The Scope of the SSCI Investigation and Where It Leads

Honest. I was going to write this post today or yesterday or tomorrow even before Rachel Maddow said people would be parsing her interview last night with Sheldon Whitehouse closely (here’s the full interview).

Back in February, I was very skeptical whether a DiFi-led SSCI investigation into torture would be a rigorous investigation. I owe DiFi an apology, because by all appearances this investigation is time-consuming, demanding, and productive. The Senate Intelligence Committee has been maintaining an unbelieveable pace of closed hearings this year–often two a week–many of which must deal with this investigation (though some clearly deal with other intelligence issues such as the warrantless wiretapping program). At least per Rachel’s comments in her interview with Senator Whitehouse, the committee won its squabble with CIA to get unredacted cables from the field. And as a result of the hearings, Sheldon Whitehouse has come out and said "no further actionable intelligence" was gotten through waterboarding Abu Zubaydah. Thus far, this is not the weasely whitewash we’ve come to expect from SSCI (though it remains to be seen whether Kit Bond and friends can politicize whatever report we get out of it–and whether we get a report at all). So I apologize to DiFi for my doubts.

I wanted to look at the scope and the direction of this investigation–at least what we know. Both at the beginning, and now, SSCI has said the investigation covers three things:

  • Whether detentions and interrogations complied with DOJ authorizations
  • Whether the interrogations gained valuable intelligence or not
  • Whether SSCI was kept properly informed

Here’s how Whitehouse described the questions they’re asking in his Senate speech the other day:

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?

[snip–Whitehouse basically interjects the same argument I made here, that Panetta’s declaration makes it clear the torture did exceed OLC bounds]

The questions go on: What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done? Ultimately, was it successful? Did it generate the immediately actionable intelligence protecting America from immediate threats that it had been sold as producing? How did the torture techniques stack up against professional interrogation?

Well, that is a significant array of questions all on its own, and we intend to answer them in the Senate Intelligence Committee under the leadership of Chairman Feinstein, expanding on work already done, thanks to the previous leadership of Chairman Rockefeller.

As I noted, both Whitehouse and I have pointed out that Panetta’s declaration by itself makes clear that the torture exceeded the authorizations it had gotten from OLC–but we already knew that from the CIA itself. And as Whitehouse has made clear, and I have made clear, we already know the program was ineffective–but we already knew that from the CIA itself. And (though Whitehouse doesn’t focus on this aspect of the investigation), we know that CIA did not brief SSCI the way it said it did–nor in the manner it was legally obliged to do. We know that, too, from the CIA itself.

So where does that lead us? That’s why this exchange from Rachel’s interview with Whitehouse last night is so important.

Maddow: The way you’ve described that makes me want to ask a question that no one’s been able to tell me–and I’ve been asking a lot of people. The remit of what the intelligence committee is looking at right now–looking at what happened to High Value Detainees, millions of pages of documents, succeeded in getting agreements to get stuff completely unredacted. We know it’s going to be a big comprehensive look at what happened to those High Value Detainees. Does it only look at what the CIA did, or will it look at the chain of command, whether or not instruction came from the White House, the Office of the Vice President beyond the Intelligence Agency?

Whitehouse: We’re not at the stage yet, in the investigation, where those chain of command issues are yet raised. I hope very much that it will. I believe it implicates chain of command issues. And I think that that’s a critical question.

Maddow: But it’s not what the intelligence committee is looking at right now and we should not expect that will be in the intelligence committee’s report when it comes out in six months or so?

Whitehouse: I would not go that far. You have to sort of … investigations are step by step. They’re iterative. And you have to get to a certain place before you go on and we’re not quite at that place, so that decision hasn’t been made. I hope it gets made, I think it will be made. There is, I think, justification that it be made. But it does raise the issue of getting beyond the purview of the intelligence committee and into what the Bush Administration contended was protected by executive privilege. 

Maddow: Right.

Whitehouse: So conceivably, other investigations, executive branch investigations, might have gotten under way by that point. And against an executive branch investigation, executive privilege doesn’t apply. So, I guess, stand by.

Maddow: What you just said is very important, it is going to be parsed a lot by a lot of people including me, and it clarifies what we should be expecting and not expecting about this and what accountability is going to look like in this country on this issue, actually more than anybody else I know has said before, so thank you.

[Rachel moves to close the interview, Whitehouse interrupts]

Whitehouse: One other important question is, what were the private contractors doing, and why did they have so much access that they could interrupt what was probably the most productive, intelligence interrogation yet done in the global war on terror–not once but twice, even though they were unproductive. What enabled them to have that power to interrupt such a productive interrogation.

Maddow: Yeah, who were they calling in Washington when they were getting those interrogations?

Whitehouse: Good questions to be asked.

This is Sheldon Whitehouse, former Rhode Island Attorney General and US Attorney, explaining how you build a case. This former prosecutor is thinking clearly of establishing a case, and then either pursuing it in SSCI–or referring it, as he suggested with his reference to an executive branch investigation. And in both this exchange and in his speech the other day, Whitehouse told both viewers and his colleagues to stand by.

As I said,  I was skeptical about this investigation. But Whitehouse, at least, seems to think that after the questions we already know the answers to–did the interrogators exceed guidelines, did it produce worthwhile intelligence, did the committee get fully briefed–it will lead in other directions, including, potentially, forcing a DOJ investigation.

Time to give kudos where they’re deserved. If you’re so inclined, why not give Senator Feinstein a call–(202) 224-3841–and thank her for leading this investigation (it’s not often we give DiFi thanks around here, but it appears deserved, and carrots often work much better than sticks). 

85 replies
  1. Leen says:

    I felt the earth move under my feet listening to this interview.

    Had to listen three times for the rush…goose bumps

    Rachel Maddow “will it look at the chain of command”
    Whitehouse ” investigations are step by step” “against an executive investigation executive privilege does not apply” “I guess stand by”

    Whitehouse threw this in (what a huge gift to Rachel, us and Justice) “One other important question is…what were the private contractors doing.”

