Yet Another Warning against Torture Ignored

So what kind of Friday night news dump do you think would elicit this much silence? (h/t scribe)

Haynes declined to comment, as did Rizzo and the CIA. Jay. S. Bybee, who as an assistant Attorney General signed the Aug. 1, 2002, memo, did not respond to a request for comment.


James Mitchell and Bruce Jessen … declined to comment on their role in formulating interrogation policy.

How about a document–given to DoD and from DoD to CIA and from CIA to Jay Bybee–referring to harsh tactics as torture and warning they don’t work?

The key operational deficits related to the use of torture is its impact on the reliability and accuracy of the information provided. If an interrogator produces information that resulted from the application ofphysical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop.

The document comes complete with quotes from someone (my wildarsed guess is John Bellinger) who had been involved in deliberations on the torture policy stating that CIA shared none of this with the National Security Council.

A former administration official said the National Security Council, which was briefed repeatedly that summer on the CIA’s planned interrogation program by George Tenet, then Director of Central Intelligence, and agency lawyers, did not discuss the issues raised in the attachment.

"That information was not brought to the attention of the principals," said the former administration official, who was involved in deliberations on interrogation policy who requested anonymity because of the sensitivity of the issue. "That would have been relevant. The CIA did not present with pros and cons, or points or concern. They said this was safe and effective, and there was no alternative."

The urgent efforts of all the people involved in setting up our torture regime to blame each other seems likely to keep us in new document dumps for the next several weeks. But I don’t know about you–I’m getting overwhelmed. Though, imagine how Haynes, Rizzo, Bybee, Mitchell, and Jessen feel. It’s almost … "poignant."

127 replies
  1. MadDog says:

    And I like this part:

    The requirement to obtain information from an uncooperative source as quickly as possible-in time to prevent, for example, an impending terrorist attack that could result in loss of life – has been forwarded as a compelling argument for the use of torture.

    (My Bold)

    So PapaDick & Company were specifically shopping for opinions on using Torture.

    • MadDog says:

      And this one’s a winner too:

      …Conceptually, proponents envision the application of torture as a means to expedite the exploitation process…

      (My Bold)

      Or as PapaDick (h/t Phred!) says: “Torture Works!”

      PapaDick, your fondest dreams are the nation’s nightmares!

    • Tross says:

      The beauty of this memo is that it’s short enough to be read by an easily distracted press and public. And no legalese. Quite a damning combo given the convoluted arguments put forth by Cheney and Co. in favor of these techniques. You’d only need to quote one or two sentences of this easily understood memo to answer the “torture works” creeps. Game over (I hope).

      • MadDog says:


        It’s like the Repugs saying:

        “Robbing convenience stores works, so let’s all rob convenience stores.”

        or as Bush and Cheney would have it:

        “Lying works, so let’s lie.”

  2. Scarecrow says:

    Gosh, you mean even Bybee can’t even claim good faith reliance in his impeachment hearing.

    • emptywheel says:

      I’ve been working that angle for a while.

      The accompanying memo on tactics said one thing about waterboarding. He wrote it up saying something else.

      That little packet of papers is fucking smoking gun–but damn, Haynes is even more, um, forgetful, than Abu Gonzales. No wonder Chevron wanted him.

  3. SparklestheIguana says:

    Fortunately for Haynes, Rizzo, Bybee, Mitchell, Jessen, et al, the psychological torment they will undergo in the upcoming months will be harmless.

    Man, do I love watching the shit hit the fan. Would it be insensitive to express an interest in popcorn right about now?

  4. nahant says:

    I say keep the memos coming!! What better way to further bury these criminals in their own evidence of the crimes they committed. And oh by the way to also bury the Republican party for not doing anything to curb these crimes and now trying to obstruct the investigation into these crimes!! I can see it now “Would you vote for someone who has stood by while the crime of torture was being committed”??

  5. GregB says:

    It is being reported that there are over 2,000 photos related to 400 cases of abuse from Iraq and Afhganistan. To be released by the end of May.

    It is all coming undone.

    Bush’s silence is deafening. Cheney is going to get hung out to dry….


  6. SmileySam says:

    Today the Obama DOJ asked the Court to Immunize the Bush Admin.

    That would make any further actions against Waterboard Willie Haynes, Yoo, and even Bush and Cheney a waste of time because the detainees weren’t persons and had not right not to be tortured.

    Court Agrees with Obama Administration that Detainees Still Have No Constitutional Right Not to Be Tortured

    April 24, 2009 Washington, D.C. – In a suit brought by British men imprisoned for two years at Guantanamo, the D.C. Circuit Court of Appeals today reaffirmed its previous ruling that Guantanamo detainees lack the fundamental constitutional right not to be tortured and are not “persons” under a U.S. statute protecting religious freedom.

    In its first filing on detention and torture under the Obama administration, the Department of Justice filed briefs in March urging the Court of Appeals to reject any constitutional or statutory rights for detainees. The Obama Justice Department further argued that even if such rights were recognized, the Court should rule that the previous administration’s officials who ordered and approved torture and abuse of the plaintiffs should be immune from liability for their actions.

    • MadDog says:

      This is the one thing that really worries me.

      The D.C. Circuit Court of Appeals was deliberately stacked with loyal Bushies knowing full well that it is the court that generally handles Washington D.C. federal government stuff.

      And Bush/Cheney worked their tail off to successfully do the very same with the U.S. Supreme Court.

      I remember reading somewhere that both Bush and Cheney considered this their most important accomplishment out of all others and of course, their lasting legacy.

      Any attempt by the Obama Administration to prosecute the Bush/Cheney folks for torture is likely to run right head smack into the Bush/Cheney-designed judicial firewall of both the D.C. Circuit Court of Appeals and the U.S. Supreme Court.

      “Endgaming” the system so to speak.

      The Repugs learned well from Watergate and then, Iran/Contra. When you gonna commit crimes, it’s best if you own the Judges!

