Why the CIA Would Want to Hide May 2002 from Judge Hellerstein (and the ACLU)

Update July 20: See this post for the CIA’s explanation for the gaps in May’s production and the timelines. While their explanation makes them permissible to withhold, it doesn’t change the underlying reasons why they may have wanted to withhold them.

I’ve had a couple of really weedy posts examining the CIA’s response to the torture FOIA (Cherry-Pick One, Cherry-Pick Two, FOIA Exemptions). And I wanted to pull back a bit, and explain what I think they might mean.

We’re getting all these documents because the CIA is trying to avoid being held in contempt for not revealing the now-destroyed torture tapes in a response to this FOIA in 2004. At that time, the CIA had to reveal the torture related documents held by its Inspector General or Office of General Counsel. When ACLU learned of the torture tape destruction, it argued that the tapes should have been included in that FOIA compliance and certainly should not have been destroyed. The CIA argued, though, that since the Inspector General had never physically had the tapes, they were not responsive to the original FOIA. Things got delayed because of the John Durham investigation into the torture tape destruction. But last September, Judge Hellerstein deferred the decision on whether the CIA had deliberately ignored his earlier orders in destroying the torture tapes.

I find the facts before me are insufficient to justify a holding of civil contempt. 

[snip]

Here, I find that there has yet to be any such "clear and convincing evidence" of noncompliance on the CIA’s part.

He asked the DOJ to explain why Durham’s investigation prevented the production of a catalog listing:

1) A list identifying and describing each of the destroyed records;

2) A list of any summaries, transcripts, or memoranda regarding the records, and of any reconstruction of the records’ contents; and

3) Identification of any witnesses who may have viewed the videotapes or retained custody of the videotapes before their destruction.

The government was able to get another delay because of the Durham investigation, but the FOIA reponse we’re getting now is basically this long-awaited catalog, which Hellerstein will use to determine whether the CIA deliberately ignored his 2004 order in this FOIA case.

So the CIA has a couple of goals in its response to Judge Hellerstein’s orders. It wants to appear as cooperative as possible, lest Hellerstein believe that the CIA was and is continuing to cover something up. At the same time, the CIA wants to hide any evidence that it would have had reason to destroy the torture tapes to cover something up. It also wants to anticipate information that is going to come out one way or another–such as the involvement of contractors in the torture–so it can reveal that information now, in controlled fashion, and appear to be cooperative with the FOIA request. It has to cooperate but–assuming some of this information might support a contempt finding–not too much.

After the John Durham stall tactic finally stopped working in March, and after the CIA produced really redacted information on the torture tapes (thereby sort of complying with item 1 of Hellerstein’s order),  the CIA then submitted a list to Hellerstein of what it had that complied with items 2 and 3 on March 26. The very next day, having reviewed the materials, Hellerstein ordered the government to put together a schedule for FOIA production of this material by April 9, and production starting a month later. The government’s April 9 workplan and its first Vaughn Index (which I’ve called Vaughn A) was an attempt to look really compliant quickly. And that’s where they started getting cute. The April 9 workplan basically offered to produce:

  • A "Vaughn-like" index, but not a Vaughn Index
  • Information on the cables for August, but not for April through August and September through December (thereby excluding most of the contents of the destroyed torture tapes)
  • Information on Abu Zubaydah but no information on Rahim al-Nashiri
  • No "derivative" documents, which it is now clear would include documents generated during the IG investigation (and which therefore should have been revealed in the first round of FOIA)

The CIA was hoping–it appears–that its narrative that the torture tapes portrayed waterboarding, and that’s the big reason they were sensitive, would distract Hellerstein and the ACLU and therefore allow them to hide a slew of other information: the success of the FBI before Abu Zubaydah’s torture started, the torture that started before the OLC opinions were written (and the White House’s intimate involvement in approving the earlier torture), the role of contractors in the torture, the quality of intelligence they got using persuasive interrogation as compared to the quality of intelligence they got using torture, whatever happened in al-Nashiri’s waterboarding that led them to stop and even admit it didn’t work with him, whatever happened to Abu Zubaydah around October 11, 2002 that led them to take a picture of him, and the Inspector General’s reconstruction of the Abu Zubaydah’s interrogation (which should have been turned over in the first FOIA).

SHINY OBJECT!! WATERBOARDING!!!

Only, it didn’t work. The ACLU called bull on April 10, the release of the torture memos on April 16 mooted many of their arguments, Hellerstein called bull on April 20, and ordered the government to come up with something a bit more responsive. 

Nevertheless, when CIA submitted its first Vaughn Index on May 1, it was still, significantly, telling its shiny object story. This was compliance that focused exclusively on the two weeks after the Bybee Two memo authorized waterboarding. So it effectively revealed the degree to which the interrogators were deliberating on a daily basis with folks in Langley and DC–why not?? That deliberation might make waterboarding look more careful. It also appears that, with its personnel-related FOIA exemption, the CIA might have been admitting that others besides CIA personnel were at the torture sessions; though they appear to have avoided confessing to the role of contractors.

But per Hellerstein’s April 20 order, the CIA had to submit a second round of documentation, this time covering the full range of dates that the torture tapes had captured, as well as the "derivative" information that should have been identified originally.

And in the interim period, a number of new details came out. Significantly, on May 13, Ali Soufan testified to Congress that contractors had led the interrogations. And on May 20, Ari Shapiro reported that Alberto Gonzales was approving interrogation techniques in response to cables on a nearly-daily basis. And the CIA probably has a good idea of what will be in the OPR report, due out any day.

And so we get the Vaughn Index released the other day. Panetta’s declaration makes a couple of big new admissions: Contractors were present at the interrogations, and someone at NSC, rather than George Tenet, made this program a special access program. But the new materials continue to hide the following evidence that might support a contempt citation:

  • Details about the interrogations from May (May overall was undersampled, particularly from May 14 through 23) 
  • Deliberative discussions that took place before August (which might include the approval of torture before the OLC memos)
  • The degree to which torture, as practiced, exceeded the torture as authorized 
  • Mistakes the CIA made about Abu Zubaydah’s identity
  • The extent to which FBI interrogators got more and better intelligence than the CIA contractors
  • Someone’s–perhaps the Inspector General’s–reconstruction of the timeline concerning the torture
  • Interview records from both the Inspector General’s investigation or the early CIA response to revealing the torture tapes had been destroyed

Perhaps most telling, the CIA undersampled in May and did not turn over any of four timelines and six notes/outlines (which I suspect were part of the IG investigation), but included in Vaughn B two totally decontextualized descriptions of waterboarding (and mark my words–I bet the CIA will soon agree to hand those over to prove its cooperation).

SHINY OBJECT!! WATERBOARDING!!!!

The CIA still wants to pretend this is all about waterboarding. But it is increasingly clear that it is about the things CIA did in May and June, the high level authorizations for it, the success of the FBI, and the completely false claims they used to later authorize their torture.

The torture tapes were destroyed not because they showed OLC-authorized waterboarding. They were destroyed (among other reasons) because they proved that the foundation of our torture program was a lie. And the CIA is still trying to hide that fact from Judge Hellerstein.

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119 replies
  1. klynn says:

    They were destroyed (among other reasons) because they proved that the foundation of our torture program was a lie. And the CIA is still trying to hide that fact from Judge Hellerstein.

    Absolutely focused summary. Wonderful work. You are welcome to weed anytime Marcy.

  2. foothillsmike says:

    President Obama does not want to go back and try CIA officials for crimes that were committed but it appears to me that the attempt to conceal information is also a crime and one that is repeated with every attempt to obfuscate.

    • Mary says:

      I think that’s why the Judge needs to ask that Panetta certify, not Panetta’s “judgments” and self proclaimed lack of intent, but rather whether or not the info being suppressed does ACTUALLY CONTAIN info that is a) embarassing to the US gov and/or b) evidence of abuse, coercion, mistreatment, inhumane treatment, degrading greatment or torture of (probably a longer list if I pull statutes, but along those lines) detainees (maybe even with an including, but not limited to… listing with waterboarding, forced nudity, threats to family, death threats, etc.) with respect to each piece of evidence and then let the court as trier of fact take that info (which he can initially offer up sealed) along with Panetta’s other ex parte sealed info and make the legal and factual intent determination. If the known, reasonable, foreseeable and natural outcome is to cover up crime, then that’s intent, and having “other” intents doesn’t change that.

      If you drown a baby to make it quit crying, you don’t get to say “my intent was to make it quit crying” when the known, reasonably to be expected and foreseeable outcome of holding it underwater for 10 minutes was that it would ALSO make the baby dead. You don’t get to say, “my one OK intent that I want to talk about, getting the baby to quit crying – something millions of people do every day and not a crime, negates my other *intent* that I won’t admit to, but which the facts clearly establish, my intent to kill by drowning as a known, foreseeable and reasonably to be expected outcome of my actions.

      • earlofhuntingdon says:

        Nice analogy. It dismisses the farcical argument that a purportedly benign or legitimate “principal purpose” should be allowed to shield obviously intentional criminal conduct.