    Thank you Senator Whitehouse. We are standing by.

    just sent in a question about what Whitehouse had to say to [email protected]. They are doing the weekly round up right now

    I have gotten through literally hundreds of question over the last 8 years. EW they would send your question right through [email protected]
    Way to get the topic out there to all of those listeners

    • yellowsnapdragon says:

      Not so fast! I’ll stop the griping for a 2 minute telephone call, but that’s it… Her DINO record is waaaay too long forgive more than that, for now anyway.

      EW, I’m delighted to read that you believe that SSCI might be doing some real investigating. If EW thinks it, it’s probably true.

      • emptywheel says:

        DiFi tends to be an issue by issue person, and has actually been pushing on torture for a while. And was–as Whitehouse mentioned–one of the six who voted to fund Gitmo closing.

        Heck, maybe with some carrots she’ll discover she prefers them and might seek them out?!?

  2. TarheelDem says:

    What enabled them to have that power to interrupt such a productive interrogation.

    There is the question that is the equivalent of “What did he know and when did he know it?” in the Watergate investigation.

    The follow-up questions for investigation is “Why did contractors have that power?” “Did all contractors have that power or just some?” “What contracting entities had that power?” And the CT question: “Was Halliburton one of them?”

    • readerOfTeaLeaves says:

      What enabled them to have that power to interrupt such a productive interrogation.

      There is the question that is the equivalent of “What did he know and when did he know it?” in the Watergate investigation.

      Great point.

      IANAL, and can’t track any of these conversations as much as I would like, so I’m willing to be really ‘dumb’ here and state that I don’t fully grasp the LEGAL explanation as to why:

      And against an executive branch investigation, executive privilege doesn’t apply.

      Could someone explain the LEGAL, constitutional point-by-detailed-point reasoning that explains who gets the legal crowbar to pry the lid off the BushCheneyBoxOfHorrors?

  3. lurkinlil says:

    In what conditions of humanity and hygiene were the techniques applied?

    This sentence sure says implies a lot.

    And against an executive branch investigation, executive privilege doesn’t apply.

    Does this mean that if they do investigate chain of command issues, that big Dick can’t invoke executive privilege? And what happens if he (or some other executive-type) does try to invoke it?

    • behindthefall says:

      Let’s see … if BigDick is in a Fourth Branch, will he invoke Fourth-branch Privilege?

    • scribe says:

      Not exactly.

      There’s a bit of case law on this question, but the basic principles were laid down in the 19th century. First principle: when Congress is looking at and investigating relative to an impeachment, then the executive branch can have no secrets against Congress. Second principle: the more attenuated from an impeachment investigation, the more secrets the executive branch can have against Congress.

      So, it’s a spectrum.

      Now, let’s look at this in the Senate context – which will take us away from impeachments (a bright shiny object).

      First, the Senate does have oversight responsibilities, and to perform effective oversight they have to have access to the information. AS we’ve seen any number of times (most recently with the Lieberman-Graham Torture Concealment Amendment), one determined senator can throw a sizeable monkey wrench into the workings of government. Given the seriousness of the issues, the Senate is going to get a lot of access – remember that spectrum?

      And, waggery about Fourth Branch aside, at the time Cheney was driving the Torture Train (and dragging the country over the cliff with him and it), he was also dancing in and out of being part of the legislative branch (i.e., President of the Senate) when it suited him. I recall a letter in one of the litigated matters in which he asserted he was President of the Senate and therefore subject only to Senate discipline and not to a House subpoena. Or that the courts should not enforce it because the court would be intruding into the workings of a coordinate branch or something like that.

      Of course, he could have wound up hoisting himself on his own petard, seeing as how the Senate is investigating him. Because, when one house is investigating one of its own members, there are no limits on what they can demand, get, use, or consider.

        • lurkinlil says:

          Not to mention that privilege is presumptively not appropriate for shielding criminal conduct.

          I’m not sure how to put this, but here goes: can’t invoke executive privelege to cover criminal conduct, so how does one prove that is what is happening? I mean how do you know that is what the invoker is doing? Do you have to prove the criminal conduct first, before you can say “No, no, naughty, naughty”? How does that work?

        • TarheelDem says:

          IANAL but a common sense way would be to build the case that criminal actions occurred using witnesses who do cooperate and documents that do point in that direction. After that case is built, then call in the witness and put them under oath.

          What the Bushites have been doing is blowing off being put under oath by not even showing up.

      • lurkinlil says:


        So the committee doing the investigating, could make big Dick come in for a little sit down and chat, yes? Since he is no longer in office, can they force him to attend? And if he chose to not cooperate and contribute to the conversation, what kind of clubs does the committee have to bop him over the head? Can they hold him in contempt? Better yet, can they sprinkle him with a little water? (just kidding on that last one, but then again, sauce for the goose, sauce for the gander).

        • dopeyo says:

          “…could they sprinkle a little water on him?”

          being a catholic, at first i thought you were talking about the rite of exorcism. nevermind.

        • robspierre says:

          As a fellow Catholic, I was thinking something more on the lines of the Holy Inquisition:

          “Show Brother Cheyney the instruments of Truth and Penitence.”

      • Mary says:

        Might be wrong, but I don’t think that’s what Whitehouse means. I think when he is saying there might be other invesigations, Executive branch investigations, he’s saying investigations run by the Executive branch and in those kinds of investigations privilege just doesn’t apply (the bone of contention with the Bushies on Obama’s order after he took office)

        So if Obama has ordered the investigation or if it is internal to the Exec Branch originally, a former VP and his counsel can’t claim Exec priv as a basis to keep back info from the … Exec. What you have in that kind of investigation is that Obama could then decide that some of that info is such that he wants to assert privilege before releasing the investigation, so that in a report there might be some carve outs, but in an investigation being done by the Exec, prior admin malfeasors can’t claim Exec privilege.