      • Suzanne says:

        since these crimes were military, could papadick and co be tried by a military court. could the former commander in chief have to answer to a military court for dereliction of duty and bringing dishonor to the corps?

      • scribe says:

        You have this only partly right.
        As to suits against the government by detainees, currently the DC Circuit is the gate through which they all go. A good hard look needs be taken at the judges on that Court, because there is one or maybe a pair who have been deeply involved in almost all the cases and always rule for the most wingnutty position.

        As to prosecutions of Bushco thugs – not so fast. The CIA and DoD (Pentagon) are located in Virginia (more precisely, the Eastern District of Virginia), which is the Fourth Circuit. Indeed, one of the more accomplished and respected judges in the Eastern District of Virginia is one Leonie Brinkema, who not only did the Moussaoui trial, but also is handling issues pertaining to the Sami al-Arian contempt trial. From what I’ve read on that, she is getting to about a One to One and a half Hellersteins level of pissed at the DoJ and its chicanery.

        But, back to the Fourth Circuit. That used to be one of the most wingy Circuits, but those judges are either aging out of there or quit to go make more money. Obama has a crateload of open seats on that Court to fill.

        Oh, and FWIW, Maryland, where the NSA is headquartered, is also part of the Fourth Circuit.

    • MarkH says:

      I don’t get it. Since when does a Court immunize anyone?

      Of course they are “persons”. Perhaps not “United States persons”, but they’re clearly human beings. So, okay they’re not US persons protected by the Constitution. But, that doesn’t mean the torturing of them isn’t illegal. How can you ask for protection on one basis when it’s another basis which everyone is calling illegal.

      Officer, I didn’t run the red light and I demand to be immunized from the murder charge.


  7. nahant says:

    From the desk of Judge J. Bybee

    Note to self: cancel Spanish vacation.

    He just might be better off in Manila if he wants to hear Spanish being spoken…. Then again..

  8. Hmmm says:

    “The CIA did not present with pros and cons, or points or concern. They said this was safe and effective, and there was no alternative.”

    Wow. So it all comes down to: either the CIA set up the Bush administration, or else vice versa?

    • SanderO says:

      The CIA has people with no moral compass – amoral. They do what ever has to be done and don’t question authority. They have agents who are natural born killers who are in the agency because of this. Doesn’t take much to give them such a mission. And they won’t complain either.

      It’s long passed time to shake up the CIA… and the other spook agencies.

    • Scarecrow says:

      That sentence implies that the principals’ defense is, “we were told what the proposal was, were not told it’s pros/cons, and we just bought that without asking any questions or doing any checking on our own.”

      Shorter: we were just clueless ciphers.

      • skdadl says:

        Exactly. I can’t get over the pathos and the profound intellectual betrayal of that sentence:

        “That would have been relevant. The CIA did not present with pros and cons, or points or concern. They said this was safe and effective, and there was no alternative.”

        How does anyone capable of saying that, of taking legal refuge in that statement, get out of high school on this continent?

    • MarkH says:

      Is this another instance, like Yoo writing bogus memos, where they’ve gotten (bought) the CIA-hired psychologist to provide them the opinion they want, so they could go ahead with what they planned all along?

  9. SanderO says:

    Looks like this is bubbling up and they can’t seem to stop it and when they did with Obi mouthing off on matters outside his job description and now they do try to stop this, it seems to be gathering steam and Obi is gonna have to step aside.

    For a constitutional professor he certainly does seem to know that the president can’t decide who gets prosecuted. It’s NOT his decision, but the DOJ. So he needs to shut up and tell them to do their thing and investigate if laws were broken.

    This moving forward nonsense is precisely the wrong thing to do with this matter. There’s seems to be enough evidence to open a real investigation and it should return indictments.

  10. Mary says:

    And July 2002 is when the CIA is supposedly sending people over for SERE training, including two CIA lawyers, Fredman and ? Rizzo maybe?

    Then there’s this request:


    *** personnel ‘requested and were granted time to present the legal limits of physiological and psychological pressures that were acceptable at present time.

    so that might be the CIA lawyers there at the training, or perhaps from somewhere else, like OLC (which talks about the oral advice it gave in July – which might have been in connection with the actual training sessions.

    In any event, remember again how close we came to Haynes on the 4th Circuit.

    I’m going to add to my “undermentioned” names list (which is headed by Haynes) with Larry Thompson. If Ashcroft was doing everything that is mentioned in connection with the Principals group, there’s almost no way that Thompson wasn’t involved in any way, and then he and Chertoff take the torture field trip (after Chertoff was called into a briefing in July 2002 with Mueller’s COS and the CIA/DOJ/WH crew – the only briefing involving torture where his name seems to get much prominence and likely a briefing in response to Soufan’s complaints of torture) Thompson arranges for the Arar shipment to Syria – there’s no way his name shouldn’t be getting more mentions unless there is some decision on cover.

    And I know I beat this dog, but go back now to the Padilla press conf from June 2004 that Comey gave and put it in context. By June of 2004, after this collaborative review, both the Thiessen report and the CIA IG report had been issued. In May 2004Thiessen had issued his report on the So Carolina brig conditions (which cited violations of the Geneva Conventions, including no access for the ICRC and along with specific items such as sleep deprivation and taking away the Koran, also “other unspecified, unauthorized interrogation techniques” (that no one has ever tied down). The IG report raises all kinds of issues on credibility and handling of sources and circular sourcing (get A to say B is a big honcho, then get B to say A is a big honcho, then use A’s claim about B as evidence B is a big honcho, and we know so bc A is a big honcho as has been *independently corroborated* by leading questions and torture)

    By the time of the Padilla press conf, Clement has appeared befor the Sup Ct as well and certified as an absolute to the United States Sup Court that the United States does not torture and does not do things “like” torture and *our* Executive would never order up torture.

