Did CIA Misrepresent Interrogation Policy to Court in Passaro Case?

I wrote in my last post on David Passaro that he knew precisely how to defend himself (go here for general background on Passaro and his case). Even before he was indicted, Passaro asked for discovery on CIA’s rules of engagement for detainee interrogations, which he tied to SERE techniques well before the connection had been made publicly.

Which is why Passaro’s requests–and CIA’s refusals–for interrogation guidelines are so interesting. While much of those early discovery requests remain redacted, on November 18, 2004 Passaro requested:

  • All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
  • “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces
  • [A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
  • All information on Passaro’s training [my emphasis]

At some point (the document appears to have been sent on January 23, 2006), the government handed over the only such description it gave to Passaro’s team (see PDF 21), what they claim was a December 3, 2002 cable sent in support of operations in Afghanistan and along the Pakistan border.

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Now, the cable is interesting on its own right. It has not, to the best of my knowledge, appeared in any FOIA document dump or even Vaughn Declaration. Though we know that Langley sent a long cable to the Thai black site on November 30, 2002. And in the beginning of December there was cable traffic back and forth about closing that black site and destroying the torture tapes. The date certainly suggests the cable to Afghanistan might have been a response to Gul Rahman’s November 20, 2002 death at the Salt Pit, particularly with its prohibition on any “deliberate environmental deprivations.”

Note, too, the language the CIA used: “in support of ongoing CIA operations in Afghanistan and along the Pakistan border.” The reference to Pakistan sure sounds like a tacit admission that CIA was working in Pakistan already by that point.

But the really disturbing part of this document is CIA’s claim that this policy governed the interrogation of Abdul Wali in June 2003. After all,. the month after they sent this cable, George Tenet issued Guidelines to cover the CIA interrogation of detainees, guidelines that “control” over guidelines previously sent by the Directorate of Operations. That is, Tenet’s Guidelines, not the December 3, 2002 cable, would seem to have been the operative guidelines in June 2003.

And these guidelines, addition to approving, as “standard” two of the three initial techniques used with Abdul Wali (sleep and food deprivation), also describe a set of Enhanced Techniques for use with approval by Headquarters. At least three of these Enhanced Techniques–walling, abdominal slap, wall standing, and stress positions–were also, arguably, the treatment used with Wali. He was repeatedly slammed against a wall, hit in the stomach, and forced to do the “iron chair” for at least an hour at a time.

While the document, by itself, doesn’t say anything about whether or not the techniques would have been approved for use with Wali (I’ll look at that closer in a follow-up post), it does seem that the CIA deliberately refused to turn over to the defense a document that would have shown some of the treatment used with Wali was not only (with approval) acceptable, but for some techniques, “standard.”

Mind you, there are at least two ex parte filings that might include this document (or the other documents Passaro requested), one in November 2005 and one in January 2006. So the only question here is whether the government turned over the Tenet document to the Court, but not the defense.

But in any case, they certainly avoided admitting to the jury that CIA considered some of the techniques used with Wali standard.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

55 replies
  1. BoxTurtle says:

    Probably they misrepresented. Certainly, they lied. And failed to comply with discovery. And committed abuse of process.

    Boxturtle (That’ll cost ’em another sternly worded letter)

    • john in sacramento says:

      Probably they misrepresented. Certainly, they lied. And failed to comply with discovery. And committed abuse of process.

      Boxturtle (That’ll cost ‘em another sternly worded letter)

      Maybe that’s the idea — that they get paper cuts — yea, that’s the ticket, yea

      … er, on second thought maybe notsomuch

  2. scribe says:

    The interesting twist in this is one which a little thought-gaming will expose, if not reveal in its entirety.

    Suppose that contrary to what actually happened, the government had been fully compliant with its discovery obligations to Passaro. Passaro puts on his defense based on, essentially, his allegation he followed the rules as they were. In other words, he shows he had “good faith”.

    If his defense succeeds in gaining him an acquittal, then Bushco gets (some, if not all of) what it wanted – the Good Jury-Verdict Seal of Approval on their torture program. While it would be only a trial court decision, it would nonetheless remain a jury verdict that could be pointed to again and again as a precedent (to encourage operatives to follow orders).

