Does Cheney’s CYA Document Include False Justifications for Torture?

As MadDog noted, Judicial Watch has succeeded in getting two more copies of Cheney’s CYA document liberated. There now are three versions of this same document:

  • June 1, 2005 (the date suggests this is the version Cheney requested from the Archives)
  • June 3, 2005 (this was the document released in August’s document dump)
  • July 12, 2005 (this is the second Judicial Watch document)

Judicial Watch explains this as the one notable difference:

Notably, the June 1, 2005 report concludes that “Detainee reporting accounts for more than half of all HUMINT reporting on al-Qa’ida since the program began…” This fact is missing from the other two later reports.

That’s not entirely correct. Page 13 of the June 3 version has a graphic (also included in the June 1 version, but not the July 12 one) showing just that–that 3,800 of 6,600 reports came from detainees [all page references in this post are to PDF pages]. But there are other differences–differences which may suggest the June 1 version was targeted towards keeping the CIA torture program intact.

Other noticeable differences include:

  • The June 1 version is classified Top Secret; the others are Secret.
  • The June 1 version has three redacted paragraphs (page 3), and states, “Detainees typically are uncooperative early in their detention and often pass incomplete or intentionally misleading information” instead of “Detainees have been known to pass incomplete or intentionally misleading information.”
  • The June 1 version includes what appears to be a turf war comment (page 5) reading:

This paper focuses primarily on reporting from al-Qa’ida detainees held in CIA custody. [several lines redacted] we control the questions being asked and can pursue gaps and inconsistencies in reporting promptly.

  • The June 1 report either lacks–or entirely redacts–the passage on Ghailani that appears on page 10 of the June 3 report. (The June 3 report appears to have further redactions here, too.)
  • The June 1 version includes more detail about using detainee reports to explain other reporting, as on page 13:

Detainee reporting has allowed us to confirm reporting from [redacted] other sources, and to make sense of fragmentary information, such as that from [one line, plus one long paragraph redacted]

  • The June 1 passage on “Challenges of Detainee Reporting” (14) reads,

Detainees, by virtue of their circumstances, have an adversarial relationship with their debriefers and typically are uncooperative early in their detention. If they decide to answer questions at the beginning, they usually pass incomplete or intentionally misleading information…

  • The June 3 version (11) reads,

Detainees, by virtue of their circumstances, have an adversarial relationship with their debriefers; they often try [sic] pass incomplete or intentionally misleading information…

  • On that same peage (14) the June 1 version also notes,

When detainees provide useful information, it is often difficult to determine the detainee’s motivation for responding to the debriefer’s questions.

  • The June 1 version appears to have an Appendix A the June 3 version lacks (note the graphic in both is labeled Appendix B).

The differences suggest certain things. First, the turf war comment suggests the audience for the June 1 document was CIA and those favorable to keeping the torture program at CIA. The CIA appears to be giving a reason to keep detainees in CIA custody (which is laughable, since the 9/11 Commission found that even when they gave CIA questions to ask, they were incompetent to ask them). The reference to illuminating other reports may refer to electronic intercepts–and, like the earlier detail, may suggest the report was targted towards CIA people; FBI people with more al Qaeda expertise, for example, might not have needed the detainee reports. Remember that CIA’s IG report–published a year earlier–found that CIA’s lack of analytical knowledge on al Qaeda often meant detainees would be tortured more because they didn’t give the CIA what they, because of their relative ignorance, expected.

The focus in the June 1 document on detainee’s comments just after detention, as well as the comment about not knowing the detainee’s motivation, may well serve as a way to explain away FBI’s success at getting information from detainees before torture and/or to justify torture. That is, if detainees immediately hand over information, then CIA has to argue it’s suspect, or their entire justification for using torture falls apart. And they have to suggest that if the detainee does turn over information that turns out to be accurate, the motivations are unknowable (and therefore not attributable to the FBI’s interrogation methods).

These are, obviously, wildarsed guesses. But the June 1 document–the one Cheney initially requested–seems to be targeted to those not only read into the torture program, but predisposed to keeping the torture program, and keeping CIA in charge of it.