    Think how many people knew that was false and let it go uncontroverted before the Court. From members of Congress to lawyers to contractors to impelementers.

    • Hmmm says:

      By the time of the Padilla press conf, Clement has appeared befor the Sup Ct as well and certified as an absolute to the United States Sup Court that the United States does not torture and does not do things “like” torture and *our* Executive would never order up torture.

      Bit off-topic I realize, but this reminds me that someone last night in comments seemed to suggest the origin of the “US does not torture / We do not torture” meme might be that either foreign nationals, or else contractors, were always used as the actual torture practitioners. Addingtonially literal enough for ya?

      • SparklestheIguana says:

        I figured that GWB asserting flatly “we do not torture” was because, at the time he said it, we were no longer waterboarding. I can’t remember if anyone asked him the follow up, “did we torture?” but knowing our press corps, probably not.

        • readerOfTeaLeaves says:

          Yeah, but watch that clip again and note when and how fast Bush’s eyes blink.
          He was telling a ‘half-truth’, and part of him knew it.

          Every so often, I trot out this bit from an old Sy Hersh article in the New Yorker, quoting Elliott Abrams about what ‘they’ learned from Iran-Contra: create a shadow government out of the OVP. Everything we are now seeing confirms this in spades.

          The key players… are Vice-President Dick Cheney, the deputy national-security adviser Elliott Abrams, the departing Ambassador to Iraq (and nominee for United Nations Ambassador), Zalmay Khalilzad, and Prince Bandar bin Sultan, the Saudi national-security adviser. While Rice has been deeply involved in shaping the public policy, former and current officials said that the clandestine side has been guided by Cheney.

          Saudi money was involved in what became known as the Iran-Contra scandal, and a few of the players back then—notably Prince Bandar and Elliott Abrams—are involved in today’s dealings.

          Iran-Contra was the subject of an informal “lessons learned” discussion two years ago among veterans of the scandal. Abrams led the discussion. One conclusion was that even though the program was eventually exposed, it had been possible to execute it without telling Congress. As to what the experience taught them, in terms of future covert operations, the participants found: “One, you can’t trust our friends. Two, the C.I.A. has got to be totally out of it. Three, you can’t trust the uniformed military, and four, it’s got to be run out of the Vice-President’s office”—a reference to Cheney’s role, the former senior intelligence official said.

          Link is here.

          It’s worth noting that the recent PBS ‘Frontline’ special about Black Money highlighted Bandar bin Saud for his role in money laundering and kickbacks via BAE. That would be an easy way to fund some black ops, including torturers.

          Also note Abram’s #3: “you can’t trust the uniformed military”. So it looks as if Elliott Abrams only trusted the ‘contractors’, but not the military. Wasn’t he on the NSA along with Hadley in 2002? (He was somehow connected with/protected by Cheney.)

          I think MiniCheney will show up again next week.

          Looks like a whole lot of daggers in DoD, CIA, and DoJ are being quietly unsheathed.

          • Hmmm says:

            Also note Abram’s #3: “you can’t trust the uniformed military”. So it looks as if Elliott Abrams only trusted the ‘contractors’, but not the military.

            Not only contractors. Some high-up folks at the Pentagon whom we’d consider as military wear actually suits rather than uniforms, for example Sec Def.

            • readerOfTeaLeaves says:

              Oh? I presume you refer to Mr Dougie {aka, ’stupidist f*cking man on the planet’} Feith’s little nest of rats? The one that included a certain Mr Larry Franklin, he of AIPAC espionage infamy…?

          • bobschacht says:

            And so what do you think this generation’s conspirators “learned”?

            I’m afraid its going to be, “Once you have power, do NOT let it go!”

            Their lesson: Bush didn’t complete the coup. He gave the WH over to the enemy.

            They had the tools in place: the ability to declare martial law, the ability to order National Guard troops from one state to another to perform security operations, the ability to suspend elections in an emergency. Next time, if those tools are still available, they will be used. These laws all need to be revisited.

            Bob in HI

            • readerOfTeaLeaves says:

              bobs, I didn’t distill this in my 88. but I completely agree with you.
              If these things are still in place, they’ll use them.
              These people are oligarchs; merit threatens them and they don’t respect democracy because they don’t really understand that sharing power produces more novelty and vitality.

              These people needs to watch orchestra conductors; although I wonder whether they’d get the fact that life’s music comes from diversity, rather than the sole, repeated blaring of a trumpet.

              I can’t imagine a GW Bush ever playing in a bluegrass band; he doesn’t have the ability to cooperate or listen to the other players. Infuriating, but ultimately tragic.

        • Hmmm says:

          Hey, I live to serve. (That’s how we bashful folk say ‘thank you.’)

          (BTW, I briefly considered “Addingtonedeaf” too.)

  11. cinnamonape says:

    EW…Indeed this stuff is so hard to keep up with. It’s like a runaway train and I appreciate your profound knowledge which makes it ultimately comprehensible. I think we will be beset witrh trolls over the next few weeks to slow down the digestive process and send the better informed netroots off on tangents. I suspect that Herer Cheney and all will also try diversion strategems.

    I loved that focus on “poingnany”. When I read that in the original justification for the tortures I thought, that’s NOT the word I would have used. So I looked up the definition and the etymology. There’s more than a little irony embedded in that word. “Poignant”

    “1. keenly distressing to the feelings
    2. keen or strong in mental appeal
    3. affecting or moving the emotions
    4. pungent to the smell.
    1350–1400; ME poynaunt poindre
    pungere to prick, pierce.”

    • antibanana says:

      Be careful about what you deem to be a tangent.

      Sometimes, it is the odd bit of information that actually provides a significant lead.

      By the way, you can find posts of mine from several months ago speculating that torture was most likely performed by contractors. I also suspect that that is why Rodriquez destroyed those tapes. But that is just a total guess on my part.