        OTOH, that could be all wrong and he might mean additional Congressional investigations of the Exec when he says Exec investigations, but it didn’t come across that way to me. I get the impression he’s pressing for Obama to make additional investigations based on what SSCI is “discovering” (stating openy that which has been known for awhile)

        • WilliamOckham says:

          Yeah, I’ve been trying to parse what Whitehouse said there. He chooses his words with great care. He wouldn’t have used ‘executive branch investigations’ if he was talking about an independent counsel. Nor does it sound like he’s talking about IG investigations. Doesn’t he almost have to be referring to an investigation ordered by Obama?

        • emptywheel says:

          Couple points.

          1) THere is no such thing as an Independent Prosecutor anymore–and there’s not a chance in hell it’d be passed in Congress anytime soon. Therefore the thought of an Independent prosecutor is not a legal possibility. There is, however, a chance of a Special Counsel–what Fitz was and what John Durham, who is already on the beat, is. But that is in the executive branch.

          2) Obama will not order an investigation. Holder might. But for Obama to order an investigation, in any case, would be legally questionable and political impossible and we shouldn’t exactly want it anyway bc then it’d be really easy to discredit the investigation. So Holder may order an investigation.

          I rather think the reference points to SSCI and/or OPR and/or John Durham putting together so much evidence and presenting it to Holder that Holder and the appropriate prosecutors decide they have to do an investigation, which in this case might be no more than an extension of Durham’s mandate.

          When I was reading through all the CIA FOIA stuff yesterday, I noted that in September, DOJ said, give Durham until December, but we might need to ask for another extension if it goes to indictment. In December, he said two more months to wrap up. Since then he has been very recently bringing peopel before a grand jury. Just for the sake of a good story, I like to think Dusty Foggo flipped on Goss. But in any case, I increasinly believe that Durham will bring charges, but if he brings charges for the cover-up, does he then ask Holder to pursue charges for the underlying crime?

        • WilliamOckham says:

          My bad on the ‘independent prosecutor/special counsel’ mixup. I hate it when I do that. It’s a distinction with a real difference.

          As far as investigations go, I think there are all sorts of non-criminal investigations that Obama could order (not that I think he will). For example, he could look into the policy making apparatus (NSC, WHCO, DOJ OLC) and why it was so screwed up. If Obama wanted to push stuff into the open, there are avenues available.

        • emptywheel says:

          But even assuming he did–which I don’t think he wants to do–he would keep his hands off of it, because it’d only discredit it.

          I see no reason to assume that Whitehouse is discussing anything but a DOJ investigation.

        • WilliamOckham says:

          After reading over this again, I think you’re right. On first read, it seemed like an odd locution for Whitehous.

        • Mary says:

          I agree that it could very likely be a reference to the existing inhouse prosecutorial investigations (or offshoots from them), but just to clarify on two points – the real, true “Special Counsel” regs are set up to be applicable to an outside Special Counsel, so the reference to the in-house appointments as Special Counsel is ok, since it’s been done since the odd Fitzgerald appointment, but the original intent of the regs was Special Counsel would be outside counsel (inhouse assignments being just inhouse assignments with delegation of jurisdictionary mandate) Under those regs, outside Special Counsel though would still be deemed to be operating within the DOJ.

          Also – Obama absolutely could order an investigation and it wouldn’t be legally questionable. Just like Congress can investigate agencies within the Exec, the head of the Exec branch can investigate his agencies. Agencies conduct intra-agency investigations all the time. It wouldn’t be legally questionable or politically impossible at all – or are you equating an ordering an intra-agency investigation with ordering a criminal prosecution? Ethically Holder should not allow Obama to tell him who to prosecute or not (although we’ve seen how that works with CIA assurances of non-prosecution) but that’s not the same as Obama not being able to order up investigations within his own agencies to get info, but he would have direct and total control over what did or didn’t get released then [subject to all the existing classifciation, FOIA exceptions, etc. stuff we have dealt with on other fronts]

        • emptywheel says:

          Let me clarify.

          Obama already has an investigation in his NSC into torture. We know about it, it’s been in place almost since he came in office.

          But that’s not exactly going to be very interesting for holding chain of command accountable.

          And any investigatoin that does look at chain of command–contrary to your assertion–is not only politically impossible, but politically stupid, because it would be regarded as illegitimate. As it is the torture apologists have at every stage of the game tried to suggest this was Obama rather than other executive agents opening the door on torture. But if Obama did, in fact, order up such a chain of command investigation, you’d see chaos where you’d like to see a nice legally defensible prosecution.

        • Mary says:

          And any investigatoin that does look at chain of command–contrary to your assertion–is not only politically impossible, but politically stupid, because it would be regarded as illegitimate. As it is the torture apologists have at every stage of the game tried to suggest this was Obama rather than other executive agents opening the door on torture. But if Obama did, in fact, order up such a chain of command investigation, you’d see chaos where you’d like to see a nice legally defensible prosecution

          Well I disagree on that. I think, for example, he could try to have Taguba (who I understand is retired now, but this is a for instance and he could get him back in the fold to do something like this or use Iglesias or someone else with the right creds) conduct an up- and down-chain investigation into MI and abuse and policies in a heartbeat and it would not only be considered legitimate, and not politically impossible, but it would be a very politically smart way of, for example defusing the pictures issue. It’s not that anyone is crazy to see pictures of the horrible, its that nothing seems to push any invesitgation forward without picks. A Taguba MI investigation summarizing crimes, abuses, chain of command authorizations to MI, whether crimes reflected in pictures have been prosecuted and to waht extent, involvement of contractors being used in the MI setting, etc. would probably be accepted by ACLU and others as a trade off and would push Graham/Lieberman into saying it’s not that they want to protect troops bynot releasing the pics, it’s that they want to protect war crimes and criminals by blocking an investigation.