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51 replies
  1. Hmmm says:

    There’s that crappy concept again of number of reports from detainees vs total number of reports. Not useful or productive or positive-end-outcome reports, just sheer volume. Which Dick cited multiple times publicly as justification for the program. Note, acceptance of this vacuous metric created a motivation to max out the number of detainee reports irrespective of the actual value of the interrogations bc then the share of “intel” from the detainees under the torture program would become massive, “justifying” the program in a fit of circular crappy logic. See supra in 183x, etc.

  2. perris says:

    These are, obviously, wildarsed guesses. But the June 1 document–the one Cheney initially requested–seems to be targeted to those not only read into the torture program, but predisposed to keeping the torture program, and keeping CIA in charge of it.

    or, team b

    and he’s not predisposed for keeping the cia responsible, they want team b responsible and only team b

    the purpose of the program was to get information they knew was not accurate

  3. fatster says:

    Obama Administration to Announce Detainee Prosecutions
    . . . within the next two weeks. However, “It’s unclear whether the announcement will include information about those detainees in other categories — those who will be released into the custody of other countries, or those whom President Obama believes are too dangerous to release, but cannot be prosecuted because they were tortured.”
    LINK.

  4. tjbs says:

    But of course, They had to be false justifications for torture because there is no true justification for human degradation that is known not to produce information. If it slips into murder, the information dies with the suspect.
    This country still has a cheney problem.

    • Hmmm says:

      Since as John Dean reminds us the SoL has sailed for these crimes, it may be that by exposing Dick’s willingness to hang Scooter out to dry, the Obama administration has done the most that could possibly be done at this point to contain our Cheney problem. Biden declared Cheney irrelevant last week, and I think he may well have meant that since none of Dick’s stay-behinds will ever again be able to believe in Dick’s commitment to protect them when they act in his interest, none of them will ever stick their necks out again.

      • bmaz says:

        Whatta ya know, those pesky statutes of limitation that people always seem to forget about as this shit gets dribbled out till the next of never. Who’d a thunk it?

        • phred says:

          Speaking of which, did Sheldon Whitehouse ever get back to EW about the SoL question she asked him like forever ago? I’m guessing not, since we never heard about it, but still it would have been nice for him to at least ackowledge the SoL problem.

          • JasonLeopold says:

            Speaking of Sheldon Whitehouse, he spoke today at American U on the torture memos. I don’t see a link to the news release on his website. Just more informational if anything. Nothing newsworthy. A couple of things he hit on:

            Attorney General Holder has indicated that the OPR report will be released upon completion of any necessary review for classified material. I applaud the Attorney General for recognizing that the truth about OLC, however unpleasant, must be revealed in order to restore full confidence in that office and for a complete understanding of this matter; to educate the people. I expect it to be a thorough and professional report. That would be consistent with the commitment every Attorney General should exhibit to follow the facts and law where they lead.

            It will be a sad day, I am sure, when we finally read the Office of Professional Responsibility report, but its release will help avoid a repeat of this episode the next time an administration seeks to manipulate the role of government attorneys. At OLC, this means re-erecting its institutional defenses against manipulation: reasserting its tradition of providing detached and careful legal advice; ensuring that its opinions are peer-reviewed; honoring regular channels; and exposing opinions to the light of day as soon as reasonably possible. This recovery will require good leadership. President Obama has nominated Dawn Johnsen to complete this task, and she is well suited for it. A former acting head of the office, her nomination is one of many currently bogged down by meritless partisan obstruction by my Republican colleagues in the Senate. I look forward to seeing her confirmed soon.

            • skdadl says:

              It’s always worth trying the carrot rather than the stick, I guess, especially if you have a wry sense of humour, as Whitehouse obviously does.

              He sounds a bit like my mother there: “You are going to listen to your better angels, aren’t you, dear?” Accompanied by a smile, but threat implied.

      • earlofhuntingdon says:

        Dick’s left behinds are all committed to the cause. They’re in this for the long haul; when Christ fails to return at the dawning of one millenium, they prepare for his coming the next time round.