  12. Mary says:

    9 – Someone has to make the attainder argument at some point IMO.

    The citizens of the United States didn’t give the Executive the power to torture without a trial. He just doesn’t have that power from the citizens, whether he is torturing a citizen or not. But think how appalling it is going to be as Obama’s and Holder’s legacy – that they defended the right to torture non-citizens. It is just creepy.

    • oregondave says:

      But think how appalling it is going to be as Obama’s and Holder’s legacy – that they defended the right to torture non-citizens. It is just creepy.

      WHY oh why is Obama on the wrong side of this? I grieve.

    • MarkH says:

      As I understand it, non-”U.S. persons” have no Constitutional rights, so we could torture them, but we have U.S. statutory law and Geneva Convention Law which could and do apply to any person we’re detaining.

      Of course, there is also the question (answered I think by some court recently) of whether the government has the authority to pick up or receive someone from somewhere in the world to detain. Otherwise, how would the gov’t. come into possession of someone who is NOT a U.S. person?

    • scribe says:

      You have that wrong. The Supremes took al-Masri’s appeal, but then DoJ succeeded in mooting the appeal by moving him back into the civilian criminal justice system.

  13. cinnamonape says:

    BTW EW It seems that Dr. John Bruce Jessen has been involved with SERE and working on the topic of why certain individuals withstand torture better than others for quite some time.

    I found an interesting footnote on page 8 of this article.…..2007/nh-gr

    The footnote references a 1995 presentation by Dr. John Bruce Jessen entitled “Resilience: Can the will to survive be learned?” Survival 1995 Symposium; HMS Daedalus.

    Amongst the topics cited in that work, at least judging from the author of the paper which uses it are the Iranian hostage crisis, North Korean and Viet Nam War survivors.

    Wonder if there are other papers about be this guy that aren’t classified.I can’t find much on him, not even where he got his degree (and what type) or if he was in the military when he presented this paper.

  14. KayInMaine says:

    I think the biggest head scratcher so far is the right wingers putting ALL THE BLAME on Nancy Pelosi. So laughable!!!! But then again, the republic party is laughable & pathetic.

  15. Mary says:

    ABC is up with a story that gosh darn it, releasing the DOD pictures of abuse is demoralizing to … the CIA?

    … the Obama administration announced that the Pentagon would turn over to the American Civil Liberties Union 44 photographs showing detainee abuse of prisoners in Afghanistan and Iraq during the Bush administration

    Calling the ACLU push to release the photographs “prurient” and “reprehensible,” Dr. Mark M. Lowenthal, former Assistant Director of Central Intelligence for Analysis and Production, tells ABC News that the Obama administration should have taken the case all the way to the Supreme Court.

    Lowenthal said the president’s moves in the last week have left many in the CIA dispirited, based on “the undercurrent I’ve been getting from colleagues still in the building, or colleagues who have left not that long ago.”

    The release is now moving from 21 pics, to 21 + 23 more identified pics, to 2000? So what was the CIA tie with the detainees in the pics and/or are they worried about this setting a precedent for the release of the CIA pics – since detainees have made it clear that a US tactic was to strip them then have a woman take pictures of them, and in Binyam Mohamed’s case, after he was picked up from Morocco, he says the woman reacted to the razoring that had been done and which she was memorializing.

    Are there more “Icemen”? Is it the Pentagon pictures or other pictures they might become precedent to release?

    Oh well.

    • Hmmm says:

      Lowenthal said the president’s moves in the last week have left many in the CIA dispirited, based on “the undercurrent I’ve been getting from colleagues still in the building, or colleagues who have left not that long ago.”

      …what, because they had all been planning on opening up their own little high-profit interro-torture consultancies after leaving the agency?

    • cinnamonape says:

      Why would this demoralize them…it’s not as if those that did this haven’t seen the living individuals that were photographed?

      Oh right. Being exposed as promoting the abuse and torture is “dispiriting and demoralizing”. After all there friends and neighbors might think that THEY are the brutal sadists.

      Here’s a solution….prosecute those involved with a full exposure of release documents as to who is responsible. Problem solved. No one that is not involved will be tainted by those that are!

  16. Mary says:

    40 – Surely not! A guy who worked in the CIA on “production” from a time of ginning up intel for the war – he’s my go to for credibility.

    • SparklestheIguana says:

      Just like Lieberman.

      I don’t know, will the base have come around to “there is no place for abuse in what must be considered the family of man. There is no place for torture and arbitrary detention. There is no place for forced confessions” in time for the 2012 primaries? That seems like a stretch.

  17. Hmmm says:

    A problem with the idea that the torturers were contractors is that the CIA is pushing back with the claim that prosecutions will unfairly take down CIA professionals who were just following orders. So — ignoring for the moment the highly pungent Nürnberginess of their claim — if it wasn’t CIA people doing the deeds, then why the pushback? Many possible intrigue-y reasons of course, but what do you folks reckon?

    • greenwarrior says:

      Mary, if you hit the “Reply” button, you don’t need to type in to whom you are responding. It also makes it easier to see what you’re responding to for the rest of us reading along. All we have to do is hit the “Show Text” button and we have the original comment right there along with yours. That makes it much easier to follow than scrolling back up to see what you’re referring to and then back down again to see your comment.
      Thanks and thanks for all your incredible insight and expertise.

      • Mary says:

        Thanks – for some reason I often don’t have the little reply “blurby” thing to click on on my screen, so I got in the habit of the the other. But it’s there now and I should have used it – force of habit.

        • greenwarrior says:

          you’re welcome. when my “Reply” button goes away, if i refresh, it usually comes back.

          thanks for using it!

      • oregondave says:

        Thanks. I didn’t know the “show text” was working now (it had not been, on my Mac OS at least, since inception).

        • greenwarrior says:

          it’s still not working on christy’s pages, but it works here and on the fdl pages.

          where in oregon? i lived in eugene for a long time.

