) We do not know all of what Yoo, Chertoff, Fisher and/or anyone else knew or did not know. I would assume, given Deadeye’s and Addington’s skill at compartmentalizing and the deliberate blindness to things staring them in the face which Bushco admin members have exhibited as a primary professional skill, they can find a way around what they knew or did not know. 3) This is an old book – it can help, but not be determinative. Also, do not get confuse or misled by the “Degree” usages; that has to do with the distance of the accused from the actual performance of the act and not with grading the offense like we do today.

          All that said, it can provide a hook for Conyers to hang his hat on to investigate, and a reason for forcing Obama to investigate and prosecute.

          • bmaz says:

            I like the misprision theory, but it is an odd duck of a crime; I have had a judge roll his eyes before just using it as a creative plea charge. The elements may well be met here theoretically, but would be a bitch to prosecute in reality I think.

  3. Peterr says:

    That sure seems to support my suspicion that the report is one key to unraveling the Bush Administration authorization of–and subsequent cover-up of–torture.

    But there are a whole bunch of locks on that door. One key will surely help, but we’re going to need a full keyring to get that door open.

  4. plunger says:

    Quoting from the Mayer Interview:

    You have patiently traced the torture techniques used by the CIA back to two psychologists, James Mitchell and John Bruce Jessen—you describe them as ”good looking, clean-cut, polite Mormons”—who reverse-engineered their techniques out of the SERE (survival, evasion, resistance, escape) program used to train U.S. pilots in self-defense.

    This is YET ANOTHER example of the Bush Administration’s use of studies designed for positive ends having been “reverse-engineered” to evil intent.

    This is highly relevant to any number of administration crimes, a precursor if you will…the smoking gun.

    Where you find evil or apparent evil or apparent incompetence – especially professed incompetence “who could have know?” – surely, at its genesis, you will find that a study had been undertaken by well-intentioned public servants – it subsequently having been repurposed to evil ends via reverse-engineering.

    Can you name the instances where this is likely to have occurred?

  5. SaltinWound says:

    Why do we need keys to unraveling? I understand if Bush were president. What tools does this Administration have to get the word out?

  6. scribe says:

    replying to #15: RICO is a fiendishly difficult statute to apply. There are something like 10 different “essential elements” which one must prove, and they are subject to continuing “refinement” at the hands of the appellate Courts (stacked with Bush appointees).

    The biggest difficulty in any RICO prosecution which I can think of off the top of my head would involve proving an element of “continuity” – the officeholders are now out of office and could be expected not to be able to continue the operation of whatever enterprise they may have been operating or benefitting from.

    And then there is a limited list of “predicate acts”, crimes which must be proven before a RICO claim is sustainable. Likely the acts which the Admin defendants may have performed do not constitute “predicate acts”.

    So, IMHO, RICO is not a viable alternative to prosecute under. Besides, there are other crimes more easily proven.

  7. Mary says:

    In addition to what Helgerson’s report might have on homicides, both Mayer and Priest report on the torture death of a “young” detainee who was then tossed in an unmarked grave. Multiple sources, including Suskind, have linked the CIA to the disapparance of KSM’s two young children, who have never surfaced and to the disappearance of Aafia Siddiqui’s children, US citizens, at least one of which has reportedly died after the US reportedly disappeared her and her children.

    It now appears likely that when Comey filed his affidavit invoking state secrets in the Maher Arar trial, part of the “secret” was that the *evidence* used by Larry Thompson to sign off on sending Arar to Syrian torture was … the torture of a 15yo at GITMO.

    Gonzales admitted in the Jan 2002 memo that what the Adminsitration was doing and planning on doing would be war crimes under the War Crimes Act unless they were able to make up a label of persons against who the commission of war crimes were not … crimes. I’d say from that point on, you can’t find anyone clean on a “mens rea” front. After the memo goes out from WH counsel that what is being done might be pursued by other administrations as war crimes unless we paper the victims as being “illegal enemy combatants” against whom nothing you can do is a war crime — no hands wipe clean after that.

    Add on the fact that even now, almost no one ever admits that ANY of the detainees in the WOT have been innocent – despite Maher Arar, despite Khalid el-Masri, despite Dilawar, despite Abu Ghraib’s most compelling finding that MOST of those held there had nothing to do with Hussein or terrorism, despite the fall 2002 briefing to the WH by the CIA analyst tasked to GITMO that at least 1/3 (and per the then commanding officer at GITMO more likely 1/2) of the detainees were not combatants of any kind, much less illegal enemy combatants.

    Obama has never once to my knowledge mentioned anyone disappeared, detained, abused, tortured or killed by the Bushies in the military or in the CIA or at nonUS state run torture sites, never mentioned any of them as innocent.

    If Holder can’t find mens rea under a tissue of OLC opinions (without regard to the issues of jus cogens and intent to commit the criminal act v. intent that the act commited be criminal), he needs something that a law degree can’t confer.