        • Rayne says:

          It’s equivalent to comparing the difference between varying degrees of murder and manslaughter when we argue about intent. Somebody’s still dead, and there’s still been a crime, we’re only arguing about the culpability of those engaged in the criminal act.

          Since these boneheads made absolutely no effort before/during/after the interrogations to mitigate damages or reintroduce those interrogated, on the face of it we can see they did not have any intention for a constructive outcome where intel would be successfully gathered and a reasonable disposition made for the detainee. They were acting in bad faith, and in doing so, consistently demonstrating malicious intent out of which they cannot argue their way.

          [Reintroduction is something we haven’t discussed much, and is something that’s now causing huge problems politically for us because the Bush administration never addressed it, had no intention to do so. (I’m pretty sure I’ve run across reintroduction somewhere as a key component to wrapping up interrogation, like in a manual, but I can’t remember where…) At some point we’ll have to revisit this issue. Put this on the back burner.]

  3. perris says:

    The torture tapes were destroyed not because they showed OLC-authorized waterboarding. They were destroyed (among other reasons) because they proved that the foundation of our torture program was a lie. And the CIA is still trying to hide that fact from Judge Hellerstein.

    it was both marcy, not one or the other but one and the other, I know you raise the point when you put into perenthesis “among other reasons” but I think it needs to be made clear it was both of those reasons and others, the most important in my book is the following

    the third reason and possibly number one on the list;

    they wanted to hide the fact that they tortured information they knew incorrect

    cheney ordered a tortured “admition” that saddam had close ties to bin laden, the cia told cheney there were no ties but cheney wanted that “confession anyway

    they destroyed the tapes to hide that fact and similar facts

    so it’s not one or the other two, pick from a, b, or c, it’s pick from all three

  4. rosalind says:

    thanks again, marcy, for a post that so clearly lays things out for all to follow.

    now i’m off to get the needle over the 100k mark – there is no place i can get a greater return on my money.

    • emptywheel says:

      If PDFs won’t kill your computer, click through to see one.

      What they’re doing is taking every tenth document or so, and showing its title, sender and recipient, date, a description, plus a description of which FOIA exemptions it is claiming for the document. The judge and plaintiffs are supposed to use it to see whether the agency really is complying with FOIA or is hiding stuff. And significantly for our purposes, ACLU will use it to argue that CIA had reason to hide the torture tapes during the original FOIA process.

  5. Mary says:

    I’m glad you’re focusing on the waterboarding a shiny object distracting for so much other stuff.

    In addition to techniques being used in a manner that “exceeded” the authorizations, I can very easily imagine them including things that were never authorized – so, for example, death or other threats and for KSM threats to family (we had his wife as well as children and his nephew was another “high value” detainees).

    And while this is related to GITMO torture as opposed to black site torture, it still had a CIA participation component, so is there anything in the indexes that looks like it might be the Aug 2002 CIA memo on why so much GITMO info was bad – the 2002 memo that said that we held innocent people and were committing war crimes against them?

    From Mayer’s Dark Side, on the CIA memo

    After completing his survey in Guantanamo, the CIA officer wrote up a detailed report describing his findings. He mentioned specific detainees by name, so there was no confusion about whom the United States was wrongly holding. He made clear that he believed that the United States was committing war crimes by holding and questioning innocent people in such inhumane ways

    p 185

    Other reports date this memo to Aug 2002 (which means the investigation and its results and discussion/awareness of what the CIA officer was going to put out might have dated back to July and may have been a big impetus to the Aug memos even though it did tie to GITMO) and it would seem likely that the memo was generated by Dr. Emile A. Nakhleh

    • whitewidow says:

      In addition to techniques being used in a manner that “exceeded” the authorizations, I can very easily imagine them including things that were never authorized

      Like the “preliminary” techniques that Comey referred to? Also, based on Mayer’s book, it’s hard to believe they didn’t use their old stand-by electric shock.

      • Mary says:

        Oh yeah – the “preliminaries” Definitely.

        People who have these requests out need to really be very clear (and amend if prudent) that they want everything involving the treatment of the detainees from the lead up to detention and ghosting them forward. It’s become very clear that DOJ is trying to parse the “interrogation program” to not include disappearing people and hiding them from ICRC and taking violence combined with nudity porn pics of them and anally assaulting them and drugging them and threats of violence with the kidnap etc. from “interrogating” them.

    • emptywheel says:

      That wouldn’t show up in this FOIA bunch, which is focused exclusively on what would have been shown on the torture tapes from Thailand. It should have showed up in the earlier one, but we just got a selection of documents in that one, so it would have been pretty easy to “miss” that one.

  6. 4jkb4ia says:

    Completely OT: NYT responds to behindthefall’s complaint the other day IMO the Home section is where elaborate “green living” articles are usually put.

    Bad pun of Off OT: If “Every Little Step” comes to your town, it is highly recommended, not least because of the implied rebuke to Ben Brantley. The interplay between the different ways that the auditioners and the auditionees were living this story is an important theme.

    • behindthefall says:

      I can’t get in. Are you kidding me? Are you saying anybody notices my crappy little comments?? More — I need more info.

    • behindthefall says:

      Ah. OK. Not to my comment specifically, then. (Yeah; that had me going.)

      But again, the not-so-subliminal message of the NYT is, “Don’t bother.” To wit:

      There is also debate about whether individual action matters at all, with some experts noting that the most effective greening people can do is in the voting booth. No individual action could compare, for instance, to the emissions avoided if the government found a way to replace coal with other technologies to reduce dependence on fossil fuels, said Michael Shellenberger, president of the Breakthrough Institute, a research organization in Oakland, Calif.

      He is among those who argue that the impact of individual reductions in emissions is largely irrelevant. “People just want to feel good about themselves,” he said.

      But that is not to say there’s no environmental benefit from reducing energy consumption. Dr. Ackerman said it is also important that the United States, which produces more emissions of greenhouse gases per capita than any other country, serve as an example to others.

      My emphasis. I think that’s called ‘damning with faint praise’.

      • Petrocelli says:

        Hey Buddy, are you implying that there should be doubt cast on this NYT’s opinion or any other ? /s

        I couldn’t see your comment, what did you say in your response ? (Linky to your comment would be v. appreciated)

  7. Watson says:

    Meanwhile, Obama is dispatching General McChrystal to Afghanistan to manage military operations. McC’s qualification is his recent operation of “secret commando teams” in Iraq. My understanding is that his milieu is death squads and torture.

    Am I correct that the current (2006?) U.S. Army Field Manual includes a classified section on interrogation techniques. And that those techniques include physical and mental duress, aka torture?

  8. Rayne says:

    When waterboarding can willingly be used as a red herring to redirect attention, just how bad is the underlying issue?

    Something just doesn’t make sense here.

    • emptywheel says:

      Waterboarding was “legal”–had sanction from OLC for the period in which they used it.

      The stuff that happened before August 1 didn’t have that legal sanction. Waterboarding is part of a larger shiny object to distract from the way they implmented their torture program, bc that would show clear foreknowledge of criminal action.

        • MarkH says:

          9/11 attackers were Egyptian and Saudi.

          After the financial crash it became known that the only (AFAIK) bankers who didn’t go into mortgages was in Lebanon.

          When the crash happened a lot of money fled NYC to Israel and probably some other sovereigns.

          Connect the dots and you get the Middle East fingerprints all over this corpse.

          Bush didn’t go after the AQ leadership in AfPak, instead he set up shop in Iraq and basically said, “Bring it on!” and they did. Who knows, maybe the whole 9/11 thing went down the way it did, just so W could get his jollies on killing other people just like himself — radical crazy violent idiots.

          Instead of thinking that torture was something he might have wanted to hide, think of it as a bloody f’ing calling card with “Bring it on” written in Islamic blood on one side.

          Now we have a different foreign policy. We focus on the AQ leaders instead of enflaming (sp) the entire M.E. So, they want to hide the torture stuff and try to resolve problems in the M.E. with diplomacy. You know, the sane approach.

          But, we have this baggage from the Dumbya admin. and a lot of people want to sort through it and start laying blame for the missing travelers checks.

          These two things are not in accord. They conflict.

          I suggest doing the historical stuff in secret (where Darth will be more comfortable talking to a cabal while sipping some fresh blood) and letting Obama and his crew health the wounds in public. Remember the end of Matrix where Neo shows the world what ‘they’ don’t want known. Something like that.

          Is this description of stuff correct or massively crap? I’m not sure, but I think as a map it does pretty well to help us understand where we are and possibly how to proceed.

      • Rayne says:

        Well, that and I suspect that the defiance/stopped talking part is a complete lie as well. What’s it look like when a detainee has already been tapped out by reasonable and effective methods? And what’s it like when an NSC official decides they want to extract vengeance or influence further output, or stop output altogether?

        There’s also the bit about “acknowledging the counter-terror initiative” — is this the acknowledgment without disclosure of an SAP?

        And did the CIA design the program, or did an NSC official tell the CIA “we’ve bought this ‘package’ of services through DOI for your use”? Not that this would be disclosed in May 2002, but evidence of its deployment could be more apparent during that window.