          • oregondave says:

            Portland, since 1980. Eugene is cool. I love the atmosphere of Oregon Country Fair (near Eugene, for the rest of you folks), and I think the folks in Eugene have a lot to do with creating that.

    • scribe says:


      Actually, in both the Padilla and al-Marri cases, the Supremes took the case and then the DoJ managed to moot it by transferring them from military detention to civilian trials. That – as to al-Marri – was one of Obama’s first displays of not being the agent of change he had advertised himself to be. As to Padilla, the Supremes took his case twice. The first time, 2004 IIRC, they punted on the habeas issue because they found a way to send it back to a trial court – the habeas case had started in the SDNY (Mukasey, trial judge) whence Padilla had been seized into military custody and then spirited into the Charleston SC Naval Brig. The Supremes said habeas lay not in the SDNY, but rather in SC and declined to decide anything other than the case had to go back to the beginning and start over in SC. The second time they took Padilla’s case, it had worked its way all the way from the SC court through the Fourth Circuit and was briefed, but not argued, when DoJ managed to cobble together an indictment in Florida and transfer him to civilian criminal courts. They then went to the S.Ct. and said the S.Ct. case was moot, and the S.Ct went along and dismissed it.

      They did the same drill with al-Marri.

      • Mary says:

        Not al-Marri (the co-brig guy) el-Masri – the German who the CIA took because they got confused on his name, then they dumped him in yet another country. Rice admitted the mistake to Merkel, Merkel told the intl press Rice had been nice enough to fess up to the CIA kidnapping and abusing Mr. el-Masri, then Condi went “nuh uh girlfriend, I did na!”

        Anyway, el-Masri’s suit had cert denied and it was a very sad day. Innocent man, here and able to testify as a plaintiff, and they shoot it down with state secrets.

        You are right on the status of the al-Marri suit, but Khalid el-Masri’s case was the one I meant.

        So many torture victims …

        • emptywheel says:

          You know, Mary, when I was talking to Nadler the other day he included EITHER the al-Marri or the el-Masri case among those he had discussed with Holder. It’s almost certainly al-Marri given the timing–right?

          • Mary says:

            Yes, I’d say so, especially since al-Marri was shipped to NYC too, IIRC, after being picked up (also in IL like Padilla, but central district I think, ostensibly on credit card stuff?) So it would be more a NY thing for his interest

            OTOH, he is also pushing on states secrets and that is one of the big reasons that el-Masr’s suit got kicked out. I’d have to look, but if that was the main issue, then rolling back the state’s secrets assertions or minimizing them, could allow his case to proceed. But how do you let his case proceed without letting him identify his CIA abusers?

            He also, like Arar, in Grey’s book identifies others we were holding or had sent elsewhere for torture.

          • scribe says:

            al-Marri (brig guy) was going to start a grad program in Illinois in the fall of 01. He hit the country on like 9/10/01 with his wife and kids. He was picked up by FBI late in 01 on credit card charges and was proceeding to trial until, IIRC, sometime in mid 02 when they threw him in the brig and kept him there until a couple months ago.

            el-Masri (German guy) was picked up off a bus in, IIRC, 04 and then rendered to the Salt Pit in Afghanistan, all while Condi was still NSA. His case getting tossed on state secrets was no surprise (for a lot of lawyerly reasons) though it was disgusting.

            One other thing – re the topic of this post. Haynes, you’ll recall, was the guy who gamed all the JAGs and their objections to torture and all the Gitmo chicanery. Think back to the way he pwned Alberto Mora (GC of the Navy) and forced him into retirement – the New Yorker (Jane Dark Side) did a long, excellent piece on that. Leopards don’t change their spots – getting the JPRA memo and burying it seems wholly consistent with his MO. One is compelled to wonder whether the head of the JPRA or whomever wrote that memo was forced into retirement or had a thumb pressed down on the promotion boards (like JAG lawyers Charles Swift, Michael Mori and Kuebler – all forced out of the service for being too effective in defending their captive clients).

            The other thing no one seems to be getting their heads around on the JPRA memo is this: it explicitly addresses the “ticking time bomb” scenario (without using that name) and says torture is useless in that situation. We’ve been hearing about ticking time bombs justifying torture for seven or eight years now and they knew (before 2002) that it was bullshit.

            • readerOfTeaLeaves says:

              One other thing – re the topic of this post. Haynes, you’ll recall, was the guy who gamed all the JAGs and their objections to torture and all the Gitmo chicanery. Think back to the way he pwned Alberto Mora (GC of the Navy) and forced him into retirement – the New Yorker (Jane Dark Side) did a long, excellent piece on that.

              I had no memory of that; it seems like a critical dot.

              IIRC, Haynes went to Condi’s old oil company: Chevron. Or was it Exxon?
              Either way, the NSA-CIA-OVP-Oil connections really get tiresome. You’d almost think Cheney felt totally free to set up secret energy task forces or something….

              • scribe says:

                Go read the New Yorker piece on Mora – worth the time (like just about everything in the New Yorker).

                • readerOfTeaLeaves says:

                  Argghhhh… I have a backlog of those stacking up, given the amount of time that I’ve spent at EW’s the past couple rather eventful weeks. And I can’t even keep up here!

            • skdadl says:

              scribe, one small detail: Lt-Cmdr Kuebler hasn’t been forced out of the service (yet). His boss, the chief defense counsel for GTMO, Peter Masciola, tried to fire him as Khadr’s lawyer, but Masciola was overruled by Judge Parrish. Now Masciola has asked the judge to reconsider, which I’m sure is going over well … (/s) I think we’re at stalemate at the moment, but I don’t see Kuebler quitting without a fight.

      • Mary says:

        This guy


        This guy

        But on el-Masri, I wonder about how those analysis from Bradbury et al deal with the medical evidence that his body showed signs of malnourishment long after his release.