  8. Mary says:

    12 et al – If you are looking for actionable theories, I don’t think you have to be so creative to start a puttting together a framework. It is harder to put together with nails and hammers the theory for felonious giving of bad advice (although personally, I think in some of these instances it can be done and in almost all of these instances there is plenty to go after those who want to say they relied on the opinions, if not the drafters, but that’s another comment for a different time). On the less creative front:

    First off, you had those who knew that we were detaining innocent people – a timeline for their actual knowledge, a timeline for reasonably constructive knowledge, and from that point on, OLC opinions on what you can get by with re: “illegal enemy insurgents” notwithstanding, you have a group who is conspiring in depravities against people who are NOT authorized under the OLC opinions to be abused. So that’s one class and it’s going to be largish in, of and on its own.

    Then you have lawyers throughout the administration and the DOJ and even after leaving the DOJ who had actual or constructive knowledge about court and Congressional proceedings where misinformation was given to the tribunals and who did nothing to correct the misinformation. Misinformation about torture, misinformation about state secrets invocactions being used to cover up embarassing and criminal activities, misinformation to the Supreme Court on torture or things like torture (once you know of a CIA detainee being tortured to death and tossed in an ummarked grave, you know about something that even the most expansive readings of the OLC opinions would not characterize as anything but torture – and if you tell the Sup Ct or know of representatives of Gov telling the Sup Ct that your client doesn’t do those things and you know for a fact that’s a lie — then you have both obstruction and prof. ethics/licensing issues – or you should.

    Then, from the time of the Gonzales memo in 2002 acknowledging that there is a strong possiblity of future litigation involving what the Exec is doing, you have all the lawyers who know of that possiblity, saw that memo or other, had discussions on that topic or similar ones, and yet never sent out lit hold notices. Who not only did not send out lit holds, but who were aware of, or helped participate in schemes involving, the destruction of evidence and the non-tender of evidence to the various courts and Congressional investigatory bodies.

    So — start with those and a few related types of pretty clean, clear legal duties and legal violations, pen those sheep up in corrals, start seeing which corrals overlap, and then start some build outs on other kinds of cases.

    But you don’t have to start with trying to overcome the “bad advice isn’t illegal” argument – you can start with getting the givers of bad advice in so deep to their necks on obstruction, destruction of evidence, mistatments to tribunals, losses of license, etc. that the rest of the narrative begins to write portions all on its own.


  9. Mary says:

    BTW – what kinds of sol apply to kidnap? Especially when the victims stay disappeared? Or when they are handed off by one set of kidnappers to another? Bc I am still waiting for someone to ask about KSM’s wife and children – or Siddiqui’s children. Everyone seems to want to discuss waterboarding KSM, not disappearing children and locking a bipolar London chef up in isolation for years or beating cab drivers to death or freezing “young” detainees to death or …

    • bmaz says:

      Five year general statute for Federal kidnapping. I will say this, contrary to a lot of the things we talk about where people want to argue for a tolling of the statute, and it is not possible because the DOJ was either aware of or in on the crimes, the situation you describe might could at least be argued as appropriate for tolling.

      It should also be pointed out that in relation to scribe’s description of “continuity” for RICO actions, as the statute expires on the requisite overt acts that are attempting to be used as the basis for the prosecution, the “continuity” is lost. This is why I have been harping about the upcoming expiration on the acts perpetrated in the period after the “Hospital Scene” when “The Program” was in operation only on WH Counsel AGAG’s counter-signature.

  10. Mary says:

    So does the SOL on kidnapping run from the date of the kidnap, or the date they are “un-kidnapped”? I have no clue on the crim stuff. I agree wit you on the continuity issues and that is would be best to get some kind of action (even a John Doe kind of filing) before the possible SOL on the military order with no AG signature (did the interim program even have Gonzales’ signature, or did it go forward on a military sig – for some reason I thought I saw something on that, that it didn’t even have Gonzales sign off, just the President and maybe Hayden or some other military office holder, but I don’t know why I was thinking that.

    I think you are right, but don’t have any hope that anything worthwhile will be done on that front. IMO, the best case scenario left of what could happen is that there will be some holding that the program is/was unconstitutional under the case where there is clear standing (like al- Harramain). This might require some re-write of the FISA amendments, but will not give rise to any FISA related civil penalties, or almost none, since only al-Harramain is being found to be a party with standing.

    So some kind of an “as applied” finding of penalties for a very small subset of those violated and no criminal prosecution ever

    I kind of laugh a bit about Holder making noises about getting counsel from the “career” DOJ crew – they are by definition now those who were willing to work for torturers and massive FISA felons for years now, and the burrowed in Bushies. Wow – that’s reassuring, he’ll consult with that crew.

    • bmaz says:

      I have never had to argue that before; but it is pretty clear that as long as the person is being held against will and interest, the crime is still ongoing.