          He could even use the issue of the SOFA in Iraq and Iraqi need to see a commitment from the US to following its own law as their trade off for agreeing to let us remain under a SOFA that denudes them of their ability to protect themselves with their own law, as a grounds.

          And I guess in the end, too, politically you and I see things differently bc I haven’t ever been politically motivated and partisan on most of these issues and I don’t think it would be the end of the world if Obama did the right thing and that ended up being so “politically” disavantageous that he didn’t get a second term. I don’t think that would happen if he’s exposing prior abuse anyway, but even if it were, I guess my def of impossible is different. I see it as not only possible but easily possible for him to have invetigations (CIA and NSA etc. as well as military) and generate a useful and positive result, as he did with the release of the reliance memos. fwiw.

        • Mary says:

          But if Obama did, in fact, order up such a chain of command investigation, you’d see chaos where you’d like to see a nice legally defensible prosecution.

          I guess I should have added that on most things, I’m pretty sure its a fiction that there will ever be prosecutions on the actual torture issues. On destruction of evidence, maybe, bc otherwise they will have courts start blowing up on them but that will still not walk back to Bush. I take Obama and Holder at their word that there’s not much way in hell they are going after CIA torturers and it’s going to already be impossible to have a “nice legally defensible prosecution” after Holder’s public statements. Ask any defense lawyer, but after coming out and saying these guys will not be prosecuted, if that changes it will open every door to claims of politicized prosecution that would never have flown but-for Holder’s pre-emptive abuse of his office in his non-prosectuion statements.

          Civil suits are about the only real avenue IMO if you really want to walk upchain on responsiblity, and those will be dependent on what info comes from the Exec – so that also makes me think they are a good idea.

          I want prosecutions, I’m going to hope for them on the murder fronts in particular. But after Holder has publically said these guys are not responsible and won’t even be investigated, much less prosecuted, bc of the 2005 memos, then he fouled the pool bigtime. However much we pick around the deviations from the memos (and I have and will keep doing that) Holder created out of whole cloth all kinds of grounds for tossing prosecutions by what he and Panetta and Obama have done to date.

        • LabDancer says:

          I’m not sure that’s it either.

          Go back to his wording:

          “So conceivably, other investigations, executive branch investigations, might have gotten under way by that point. And against an executive branch investigation, executive privilege doesn’t apply.”

          I think he’s referring to the first, possibly also the second, of two conceptions, both engaging executive branch investigations started[he’s more gentle: MIGHT have been] while Bush was in the White House.

          [a] When the president directs some under his authority to investigate others under his authority about something that happened while he was in authority, those being investigated can’t very well claim executive privilege: when president wants to know something it’s no answer that he can’t know because he won’t let himself know.

          [tho IMO this pretty much confronts Bush with the essence of his ill-conceived idea of presidential inquisitiveness.

          IOW: it’s not as if Senator Sheldon is unfamiliar with the workings of Pixie Dust.]

          [b] When one president directs an investigation into actions taken on his watch which investigation slops over into the next administration, then the official direction is seamless, regardless the first president laboring under an ill-conceived, nonsensical notion of presidential inquisitiveness, and if the following president has a distinct conception of presidential inquisitiveness that does not happen to engage the critical element of pixie dust, then c’est la vie, the office governs and the later president’s conception carries the day.

          [IOW: Obama is stuck with a choice between allowing the Bush self-investigations to continue under Pixie Dust Rules, or under the mundane philosophy that if I asked, it’s not proper to respond by telling me that effectively Bush decided forever that this office can’t handle the truth.]

          Deep thought: If it’s true that no one expects the Spanish Inquisition, surely that includes the Spanish Inquisition.

  4. Peterr says:

    [Rachel moves to close the interview, Whitehouse interrupts]

    Whitehouse: One other important question is, what were the private contractors doing, and why did they have so much access that they could interrupt what was probably the most productive, intelligence interrogation yet done in the global war on terror–not once but twice, even though they were unproductive. What enabled them to have that power to interrupt such a productive interrogation.

    Maddow: Yeah, who were they calling in Washington when they were getting those interrogations?

    Whitehouse: Good questions to be asked.

    Why do I read this and think of that legal cliche “You never ask a question that you don’t already know the answer to”?

    Yes, that advice refers to questioning witnesses, but I think that Whitehouse, the “former Rhode Island Attorney General and US Attorney” that he is, is ready to ask those questions of a number of witnesses — many of them hostile.

    • drouse says:

      And is Holder ready to support contempt of Congress actions? Executive branch investigations sound like a good way to bury the whole thing. Obama doesn’t exactly sound like he’s eager to pursue this kind of thing.

  5. malcontent says:

    This sure reads like classic Dick frustration with CIA personnel. When he doesn’t get what he wants, he fires up another DIA contractor with a mission and authorization directly from the White House.

    While the CIA interrogations were highly productive, they were not providing cover for AQ-Iraq connections were they?

    • scribe says:

      The CIA interrogations were highly productive only in the sense that they made torture “accepted” as a method of torturing people. In other words, they crossed that Rubicon.

      As a means of getting accurate information, they were pretty much useless.

  6. perris says:

    if someone has contact with whitehouse he’s missing one of the most important issues that need to be addressed;

    “did the programs of torture create more issues, more terrorists’

    did those programs put our soldiers at greater risk

    did those programs put our civilians at greater risk

    “did those programs undermine our national security”

    did those programs serve in antithesis their supposed goals

    I know most of those are similar but they each stand on their own as well

    • foothillsmike says:

      did those programs put our soldiers at greater risk

      If someone is fighting against american troops and thinks that if they captured they will be tortured are they going to fight to the bitter end?

  7. Loo Hoo. says:

    That was a fantastic interview, and I knew you’d have something up on this, EW. I just wish you’d been able to be there asking questions too, and that the segment could have been longer. Whitehouse is one smart cookie, and he doesn’t give interviews to just anyone.