    • TheraP says:

      I’ll take a stab at your question. I wonder if it’s the experimentation. If it were just waterboarding, that would fit into the “ticking time bomb” propaganda scenario they’ve been pushing forever. But experimentation doesn’t fit that scenario. In fact it doesn’t fit any scenario. It’s not acceptable within the ethics of any profession, outside passing through an ethics committee (which would NEVER pass it!). It is a clear war crime. No question. And I somehow think the public would simply not be able to condone sadistic experimentation on humans. Experimentation would be a very, very, very hard sell. Experimenting on captured people. It’s like something out of a horror film.

      • Rayne says:

        Which takes me back again to the observation made about the tapes’ “clinical” quality.

        I’m stewing on this, having read all the way again through the HistoryCommons’ content on al-Nashiri and wondering what they obtained through legitimate FBI methods — and then what they tried to remove through illegitimate methods. Experimentally, of course, since Project X (Son of KUBARK) had never really officially left beta for full production status by U.S. military/intel.

        [edit: I wonder if Cheney/Addington had given their copy of “the manual” to M-J for the purposes of the SAP? Hope to have the translation of Spanish dox done inside 2 weeks…]

        • TheraP says:

          Exactly. But since most Americans seem to shy away from “reality” – I threw in fantasy horror movies.

          Indeed, those WWII films are horror movies! And these tapes, if they ever surface, which I still believe they will, are also horror movies.

    • perris says:

      When waterboarding can willingly be used as a red herring to redirect attention, just how bad is the underlying issue?

      Something just doesn’t make sense here.

      there’s an old liars technique, admit to something small when you’ve done something big

      imagine how big their crime if they use waterboarding as their red herring

      example, the previous adminsitration admitted to spying on foreighners as a deek to cover up for spying on everyone

      this is frightening stuff here

    • pmorlan says:

      I often wondered if we were the ones who killed Daniel Pearl. The people who killed Pearl wore black ninja like outfits in the video and some of the detainees we held described men dressed in black ninja like outfits being part of their interrogations. Mind you I don’t have any evidence but it’s always bothered me.

  9. 4jkb4ia says:

    About the Comey story, I have been too well trained by both Mary and EW. I saw that the story made clear he was no hero, but that the “combined techniques” that he was objecting to were hugely significant. The story exposed in an MSM venue a different narrative of dissent within DOJ.

  10. Mary says:

    I think at least one of Mayer’s sources for her book specifically said the videos would have shocked the national conscience. I think they had seen, too, what the national reaction to the Abu Ghraib pics, which showed some of the very CIA techniques (forced nudity, humiliation, stress positions) that Bybee and Yoo said were OK. And it was shock, horror and outrage except for the Limbaughs and Sessions. For Bradbury to come back in May of 2005 and discuss what would or wouldn’t shock the conscience without even a passing mention of the public record of the national reaction to the Abu Ghraib pictures is pretty a) revealing, and b) coveruptive.

    Not that the OPR investigation will likely mention such a big and obvious failure. *sigh*

    Really, what you’ve seen now for years is a deliberate effort, which Obama and Holder are happy to continue, to create a country that, when the information does get out, won’t be shocked. From “24″ storylines to years of propagandizing and conditioning the US to the “worst of the worst” the goal has been to create anew something that they could argue retroactively existed (like their retroactive classificatons). For the simple reason of wanting to cover their own asses for war crimes, the Bush and now Obama admin war criminals are willing to go as far as recreating the United States into a country who isn’t shocked or horrified or anything but titillated and excited over torturing helplessly chained men, women and children.

    A side effect of Obama’s effort to cover for war crimes is that he has spit all over every single whistleblower and every single person who did the right thing when faced with Exec crime. They’ve lost careers, faced threats and intimidation, literally lost savings and abilities to financially care for their families or to work and yet Obama and Holder are still good to go with usind the DOJ to continue to punish them, while also using DOJ to insulate both the war criminals from prosecution and Obama from having to tarnish his halo with taking responsiblity for granting pardons to war criminals.

    God bless and keep the whistleblowers and men and women who did the right thing. Maybe some day we’ll have a President who deserves them.

  11. lurkinlil says:

    But per Hellerstein’s April 20 order, the CIA had to submit a second round of documentation, this time covering the fall range of dates that the torture tapes had captured

    typo in 3rd para after 1st SHINY OBJECT!! WATERBOARDING!!!

    The torture tapes were destroyed not because they showed OLC-authorized waterboarding. They were destroyed (among other reasons) because they proved that the foundation of our torture program was a lie. And the CIA is still trying to hide that fact from Judge Hellerstein.

    (my bold)

    You know and we know, so do ya think the judge already knows suspects too?

    Marcy, you are a national treasure!

    • emptywheel says:

      Thanks.

      Do I think ACLU has seen enough to press for contempt? Yes. But first I hope the ACLU raises some pointed questions about why Vaughn Indices submitted 6 weeks apart follow completely different interpretations of what exemptions to claim.

  12. klynn says:

    The CIA still wants to pretend this is all about waterboarding. But it is increasingly clear that it is about the things CIA did in May and June, the high level authorizations for it, the success of the FBI, and the completely false claims they used to later authorize their torture.

    The torture tapes were destroyed not because they showed OLC-authorized waterboarding. They were destroyed (among other reasons) because they proved that the foundation of our torture program was a lie. And the CIA is still trying to hide that fact from Judge Hellerstein.

    Not just that it was a lie but perhaps precisely when it was clear it was a lie and, when it was clear torture got no actionable intel. Which begs the questions, why did it continue? And, who authorized the continuation once it was clear there was no actionable intel, just false intel?

    (Vaughn index.) FYI definition.

    • Mary says:

      And, who authorized the continuation once it was clear there was no actionable intel, just false intel?

      Part of the problem there is that they had made the conscious decision to affirmatively cut out people like Soufan, Cloonan, Coleman etc. and their knowledge. So it may very well be that it wasn’t all the clear to a Gonzales or a Rice or especially the Cheney/Bush brain trust, that they werent’ gettting real intel for a long time.

      I think that part of what Panetta means when he makes the “intelligence gaps” being revealed arguments is not just that they didn’t know what they were asking about, they didn’t understand answers they were getting. I’m guessing at least some, if not many or most, of the “gaps” he could point to wouldn’t have been gaps with participation of someone like Soufan in the questioning. So if you choose to cut out the FBI bc you make a Presidential decision to torture, then I hardly think you can claim it as a matter of national security if the torture program shows your torturers were stupid (didn’t the NYT article on “Deuce” say the CIA interrogators [like Deuce who had no prior al-Qaeda background and no language skills] called the hands on torturers knuckledraggers?)

      You don’t get to create the problem (by excising the participation of those with knowledge) and then say “oh noes, don’t be showing how stupid we were”

      He’s basically saying we knew so little, we had no freaking clue is something was right or wrong, important or not (which also flies in the face of the certifications that were being made in the DOJ reliance opinion as to the knowledge that a detainee was high value operative al-Qaeda with operational info on upcoming strikes) And if we release the info that shows we didn’t know anything, we not only show the torture program had no sound basis, we show that when we told DOJ that Zubaydah as a high up al-Qaeda operative (as opposed to a non-al Qaeda booker for a training camp open to lots of guys only partially including some who were al-Qaeda) we flubbed it and that makes that memo inapplicable.

      • klynn says:

        My statement is based on Whitehouse’s speech from the other day. He makes it clear that he (Whitehouse) has viewed evidence which makes it clear, no actionable intel was gathered and when that was clear. Which makes Panetta’s work BS in a sense.

        So I have a hard time with the conclusion:

        Part of the problem there is that they had made the conscious decision to affirmatively cut out people like Soufan, Cloonan, Coleman etc. and their knowledge. So it may very well be that it wasn’t all the clear to a Gonzales or a Rice or especially the Cheney/Bush brain trust, that they werent’ gettting real intel for a long time.

        • Mary says:

          I’m referring to one of the several arguments Panetta makes in his Declaration as to why the docs shouldn’t be released (even in redacted from)

          Panetta isn’t arguing in the Declaration that they did or didn’t get actionable intelligence as a grounds for not releasing.

          What Panetta does argue is that if he reveals the docs, then they will show how little the CIA knew, that it had all kinds of “intelligence gaps” and that revealing that info (i.e., how stupid the CIA was in 2002)would damage national security.

          My response is that those gaps probably wouldn’t ahve been gaps if someone like Soufan was involved in the questioning, so Panetta can’t argue that they excised people who were experienced and had more info and then use the gap that their own decision to torture created as an excuse to cover up the torture.

          • klynn says:

            Okay. I agree/understand you on this point:

            My response is that those gaps probably wouldn’t ahve been gaps if someone like Soufan was involved in the questioning, so Panetta can’t argue that they excised people who were experienced and had more info and then use the gap that their own decision to torture created as an excuse to cover up the torture.

            Disturbing thought that our chief intel gathering agency chief would use the argument:

            that if he reveals the docs, then they will show how little the CIA knew, that it had all kinds of “intelligence gaps” and that revealing that info (i.e., how stupid the CIA was in 2002)would damage national security.