        Of course the leader would save himself by any means possible, including having his best and closest advisers take one for the Shifter; the rank and file of such movements exist for that purpose. They will continue to obstruct the righting of administrative and agency conduct back to something objectively close to neutral, let alone its listing toward progressive thinking.

      • Leen says:

        when John Dean said that last night “sol” I about cried. Just when did the SOL kick in?

        Lawyer folk can the Plame Wilsons open up a new case based on the Cheney interview?

          • Leen says:

            so what is the point of digging deeper into his crimes? If he is never going to be held accountable or have to pay for outing Plame…what is the point?

              • fatster says:

                It won’t happen again only if Congress takes action to ensure we have strong laws to that effect, including the unavoidable responsibility of enforcing them (and all the other things you lawyers know). And what are the chances of that?

                I’m also expecting Santa Claus to deliver a pony to me this Christmas.

                (The snarkiness is not aimed at you, bmaz. Not at all. I’m just very downcast, disheartened at this moment.)

                • Hmmm says:

                  Congress already has all the tools it needed to deal with this, and it never had anything to do with new legislation. There is in certain very limited circumstances an absolutely existential imperative to use the Constitutional remedy of impeachment. Congress failed to do its clear duty in this regard, and in that error of omission collaborated in the severe wounding of the republic that can’t be undone now. Any after the fact prosecution by the successor executive administration, satisfying at it could be to our sense of justice, could only be minor in restorative effect in comparison with the great damage done.

                  Nancy got some ‘splainin’ to do.

                  • Leen says:

                    “and in that error of omission collaborated in the severe wounding of the republic”

                    And while many Americans would be perfectly happy to have enough money to fill their tanks , put their petals to the metal and get to the mall tobuy more plastic and silk shit from China..this ‘severe wounding” seems to be hot lava flowing just below the crusty surface. Are we watching the empire implode?

              • Leen says:

                The cold hard Truth is is that Cheney and Bush ARE ABOVE THE LAW. That is a fact and the peasants know this. The peasants were the folks who believed their lies and sent their children to Iraq because they either believed or it was their way to college. I have talked with hundreds of these folks. They believed! Bush and Cheney could give a rats ass about these young people who believed their lies and have basically been murdered by them or had their lives and psyches turned upside down.

                Bush and Cheney were more than willing to send these kids to their deaths, be injured, willing to throw Valerie Plame Wilson under the bus. A woman who put her own life on the line for her country and they just tossed her aside endangering her and her families lives, they discounted International treaties and tortured. Cheney was perfectly willing to hang Libby out to dry. What a yellow bellied coward. 5 deferments and more than willing to send young people to their deaths based on his lies. And they will never be held accountable in a court of law. They will never pay for these extremely serious crimes. I am thoroughly disgusted.

                hearing that there was a SOL was so dissapointing

                This nation is rotting from the inside and the whole world knows it and so do the kids that I talk to returning from Iraq.

                Anyway thanks for what you do..but it is so discouraging thinking that they truly ARE ABOVE THE LAW

            • bobschacht says:

              so what is the point of digging deeper into his crimes? If he is never going to be held accountable or have to pay for outing Plame…what is the point?

              I don’t think there’s an SOL on treason, or on War Crimes. Not that either is likely, but the more incriminating evidence can be brought to light, the more likely an adverse judgment becomes.

              Bob in AZ

              • Leen says:

                I know two young men who returned from Iraq during the last several years (one did three tours, the other two). They both sit uptown drink until they are out of their minds,(they were not like this before they served in Iraq) get in fights, deal with deep depression. They are more than likely going to deal with the consequences of serving in Iraq for the rest of their lives.

                Bush and Cheney are yellow bellied life suckers…they need to be held accountable for that war based on a “pack of lies” along with their other crimes

          • Leen says:

            So was the date of release all in the plans? Who is in charge of when that interview was released? All in the fix. Rule of law…horseshit

      • fatster says:

        It is way beyond nauseating, isn’t it? Just reading all the excellent articles that EW produces daily, the lengthy Fitzgerald investigation documents, now John Dean chiming in with the obvious, etc., and yet “Dick” Dick walks free. I guess a good sense of the absurd is more necessary than ever in these times. It’s either that or stroke.