    I wonder how long this investigation will take, because he is someone I’d like to see as a contender for VP 2nd term. But not if the investigation is ongoing…

  8. BoxTurtle says:

    I’ll save any apologies to DiFi when I see what is actually produced. A bunch of classified transcripts will not satisify me. I hope I do end up apologizing to her, but the jury is still out.

    Whitehouse’s interview gave us almost all the real information on those hearings we’ve got so far. But when he said:

    Whitehouse: Good questions to be asked.

    Did he mean they WERE asking those questions or that he WISHED they would? It’s difficult for me to tell from the interview. Jiminey Cricket Whitehouse is not above publically tweaking someone to do the right thing.

    Boxturtle (I also wonder how forgetful the witnesses have been)

  9. hinterlandharry says:

    We all know, whether in the SSCI investigation re torture, or Judge Walker’s court re NIA warrantless wiretaps of U.S. citizens, what happened. The question we aren’t asking, or even talking about: Does presidential/commander in chief power in time of war/threat to national security afforded by the Constitution trump congressional legislation (read FISA) or, treaties (read Geneva Convention). Beware what you ask for, considering the present makeup of SCOTUS. The Nixon adage “if the president does it, it’s legal” is still with us.

    • Rayne says:

      That was the very argument the Bush administration tried to use, building into the very foundations of their efforts from day one. There are pointed invocations of Bush’s role as commander-in-chief embedded into executive orders/national security directives, for example, which instruct all necessary means to be used at the behest of the CIC.

      But we can point to SCOTUS case Youngstown Sheet and Tube Co. v. Sawyer, in which Justice Jackson said, “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

      Bush may have had a Congressional AUMF against terrorists in hand, but the AUMF does not authorize him to take any measures which violate the Constitution or treaties, exceed his authority, or re-make law, and there have been two cases already which have reinforced this position.

      And I suspect this situation will continue to play out until and through yet another Justice’s transition on the court.

      The mills of the gods grind slow, but exceeding fine.

      • hinterlandharry says:

        Thanks for your insight. I just can’t take my mind off the voting credentials of the right wing four, voting almost always in lockstep and joined a fair amount of the time by Kennedy or others. They will be there for a long time. In Bush v. Gore, almost the entire legal nation was shocked, not only with the decision, but that the court would even take the case. And don’t forget that Plessey (sp?) v. Ferguson said separate was “good enough”. And the first challenged labor relations contract was declared unconstitutional because of its “. . . .constitutionally impermissible interference with a person’s individual right to contract for his services.” I’m in complete agreement with Whitehouse and almost everything EW writes, and fervently wish for a just exposition and resolution of what we all know has been done by Bush-Cheney, but in the final analysis I can’t help but believe this will all go for naught. I can visualize the court ruling that “taking over a steel plant is hardly comparable to the CIC taking unilateral steps to protect our nation from terrorists who are attempting to destroy our nation.”

        • Rayne says:

          I can visualize the court ruling that “taking over a steel plant is hardly comparable to the CIC taking unilateral steps to protect our nation from terrorists who are attempting to destroy our nation.”

          But that’s where the right argument made by more powerful, intelligent advocates will be important and effective. Sen. Whitehouse made the case earlier this week in a way that a grade-school kid could understand, that even in conditions far worse than the 9/11 attacks our country did not resort to torture, and without increasing threats to our nation. Whitehouse and others have now seen for themselves that solid police work by FBI was more effective than the greater resources of the military and intelligence community in addressing the threats posed by a terrorist group; it will take little to make the case that the executive overreached, just as Eisenhower did with Youngstown.

  10. phred says:

    The questions go on: What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done?

    In the parsing department, this was my favorite bit of Whitehouse’s speech and it ties in directly with the point he hastened to make at the end of his interview with Rachel. The wording of this, “their peculiar motivations” directly suggests that the motivations of the contractors was not to collect actionable intelligence. And Whitehouse wants us to know that the key is to find out what those motivations were and who gave them the authority to pursue their peculiar interests…

    Ok, off now to read the thread…

      • phred says:

        Of all of the possible “peculiar motivations”, profit would probably top the list of the most appalling. Venal greed: “sure we’ll torture for you so we can buy that yacht we’ve always wanted… “.

        • lllphd says:

          more venal still … “sure we’ll torture, but have to NOT get anything in order to keep torturing so the money will continue to flow….”

          interestingly a particularly venal form of therapy in the mental health profession: keep your clients sick and diagnosed so you can continue to bill them.

          mitchell and jessen learned well.

  11. cbl2 says:

    Good Morning Empty and community –

    have been anticipating your post on this – good to see you think they’ve been doing the good work. and yes, I called.

  12. posaune says:

    ‘morning, all. EW thanks for this post and the “summary” Al-haramain post, too.

    Been on an absolutely awful work deadline for the past week. Open FDL every night late, go to marcy, and then see 5-10 posts up since the day before. Egads! It feels like graduate school with all you smart minds here, and I’m falling farther and farther behind! And being one of the slow kids doesn’t help either @

    Thanks all for your thinking with our lioness.

  13. lurkinlil says:

    in response to scribe @20

    Good one! I can’t watch the video, but I can imagine.

    in response to TarheelDem @23

    Yes, that’s why I ask: what kind of resources does the investigating committee have available to use when the witness is not cooperative.

  14. esaud says:

    I can see the cover memo from Senate Republicans now …. Question 1, did they follow guidelines, will be a trump card to invalidate Question 2, was the intelligence of value.

    The two contractors will be the 2009 version of the “bad apples” like that halfwit at AbuG (I think her name was Englund) who faced prosecution. Republicans will say that the EIT program didn’t fail, it was failed by some over-zealous contractors who really didn’t know what they were doing, after all, they weren’t trained CIA operatives and so it was the implementation not the program itself.

    Headlines in Wapo: No Evidence That EIT Program Failed
    ABC Charles Gibson’S lead-in: Vice President Richard Cheney’s previous claims that harsh interrogation techniques are effective were not disproven in the SSCI report. The report was not able to conclude that the EIT’s are ineffective. After months of COngressional testimony, the only conclusion investigators could reach is that two rogue contractors … etc.