            Just making “that” inference in his declaration is “damage done.”

          • robspierre says:

            It sounds like the Panetta argument is, “if you let the world know how incompetent we are, you will endanger the nation.” So “Don’t blame the outsourced CIA’s incompetence. Blame yourselves for finding out about it. And for the good of the nation, act like CIA management knows what it is doing.”

        • Mary says:

          I take my 29 back – it’s not that responsive since you were getting at something else I think – you are getting at the fact that you think they knew right away that they weren’t getting good intel I think?

          I’d say they might have, but they might not have too bc they really were pretty clueless. I wouldn’t be surprised if Cheney still wouldn’t get tied up in knots trying to differentiate Hamas and Hezbollah etc. in large part bc he didn’t have to know or inform himself much on that info to get the result he wanted.

          If your read Suskind’s descriptions of how the CIA and FBI ran ragged after all the tortured info given by Zubaydah it does sound like they didn’t know enough to evaluate what they got and they just ran around flapping wings at every tortured statement or “confession”

          “…the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered”

          Suskind, The One Percent Doctrine p.111

          • klynn says:

            I hear on those points too. But it does beg the question about the continued push for more false intel. Part of where I think we are “bumping” thoughts on false intel vs totally clueless might be traced back to the Team A CIA vs Team B CIA.

            People knew there was false info. The question is were “they” the people able to influence change? We know that “then” the answer was no. But now, is another question.

            Perhaps the gaps are also hiding an internal intel war too?

        • emptywheel says:

          One thing that’s interesting is that Whitehouse quoted directly from Panetta’s declaration in his speech the other day.

          I wish to say a few things. The first is that I
          see three issues we need to grapple with. The first is the torture
          itself: What did Americans do? In what conditions of humanity and
          hygiene were the techniques applied? With what intensity and duration?
          Are our preconceptions about what was done based on the sanitized
          descriptions of techniques justified? Or was the actuality far worse?
          Were the carefully described predicates for the torture techniques and
          the limitations on their use followed in practice? Or did the torture
          exceed the predicates and bounds of the Office of Legal Counsel
          opinions?
          We do know this. We do know that Director Panetta of the CIA recently
          filed an affidavit in a U.S. Federal court saying this:

          These descriptions–

          He is referring to descriptions of EITs–enhanced interrogation
          techniques–the torture techniques.
          He says in his sworn affidavit:

          These descriptions, however, are of EITs as applied in
          actual operations and are of a qualitatively different nature
          than the EIT descriptions in the abstract contained in the
          OLC memoranda.

          The words “as applied” and “in the abstract” are emphasized in
          the text.

          These descriptions, however, are of EITs as applied in
          actual operations and are of a qualitatively different nature
          than the EIT descriptions in the abstract contained in the
          OLC memoranda.

          He’s basically making the same point I made–that if there’s a big difference between the OLC memos and the practice, that’s a problem.

          • klynn says:

            EW,

            I have listened to the speech three times. Whitehouse makes it clear he has seen the evidence.

            And yes, you are correct,

            He’s basically making the same point I made–that if there’s a big difference between the OLC memos and the practice, that’s a problem.

            That quote of Panetta’s declaration by Whitehouse is key. Especially, the context. Whitehouse sent a message to Hellerstein in that speech. The difference between the OLC memos and the practice is the knowledge that the techniques were a known problem.

            • klynn says:

              And to add, his statement prior to quoting Panetta’s declaration is further making your point:

              I know this is not easy. Our instincts to protect our country are set
              against our historic principles and our knowledge of right versus
              wrong. It is all made more difficult by how much that is untrue, how
              much that is misleading, and how much that is irrelevant have crowded
              into this discussion. It is hard enough to address this issue without
              being ensnared in a welter of deception.
              To try to clarify it, I wish to say a few things. The first is that I
              see three issues we need to grapple with. The first is the torture
              itself: What did Americans do? In what conditions of humanity and
              hygiene were the techniques applied? With what intensity and duration?
              Are our preconceptions about what was done based on the sanitized
              descriptions of techniques justified? Or was the actuality far worse?
              Were the carefully described predicates for the torture techniques and
              the limitations on their use followed in practice? Or did the torture
              exceed the predicates and bounds of the Office of Legal Counsel opinions?

              See, I think when you look at this and then his statement on declassifiers, he is stating, “They knew good intel from bad intel.”

  13. earlofhuntingdon says:

    And on May 20, Ari Shapiro reported that Alberto Gonzales was approving interrogation techniques in response to cables on a nearly-daily basis.

    Based on his other work as White House Counsel and as AG, it’s a certainty that Fredo, like his namesake in the Godfather, would not himself have approved or disapproved of any specific interrogation/torture techniques. He would have been a cutout. Who did make them?

    Addington seems the most likely person to have told Fredo what he was to tell the CIA. He seems to have been the author of much of what Fredo did at the White House and as AG. He also had considerable influence over the OLC’s work product before and after Fredo replaced Ashcroft. As a good staffer, Addington would have been communicating someone else’s decision. Cheney seems most likely, though it may have been washed through Libby or the NSC (via Addington and Libby pushing through decisions).

    It all gets back to Big Dick.

    • MarkH says:

      He’s a ‘made’ man. Bushies know what they tried to do to him and that Darth isn’t on their side. And, He says he isn’t on the D side. So, he’s a man without an island, but he’s also relatively safe. If he’s attacked we’ll know immediately who is guilty. If he’s left alone he can talk.

      Simple.

      How ironic that during the admin there was that great photo where Bush spoke and Darth stood in the dark shade of a tree off to the side. Now he’s in that same position, but safer than before.

      The simple momentum of the situation pretty well indicates he has to talk, under some conditions, at some point. No need to push or force things at this point. Just momentum.

  14. perris says:

    ok, I have it

    they want to hide the questions as much as the methods. they alos want to hide the torturers behavior during these episodes, were they enjoying themselves, etc but I thihk the big one is the questions they want to hide

    • emptywheel says:

      Destroying the torture tapes probably destroyed the evidence they were enjoying themselves (remember, Nashiri testified the torturers were laughing).

      But yeah, by not turning over the raw intelligence and some of these cables, they’re hiding teh questions they were asking. That’s sort of what I meant when I said:

      Now, there’s one obvious reason Panetta’d be fearful of releasing this stuff; he doesn’t want to reveal how we prioritized the information we sought from Abu Zubaydah and Rahim al-Nashiri. Imagine the scandal, of course, if the cables were to reveal that the first questions we asked Zubaydah after waterboarding him in August 2002 pertained to purported ties to Iraq? (I have no evidence it was and the CIA said they didn’t tie any Iraq questions to waterboarding–but that’s the sort of question we ought to be asking.)

      Ahem.

  15. Rayne says:

    Wondering exactly how many substantially false and misleading statements Hayden made in his Dec. 6, 2007 statement regarding the taping of early detainee interrogations. These grafs alone are really challenging:

    CIA’s terrorist detention and interrogation program began after the capture of Abu Zubaydah in March 2002. Zubaydah, who had extensive knowledge of al-Qa’ida personnel and operations, had been seriously wounded in a firefight. When President Bush officially acknowledged in September 2006 the existence of CIA’s counter-terror initiative, he talked about Zubaydah, noting that this terrorist survived solely because of medical treatment arranged by CIA. Under normal questioning, Zubaydah became defiant and evasive. It was clear, in the President’s words, that “Zubaydah had more information that could save innocent lives, but he stopped talking.”

    That made imperative the use of other means to obtain the information—means that were lawful, safe, and effective. To meet that need, CIA designed specific, appropriate interrogation procedures. Before they were used, they were reviewed and approved by the Department of Justice and by other elements of the Executive Branch. Even with the great care taken and detailed preparations made, the fact remains that this effort was new, and the Agency was determined that it proceed in accord with established legal and policy guidelines. So, on its own, CIA began to videotape interrogations.

    So what’s in the May 2002 timeframe which might refute Bush’s comment Hayden repeats?

    • emptywheel says:

      Actually, Hayden was parsing pretty closely there.

      CIA’s terrorist detention and interrogation program began after the capture of Abu Zubaydah in March 2002.

      True. He doesn’t say, of course, that it started in May, not August.

      Zubaydah, who had extensive knowledge of al-Qa’ida personnel and operations, had been seriously wounded in a firefight. When President Bush officially acknowledged in September 2006 the existence of CIA’s counter-terror initiative, he talked about Zubaydah, noting that this terrorist survived solely because of medical treatment arranged by CIA.

      True: note that Hayden DOESN’T say that AZ was a member of Al Qaeda. And it is true that we sent a doctor to keep him alive.

      Under normal questioning, Zubaydah became defiant and evasive.

      True. What he doesn’t say is “He was talking fine until we started torturing him. At that point, even the normal questioning no longer worked.” (Which is what Whitehouse said in his speech–after he had been tortured Soufan couldn’t get him to talk anymore.)

      It was clear, in the President’s words, that “Zubaydah had more information that could save innocent lives, but he stopped talking.”