        In April 2004, CIA Director George Tenet learned that El-Masri was being wrongfully detained. National Security Advisor Condoleezza Rice learned of his detention shortly thereafter in early May and ordered his release.[7] El-Masri was released on May 28 following a second order from Rice.[7] They flew him out of Afghanistan and released him at night on a desolate road in Albania, without apology, or funds to return home. He claimed that at the time he believed his release was a ruse, and he would be executed. He was eventually intercepted by Albanian guards, who believed him to be a terrorist due to his haggard and unkempt appearance. He was subsequently reunited with his wife who had returned to her family in Lebanon, with their children, because she thought her husband had abandoned them. Using isotope analysis, scientists at the Bavarian archive for geology in Munich analyzed his hair and verified that he was malnourished during his disappearance.[10]

  18. nadezhda says:

    If the CIA was sanitizing everything in multiple briefings to the NSC principals — who had power of decision — imagine how sanitized the dog-and-pony show in approx Sept 2002 for the Congressional bigshots must have been. Tell them enough to check off the “briefing” box so the CIA covers the Admin’s backside, but not enough to get the Congresscritters hot and bothered so they might make waves. “Don’t worry, these techniques are proven safe and effective, and we’ll only use them when it’s a matter of existential threat, and we’ve got OLC legal opinion, so trust us…” Makes Pelosi’s claims pretty plausible.

    • Hmmm says:

      It’s a point — when they say Congress was briefed, we don’t know how simplified, cleaned-up, sanitized, etc. the contents really were. Partly b/c it was still classified. The penumbra of secrecy prevents anyone from testing for truth or completeness.

  19. SparklestheIguana says:

    I never used that show text before. It’s like a miracle! It’s like I’ve been riding a donkey, and suddenly I’m in a Porsche. Oh, show text! Show TEXT!

  20. Mary says:

    Nite – big horse stuff day tomorrow with the possiblity of the World’s Best lemon squares in the offing, so I’m going to go do stuff and try to get torture out of my system beforehand.

  21. lukery says:

    OT – but Phil Giraldi says that the Harman transcripts came from the DoJ. He also says that a journo friend of his has a copy of the transcript, and that the name of the Israeli ‘agent’ has been blacked out in the transcript, perhaps indicating that the ‘agent’ is co-operating.

    • scribe says:

      It’s pretty unsurprising that the transcripts come from DoJ – they have their own transcribers who transcribe and so on. It was a criminal investigation, after all, and DoJ are the people who do them.

      The real question is whose are the hands intervening between DoJ and Stein the reporter (or any other journo) – once the transcript is made anyone with a photocopier can make another to share with others.

      • Hmmm says:

        …the transcripts come from DoJ – they have their own transcribers who transcribe and so on.

        Ah, I begin to see… scribe.

      • lukery says:

        Okay. Thanks.

        It is interesting that with all these copies (original and copied) floating in the hands of journos that we haven’t seen the whole transcript leaked yet.

  22. behindthefall says:

    Your quote:

    Iran-Contra was the subject of an informal “lessons learned” discussion two years ago among veterans of the scandal. Abrams led the discussion. One conclusion was that even though the program was eventually exposed, it had been possible to execute it without telling Congress. As to what the experience taught them, in terms of future covert operations, the participants found: “One, you can’t trust our friends. Two, the C.I.A. has got to be totally out of it. Three, you can’t trust the uniformed military, and four, it’s got to be run out of the Vice-President’s office”—a reference to Cheney’s role, the former senior intelligence official said.

    Were they running it out of the VP’s office this time around because it had worked so well that way before? Could GHWB have been less than forthcoming when he claimed to have been “out of the loop”? (But, but he was only, let’s see, head of the CIA, so he wouldn’t have had any idea how to run a black op. Right?)

    • behindthefall says:

      Um, wouldn’t that mean that by putting a Bush in at the top and a person suited to game the bureaucracy in the second slot, they had their personnel lined up before they had their operation?

      Next thing you know, I’m going to get myself to wonder if 9/11 did not just “coincidentally” occur to activate the command structure that had been previously put in place.

      And then I’m going to start to wonder if GWB and Cheney called the shots setting up the command structure.

      But it’s Friday night and my brain, such as it is, is freewheeling. G’night all.

    • cinnamonape says:

      Interesting…the Reagan area Presidential Records are being released soon, aren’t they.

      • Citizen92 says:

        Both a significant lot of Reagan era Presidential documents and many from the George HW Bush Library were just released (not online, only in the reading rooms). HW Bush focused specifically on Saudi ties.

        Saudi records out at Bush (41) Library

        Monday morning, the George H. W. Bush Presidential Library in College Station, Texas, released about 800 pages of old White House records having to do with relations between the U.S. and Saudi Arabia.

        There are no plans to have the records up on the Web anytime soon, I’m told. However, the National Archives, which runs the library, does have an official archivists’ description of the files. I’ve posted that below.…..brary.html

    • readerOfTeaLeaves says:

      The purpose seems to have been to create ‘plausible deniability’ for GHWBush, a skill his asshole son mastered at that elegant, Blue-Blooded viper’s knee in spades.

      The logic seems to run like this:

      If oligarchs want power in a democracy, they have to keep their interests, the true magnitude of their wealth, and their true motives well hidden. In the case of FDR, who was very wealthy, it worked — because he was a practical man of goodwill and great heart.

      But oligarchs like the Bushs and the bin Saud’s are pissy.
      They really actually think they’re better than the rest of us, but they have to pretend that they’re ‘democratic-ish’.

      Daddy, GHWB, couldn’t pull it off. He wasn’t enough of an actor and he had enough good manners from his upbringing that he was always a bit tone deaf.

      IMHO, now being typed for the first time, his alcoholic son is actually far, far more masterful at the ART of appearing democratic-ish than papa GHWB ever was, or ever could have been.