    If his defense fails in gaining him an acquittal then, in the first place, Bushco can continue the torture by blaming the conviction on bad lawyering on Passaro’s defense’s part, not the inherent illegality of the program Bushco had implemented.

    Even if Passaro’s trial defense fails, he might still be successful on his appeal, which would be better for Bushco (because the decision that the rules Bushco promulgated were ok would be made by an appeals court).

    The rejection of Passaro’s arguments at trial and on appeal, the result we have here, is the worst possible result for Bushco, assuming court-tested-and-approved legality for their torture program was the objective.

    By stonewalling Passaro on his discovery (and thereby greasing the skids to his conviction), Bushco wound up halfway cutting off its own nose to spite its face. The operatives will know that Passaro followed the rules (such as they were) and still went to prison for it. So they can draw three simultaneous conclusions from that. First, that following the rules is not sufficient to prevent criminal conviction. Second, that the Agency and USG will cut you loose to fend for yourself (and actively work to bring you down) in the event your rule-following (this is no surprise to anyone working for any part of the government, let alone the intelligence community). Third, that a lot of other people did the same thing and walked on to bigger and better jobs.

    The last is the most puzzling to the outsider, though it should not be. The seeming caprice in who gets prosecuted for torture and who does not is almost certainly related to internal politics of the agency, the politics (in the larger sense) of the defendant (how much you wanna bet he was a Democrat or sympathetic to them?), or some combination of both. The folks who moved on to bigger and better after doing the same that Passaro did got to move on because they were politically close to the Bush/Cheney administration. In other words, the possibility of prosecution is out there hanging over the torturers heads every minute of every day, to fall on them if they should waver in their devotion to Bush/Cheneyism.

    How much you wanna bet that somewhere in Deadeye’s or Addington’s files are a list of people and tales which can be dropped any time they need to punish someone showing less than total fealty? Those VP disclosure forms that were submitted to Cheney’s selection committee back in 2000 never surfaced either, but no one goes against him still.

    The people who are in accord with Bush/Cheney stay around, because they are comfortable with the moral/legal swamp in which those folks live. The people who are not, get out – if only to avoid being prosecuted. And, to digress slightly for an example consider that, when Obama took office, all the generals and admirals in the military had been selected and/or promoted to their current rank (and nominated and confirmed by the Senate) during the Bush/Cheney administration. Since a rough estimate is that 1 out of 16 or so colonels will get a general’s star, that leaves plenty of room for an administration which showed no reluctance to politicize everything else, to politicize selections to those ranks.

    But the end result is we get a government throughgoingly stocked with clones of Addington’s and Cheney’s mindset, kept in service to them by fear, regardless of whether they are in or out of office.

    • lysias says:

      But the end result is we get a government throughgoingly stocked with clones of Addington’s and Cheney’s mindset, kept in service to them by fear, regardless of whether they are in or out of office.

      Sounds like a good description of the sort of people left in positions of power after a few years of Nazi rule, and of Communist rule.

    • jdmckay0 says:

      a little thought-gaming will expose, if not reveal in its entirety.

      Plausible.

      But… from very beginning of BushCo, almost everything they did as so full of misdirection that reality of what they were doing was left an open question. And for the most part, there was little explicit evidence to answer the questions… a perpetual guessing game.

      And they seemed to revel in it, demonstrated over & over again.

  3. Gitcheegumee says:

    OK, I probably will get mowed down for this comment, but I think Passaro was trying to get the discovery re: John Walker Lindh, and the abuses he was subjected to in Afghanistan in December 2001.

    Chertoff had his minions offer Lindh a deal just days before a hearing that would have blown the lid off the anti-Geneva Convention interrogation practices -just days before the July 2002 Bybee memo.Adeal that allowed the DOD to never enter into public record what Lindh had ACTUALLY been subjected to at the hands of his fellow countrymen.

    The way I read the discovery request was the demand for ALL Taliban/Afghanistan info- and that would include Lindh,too.