      True, he did stop talking. True, AZ had some contextual information on Al Qaeda. Note that HAyden stops short of claiming that AZ had actionable intelligence that stopped terrorist attacks.

      That made imperative the use of other means to obtain the information—means that were lawful, safe, and effective.

      Whatever you say, Mikey.

      To meet that need, CIA designed specific, appropriate interrogation procedures. Before they were used, they were reviewed and approved by the Department of Justice and by other elements of the Executive Branch.

      This one’s a beauty. What Hayden doesn’t say is, “at first we just got approval from Fredo {aka ‘other elements of the Executive Branch’) But then we decided to get DOJ to buy off.

      Even with the great care taken and detailed preparations made, the fact remains that this effort was new, and the Agency was determined that it proceed in accord with established legal and policy guidelines. So, on its own, CIA began to videotape interrogations.

      Hayden turns Mitchell’s grand experiment–what may have been videotaping to collect data on what “worked” into a plus, the care with which CIA’s contractors tortured.

      • TheraP says:

        Just related to this one point you quote, describing AZ:

        Under normal questioning, Zubaydah became defiant and evasive.

        Now consider that the defiance and evasiveness could be a result of brain damage to the frontal lobe:

        # Temporal Lobe Syndromes – Include disturbances of language, memory, learning, and behavior

        * Behavior changes include episodic hyperirritability, angry or aggressive outbursts, and sudden onset of dysphoric mood states

        * Dominant temporal lobe injury causes language disturbances (aphasias) and disorders of sensation or sensory integration

        Evasiveness could be their description of memory lapses! (the most common symptom of ANY brain damage)

        Defiance could simply be a result of his brain damage – especially under stress!

        This information is not esoteric. Most competent psychologists would have some acquaintance with this. But it’s certainly not the type of individual subjected to SERE training!

      • acquarius74 says:

        My comment on the last thread:

        Marcy,

        Now, the possibility that cable length correlates with the amount of intelligence collected has a very important implication. All the longest cables come from the earliest period of Abu Zubaydah’s interrogation, including what is by far the longest cable, 28 pages, on May 6, 2002.

        wiki:

        On May 6, 2002 Bush sent a note to the UN Secretary General that the US would not become a member of the International Criminal Court.

        Bush had done nothing from his Jan, 2001 inauguration about Clinton’s signing on to the Rome agreement [i.e.not sent the treaty to congress for advise and consent] – some 14 months, yet he chooses that very same day to send the note of refusal to the UN. Somehow I can’t shake the idea that the 2 events are connected. I think that at that point they knew they had committed war crimes, and evading the law was their focus as Mary says.

        I Googled to find the ‘first detainees’ and found that the first detainees to GITMO was on 01/10/2002, so why does Hayden say it was March, 2002 after they got Zubaydah?

        And KSM’s wife and children were captured Sept (3rd ?), 2001. And wasn’t Al Libbi the first.

        • TheraP says:

          Somehow I can’t shake the idea that the 2 events are connected.

          Now that you’ve pointed that out, neither can I!

          I well recall that happening. And thinking at the time that it was not a good sign!

          • acquarius74 says:

            Thanks, TheraP. I hope Marcy can show me the next step on the idea – it’s really bugging me.

          • acquarius74 says:

            TheraP, In reviewing my old notes, I see that on 04/17/2002 John Yoo testified before the Sen. Judiciary Committee regarding applying the War Powers Resolution to the war on terror.

            Did something come out in that session that spurred Bush to send the note to UN Secty Gen’l on 05/06/2002 opting out of the International Criminal Court? I’m going to try to find the video of that hearing and listen closely. [It may be a dead end, but worth a try].

            • acquarius74 says:

              Marcy and Pups: I may have found the clue that caused Bush/Cheney to go Hell-bent for torture or anything else to find a link between Saddam and 9/11 or Al Qaeda. It is in the Senate Judiciary Committee hearing or 04/17/2002, [John Yoo among the witnesses; others were legal eagles from high powered institutions].

              Bottom line is that Bush’s authorization to go to war in Afghanistan, S.J. Resolution 23 dated 09/18/2001 per testimony of Mr. Michael Glennon [others agree]: quote:

              The central conclusion that emerges from these words [in S.J.Res 23] — which represent the only substantive provision of this statute– is that all authority that statute confers is tightly linked to the events of September 11. The statute confers no authority unrelated to those events.

              Mr Glennon [Prof. of Law and Scholar in Residence, The Woodrow Wilson International Center for Scholars] also quotes John Yoo:

              …It [S.J. Res 23] does not therefore, reach other terrorist individuals, groups, or states that cannot be determined to have links to the Sept.ll attacks.

              [emphasis mine]. I deduce that Bush/Cheney wanted that link between Saddam and 9/11 and/or Al Qaeda. They weren’t getting it from any captives. If they could not establish that link they would have to go to congress for authorization to attack Saddam. So…aye God, they’d manufacture it by planting info into tortured detainees.

              So, IMHO, this Senate hearing (chaired by Feingold) at which Yoo testified on 04/17/2002, decided Bush/Cheney’s course; Bush opted out of International Criminal Court 05/06/2002 [19 days ]; and you spot the longest interrogation the same day, 05/06/2002; and the tapes for May 2002 are largely withheld. In torturing the lies out of the detainees, Bush/Cheney committed war crimes so they had to avoid the ICC.

              Whatcha think? I thought to write an Oxdown, but every paragraph of all the witnesses cries out, “take me, take me”, and besides, this is your bailwick.

              • TheraP says:

                Well Done! Excellent sleuthing!

                They then had to connect the dots with 9/11 and Iraq – which they had already decided to invade.

                And that coincides with the need to torture. (and to avoid international sanction)

                You’ve really connected the dots!

                So for the sake of the Commander’s War Presidential Codpiece, human beings had to suffer.

                (Thanks for linking back to this!)

                • acquarius74 says:

                  Thanks, TheraP. Those dots are pools of human blood convicting the greedy warmongers. From those red pools the muted voices cry out for Justice.

                  In my backwards search the news events back then show me the garden path down which we were led. In this Huffpo piece, Liz Cheney still claims a link between Saddam and 9/11.

                  In that article is the link to the October, 2002 joint Senate & House Resolution entitled, “Authorization for the Use of Military Force Against Iraq”.. Included therein:

                  …Whereas, members of Al Qaida, an organization bearing responsiblity for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001 are known to be in Iraq….

                  [Reminder, one of those legal eagles in my prior comment stated that the “Whereas(s) bear no legal weight, so this statement is again reworded in the body of the Resolution under Sec. 2 (2).

                  Regarding the “note” to UN Secty Gen’l advising we would not be a member of the ICC:

                  Neither Bush nor Powell announced [it]. [They] gave it to Mark Grossman (Foggy Bottom’s Apparatchik, Under Secretary of State) made a speech to the Center For Strategic and International Studies (CSIS) in DC. On the same day [05/06/2002], Undersecretary of State, John Bolton, delivered a terse letter to UN Secretary General, Kofi Annan, announcing that the U.S. would “not become a party” to the ICC Treaty, and would recognize “no legal obligation arising from its signature on Dec.31,2000″

                  [emphasis mine; see next comment re Powell’s UN speech]

                  • acquarius74 says:

                    On 02/05/2003 Secretary of State, Colin Powell, gave his pack of lies speech to the UN General Assembly. Powell now deeply regrets having made that speech, and his then Chief of Staff, Col. Lawrence Wilkerson calls it the “darkest day of my life”.

                    There is much to be found about the lead-up to that speech, quote:

                    …As of 01/31/2003, a memo catalogued 38 claims to which State Department Analysts objected; so 28 claims were removed from the draft or altered, per the State Dept. report in the Senate report released Friday which included scathing criticism of the CIA and other US intel agencies.

                    Powell and Wilkerson spent 4 days and nights at CIA conference room with then Dir. George Tenet trying to ensure the accuracy of the presentation.

                    [Apparently Powell and Wilkerson did not know then that “Curveball”, whose “information/intelligence” was the main source for the allegations in Powell’s speech, was a known liar by CIA analysts and had never been briefed by the CIA. George Tenet did not see fit to enlighten Powell in that regard.]

                    snip

                    The CIA rejected requests for the initial versions of the Powell presentation on grounds they were internal working documents and not finished products; and the Rebublican controlled committee did not seek access to a 40-plus page document that was prepared by Vice President Dick Cheney’s office and submitted to the State Dept. speechwriters detailing the case the administration wanted Powell to make.

                    Per the Senate report, the idea for the speech originated in Dec. 2002, when the NSC instructed CIA to prepare a public response to Iraq’s widely criticized 12,000 page declaration of having no banned weapons.

                    Bush’s speech given the week before 03/14/2003:

                    In [Bush’s] prime-time press conference last week which focused solely on Iraq, he mentioned 9//11 eight times and Saddam Hussein many more, often in the same breath. GWB never pinned blame for the attacks directly on Saddam H….