      Bush II had the knack for an acquired swagger, a down-home ‘look’, an ability to look beyond whatever principles or manners his daddy had managed to retain. Bush II was at least as ambitious as his daddy, and at least as ruthless — probably moreso, being Barbara’s spawn he appears to have picked up ambition, plus rigidity. And having fewer principles, he was quite content to hire the likes of Rove and Abramoff if they could get him what he wanted.

      But all this comes at a price, in a democracy where the ‘leader’ is supposed to tolerate the tiresome pretext of having to answer to ‘the people’ or ‘the law’. I’ve never seen a single symptom that GWBush ever cared about either the people or the law — he couldn’t grab those oil patches in Texas via his business efforts, so he won himself the Presidency and went out to grad the biggest, badass oil fields on the planet (”Daddy! Daddy! I got the Iraqi oil fields you were too chickenshit to grab!”)

      Neither Bush gives a rat’s ass about ‘democracy’ — they’re oligarchs. As far back as the city of Athens, oligarchs care about money, secrecy, and networking with other oligarchs.

      Skull and Bones is nothing new — go look at those ancient noble Athenians, and their exclusive men’s clubs.

      The problem for both Bush’s is that in a democracy, they’re expected to go through the ritual of ‘talkin’ to the people’. So they have to answer questions.

      Well, they’ve done things they aren’t about to admit to — we can all connect those dots. They can’t lie. But they also cannot, under any circumstances, tell the truth.

      What to do?

      Invent something called ‘plausible deniability’.
      How to engineer that?
      Make sure that you aren’t in on the deep shit. At least, not in a way that you’d have to admit to.

      I wouldn’t put it past Bush to have given the ’secret handshake’ to Cheney so there were no documents, no records, and nothing that could expose him for perjury.

      It looks to me as if it’s all about building legal obfuscation and firewalls.
      It’s all about letting Cheney take the heat so that Dubya could look ’stupid’ or ‘in the dark’ — but he could PLAUSIBLY deny that he knew anything.

      If anyone asked him about Plame, he could pretend that “Plame” was not a synonym for “Joe Wilson’s wife”. And then he could also make sure that NO ONE in the WH told him they’d leaked – notice back in Sept 2003, when Dana Priest pointedly told GWBush that he could insist that WH aides all take an oath, or sign a legal document stating they’d not leaked Plame. He ignored it — clearly, GWBush was not about to place himself in any situation or position in which he had to admit knowing anything that would make him culpable.

      That’s part of why I find this all so fascinating, in an absolutely morbid way: it’s weird and creepy, but compelling, to watch these asshats build all their walls and tunnels just to be able to say that they don’t know what even a 10-year old can figure out.

      Sorry — comment is waayyyyyyyyy too long.

      But the more torture stuff comes out, the more it looks like they thought they’d shut us up before now. I think they honestly believed we’re all just a bunch of DFH who don’t give a shit about the military or the US. Big Mistake on their part ;-))))))))

      • greenwarrior says:

        i’m thinking they must have thought there was some minute possibility of us not shutting up. otherwise why buy land in paraguay?

          • greenwarrior says:

            thanks, i didn’t realize the land they owned was on top of the world’s largest aquifer. and is next to a u.s. base and next to land owned by moon.

            • fatster says:

              Be sure to check these stories out as thoroughly as possible. Unfortunately, not every issue has an emptywheel in pursuit of the truth about it.

      • JohnJ says:

        And for your 93 as well:

        Thank you. I am sorry you stopped when you did.

        I have been trying to wrap my mind around how these people think and you just stepped my understanding forward by a long way.

        I believe that people always try to “do the right thing”, not in the traditional use of that term, but by their own provincial world as they see it, for their own benefit. The key to understanding and predicting their actions is understanding the world that they believe they live in.

        In a simple example; it sure helped me survive my first wife, the hard core alcoholic.

  23. dopeyo says:

    what i find so …. well, poignant…. about the wapo article is how many of the principals couldn’t / wouldn’t comment. it would be interesting to know which prominent d.c. attorneys worked overtime friday, answering questions about foreign vacations, good-faith arrangements, and possible jail time.

    i’m buying orville redenbacher stock a.s.a.p.

  24. SparklestheIguana says:

    Digby has an awesome post up about how Olbermann had Jonathan Alter on his show talking about the newest memo, and Alter is saying

    And what’s so fascinating is that Dick Cheney stands almost alone. You don’t see former president Bush out there pursuing this. You don’t see Condi Rice or Domn Rumsfeld or others. It’s the former vice president who is becoming a forlorn and I think soon to be further disgraced figure. But this is his bid for resurrection.

    and Digby then posts Alter’s November 2001 column “Time to Think About Torture.”


    But KO doesn’t know about Alter’s old column!

    • oregondave says:

      Yep. There are a lot of media people and Democrats who are very uncomfortable now about pursuing torture responsibility. They were either silent, turning a blind eye, or, like Alter, advocating.

      • readerOfTeaLeaves says:

        All the more reason to respect Sen Carl Levin, and Sen Sheldon Whitehouse, and Sen Claire McCaskill. Levin is persistent; the other two weren’t in the Senate when this happened.

        What I find cool is that Levin chairs the Armed Services Committee. It’s heartening to see this cleanup process come from the Senate committee that’s seen the damage done to the military. It’s not like this is coming out of the HippieLoveAndFlowerPower committee. Heh.

  25. LabDancer says:

    Sorry if this has been noted before, but:

    Used to be wherever you went, you couldn’t get away from death and taxes.

    Still so [and mostly-so], but these days we can add a “good” to the list of “bads” [along with the “evil”, torture]:

    This evening at DKos, TNH founder Dana Houle’s been hosting an open bar-type thread for our own queen bee, ms smartywheelies:…

  26. hownow says:

    The prosecution of torturers has nothing to do with retribution or
    the politicization of policy differences and everything to do with
    honoring the sacrifice, in altogether too many cases the ultimate
    sacrifice, of our grandparents, parents, and relatives who defeated Nazi Germany in World War II. Our parents did not serve and sacrifice so Nazi tactics would be implemented and paid for by the United States.

