SSCI Investigating Its Torture Briefings

I’m all in favor of an unrelenting focus on Dick Cheney’s role in torture, but I think David Corn’s focus on the possibility that Cheney’s briefing of Pat Roberts and Jello Jay on March 8 (and possibly March 7), 2005 is too narrowly focused. (h/t fatster via RawStory)

"The Senate intelligence committee’s study includes an examination  of how the committee was briefed on the CIA’s detention and interrogation program,"  says Phil LaVelle, a Feinstein spokesperson. "This includes briefings of committee leadership, and is not limited by who conducted the briefing." The committee has restricted this part of its review and is not examining briefings provided to other committees–such as the House intelligence committee–according to a congressional source familiar with the probe. But given that Cheney briefed two senior members of the Senate intelligence panel, the committee can review what Cheney told Roberts and Rockefeller about the interrogation program and evaluate whether his assertions were supported by the facts. That is, the Cheney briefing is fair game for the Senate investigators.

[snip]

So did Cheney make an honest presentation during the behind-closed-doors meetings with congressional leaders when he was veep? Feinstein can find out–if she wants to.

The Senate intelligence committee’s investigation is not wide-ranging–which may be good news for Cheney. According to a press release it issued, the committee is mainly focusing on what the CIA did, whether it remained in compliance with guidance it received from the Justice Department, and what was the value of the intelligence it obtained through the use of "enhanced and standard interrogation techniques."  That press release makes it seem unlikely that the committee is investigating whether the White House–with or without Cheney’s involvement–pressured the Justice Department to cook up legal cover for the CIA’s use of so-called enhanced interrogation techniques.

When I asked LaVelle whether the committee was examining the 2005 Cheney briefing, he declined to comment. The committee is not confirming or denying any specific aspects of its inquiry, including the witnessess it has or will be interviewing. But the committee has granted itself the authority to investigate what Cheney told committee members about the CIA interrogations. If it chooses not to do so, its probe will be incomplete. [my emphasis]

That is, I think Cheney’s role in persuading the SSCI not to investigate the torture program in 2005 may be one of the least interesting things the SSCI might be investigating wrt its CIA briefings. Consider two other items of interest:

CIA Claims to Have Briefed Democrats When It Didn’t

CIA once claimed to have briefed Bob Graham (and, presumably, Richard Shelby) on torture twice in April 2002, and twice in September 2002. In fact, it briefed them only once, in late September 2002, and according to Graham, did not brief them on torture.

Then, CIA claimed to have briefed Jello Jay on torture in February 2003. That, too, was a false claim. 

Thus, CIA never briefed the Ranking Democratic Member of SSCI on torture until after KSM had been waterboarded–yet CIA claimed that it had.

CIA May Have Lied about "Cruel and Inhuman"

In addition, CIA appears to have lied to SSCI about whether or not it had to comply with the Convention Against Torture’s prohibition on cruel and inhuman treatment. I laid out the tensions underlying the issue in this post, which shows SSCI was pushing for a review of this issue for ten months before OLC finally reviewed it and produced a memo saying that, since our torture was useful, it did not shock the conscience.

And in fact, this issue is precisely what Mary McCarthy said the CIA lied about.

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

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

At a time when the Senate had a number of efforts (a Dick Durbin bill, and the McCain amendment) to restrain torture, the Administration repeatedly told the Senate that CIA complied with CAT. I think we’re going to find, ultimately, that CIA had been given an explicit exemption from CAT by the Administration (which would explain why the SSCI narrative focuses so closely on it). 

David Corn has real news here that their briefings are a subject of the SSCI’s investigation. But I think the question of whether Dick Cheney lied to the SSCI may be nowhere near the most interesting part of that. 

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30 replies
  1. Leen says:

    Sure not hard to convince Pat Roberts to shut down any investigation. More than willing hell that guy has stood in the way of accountability for false pre war intelligence and any other crime the Bush administration committed. Pat Roberts torture…no problem

    http://thinkprogress.org/roberts-coverup/
    Sen. Pat Roberts (R-KS): Chairman of the Senate Cover-up Committee

  2. BoxTurtle says:

    CIA had been given an explicit exemption from CAT by the Administration

    How the heck can they do that? Besides being a senate approved treaty, it’s also US law. Or is this another one of those “It’s legal until the supremes say it ain’t. Now stall” ?