    How do I know this? Gibson’s coverage of Ali Soufan’s testimony: Soufan said that CIA techniques were almost torture, and he could not conclude that EIT’s worked.

  15. DKGreen says:

    I love this question:

    How did the torture techniques stack up against professional interrogation?

    Doesn’t this show that, at least from Whitehouse’s perspective (and that of the Geneva conventions, international law, legal and historic precedent in the US) torture is not a professional style of interrogation?? Well played Ssenator.

  16. Mary says:

    I’m not sure – there is a possibility that the existing Mukasey appointed prosecutors (DOJ is within the Exec branch) for the USA firings and tape destructions might be at issue, but there you’d still have people’s 5th and prior invocations etc. and in a criminal setting that would be different too. It sounds to me as if (and this is just a guess) there are things SSCI has told the WH they think need additional investigation and to the extent all this ‘classified’ info is involved maybe he needs to do it internally himself first and then come to them. Like – instead of having things like the improbable chart of briefings provided by CIA and forcing Congress to wend its way through, he could do a thorough internal investigation on briefing and give real, rather than piecemealed nonsense, responses and his crew can’t claim privilege from him if he wants to get to the bottom of things and then give them a REAL briefing as required by the Nat Sec Act.

  17. foothillsmike says:

    OT Has KKKarl been questioned in the closed committee setting that had been agreed to? If not then when?

  18. freepatriot says:

    Doesn’t he almost have to be referring to an investigation ordered by Obama?


    there ain’t no status of limitation on crimes against humanity


    and if the next president has to deal with this, I’m thinking Barack Obama is going to be sitting next to dick and george at the defendant’s table

    Barack Obama’s choices on torture became severely limited on January 20, 2009

    he can prosecute those who tortured human beings, or he can JOIN THEM in the dock

    there isn’t any middle ground for him

    the man accepted the responsibility to prosecute these criminal fucks

    anything short of that is aiding and abetting in crimes against humanity

    I’d think a constitutional scholar would unnerstan that, but I could be wrong …

  19. earlofhuntingdon says:

    Maddow: Yeah, who were they calling in Washington when they were getting those interrogations?

    Yea, what Fourth Branch would have the authority to usurp all other power, cut through the highest, most secure chains of command in Washington and go directly to their subordinate foreign field ops, and impose a new, untried standard of conduct, implemented by new, non-governmental actors under novel contractual (or pre-contractual) arrangements, when what was being done already worked, but wasn’t producing answers Fourth Branch – with all its utter lack of military and intelligence experience – just knew were the true ones?

  20. Mary says:

    SSCI has said the investigation covers three things:

    Whether detentions and interrogations complied with DOJ authorizations
    Whether the interrogations gained valuable intelligence or not
    Whether SSCI was kept properly informed

    Do they deem this to include just the 14 or so “high value” detainees or all detainees the CIA was involved with questioning or having questioned for them? IOW, the CIA was involved in the JTF questioning of many detainees at GITMO. The CIA has been involved in questionings at Bagram and in Iraq (and is implicated in the prior “interrogation” damage of the Iraqi General who was tortured to death in a sleeping bag by the military interrogators who may or may not have known the extent of damage from prior “interrogation” as well as the Iceman killing and others) The CIA has had its own black site interroations. The CIA has also been involved in rendition to torture for interrogation proxies.

    Are they limiting the “Whether detentions and interrogations complied with DOJ authorizations” issue to the 15 or so “high value detainees” being held now and charged or to the broader issues of all the CIA related detentions and interogations whether ending in renditions or involving GITMO or military base detentions or CIA black sites?

    • emptywheel says:

      Can’t be just the 14.

      There is no way in hell they do this without examining the treatment of Hassan Ghul, IMO, not least because DOJ spent 9 months retroactively authorizing whatever it is they did to Ghul, and he is absolutely central to BushCo’s blowing off of Jello Jay’s concerns about CAT in July 2004.

      This is being run out of an opposition to torture. But it is also being run out of a real anger that they got blown off and lied to as badly as they did in 2004-2005. So you can be sure taht’s a critical focus of this. And that means it includes the still unaccounted for Ghul (last seen in Pakistan two years ago).

      • emptywheel says:

        You know, come to think of that, Ghul disappeared from Pakistan around the same time as Bush got his last OLC opinion in 2007, right when he issued his new EO.

        • emptywheel says:

          True: Cheney in charge of Pakistan policy, Bhutto and Sharif returning, Bhutto being killed. Though we’d need to pinpoint Ghul’s disappearance better.

        • Rayne says:

          Messy. Really, really messy.

          Always had the impression that Musharraf was asking for something which wasn’t out in the open during that time frame.

          Really have to wonder what Ghul knew that somebody wanted excised so badly, especially given his residency status in Saudi Arabia. The differences between what Dana Milbank/WaPo and FauxNews reported in Jan 2004 versus what 9/11 Commission reported about Ghul don’t assuage my curiosity.

        • klynn says:

          Rayne, (and EW) you hit on something quite thought provoking from a Cheney “backdoor policy” perspective. “Really, really messy” appears to be just what’s on the surface of your observation(s).

          Now I feel sick to my stomach thinking about the deeper realities of your observation(s).

          (Aside: I look forward to a complete overhaul of private contracting by gov. agencies coming out of this process. I hope.)

      • Mary says:

        But have they clarifed that it goes to renditions for torture interrogation and to torture interrogations conducted at military bases (or on ships) involving the CIA as well or is it kind of amorphous?

        • emptywheel says:

          That I don’t know. But Ghul gets you out of the 14. I suspect they include al-Libi in there (and that may well be why he “suicided,” but that’s mostly bc Whitehouse has been focusing on Iraq intell coming from torture.