    According to what I have read about Passaro, in the time frame Lindh was being subjected to his metal coffin, Passaro was in the midst of a divorce-and not in Afghanistan himself-but that doesn’t mean he did not have knowledge of exactly what went or-or have friends there at the time.

    And, he spent time gathering info after being indicted,didn’t he,at Fort Bragg?

    • emptywheel says:

      I don’t buy that. His document request maps pretty clearly onto what we know of CIA authorizations to torture (and where he requests something we don’t know about, maybe we should be asking for it). And the authorities were pretty different a year and a half later. While he may have been asking for pictures that might have included Lindh’s treatment, it would have included a lot more (included Rahman’s treatment, which was more applicable).

      • Gitcheegumee says:

        Au contraire,I think he was asking specifically for that which had been purposely hidden from the public,re” Lindh et al., and for the purpose of establishing a timeline of how far back the practice actually went,contrary to the public propaganda.This would ofcourse, be a
        chess play” on Passaro’s counsel’s part…unless Passaro had in his possession ,documents that would have disputed the official “line.”

        Consider if Gonzales, Cofer Black and the other entities Passaro requested had provided testimony,some riddles may have been answered-or become even more obtuse.

        • Gitcheegumee says:

          RE: Documents that disputed the official line

          Perhaps that would explain Passaro’s briefcase being purloined?

        • emptywheel says:

          Right. But which do you think is more toxic? Evidence that, at a time when there was little guidance, a bunch of people beat the shit out of a white guy? Or evidence that even after that happened–particularly after that happened–everyone in the chain of command up to and including the President signed off on institutionalizing that kind of practice?

          Passaro had a pretty good idea of what the latter looked like, and that was what he was after. A Lindh video would have done him no good, legally. The latter would have saved him 8 years of his life.

          Call me crazy, but I think he was most interested in the latter, and that’s why his requests were specifically targeted to elicit the latter.

          And yes, that is likely why his briefcase disappeared.

          • Gitcheegumee says:

            I would never call you crazy, for sure; nor would I choose to employ that description of anyone, in a facile,easy manner.

            I am proferring my opinion.

            We are all aware of the content of Passaro’s requests.

            But,unless I am mistaken, NONE of us can prove with certanity-except Mr. Passaro-as to his intent,imho.

            • Gitcheegumee says:

              What is more toxic? Evidence at a time where there was little guidance or evidence that the unthinkable became national policy?

              I should think NO toxicity would be the appropriate paradigm, or did I blink?

              The lesser of the two evils-that is a mystery fit for Solomon.

              However,there WAS guidance for the “Lord of the Flies” mentality- from the Lord High Fly , in the earliest larvae stages of the GWOT, Rummy himself:

              Rumsfeld ‘told officers to take gloves off with Lindh’ – Americas …Rumsfeld ‘told officers to take gloves off with Lindh’ … A Defence Department spokesperson said the Pentagon “refused to speculate on the exact intent of …
              http://www.independent.co.uk/…/rumsfeld-told-officers-to-take-gloves-off-with-lindh-731644.html – Cached

              Prison Interrogators’ Gloves Came Off Before Abu Ghraib – Los …… was captured in Afghanistan, the office of Defense Secretary Donald H. Rumsfeld instructed military intelligence officers to “take the gloves off” in.
              articles.latimes.com/2004/jun/09/world/fg-prison9 – Cached –

  4. klynn says:

    scribe @ 2

    But the end result is we get a government throughgoingly stocked with clones of Addington’s and Cheney’s mindset, kept in service to them by fear, regardless of whether they are in or out of office.

    (my bold)

    In sum, weenies rule. So much for the land of the free and the brave.

  5. OldDog says:

    This is grossly off-topic, but I would greatly like to see posts by EW and BMAZ RE the 10 or so names floated by AP today as being considered as replacements for Justice Stevens on the SC, especially:

    Granholm, the Michigan governor and former federal prosecutor and Michigan attorney general.

    Napolitano, the homeland security chief who is a former Arizona governor and a former federal prosecutor.

  6. MadDog says:

    While I can understand why Passaro’s defense team would try to get all of those “authorizing” documents, I can’t help but think that they were attempting a “kitchen sink” defense with that effort.