    Hmm…and what kind of exposure would that be for BUSH if that was done? Only Bush could have issued such an exemption and have it be treated as law prior to court review.

    Boxturtle (Verrrrrry interesting – Arte Johnson)

  3. Mary says:

    While there may be all kinds of interesting stuff, I think the way that emphasized portion reads, in part they may be also starting with the National Security Act question itself – – it’s pretty clear that if this was all what they pretend it was, an “intelligence gathering” operation (and EW, I know there is the Hayden/covert issue you have raised several times too) the the full committees should have been being briefed from the get go. WHO made the decision to violate the NSA?

    Unfortunately, whoever made that decision can’t weasel out of NSA violation by saying, “oh noes, it wasn’t intelligence gathering, it was a covert operation” because they also violated the NSA under that aspect, or if not, the prior investigation reports have had huge gaps. Under the covert approach, they should still have briefed the full committees under the norm, with a special circumstances option of briefing the full gang of 8. (I don’t think Hastert was ever briefed was he? At all? )

    There is MAYBE a hypertechnical out to briefing the full gang of 8 (I won’t go into), but here are two things that there are not outs for:

    1-If this was a covert action there needed to be a Presidential finding and also if the ranking members on the Intel committees were going to be briefed under the NSA on the covert program, they were required to be provided with that finding in some form — that doesn’t seem to have happened and Harman even seems to have created a record of it not happening and of CIA Gen Counsel being aware it wasn’t happening. So even if there was an out to not notify the full gang of 8 or even the gang of 4 for some period of time, there is NO OUT, once anyone on the gang of 4 is briefed, to not provide the Presidential finding.

    2-when some group less than the full committees are briefed, then when the full committees are briefed there is a requirement to present the committees with a full explanation of why they were not briefed before.

    I don’t think either of those were done and at least not with months to years of when they were required to be done. Why not? Who made those decisions, to violate the National Security Act? Of course, those are old old questions now that should have been asked and answered after Abu Ghraib at the latest, with impeachment proceedings attendent. That didn’t happen, but someone can at least still clean up the record.

    And they really really really really really need to get into the quesion of “Preliminaries” and whether they have still, ever, been fully briefed on those.

  4. Mary says:

    BTW – a couple of things that are pretty clear –

    The reported threats to KSMs children, clear cut statutorily spelled out, criminal acts (ditto for the threats of rape made [and possible carried out directly or by proxy] re other detainees mothers, which line up with the only slightly more veiled threats to Higazy here in the states about having his sister taken in to be given the Egyptian treatment)

    The anal assaults accompanied with drugging -clear cut criminal acts under the statutes

    Disappearing people – not dealt with in the memos as being part of the “transition to interrogation” universally recognized jus cogens crime.

    Leave out the “preliminaries” and you are leaving things that were statutorily crystal clear and were not left to the “gee, I dunno, does it shock you? it may not shock me” whiffling of a Bybee or a Yoo.

    • TheraP says:

      Right. And when you put those preliminaries together (as multipliers of each other), you’ve already destroyed TRUST. And therefore whatever valuable info you were hoping to get. And, you’ve done this to folks who’ve never even been accused of a crime, let alone tried or convicted. The monumental wrongdoing here makes me feel like my hair could catch fire!

      • Mary says:

        Yeah – not to derail the very good points the post is making, esp with Graham’s helpfulness in pointing out that only briefing one party would be indicative of *ill intent* but I have been fixated on the “Preliminaries” items since I saw the Comey email.

        When the memos themselves came out, it was clear they just avoided a whole series of things that did not rely on interpretation of “serious” under the statute but were instead specifically spelled out (in case someone didn’t get what a normal person would consider serious) but which had been reported over and over an in connection with the programs. So of course there were the issues on the things the memos did “authorize” without any legitimate basis, like waterboarding, and how those were “actually applied” which Panetta has just said in a court filing under oath were different from the “abstract” references to them in the reliance opinions (where they were not discussed in the abstract at all for that matter).