    As confirmed by the recent official unanimous bipartisan Senate
    report, the torture tactics of Nazi Germany and Imperial Japan were
    brought to America by George W. Bush.

    Barack Obama solemnly swore that he would preserve, protect, and
    defend the Constitution of the United States which, due to the
    application of Article VI and the Convention Against Torture, requires
    prosecution, if supported by the evidence, of those who engaged in or
    enabled torture. A prosecution by the Obama Administration’s Justice
    Department (or a Special Prosecutor) would not involve retribution
    (political or otherwise) of any type, kind, or description. Each
    prosecution would just be Barack Obama faithfully executing that which
    he solemnly swore to do as required before the people of the United
    States let him begin executing the duties of President.

    The investigations and, as appropriate, prosecutions exemplify a
    forward looking focus on the future which Barack Obama seeks. While
    evidentiary protocols may require some recitation of past events, the
    prosecutions are really a way for this generation of Americans to look
    forward to the future, to remind George W. Bush’s successors and their nominees and appointees that torture is unacceptable and will have substantial personal criminal consequences, and to say clearly: “Never again.”

    • Hmmm says:

      Thank you for that. Please consider posting that as an Oxdown diary, or else circulating it more widely in some other manner, because it’s excellent.

  27. Citizen92 says:

    Per the WaPo, Judge Bybee has “private regret” about the memo “according to friends.”

    “I’ve heard him express regret at the contents of the memo,” said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as “piling on.” “I’ve heard him express regret that the memo was misused. I’ve heard him express regret at the lack of context — of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety.”…..038;sub=AR

    The rats are running and scattering in all different directions.

    • Hmmm says:

      I’ve heard him express regret that the memo was misused.

      Wha? What different use of his memo could Bybee possibly have had in mind?

  28. PPDCUS says:

    From the Department of No Dick Left Behind

    Look for a huge spike in page views over the next few years here. (Scroll down to the table.)

    No where to run, no where to hide.

  29. klynn says:

    I have been thinking about Cheney cherry-picking intel-from-torture-that-saved-the-world and the MSM stating CIA is dispirited about the memo releases by Obama…

    Let’s think about this for a bit. Does the CIA really want to promote that concern to the public? Because essentially what is being communicated is that all the bells and whistles of intel result in nothing and thuggery reaps results.

    Really! Do CIA and Cheney want to communicate such a message with the economy the way it is? Because, we can trim back their budget and save homeowners and create healthcare.

  30. Valtin says:

    Wish I’d been around to see your post when it first came out, but for the record, we need to take some of this info with a grain of salt, as with this one example of the WashPost article about the JPRA warnings to DoD re torture. It is good to know such evidence is being found of some warnings from some officials.

    But the article itself reads like an alibi for JPRA, the agency that ran SERE. If JPRA was so much against the abusive use of SERE techniques, why were the agency pushing them, time and again, with DoD and CIA?

    The SASC report has many other quotes, perhaps from different officials (since the WashPo article quotes an unsigned document), exalting its expertise in interrogations, and offering the assistance of their own people. By the time of the “warning” cited in the WashPo article (July 2002), JPRA had already been collaborating with DoD, DIA, and CIA for roughly six months. Even two months after this “warning” memo, JPRA is lining up to provide “expertise” for the torture at Guantanamo (see email from September 2002 below).

    IMHO, someone wants to clean up JPRA’s image, when in fact they are central actors in the torture scandal. I will soon write about this in more detail, so stay tuned.

    The theme of JPRA promoting SERE expertise surfaces in Iraq a little less than two years after the first DoD approach. A September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (could this be Maj. Gen. Geoffrey Miller, who, coming from his command in Guantanamo, on September 9 was just concluding his evaluation of interrogation procedures in Iraq) again makes the same point about JPRA “expertise”.

    There is a strong synergy between the fundamentals of both missions (resistance training and interrogation). Both rely heavily on environmental conditions, captivity psychology, and situation dominance and control. While I think this probably lies within DHS responsibility lines, recent history (to include discussions with DHS, USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain Service SERE psychologist) have the most knowledge and depth within DoD on the captivity environment and exploitation.

    See fuller account of above here.

  31. burqa says:

    When Lawyers are Criminals

    “…. For this issue, one Nuremberg case forms the key precedent: United States v.
    Altstoetter, also called the Reich Justice Ministry case. That case stands for some
    simple propositions. One of them is that lawyers who dispense bad advice about law
    of armed conflict, and whose advice predictably leads to the death or mistreatment of
    prisoners, are war criminals, chargeable with potentially capital offenses. Another is
    that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of
    the law, will not be tolerated on fundamental questions of law of armed conflict
    relating to the protection of civilians and detainees. In other words, lawyers are not
    permitted to get it wrong….

    Page 3
    The Justice Department lawyers were indicted and charged with crimes against
    humanity and war crimes arising out of the issuance and implementation of the Nacht
    und Nebelerlass. The United States charged that as lawyers, “not farmers or factory
    workers,” they must have recognized that their technical justifications for avoiding
    the application of the Hague and Geneva Conventions were unavailing, because these
    conventions were “recognized by all civilized nations, and were regarded as being
    declaratory of the laws and customs of war.” That is to say, they were customary…..”

  32. bmaz says:

    US v. Alstoetter is still good case law last I checked. If you want an example of a more recent case of the US indicting lawyers for allegedly bad advice, check out US v. Kuehne. The Kuehne case is a sham from the outset and is an asinine case that never should have been filed, but I cite it as proof that the DOJ does know how to go after lawyers it doesn’t like on similar theories, there is no reason it cannot take on the Bush consiglieres.

    It is not a lost art, it just needs to be practiced at the top as well as the bottom.

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