    Nowhere does the defense make the claim that Passaro, at the time of Abdul Wali’s “interrogation” by Passaro, had knowledge of or had been provided direction from his CIA superiors as to the limits of the CIA’s “interrogation modalities” (i.e. torture techniques).

    And because the defense made no such claim, it would seem appropriate that the Judge dismiss this part of Passaro’s discovery request.

    Basically, I’m saying that if Passaro had such knowledge or direction from the CIA at the time of Abdul Wali’s “interrogation” by Passaro, he would have made that argument, and his discovery request would have stood on much firmer ground.

    • emptywheel says:

      Actually, he did, to some degree.

      Both his CIA supervisors testified, wearing disguises. One (the one in charge at the time) said he did authorize some techniques in question, another said he did not. Both of those were, to some degree, moot, since the techniques were put into place before CIA got control of the interview.

      The big question, however, and one that Passaro wasn’t able to pursue, was what his specific role was. There was no contest that he was trained to do renditions by the CIA. There was a contest on whether he was trained to do interrogations, and he was pointedly not allowed to talk about whether his SERE background is one of the reasons CIA hired him.

      BUt the question of what his superiors said is one of the reasons why, IMO, they couldn’t turn over the Tenet document. It wasn’t just that the doc admitted CIA used techniques similar to what Passaro was using. But it also required things like medical intake and paperwork that there is some reason to believe they were avoiding in Asadabad, and it may not have been CIA trying to do the avoiding.

      • MadDog says:

        Actually, he did, to some degree.

        Both his CIA supervisors testified, wearing disguises. One (the one in charge at the time) said he did authorize some techniques in question, another said he did not. Both of those were, to some degree, moot, since the techniques were put into place before CIA got control of the interview…

        I’ll buy that to a degree as well, but I think we’d both agree it was kind of informal. More of “Hey, I can’t get anything out of him, why don’t you try?”

        And secondly, I strongly agree with you on this:

        …The big question, however, and one that Passaro wasn’t able to pursue, was what his specific role was…

        However, I still think that Passaro and his defense team were grasping at straws in trying to pursue his SERE background skills as a means to “qualify” him as an “interrogator”.

        He wasn’t, and they aren’t.

        • emptywheel says:

          No, we can’t agree on that. I don’t think it is right to say he wasn’t there in a role involving interrogation. The Special Ops guy ceded to him, and the CIA guy ceded to him. There was one other unnamed person who interrogated him, but nowhere in the public record that I’ve seen is it clear who, if it wasn’t Passaro, was supposed to interrogate this guy.

          And while it’s definitely true that his CIA superior said “we can take a crack at him,” and while it’s definitely true that no one on that base was following protocol with regards to registration and intake, I’m not sure that’s a reflection that they wanted to keep this all off the books, whether they just weren’t set up to follow CIA protocol, or whether someone else screwed up on custody issues.

          Do we think he was an interrogator, a la Ali Soufan or Matthew Alexander, who actually know what they’re doing and talented in doing so? No. But did CIA hire him with the understanding that SERE=interrogation (which we know them to believe)? Dunno.

          • MadDog says:

            …I don’t think it is right to say he wasn’t there in a role involving interrogation. The Special Ops guy ceded to him, and the CIA guy ceded to him. There was one other unnamed person who interrogated him, but nowhere in the public record that I’ve seen is it clear who, if it wasn’t Passaro, was supposed to interrogate this guy…

            I’m less inclined than you to fit Passaro into the primary interrogation role, but I could “imagine” it being the case. *g*

            His SERE training notwithstanding, Passaro’s background doesn’t seem to jump up and shout “Interrogator!” The guy was a Medic after all!

            Perhaps he oversold his skillset, and the CIA, looking at their mostly empty interrogation cupboard, closed their eyes and bought Passaro as “Interrogator!” amongst his other SF tradecraft skills of Afghanistani languages, surviving on a diet of snakes and toads, etc.