        But even if you say, well- ok, that leaves you with all the things the memos don’t address and that have been described and that are particular activities spelled out in the statute without regard to the “serious” standard. There’s a hint in the memos of how they try to work around to “authorize” the “interrogation program” separate from those activities, with their disingenuous reference to a “transition to interrogation” and the related fiction(s).

        I may try to throw up something on this later, but I have a lot of real work today unfortunatley. In any event, when Comey’s emails says he listed techniques in addition to those discussed in the memos, that are almost never discussed (although he knows about them) because they are deemed “preliminary” that made my hair stand on end. Those suckers did a deliberate carve out of things that were absolutely statutorily spelled out as crime and still said the interrogation program was “legal” bc they just — um, arbitrarily said that stuff wasn’t a part of the “interrogation” program, it was “preliminary”

        Kinda like MPs at Abu Ghraib being told to soften up detainees for questioning.

        [This belongs elsewhere, were EW and bmaz were talking about the tapes and rewinds, but if the NYT story is correct and the torture sessions were staged separately from the interrogations, which were sometimes days later, then I can see them reusing the tapes. Originally I was floored at the concept that they would take tapes that had lots of intel, even if acquired by torture, and destroy them but apparently the purpose of the torture sessions was torture – not questioning – at least from the report.

        I’m just wondering if anyone is asking for tapes of interrogations without torture, but where the explicit or implicit threats of the upcoming torture is used?

        I’m also thinking that, in addition to going beyond what even the clearly wrong OLC opinions authorized, some issues like threats to family like came up on the torture tapes. Things that had never been cleared in any opinion and were clearly barred by statute. all fwiw

        • bmaz says:

          Eh, this is close enough to a torture thread for that discussion.

          … if the NYT story is correct and the torture sessions were staged separately from the interrogations, which were sometimes days later, then I can see them reusing the tapes. Originally I was floored at the concept that they would take tapes that had lots of intel, even if acquired by torture, and destroy them but apparently the purpose of the torture sessions was torture – not questioning – at least from the report.

          Here is the thing, if that NYT story is correct, then the temporal distance between the torture and the questioning removes the matter from being a legitimate “ticking time bomb scenario” whether through popular lore or their own constructs fabricated at CIA and OLC. This is the same BS with time that they have used to try to claim viability of “clean teams”. Well, if time can make it “clean”, then time makes the torture disconnected to the interrogation. That leaves you just torturing for the sake of torturing. Even under their own horseshit, that is a war crime. Their parsing is too cute by way more than a half; the tapes were either connected to the questioning, in which case they are evidence, or they are unconnected and are evidence of depraved war crimes.

          Either way, the tapes were being handled by supposedly trained investigators and interrogators, supervised by authorities. There was not, and could never have been, any question of the fact that they immediately became evidentiary material.

          • Mary says:

            then the temporal distance between the torture and the questioning removes the matter from being a legitimate “ticking time bomb scenario” whether through popular lore or their own constructs fabricated at CIA and OLC

            Absolutely.

            I did a quickie list at one point, you know, you have a “ticking time bomb” so of course what you do is: you get with SERE and have them construct a torture program, you send guys through torture training, you order up memos on where you can torture, you find some nice offshore torture sites, you make multimillion dollar arrangements for those sites, you go out and contract with and hire torture contractors, you order up more memos on how you can torture, your memos give you 30 day torture programs authorizing continued torture every day they don’t give you a ticking time bomb, and then you start torture programs where you cable back and forth on new ways to torture and then you arrange interrogations for after the torture sessions, sometimes days after.

            That’s how I’d respond to a ticking time bomb, how about you?

            I remember Hayden, maybe talking with Rose?(I think in the same interview where he said they’d only disappeared a hundred or so people into torture gulags and didn’t mention what happened to the others not included in the 14 shipped to GITMO), who obviously felt the necessity/ticking time bomb was the only plausible defense and who also clearly knew that none of the cases was supported by that situation (even in a ticking time bomb defense, if there wasn’t one, you have no defense). So he tried to make some analogy that tried to spin out just what “ticking” might mean.