    • stryder says:

      The CIA has been involved in questionings at Bagram and in Iraq (and is implicated in the prior “interrogation” damage of the Iraqi General who was tortured to death in a sleeping bag by the military interrogators who may or may not have known the extent of damage from prior “interrogation” as well as the Iceman killing and others) The CIA has had its own black site interroations

      Can you elaborate on this? Who was the Iraci gen?

      • emptywheel says:

        Both the Navy Seals and a CIA interrogator had custody of the general. Best read is that the Navy Seals broke several of his ribs in capture and transfer, and that the CIA interrogator then ratcheted his arms above his head in a “stress position” (all the time never once taking the bag off his head), which ended up, given the broken ribs, basically crucifying him.

        • stryder says:

          That doesn’t surprise me in the least about the seals.My older brother is a vietnam era seal and believe me they play for keeps

      • Mary says:

        At one point in the Iraq war the decision was made to commit war crimes, taking civilian hostages

        Col. David Hogg, commander of the 2nd Brigade of the 4th Infantry Division, said ….. his troops picked up the wife and daughter of an Iraqi lieutenant general. They left a note: “If you want your family released, turn yourself in.” Such tactics are justified, he said, because, “It’s an intelligence operation with detainees, and these people have info.” They would have been released in due course, he added later.
        The tactic worked. On Friday, Hogg said, the lieutenant general appeared at the front gate of the U.S. base and surrendered

        No one has wanted to question folks like Odierno on that much, or investigate culpability and reparations and related rape claims.
        But along about this time, the CIA was also reportedly involved with setting up a covert unit called the “Scorpions
        W the Busy Bee issued a “finding” supposedly in Feb 2002 authorzing them.

        After Baghdad fell, the CIA used the Scorpions to try to infiltrate the insurgency, to help out in interrogations, and, from time to time, to do “the dirty work,” as one intelligence official put it.

        In one case, members of the unit, wearing masks and carrying clubs and pipes, beat up an Iraqi general in the presence of CIA and military personnel

        That case would be the interrogation of Gen. Mouwhoush.

        His three sons, one 15, were taken hostage.

        he and his brothers were taken into custody and interrogated for days, with U.S. officials accusing them of carrying out roles in the insurgency. . . .
        Mowhoush said U.S. troops took his clothes off, poured cold water on him, beat him, and made him get into uncomfortable and painful “stress positions,” as they are known in the military.

        His father later surrendered in an attempt to free his sons, according to classified documents.

        And after he surrendered, he was beaten (to the point of multiple broken bones) and abused by both the military and the CIA’s Scorpions, possibly under CIA supervision and direction.

        Mohammed Mowhoush said he saw some masked Iraqis at the prison, and said at one point they escorted him into a room near where his father was being interrogated. He said they yelled at his father and told him that if he did not tell the truth, they would execute his son.

        “We expected that my father would die because of the treatment,” Mowhoush said. “We were young boys — we can handle anything. But my father was an old man — he can’t handle the treatment.”

        There were reports that the Gen died thinking they had executed his 15 yo son. Before that, though, their “harsh” techniques completely backfired on the effort to use the Gen to try to get the insurgency toned down

        In an interrogation that could be witnessed by the entire detainee population, Mowhoush was put into an undescribed “stress position” that caused the other detainees to stand “with heads bowed and solemn looks on their faces,” said the document.

        “I asked Abid if he was strong enough a leader to put an end to the attacks that I believed he was behind,” the document said, quoting an unidentified interrogator. “He did not deny he was behind the attacks as he had denied previously, he simply said because I had humiliated him, he would not be able to stop the attacks. I take this as an admission of guilt.”

        Some of the trial testimony, of guys lining up to come to the torture sessions, but with a, “sure, I wanna come watch, but let me get some fresh coffee first” were pretty oogy.

        And the stories make it clear that smothering people in sleeping bags and using “close confinement” (i.e., the al-Libi live burial tactics) were rampant.

        Right after the Gen died, they deliberately spread all kinds of disinformation, that he had been captured (rather than turning himself in to save his sons) that he died of natural causes, etc. Illegal domestic disinformation since it was all going to back to the US media as well.

        Now think for a moment of a situation where Odierno has his sons or grandsons captured by Iran on a “cross boarder” excuse. He turns himself in to Quds to get their release. Quds does everything to Odierno and his children that is reported to have been done to Mowhoush, including letting al-Qaeda attend conduct torture sessions on him in addition to the Quds sponsored sleeping bag session. He dies, Iran antes up and investigates and sentences his torture killer to a reprimand, 6,000 dinars (heckifIknow the right currency) of lost pay and restricts him for two months from going anywhere other than home, office and mosque.

        How do you think we’d react?

        • Leen says:

          Just too sad too horrific. Too many lives lost too many tears shed based on a “pack of lies” Mary where do I access these reports?

          Could be that I am also crying listening and watching Amy Goodman report about another young American soldier (24) who recently hung himself in California after returning from Iraq. So many lives gone based on the lies and an unnecessary war. Amy Goodman’s eyes say so much.

          Not like those folks who report about deaths in between segments at MSNBC and smile just after they tell a horrific story

  21. klynn says:


    HR 2346, the 2009 Supplemental Appropriations Act, which includes funding for the war in Afghanistan and the IMF, needs a few more “No” votes. We’re at 32. We need 39 “No” votes.

    Head on over to read up from Jane. We need calls now.

    Folks, this has been a well coordinated netroots/grassroots effort. High praise to Jane and company!

  22. JThomason says:

    There are two fictions that Whitehouse apparently accepts in moving ahead that disturb me. 1) That “insta-declassification” is a valid administrative practice and 2) a bestowal of a kind of validity on the notion that Jose Padilla was involved in a “dirty bomb” plot uncovered in standard traditional interrogations. I don’t doubt that the allegation against Padilla was made but I do not think that any details regarding the “dirty bomb” story have been proven.