                    IMO, there will be no final chapter to the Dark Road down which the lies of George W. Bush, Dick Cheney, the clandestine arm of the CIA and their PNAC enablers led America and the world. The Killing Fields and human slaughter houses prisons will continue, reducing the world’s population of “useless eaters” (Kissinger’s words) thereby leaving more for the bloated bellies of the rich and powerful, as well as feeding their insatiable lust for ever more power and money.

    • TheraP says:

      Perhaps they should have known and diagnosed the already existing brain damage AZ had incurred due to his 1992 brain injury. One severe enough that he had to relearn speech. Perhaps the tapes would allow reasonable professionals to see that AZ had clear signs of brain injury. Maybe subtle ones. But even personality changes, irritability, and the supposition of hypergraphia as the explanation for his many diaries and the type of writing. All of this may have been evident to reasonable professionals looking at the tapes.

      Again, in my view we have these added issues which the psychologists failed to take into account. An accurate assessment and diagnosis of AZ – once his other injuries had healed. And the decision to go ahead and experiment on him. These are important issues, to my mind, as a clinician. Tapes might have made that crystal clear. And even the transcripts, if competent professionals got a chance to read through them carefully might make that crystal clear. AZ was medically compromised from the get-go. And they treated him like an animal in a rat lab. Worse!

      They parsed torture to be something outside the CAT and Geneva. But there’s no way they provided loopholes for experimentation or failing to assess and diagnose someone with a prior brain injury.

      JMVHO. But I can’t shake my professional concerns here. There are simply too many ways that psychologists and medical people failed! Even before you add the torture.

  16. earlofhuntingdon says:

    I agree, crimes are distinguishable based on the perpetrator’s intent. First degree murder vs. manslaughter or negligent homicide, for example.

    A defining characteristic of the Bush regime was its reckless disregard for the consequences of its actions. That’s putting it in the best light possible. In many cases, their conduct was intentional. By analogy, we’re well past a negligence standard. These guys intentionally drove their Hummer at high speed through a crowded fair ground. They intended only to get home safely. That they left bodies strewn about them is a direct consequence of their chosen conduct. Why the Beltway talks about giving these criminals a free pass is beyond my comprehension.

  17. Mary says:

    Becoming God

    IIRC, one of the things Mayer (maybe Sukind, I think Mayer though, or maybe the Vanity Fair article?) says is that a part of the Mitchell “learned helplessness” approach was that they (the torturers) were going to become “GOD” to Zubaydah, like a dog’s master. Their program was to make them his God.

    If either the cables or the videos show or reference that in any detail, a halfway normal person would have to be sickened. If you had cables calmly discussing using violence and isolation to make torture Godlike and torturers God, that would be disturbing enough. If you had video of someone naked and tied being drowned over and over by someone saying that they were his God and they could decide whether he lived or died, that would be pretty damn shocking. All of which is just if.

    Perris – I think its kind of like the Iraq war itself, there are a lot of different agendas and the point of convergence is that lots of them are furthered by keeping this stuff secret.

    The kinds of questions, the lack of info, the torture, etc. Everyone involved may have differnt reasons or multiple reasons for wanting to cover up. Not on Zubaydah, but KSM, when something was put out awhile back saying that he wasn’t asked about Iraq, my question was “why not?”

    It’s not that I believe he wasn’t questioned on Iraq, but rather that, by the time he was questioned they already supposedly had their al-Libi info and we were gearing up for war with Iraq and supposedly KSM knew more about al-Qaeda (even if not a member per se) than anyone else we had and he was integral to all kinds of terrorist activity. So why wouldn’t anyone ask him about al-Qaeda and Iraq before we invaded? What kind of incompetence would be involved in sending US solidiers into a battlefield where we supposedly were waiting for them to be gassed with chem weapons and never bothering to even ask the guy we were holding who would have known about that stuff about it?

    The problem they have with the way they’ve stacked the lies and crimes is that what’s left is wildly unstable. Every argument now leads to a blind alley (like the reasons for not briefing the intel committees – whether they argue covert or not covert, they are caught either way; if they tortured KSM on Iraq or never bothered to mention it to him, they dig a hole either way) JMO

    • earlofhuntingdon says:

      Mitchell positing that he could make his torturers into the gods of the tortured smacks of projection. The Stockholm Syndrome on steroids, eh, doc?

      Some are attracted to psychology to help, others to work out their own psychodramas. If only Mitchell had been hugged as a baby, perhaps he wouldn’t have turned into such a profit-making monster.

  18. scribe says:

    Shiny! Object! Waterboarding!

    Ties in nicely with this story, wherein they discuss Maddow inteviewing Isikoff. That inteview promises more, and more sickening, details to come. It also discusses Whitehouse’s speech, telling us that what we know already is all wrong.

    That Isikoff – with all his ties to the spooky community – would be the guy to show up and tell us more and worse is coming is an interesting angle. Don’t know yet where that will lead.

    But, back to the point of my comment.

    My intuition tells me to suspect that the disclosures, if they were fully made, would reveal that

    1. The CIA was ordered to torture.

    The torture was intended primarily to make a point with the Ay-rabs.

    People tend to forget the really brutal history of the United States when it comes to inflicting torture and death upon those people the United States decides to target. When thinking about Americans, people outside the United States tend to think of the attitudes and behaviors of the more cosmopolitan among Americans – the urbanized, erudite sophisticates of NYC, LA, and whatever vacation spot they’ve been to. Non-US people have likely never even considered the possibility of a redneck existing, let alone what they are capable of.

    2. The CIA and its contractors did so with glee.

    Why not? Not only did they get a direct order to do so, the situation was in accord with one of the prime redneck/authoritarian fantasies: you can do anything to get information out of this heathen, and the information will Save The Country. And the people selected for the job were perfectly suited for doing torture.

    3. Some captives were, purposely, tortured to death.

    This surprises you? It shouldn’t. Look at the numbers – a lot more people have gone in than the sum of those who came out and those who are still in.

    We’ve already seen signs that some of the torturing was being done to calibrate the system. That is, to calibrate both the methods and the people carrying out the torture. In a trial-and-error regime (which it was, given we had not had a torture capability and were building one on the fly) it is inevitable that some “failures” will occur. Even those failures could have been worked through for the torturers’ sake. Some of the torturers who killed would be told they had done good – that they had a righteous kill of that heathen, that it was his own fault for not talking when told to talk. Some of them would be held up as doing the Lord’s work, and if that means some captives die well, we don’t control that. God controls that.

    So, killing the captive would not be punished, and likely not even discouraged. It would be one of the many outcomes available – to be placed before a captive – in a torture regime.

    4. The captives went out screaming.

    If you are going to kill, you might as well make the fucker hurt. He’s a terrorist – why be merciful?

    5. This was videoed, and the videos were shared with friendly foreign governments (or at least the elements of them that needed persuading to cooperate).

    Or, alternatively, elements of friendly foreign governments could be ushered in to observe through a one-way window or on closed-circuit TV on-site, as it were. Actually bringing a foreign representative in to observe would have (at least) two collateral benefits. First, the representative would have it in his head that “I’m here, they’re torturing the guy here and I don’t have to go home because they could decide to keep me here.” You can’t smell fear and death over a videotape. Second, it would make for a bit better security – no one would have to carry a tape around with the possibility of car accidents or whatever leading to a leak.

    6. The order to torture came from Cheney.

    Everything is pointing back to him, so far.

    Moving on,

    I also intuit that some of the torture we have not doped out yet includes the torture of children to make them tell on their parents or to make their reluctant parents talk. Americans have rarely shown much circumspection when it comes to killing kids. It’s the American way.

    7. The purpose of the torture regime was two-fold: (a) to build a torture capability for future use as needed and (b) to terrify those whose cooperation was desired or whose silence was required into compliance.

    It was a tool in service of the objectives of those who wielded and wield it.

    Finally, one has to wonder whether the whole adoption of waterboarding was, at core, never intended to produce information but rather as a public relations cover for something else in the way of interrogation which we have not yet heard about. We know – and have been distracted by – the argument over whether the water torture produced accurate information. One side, led by Cheney, loudly proclaims that it “worked”. Then FBI agents come in and say “bullshit.” That whole argument is a distraction – anyone with even the most cursory exposure to the old Korean War-vintage reports (and all these people would know or have easily been able to know this history) would have known that water torture (or any other torture) was guaranteed to produce two things:

    1. a captive who would say whatever the captor wanted, just so the torture would stop. In other words, unreliable or false information.
    2. a huge hue and cry when it ultimately came out.

    Water torture is such an attention-grabber that the other stuff could easily slide by in the hue and cry over the water torture.

    Note, too, that Cheney’s construction has always been that torture “worked”. Not that it “worked to give us accurate intelligence” or “worked to persuade terrorists to talk”. Just “worked”. Grammatically, by just saying it “worked”, that tells me the objective of Cheney and his henchment never was to get accurate information. Just as the purpose of having a war in Afghanistan was to have a war, so we could have an Executive exercising war powers indefinitely (and battles – like Anaconda – were accordingly fucked up), the purpose of torture was to be able to torture and to hold that possibility over people who found torture abhorrent.

    • fatster says:

      You have expressed precisely some of my thoughts, although you have done so in a far more eloquent and learned manner than I ever could.