            There was not, and could never have been, any question of the fact that they immediately became evidentiary material.

            Another absolutely. In those guys trials as you keep pointing out, and in my more cynical approach of no one intending to give them trials, then still once Gonzales said in Jan 2002 that he conceded as lawyer for the WH that the WH and President could be facing future war crimes act prosecution and that memo, that concession by the WH that it knew it was looking at the possibility of future proseuctions, was even SHARED WITH THE FREAKING DOJ!

            Can you imagine a situation where the DOJ found a corporate counsel memo saying the corporation is likely to face criminal charges for its actions that it has already taking and is continuing to take and then, even afer cases involving those very actions begin in the system, no preservation orders go out and not only that, evidence is affirmatively destroyed? You think that corporate counsel might have *problems?*

          • klynn says:

            Here is the thing, if that NYT story is correct, then the temporal distance between the torture and the questioning removes the matter from being a legitimate “ticking time bomb scenario” whether through popular lore or their own constructs fabricated at CIA and OLC. This is the same BS with time that they have used to try to claim viability of “clean teams”. Well, if time can make it “clean”, then time makes the torture disconnected to the interrogation. That leaves you just torturing for the sake of torturing. Even under their own horseshit, that is a war crime. Their parsing is too cute by way more than a half; the tapes were either connected to the questioning, in which case they are evidence, or they are unconnected and are evidence of depraved war crimes.

            Either way, the tapes were being handled by supposedly trained investigators and interrogators, supervised by authorities. There was not, and could never have been, any question of the fact that they immediately became evidentiary material.

            With these conclusions, doesn’t this put CIA and Panetta with liability squarely at their feet and that everything regarding the tapes destruction investigation must be given to Hellerstein, unredacted?

        • emptywheel says:

          Mary

          I agree with you on this front–that’s clear what they were doing.

          I think it strengthens the possibility that Comey, when he spoke of his objections to “the opinion” on May 31, 2005, was talking about the CAT memo, not the Combined memo, because those “preliminaries” would be precisely the things that would be illegal under our reliance on the 8th Amendment to comply with CAT (or so it seems to me, NAL). So if he gives Gonzales a list of “other” things for his meeting with the Principals, then he’s giving him something taht is particularly relevant WRT that May 30 memo.

          And if, as I suspect, CIA had some kind of explicit exemption from CAT’s Article 16, then AGAG was likely just going through the motions rather than telling Comey of that specific exemption. And that’s the reason they were lying to SSCI–perhaps on this subject specfically.

          • Mary says:

            They are also the kinds of things that were clear under 2340, so clear they couldn’t address them

            (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
            (A) the intentional infliction or threatened infliction of severe physical pain or suffering;
            (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
            (C) the threat of imminent death; or
            (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

            Drugs that knock people out disrupt profoundly the senses – you can’t really see, hear, smell, feel, talk, etc. once you’ve been drugged to knock you out and that’s a hard one to get around. The kidnaps pretty much inherently involved threats of death, guns, violence, etc.

            If there were other threats to kill KSM as Suskind relates, that is spelled out as prohibited etc. There were several reported instances of threats to family members, especially female family members and the threat to KSM’s children has been all over the place, with nada Congressional response.

            But yeah – there are 5th and 8th aspects on this too. I tend to think that the Comey concern about the “preliminaries” was separate and apart from a memo per se, since none of them really address those activities head on, and more that they were not seeing the big picture for the future – esp that he was nudging them that there were things that they knew were being done and are clearly not addressed as “lawful” in any memo at all and not only that, but which seem pretty clearly prohibited by law. So I think the prelim issue was a big hard nudge by him on that – no way is he going to memo out to them, something that might be discoverable, a flat out legal opinion that the Bradbury memo’s are insufficient bc they don’t deal with the preliminaries and those are clearly torture and criminal under 2340 and other Constitutional standards. But a handwritten and contemporaneously referenced in email list of “techniques” that go beyond the memos sure spells that out.

            I do agree that “the opinion” in the 5-31 email is probably the 5-30 memo. And like I said, think through cases like Burge and the now established, formal OLC opinion of what is meant by “torture” Consitutionally and when done by state actors and it should make any normal person ill.