    • Leen says:

      “may” ? Why do they keep beating around the bush? I still do not get why if Fitz had this interview what kept him from nailing Cheeeeeney’s lying ass?

      This interview is mind blowing
      Appeals Court Rules in Maher Arar Case: Innocent Victims of Extraordinary Rendition Cannot Sue in US Courts
      http://www.democracynow.org/2009/11/3/appeals_court_rules_in_maher_arar
      “On October 8th at 3:00 in the morning, I was awakened and told that they had decided to remove me to Syria. By then, it was becoming more and more clear to me that I was being sent to Syria for the purpose of being tortured.

      There, I was put in a dark underground cell that was more like a grave. It was three feet wide, six feet deep and seven feet high. Life in that cell was hell. I spent ten months and ten days in that grave.”

      ————————–
      Insane simply insane

  5. Jim White says:

    What a surprise that the version Cheney would request is the one slanted his way!

    [Aside for the backstage tech folks: refreshing my Firefox tab on the previous dead tree thread showed me new comments there but not this new thread, which I discovered through Twitter.]

  6. fatster says:

    Former OLC Director Not Opposed to Criminal Investigation of OLC Lawyers
    “Former Acting Assistant Attorney General Daniel Levin, who headed the Justice Department’s Office of Legal Counsel under President George W. Bush after the departure of Jack Goldsmith, said this morning that “I personally am not opposed to criminal investigation of my conduct and others during the period in question.” Levin was referring to the period between 2002 and 2006, when the Office of Legal Counsel was producing memos justifying the use of “extreme” interrogation tactics on detainees in U.S. custody which many legal experts now say amounted to torture.”
    Link.

    • MaryCh says:

      So, riffing on the SOL note above, is he so sanguine because the ship has sailed on the OLC, too?

      And is there a timeline on the release of these statements relative to the tolling of the statutes? It sure seems that various agencies, even across administrations, have been able to wait out the clock.

      [I know, color me naïve – just use a bluish shade of green, okay?]

      • skdadl says:

        I think that Levin is different. I wasn’t surprised to see that statement from him. He had his failings (and if forced, I could look them up), and he probably knows that he could come in for some criticism. (Well: he already has on this site.)

        But he was different. He wasn’t part of the OLC-White House shuttlebus system. I think it took him a while to figure out that they were all already knee-deep in muck, but as he did, he took some steps. Like, he had himself waterboarded, and then wrote a clear statement about waterboarding as torture. Addington did not like him, edged him out as soon as possible for the odious Bradbury.

        I feel sorry for Levin, actually. I watched him testify once, and he is not a genius or a hero, but I believe he is an honest guy. Unlike a lot of the monsters, I can believe he lives with some feelings of guilt.

        • emptywheel says:

          Levin approved waterboarding in August 2004. Then, after wrestling with this stuff that fall, he had himself waterboarded. He wrote the December 2004 memo replacing Bybee One–but that’s the one they put the footnote in to absolve Yoo of crappy lawyering. He was working on the replacement for Bybee Two, but AGAG came in and immediately pushing him out and put Bradbury in charge, which is how waterboarding got reauthorized in 2005. He’s also the guy who told Congress if it had been told that waterboarding was used just once with Abu Zubaydah, they had been misinfored.

        • skdadl says:

          Unlike a lot of the monsters, I …

          Omigosh, I committed a dangling modifier. And I’m supposed to be an editor.

          I’m not one of the monsters, I tells ya. I’m not.

          I go now to commit ritual suicide.

          • Mary says:

            And I’m supposed to be an editor

            I must make you cringe & flinch. Modifiers are like bait, they need dangling every now and again to get everyone’s attention.