      The last lynching took place in our corner of the universe when my mother was about 10, so memories of it were relatively fresh when I was a child and I recoiled in horror when I was told about it. But a little sleuthing in our local library and discussions with a few elderly folks revealed an entire stream of such things going back a century or more: lynchings, draggings, brutal beatings, rapes, and so on.

      One of the most famous instances in my lifetime was the disappearance of Chaney, Schwerner and Goodman in Mississippi in 1964. A very frustrated LBJ got on the phone to Hoover and demanded, “Find those boys!” LBJ surely knew Hoover had extensive files on him, and who knows what LBJ had on Hoover, but LBJ stood firm and prevailed–in a short while the FBI exhumed the bodies of those three brave young men from that earthen dam outside Meridian.

      We now are faced with facts that cause the mind to reel and balk at accepting the truth. Who wants to believe that offices within our very own government carried out horrors as crude and vicious as any lynch mob could have fashioned? Cover-up attempts have created a dizzying amount of obfuscation. Where is the outrage and leadership that LBJ displayed?

      Those waves of nausea I experienced as a youngster when I confronted the truths about my small, rural community are back with me now.

      Marcy and others of you who are committed to finding the truth have become our country’s conscience. Your efforts are resulting in steady, and increasing, revelations which may enable more and more people to confront what has been done in our name and to demand justice and a true national healing.

      Anyway–and with apologies for my verbiage–I do thank you.

      (Anyone not familiar with Chaney, Schwerner and Goodman might check with wikipedia. Based on my memory, it seems a decent rendition. Some of it will seem familiar–discovery of half a dozen other recent murders during the search, disappearance of autopsy materials, etc.)

  19. Hugh says:

    The joke remains that Cheney and company always thought that the CIA was a quack organization. And yet the agency went along with all these illegal programs and cover ups anyway. They should have known the blowback would come. Indeed these are the kind of things that they are paid to know, which in a way bears out Cheney’s thesis but for other reasons.

    Do you feel safer knowing that your security is in the hands of a bunch of murderous clowns like these? Well do you?

    • perris says:

      hugh, I believe it was team b, I really don’t think the life long professionals went along with much of this

      • Hugh says:

        I think it was a mixture. Cheney thought that the analytic side of the agency was crap and on the operational side, actually quite a bit of it, there were idiots who wanted to take the gloves off and were only to glad to support and abet Cheney’s paranoia.

        • perris says:

          and were only to glad to support and abet Cheney’s paranoia.

          we probably agree however I don’t think it was cheney’s paranoia I believe it was cheney’s obsession, he knew what he was doing increasing the threats and he also knew you don’t get actionable information from torture, make no mistake about that this wasn’t paranoia

          don’t forget, the torture started when the cia told him there were not ties between alqaeda and saddam, that’s when cheney told them to torture the tie out of em

  20. LabDancer says:

    Great stuff: first Ms E lets loose with her trusty weed whacker, then sifts through the resulting huge heap o’ mess, separating out green shoots from garbage, and Voilà! reveals the dissembling. Lucky us: it all seems far beyond the limits of commitment and focus allowed for in the msm; but if anyone can go there with this, it’s fearless leader.

    It’s hard to see the Panetta Gambit working now: there’s not just the cascading releases of related information and emptywheel’s analysis, it also seems the ACLU/NCLU/CCR team is maintaining eyes on the prize:

    http://www.aclu.org/safefree/t…..90609.html

    But IMO the ACLU site isn’t nearly as analytical and clear on this as it could be, leave aside emptywheel standards; so what’s the next step in this?

  21. Mary says:

    One of the several docs at the link Rayne gave is the interview between Hayden and Rose. I saw part of it and couldn’t make myself watch it for wanting to throw things, but it’s a worthwhile read. You can see how prepped Hayden (who inexplicably forgot the warrant requirement of the 4th) was on the 5th, 8th and 14th and “shock the conscience” as a standard.

    But with the wall slamming descriptions, I think it’s hard to say that he parsed as opposed to outright lied on this:

    ROSE: The way time after time it’s proven that you get information is over process that has more to do with psychology than it does with force.

    D/CIA: Right.

    ROSE: Is that right or wrong?

    D/CIA: Well, first of all, just a footnote in our conversation. We don’t beat anybody up.

    ROSE: All right.

    D/CIA: Let’s move on from that.

    ROSE: No matter what they’ve done?

    D/CIA: That’s right.

    He also highlights why we should be wanting the 2007 memo(s) that now and then get referenced (and why Feinstein needs to get very clear with him about just what has been going on in the “program” including teh “preliminaries”)

    I briefed all members of both of our oversight committees on all aspects of the detention and interrogation program, sought their thoughts on techniques that we may want to use going forward, and only after we had had that dialogue–now, to be fair, so that no one misunderstands here, we didn’t ask the committees to vote on anything. But we laid out what it was we were doing. We had pretty rich dialogue. Their views informed my judgment, and that at the end of the day, and actually in 2007, we went forward to the President, to the Department of Justice, with a program. I can’t describe that program to you, but I would suggest to you that it would be wrong to assume that the program of the past is necessarily the program moving forward into the future.

    In essence he’s saying that with Dems in, in 2007, he converted the “CIA” program into as he calls it “America’s program” by telling Congressional oversight committees “all aspects” and getting their feedback (with Dems running the committees) and then going to the DOJ with a new program, a Dem informed program supposedly that, together with the MCA, had “America’s” sign off. He’s so very creepy in what he’s been willing to do to this country to cover his crew that it makes flesh crawl.

    Oh, and that IG report – nothing to do with a criminal investigation per Hayden. It was a “management review”

    ROSE: Several questions that come up about the CIA. Your inspector general had an inquiry as to things that had happened.

    D/CIA: Inquiry is the big and wrong word.

    ROSE: Okay, what should it be?

    D/CIA: Management review.

    ROSE: A management review?

    D/CIA: Mm-hmm.

    Panetta is claiming that info from a management review cant be released in any redacted form without cratering national security?

    quoting Hayden, which you won’t find me doing much, “Mm-hmm”

    • Rayne says:

      Yeah, that “Mm-hmm” response. Just want to smack his round, shiny mug for that kind of avoidant, non-committal response.

      RE: from content at History Commons — they couldn’t possibly be hiding whatever spawned this, could they?

      Posner claims that Zubaida provided “false information intended to misdirect his captors.” For instance, “He caused the New York police to deploy massive manpower to guard the Brooklyn Bridge at the end of May [2002], after he told his interrogators that al-Qaeda had a plan to destroy ‘the bridge in the Godzilla movie.’” [POSNER, 2003, PP. 191]

      I blew this off on first pass, but then I wonder if this particular situation referred to the kind of intelligence gaps stuff which Panetta mentioned.

    • emptywheel says:

      ACLU just sued to get that 2007 opinion as well as what appears to be a July 22, 2002 Fredo document exempting the CIA from CAT’s Article 16 (though I’m trying to get their complaint to confirm the latter).

      I believe what they’ll show is just how contemptuous of Congress BushCo really was.

  22. earlofhuntingdon says:

    KUBARK and its CIA-progeny were about intimidating nascent political opposition to regimes the USG, in its infinite wisdom, supported. Obtaining actionable intelligence divorced from the dross, seems an unlikely, haphazard and only occasional side benefit.

    • Rayne says:

      Yes, which explains the potential relevance of the Phoenix Project and Project X here; Cheney was familiar with both, and I suspect Addington was too. They didn’t get their shower of roses and candy as they entered Iraq; they may have been using the “counter-intelligence initiative” via Mitchell-Jessen to develop a program for dealing with opponents of not only a political nature (a la al-Qaeda) but an insurgency (a la Mahdi Army).

      BTW, more background about the May 2002 Brooklyn Bridge scramble.

      • Mary says:

        Now I’m really confused.

        Should we be talking openly about Godzilla?

        Aren’t Godzilla movies classified now, what with them being mentioned in Terrorist Interrogations That Affect National Security?

        What kind of torture wouild work on Godzilla?

        Is Godzilla an illegal enemy combatant and are people who have watched his propaganda videos and visited his websites going to be properly put in forever detention?

        Was MechaGodzilla the result of a huge covert Pentagon program? What were the overcharges from Boeing and Gen Dynamics and Lockheed and did they get a bonus even though Godzilla won?

        I guess we do have a new way to track al-Qaeda though. Just monitor purchases of Godzilla v. Gamera. They don’t want to build a nuke – they want to irradiate a turtle.

        • Rayne says:

          Mary, whatever you’re smoking, do share.

          I didn’t get anywhere near as much entertainment out of the possibility that Zubaydah’s interrogation might have led to the security alert the second week of May 2002 for the Brooklyn Bridge.

          Maybe I need to start drinking earlier in the day. It’s beer thirty somewhere, right? Or Godzilla-thirty?

          [Damn, and I’m fresh out of Malibu coconut rum and sake, too…]

            • Rayne says:

              Yeah, I’d rather suffer any amount of rot-gut tequila than suffer melon liqueur.