      • Mary says:

        I don’t know about that – I just know from Suskind’s The One Percent Doctrine references re KSM

        in the six months since his capture he’d received death threats, water-boarding, hot and cold treatments, sleeplessness, noise and more death threats

        p 228

        discussing putting out info that al-Shibh had flipped to get al Qaeda to take retribution on al-Shibh’s family,

        Ultimately, the agency decided against this strategy, which was essentially threatening a captive’s family to force him to talk

        p 229

        KSM’s two children, a seven-year-old boy and a nine-year-old girl, were also in U. S. custody, picked up when the Karachi safe house had been raided the previous September. From Langley, a message was passed to interrogators at a secret detention center in Thailand where KSM wsa being held: do whatever’s necessary

        According to several former CIA officials, interrogators told KSM his children would be hurt if he didn’t cooperate.

        230
        Other reports are that both children are boys. I sent an email to the info email addy for Suskind’s book awhile back asking to clarify that – of course, I can see the CIA putting out the boy info to make it seem less bad in some sense. But if you put things in context of the CIA fascination with Egytian torture methods and the prevelance of rape and sodomy, even involving children, in that approach, well, it’s hard to ever get back to that point of saying “of course they wouldn’t do that” when we’ve seen all that has been done and all of that has only been what we found out about after the whole resources of gov including all kinds of illegal spook activity were devoted to cover up.

        But death threats to the individual (which Suskind describes re: KSM too) and to family aren’t left to the the “how serious do you think that is” standard — they are clearly listed as criminal acts. And never mentioned in the memos. And with respect to KSM, if it only came in after he’d been resisting for months, even the “Preliminaries” fiction fails.

  5. klynn says:

    David Corn has real news here that their briefings are a subject of the SSCI’s investigation. But I think the question of whether Dick Cheney lied to the SSCI may be nowhere near the most interesting part of that.

    Agreed. Oooo, those CIA lies are “a callin’” my boots and shovel. An interesting intersection… this SSCI investigation and the Panetta declaration to Hellerstein. Reading Panetta’s declaration again with this investigation in mind, adds some interesting layers irt contractors.

  6. plunger says:

    Private Contracting – How it really worked:

    One of the few people to have conducted a full-scale study of military privatisation, Peter Singer of the Brookings Institution, said: “No lawmakers seemed to know that they were hiring civilians as interrogators. They had this concept that the civilians were there to mow lawns and answer phones.” In his recent book, Corporate Warriors, he lists dangers in excessively privatised soldiering, such as cutting corners to save money, secrecy, and hollowing out the genuine military by poaching their troops. All have duly come to pass in Iraq.

    CACI, for example, placed Steve Stefanowicz, a former reservist from the Philadelphia area who had once worked in naval intelligence, in Iraq. According to his fellow interrogator Torin Nelson, CACI hired interrogators over the phone, without even meeting them.

    “I was interviewed in September 2003 in a very short telephone conversation, which was more like a sales pitch of how great the company was, than a typical interview for a professional job,” Mr Nelson said. “I never met anyone from CACI until I landed in Fort Bliss [an army induction centre in Texas], and then it was some other new hires.”

    Frantic:

    CACI website entries show increasingly frantic efforts to attract interrogators, with the qualifications required being reduced from seven years’ interrogation experience, to five years, to two.

    It does not seem that CACI saved any military manpower for the US by hiring Mr Stefanowicz. According to naval records, he was on active duty as a petty officer 3rd class in the reserves already, but apparently resigned in September 2003 to join CACI. Private companies are offering pay of up to $115,000 (about £65,000) a year.

    In Iraq, the status of the CACI interrogators was ambiguous. Mr Nelson said some of his colleagues went around in desert camouflage uniform. “We contractors were often able to establish our own method of actually implementing the chain of command’s intent, which was to glean information for intelligence purposes.”

    Lt. Gen. Lance Smith, the Deputy Commander of the U.S. Central Command, said there were 37 contract interrogators used in Abu Ghraib. The two named contractors, CACI and Titan, have close ties to the Israeli military and technology communities.


    CACI
    is controlled by the Herb Karr and Harry Markowitz family.