    That being said his juxtaposition of effective interrogation techniques with the abject failure of the tortuous techniques may in fact be a pathway to some consequences. The impeachment of Cheney even at this late date would if nothing else establish a political standard.

    The inquires as to whether the tortuous techniques were applied consistent with DOJ guidelines disturbs me too however as this builds from the suspect premise that specious legal opinions are operative as shield to executive branch officials. The operative model in my view is that the executive may solicit the best opinion available and then make a calculated informed choice in full consideration of possible consequences. The confusion of advocacy and counsel is a bane.

  23. posaune says:

    I swear that Cheney’s bunch studied the Nuremburg docs for years. Just look at the distinction between the SS and the Wehrmacht. The SS was doing things that the Wehrmacht wouldn’t even touch. And the SS were contractors, don’t forget.

    • robspierre says:

      Not exactly. Some Waffen SS units were mercenaries late in the war. But the “real” SS were actually an arm of the Nazi Party with control of the police and internal security apparatus. So not so much contractors–more like professional Republican Party operatives.

      The contractor issue is intersting, though, because it obscures what is meant by “CIA” involvement.

      It has always been my understanding that most CIA field operatives are technically independent contractors.

      During the Shrub years, Defense and State had their own contractors. And the same contracting companies–CACI and Titan–supplied translators, trainers, consultants, drivers, pilots, and mercenaries/bodyguards to all of them.

      So what does it mean when and if we find that personnel from the same contractor or couple of contractors turn up in all of the scandals and crimes?

      This is what made my eyes bulge a bit over that remark about the contractors making calls and getting what they want. No doubt the outsourcing of this kind of nastiness was intended to provide cutouts and deniability. But given this call (and perhaps others like it), perhaps the contractors end up being the common thread that proves an executive-branch conspiracy.

      • dude says:

        This is a crude analogy, but “contractor” and “consultant” are not too far apart in meaning. Perhaps in law (IANAL) there is no difference, but in my profession a distinction is drawn, and if I had to say, my guess is the guys who asked for permission to push on into torture were “contractors” who then turned to their “consultants” who then turned to their clients (the agency bureaucrats tasked with managing the day-to-day) who then turned to their politically appointed leaders to get the go-code. When Whitehouse talks about the peculiar motivations of the private contractors, he had better best a wider net to get his answers. “Contractors” are selected. The configuration of the “Contractor’s Deliverables” to government could be a One-Stop Shop situation (such as, “We provide you specialty workers and we have our own in-house consultants”). Or they could be merely hired arm-twisters/leg-breakers (”I’ll do anything you say for money, but you have to tell me exactly what you want.”) Or they could be ’boutique’ (”We provide a complete soup-to-nuts menu of services for you to mix and match”). What I would fear, however, would be the simple hiring of “temps” to fill in the gaps of a labor shortage. That only happens when the management down to the lowest level has pretty much worked out its standard-operating procedures and all the managers are on the same page. The entire “chain” of torture would be in tune and well-oiled. What would it say about us?

  24. MrToad says:

    Interesting post. All week, I’ve been glad I’m not too much of a conspiracy theorist, because I can’t recall a time when so many different groups, both within and without the US government, might feel that they would benefit from a devastating terrorist attack within the US.

  25. MrToad says:

    Incidentally, the SS were most definitely not “contractors” unless the definition of that word has been tortured out of all recognition. They were initially the private army of the head of state, but quickly became an alternate state army/agency/police force. In an odd way, it’s somewhat like the functional distinction between the Army and the Marines (and that should stir up some dust!)

  26. stryder says:

    Not only Nueremberg but all the tactics used to circumvent the constitution and the distortion of the article2 powers.(very analagous to Hitlers tactics,ie The Reichtag Fire)The fire was used as evidence by the Nazis that the Communists were beginning a plot against the German government. Van der Lubbe and four Communist leaders were subsequently arrested. Adolf Hitler, who had been sworn in as Chancellor of Germany four weeks before, on 30 January, urged President Paul von Hindenburg to pass an emergency decree in order to counter the “ruthless confrontation of the Communist Party of Germany”.[citation needed] With civil liberties suspended, the government instituted mass arrests of Communists, including all of the Communist parliamentary delegates. With them gone, and their seats empty, the Nazis went from being a plurality party to the majority; subsequent elections confirmed this position and thus allowed Hitler to consolidate his power.
    We have been dealing with authoritairian powers for a long time now and they know all the tricks

  27. Mauimom says:

    It’s so incredible to have a wonderful interviewer like Rachel.

    Contrast with the work by Ezra Klein on Kent Conrad and the health care alternatives: not knowing or caring enough to ask follow-up questions or go into other than “pre-recorded” areas.

    Rachel really knows her stuff, she works hard/studies up for interviews, and she’s got a burning curiosity.

    Kinda like some other wonderful women around here.

    • Leen says:

      Rachel is generally great..but Whitehouse sure threw her a bone at the end by bringing up the “contractors” What a gift

  28. dude says:

    I also am not a lawyer, nor a very deep thinker. But as I read the comments and listen to Whitehouse, I hear something entirely different. Whitehouse is practically beseeching Obama to intervene and seems not to know if there are any mitigating Bush-era investigations of itself which could muddy the waters of the Senate investigation. I get the impression he is suggesting Obama make his own investigation to cut through the crap.

    Seems to me that last bit (how the current executive might over-ride the previous in exposing information) is destined to take years to thrash out in courts. So in the meantime, Whitehouse is left with a limitation for the ongoing investigation and he sounded like it could be a serious one if ”the chain of command” is ruled out of bounds. And if it is so ruled, it sounds like more of a political limitation, not a legal one.

    And I am not at all convinced Obama would initiate an investigation for the purpose of revealing anything. I think Holder’s behavior at Obama’s behest suggests they would much prefer to follow Bush’s lead, not expose anything at all. They like having ”Pixie Dust” in the toolbox. What makes anyone think that Obama –in even the best of circumstances– would use his power to get rid of it?

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