              “Please, don’t beat me, I’ll tell you anything you want to know, just don’t make me drink that Midori!”

      • earlofhuntingdon says:

        Well, they were certainly read into the Iran-Contra scheme and spent years when Cheney was in Congress defending it after the fact. Cheney thinks he’s living in a nightmare and has made one of reality.

  23. Watson says:

    The Third Geneva Convention requiring humane treatment of prisoners of war was enacted in 1949, shortly after Hiroshima/Nagasaki, the Nazi Holocaust, and 50+ million WW2 casualties.

    Can we seriously argue that our situation today is more parlous, and allows us to discard the conventions as “quaint”?

    (I would argue that the aspect of the GC3 that is outdated is that, to qualify for protection, a prisoner must have worn a distinctive insignia “recognizable at a distance” and carried arms “openly”. This omission was rectified by a 1977 protocol, which is in force notwithstanding the USA’s refusal to ratify it. In any case, it’s legalistic to focus on the pedigree of the captive, while ignoring the barbarity of the captor.)

    • perris says:

      Can we seriously argue that our situation today is more parlous, and allows us to discard the conventions as “quaint”?

      you can’t be serious, there is no way on the planet anyone could make that argument seriously, the could possibly make it tongue in cheek which is what you must be doing here because comparing the danger then dwarfs the danger now

      (I would argue that the aspect of the GC3 that is outdated is that, to qualify for protection, a prisoner must have worn a distinctive

      you could argue that all you want, and I could argue that water is dry

  24. Mary says:

    Contemptuous of the courts and the whole nation as well, esp since under the early Yoo approach the courts couldn’t be deemed to have had any more control over the Presidency than Congress did. That’s the version and vision that the lawyers at DOJ who have to appear in courts and who have parallel duties as officers of the court etc. ditched fast, but it’s been there all along.

    The biggest contempt, though, is shown by Hayden’s smug attestation that he’s made torture “America’s program” not the CIA’s program. That’s what the CIA has been and is continuing to be willing to do under Bush and Obama, Tenet, Goss, Haydena and Panetta. How do you ever emerge from conditioning your country to willingly becoming a torture regime?

    • Leen says:

      on your knees.

      But that is not going to happen. Most Americans along with many of our Reps will just “move forward, turn the page, next chapter, move on”. Obama others we don’t want to be about “revenge, the blame game, on witch hunts” I’ve never heard so much bullshit and spin in regard to holding those responsible for torture, false pre war intelligence, undermining the DOJ, hundreds of thousands of dead, injured and displaced. What does it take for these suckers to do their jobs and get down to business?

      Lies having to do with blowjobs.

      although Whitehouse and a few others seem very serious

      • tjbs says:

        !2:30 here just back from the Americans Against Torture Rally in across from the White House ( Maybe 500 in attendence). Then spent the afternoon lobbying my senators and representative staff in congress. Met with Rob Andrews ,in person,of New Jersey and don’t think this thing is being written off, rather think of it as how you would tar and feather someone and not get tar on everything. But the tar is being heated.

  25. alabama says:

    Do we happen to know, or know for sure, the language (or languages) of the victims, and the linguistic competence of the torturers? If the Mengeles of the CIA can’t speak a word of Arabic, and their victims have at best a limited command of English, how might the Agency’s experiments proceed in a scientifically acceptable fashion?

    Thus an “intelligence gap” might mean: we can get them to talk but we can’t understand what they say, so let’s send some tapes back to Langley for deciphering. With overnight return delivery of Langley’s translations, we can continue our mighty labors.

    This implies, of course, that the CIA’s torturers could only grunt their interrogations. That wouldn’t surprise me at all (they would have grunted in pidgin English).

    This line of question is prompted by something a linguist told me two years ago: of the 1000 Americans working in the Baghdad embassy, 770 had no knowledge whatsoever of Arabic.

    One other thing: Let the information leak out steadily over the next few years, one or two drops at a time. It’s a way of waterboarding the waterboarders.

    • prostratedragon says:

      Don’t know about Abu Zubaydah, but KSM has a degree from NoCarA&T University. His English should be ok.

      • emptywheel says:

        Yeah, KSM’s English is good. Abu Zubaydah refused to be interrogated (by Soufan, who is of course fluent) in Allah’s sacred Arabic, but his English is not fluent–he struggles with verbs and stuff. But I think some of the later interrogations were in Arabic, with the assistance of a translator. I’d have to look, but I think Nashiri used a translator for his CSRT.

        One of the first suspicions that 9/11 Commission ahd about the interrogations, however, was that there were translation problems. And in fact we do know that the James Mitchell crowd not only didn’t speak Arabic (or Urdu or whatever KSM considers his native language), but didn’t know diddly about al Qaeda.

      • Mary says:

        I think for KSM, the bigger issue (than language) was that Soufan relates one of his (FBI) colleagues was our best expert on KSM and bc of the torture decisions that colleague wasn’t able to participate in the questioning.

        • prostratedragon says:

          Wow. But again, if usable and factual information is not necessarily the goal, I guess one can live with that kind of waste.

          I think the attitude toward truth, or at least fact, was similar to that described by Prof. Frankfurt.

  26. pmorlan says:

    This is off topic but does anyone know what happened in the legal case of the two Iraqi businessmen who accused U.S. soldiers of threatening to throw them into a lion’s cage?

    Khalid told ABC News that U.S. soldiers at one point threatened him with live lions.

    “They took us to a cage — an animal cage that had lions in it within the Republican Palace,” he said. “And they threatened us that if we did not confess, they would put us inside the cage with the lions in it. It scared me a lot when they got me close to the cage, and they threatened me. And they opened the door and they threatened that if I did not confess, that they were going to throw me inside the cage. And as the lion was coming closer, they would pull me back out and shut the door, and tell me, ‘We will give you one more chance to confess.’ And I would say, ‘Confess to what?’”

    • Aeon says:

      This is off topic but does anyone know what happened in the legal case of the two Iraqi businessmen who accused U.S. soldiers of threatening to throw them into a lion’s cage?

      Yes, their case was consolidated with those of seven other unfortunates who had been abused in Iraq into Ali et al. v Rumsfeld.

      Rumsfeld claimed some varieties of immunity.

      The case was dismissed in early 2007.

  27. Rayne says:

    In early May 2002 there was a large suicide bombing in Pakistan, attributed early to al-Qaeda, and the Danny Pearl murder trial under way was interrupted by the same. 11 French and three Pakistani were killed just outside the Sheraton Hotel.

    Wonder how this also may have influenced or changed interrogation processes.

  28. x174 says:

    mt — have you ever thought of writing a book on some of this stuff? your tenacity and thoroughness brings to mind the appellation given to bush’s counter-terrorism coordinator, richard a clarke: pile driver.

  29. prostratedragon says:

    Indeed, one would want to hide having thrown out a legal interrogation program that was yielding usable intelligence in favor of a grossly illegal one that yielded zip, save for lies.

    Especially if the next thing one would have to admit was that the earlier, true intel was not what one had wanted.

    Marcy’s surmise has the advantage of leading to other surmises that would be bad enough that waterboarding was a reasonable choice of shiny object.

  30. freepatriot says:

    okay, ya stumped me with this one

    I got no idea what the CIA has against the month of may, in 2002

    in fact, I can’t remember ever fielding a single complaint against ANY month of may

    guess we’re gonna have to start a new file

    (btw, my CIA source says that May of 2002 got what it deserved)

    (wink)

  31. Leen says:

    “3) Identification of any witnesses who may have viewed the videotapes or retained custody of the videotapes before their destruction.”

    Will that list ever be accessible to the public?

  32. dotmafia says:

    i’ve believed for a while, almost since the whole waterboarding issue exploded upon the scene, that it has been a deliberate distraction away from the fact that innocent people have been murdered through torture, and they don’t want the public to know.

    • acquarius74 says:

      IMO, you are right, dotmafia. If you Google: McCrystal, Camp Nama you will be sickened by what you read. And now, he is in charge of the Afghanistan war. Included in the big troop movement to Afghanistan/Pakistan is to be 2000 special ops forces, bringing the total there to 5000 (these are simply assassins of the worst kind; murderers with licenses and orders).

      Afghanistan is Vietnam all over again, and in my opinion will conclude the same way with multiple thousands dead and wounded and the country devastated. 58,000 American soldiers died in Vietnam and untold numbers of Vietnamese – and a mountain of debt for us; but the weapons makers and sellers are bloated with riches but ever greedy for more.

      And for what? The Afghan war was on the planning boards back in the mid to late 1990s. The military/industrial/financial complex want that oil and the great pipeline, and they’re going to get it come Hell or high water and they care not for humans. Just Google: Pipelineistan. [The Russians, Chinese, India, Pakistan, Iran have concluded agreements on pipelines and work has begun on some of them. That race is what has caused this massive assault there; the controllers in DC fear that the US will lose out on the oil and other resources. And they will tell any lie constructed in any way to sell it to the American people.

      Sorry to paint such a gloomy picture, but I’m pretty old, remember much and read extensively on the greedy entities that determine the course of our government’s actions.

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