  7. Loo Hoo. says:

    What in the world were the CIA attorneys thinking, and how would they allow the administration to push this? I wonder if Addington had really loud words with them!

  8. plunger says:

    Is Panetta protecting the Board Members of the Private Contractors, who would seem to be liable for the company’s illegal actions if in a position of foreknowledge and approval? If so, this is one inside spook who knows EVERYTHING. You think the government wants her under oath in court?

    Barbara A. McNamara
    From SourceWatch
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    Barbara A. McNamara, a member of the board of directors at CACI International, served as the National Security Agency’s “Special U.S. Liaison Officer in London England until August 2003. She was responsible for representing NSA in its relationships with United Kingdom authorities including the Government Communications Headquarters, the cryptologic organization of the UK. From 1997 to 2000 Ms. McNamara was Deputy Director of NSA. From 1995 to 1997 she was Deputy Director of Operations for NSA. Prior assignments include Executive Director of NSA/Central Security Services (CSS) and NSA/CSS Representative to the Department of Defense. Ms. McNamara is a graduate of both the Armed Forces Staff College and the National War College. She has been awarded the National Intelligence Distinguished Service Medal, the Presidential Distinguished Rank Award, the Department of Defense Distinguished Civilian Service Award and the Exceptional Civilian Service Award.”

    In June 2000, she received the US Intelligence Community’s highest award, the National Intelligence Distinguished Service Medal.

  9. Loo Hoo. says:

    I may try to throw up something on this later, but I have a lot of real work today unfortunatley. In any event, when Comey’s emails says he listed techniques in addition to those discussed in the memos, that are almost never discussed (although he knows about them) because they are deemed “preliminary” that made my hair stand on end. Those suckers did a deliberate carve out of things that were absolutely statutorily spelled out as crime and still said the interrogation program was “legal” bc they just — um, arbitrarily said that stuff wasn’t a part of the

    I get it now. Hope you do “throw” something up!

  10. Palli says:

    OT but truly on topic: people shot at the National Holocaust Museum in DC; building evacuated
    add that to: British policeman charges colleagues waterboarded suspects found in house with stock of marijuana
    the world is Cheneized

  11. JThomason says:

    All these efforts to firewall: deploying private contractors, temporally segregating the inhuman torture from the interrogations, creating a false record of Congressional briefing, the creation of sham legal opinions, all point to knowledge that the activities were beyond the pale of decency and law. But those who intended their implementation, in their expression of their will to power, their absolute tyrannical imperatives, would not be stopped by what they perceived as technicalities depriving them of the effects of the absolute power they imagined themselves possessed.

    Whether the doctrine of jus cogens finds viability in the atmosphere of institutional preeminence that has rolled beyond Constitutional and legal traditions of limitation is yet to be seen. There are many forces that merely see these traditional humane and enlightened limitations as “work arounds.”

    • klynn says:

      Thank you. A cogent comment which cuts to the core of the problems we are faced with regarding the will to power.

      Stunning clarity.

  12. Nell says:

    if, as I suspect, CIA had some kind of explicit exemption from CAT’s Article 16

    This just seems bizarre to me. Can someone explain to me how anyone, the president included, can give the CIA an exemption from U.S. law (which the Convention Against Torture is)? Even if one recognizes as legitimate the ”reservations” with which the U.S. ratified the treaty (I don’t), this article (against cruel, inhuman, or degrading treatment) is not the subject of any of those reservations.

  13. prostratedragon says:

    Can you imagine a situation where the DOJ found a corporate counsel memo saying the corporation is likely to face criminal charges for its actions that it has already taking and is continuing to take and then, even afer cases involving those very actions begin in the system, no preservation orders go out and not only that, evidence is affirmatively destroyed? You think that corporate counsel might have *problems?*

    Late as I am, and expired as this thread is, since they do sometimes become relevant again I’d just like to add a counterexample that we’re all familiar with: USA Pat Fitzgerald’s complaint and the resulting warrant for immediate arrest of former IL Gov. Rod Blagojevich. That’s the kind of thing a law enforcement agency would do when it finds out that a possible crime is in progress.

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