            @17 Thanks for that. I think Whitehouse is ubersmart, but I so very much disagree on the OPR report and what it can accomplish within its parameters – it falls so short and leaves so much outside of its scope, I don’t see it as a professional, competent, reasoned approach to establishing a baseline of knowledge about what happened and responsibility and prevention mechanisms. But we’ll see.

          • fatster says:

            Well, bricklefritz!

            (Not having a crystal-clear memory, the word may not be spelled correctly. If not, pls correct it.)

            • skdadl says:

              I think that bricklefritz is right.

              In a Germanizing moment, I may have spelled it brickelfritz.

              I honestly don’t recall, Mr Fitzger … I mean, Ms fatster.

              • fatster says:

                And what grade are you going to give me on my dangling modifier? I worked on that thing!

                Brickelfritz it is.

                • skdadl says:

                  ZOMG! I missed another one! And it is indeed a magnificent dangling modifier, a thing of beauty and a joy forever. On my deathbed, I shall remember that modifier of unsurpassed dangle.

                  It’s true I missed it, but even if I hadn’t, I probably wouldn’t have said anything. Mostly I wouldn’t do that online, where people are writing fast, although I think it’s good that people help to keep the main post shipshape, ’cause EW’s words are meant to be the deathless prose around here. Oh, and bmaz too. Mary writes songs, and I would never correct those.

                  I taught English to engineering students for a while, and my lecture on dangling participles was always good for some snickers.

                  • fatster says:

                    Always feel free to have fun with my attempts at writing; t’would tickle me. And we do need some joy in this world.

  7. JTMinIA says:

    What about a Rice Defense? As in: “Who could have predicted that not torturing would be more effective than torturing?”

  8. earlofhuntingdon says:

    If the interrogators do not know what, if anything, any detainee knows, what evidence supports the claim that detainees initially disclose misleading or incomplete statements, followed later – presumably post-torture – with full and accurate statements? (How is it these interrogators knew the difference?)

    Interrogators would assumed that those we interrogated would follow the training we provide our own service personnel, that is, first answers would be incomplete misdirection. But is that the actual experience with these prisoners? The second “observation” flies in the face of other research that demonstrates that torture-induced statements are a jumble of fact, fancy and the regurgitation of whatever the interrogators most want the prisoner to say.

    As you point out, how did interrogators know what to ask and did they have the language and cultural skills to ask it, whether in a relationship context or one built around torture?

  9. alabama says:

    Two thoughts about this Cheney person:

    1.) tough guys–really tough guys–don’t care about other people’s opinions (except insofar as they need the information);

    2.) this Cheney person spends most of his time worrying about other people’s opinions (but then he’s a failed novelist married to a failed novelist);

    giving rise to a question: who hangs out with this Cheney person? Does he still go hunting with the Chief Justice?

    • bmaz says:

      There is no such thing as a “crime against humanity” under US law. As to homicide, yes there are generally statutes of limitation except for capital murder. Although not uniform, the general rule is that there is no statute of limitation on capital crimes. Capital murder is a specific intent crime for the direct actors though and is not a panacea amenable to application up and down the command chain. There is not one chance in hell of political leaders being charged with capital murder, and since the ICC does not have jurisdiction of them, there will be no prosecution for “crimes against humanity”.

  10. alinaustex says:

    bmaz@ 32
    It would appear that some detainees were put to death by torture yes ?
    And thanks for clearing up that crimes against humanity issue is not applicable in US Courts – But what statutes was Charles Taylor Jr tried and convicted by down there in Florida a few years back for what he and his daddy did in Sierra Leone ?

    • bmaz says:

      Taylor’s son appears to have been tried and convicted, under a somewhat dubious application of the newest version of the US anti-torture provisions, with the death counts being ones in which he personally did the acts. It should be noted that he was arrested on a passport violation and was specifically not charged with the war crimes until the US government made a conclusive determination that such provisions could not be applied to CIA, contractors and other US personnel involved in the so called war on terror and there is, of course, an affirmative defense effectively accomplishing just that written into the law. What you suggest is beyond highly unlikely to ever occur even if there was some root desire or motivation of the US DOJ to so prosecute, and there most assuredly is not. This is a fantasy.

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