            If so, they were more clusterfucked than even we believe of them. *g*

            But I want to go back to one of my earlier points that if indeed Passaro was hired by the CIA to do “interrogations”, why doesn’t he come out and say so?

            Typically I’d think, if you don’t, it’s because you can’t.

            • emptywheel says:

              First, the representation that he was “just a medic” was the government’s. Passaro never said that.

              Second, he was under a very restrictive protective order. He was being told that he was not allowed to talk about what he was hired to do, and there are a number of redactions that even redact his actual job description.

              So there’s a really easy explanation for why he didn’t say he was an interrogator, if he was in fact one or trained as one. He may have. And if he didn’t he was being told it would get him some extra charges.

              • Mary says:

                What as the deal with him and the translator(s)? I’d think that relationship – their availability to him, etc. would trend towards answering some of that.

                • emptywheel says:

                  Good question.

                  Dunno, is my answer to it. I’m not sure whether the translator, Wahid, was Passaro’s dedicated translator (remember, one thing we do know that Passaro was doing was organizing Afghan militia, which it would seem would require a full-time translator. But if I’m reading the filigs right, the translator had, at first said that Passaro didn’t hit Wali. But then later he testified at trial that he did. Passaro suggested that along the way Wahid got the opportunity tobe sponsored by the USG to come to the US and go to college or something like that.

      • Mary says:

        If he got enough, it would have opened up selective prosecution issues as well.

        Which goes back a bit to scribe @2 “The seeming caprice in who gets prosecuted”

        Anyone interested should really read through the motion that you linked, EW, and even some of the case law cited bc some of it doesn’t exactly read like dry case law. One of the cases that Passaro’s lawyers relied on in the Motion was the Texas version of the US v. Wilson case.

        A bit about Wilson
        http://www.washingtonpost.com/ac2/wp-dyn/A59212-2004Jun21?language=printer
        The Texas Appeal
        http://www.fas.org/sgp/jud/wilson102703.pdf

        It’s particularly appropriate today, imo, bc the DOJ really got rolling against Wilson right about the time he began to offer up some info and willingness to testify about a couple of guys in Libya tied to the Letelier assassination and since Kissinger is getting a few deserved headlines on that topic, it seems like I really should mention it.

        In any event, the Wilson case is kind of like the Siddiqui case, in that no one is ever going to really unravel things. He was “ex” or not so “ex” CIA, he was involved (maybe) with Secord and North, he was working for the CIA (or not) while he sold weapons to Khadafy, his ex-Green Beret employees were (or were not) involved in trying to kill Khadafy dissidents elsewhere or in the US (or in trying to give those dissidents messages from the CIA and then having to shoot the dissidents in self defense) etc etc etc. Wilson did – or maybe didn’t since there was never any conclusive voice analysis – try to solicit the assassinations of Federal prosecutors, etc. Most importantly at the time, the CIA was – or was not – involved in the machinations to sell Libya enough explosives to bring down a Pan Am flight over Lockerbie.

        But the case, of the many cases involving Wilson, that Passaro’s guys cite is the one about how the government knowingly used a false affidavit to secure conviction – Gov/DOJ claimed that Wilson had not worked for CIA and put it in an affidavit. A slew of DOJ prosecutors (two of whom later became judges) and the CIA gen counsel and kind of a cast of thousands all knew that the affidavit they were giving the court was false and that Wilson had contacts with and provided services for CIA too numerous to list when he was arguing that he was acting under gov authority in some of his contacts. But they just lied bc – well, bc they could.

        Twenty years later it began to come out, but although Wilson ended up being released “early” (after 20ish years or so) his lawsuit against the prosecutors who pretty clearly deliberately whiffed the courts was dismissed in 2007, based on claims of immunity for the prosecutors.

        Interesting how not only do all the names get recycled, but there cases get recycled too.

        • emptywheel says:

          They did try for a selective prosecution line based on the public reports of the Salt Pit declination. Didn’t get very far because he started the argument based on being a contractor, and since some contractors got prosecuted for stuff in Iraq. But the public authority defense DID get a serious hearing. DID get pretty far. And as far as I can tell, the Govt only submitted 2 docs to Court which might have been turned over, and I suspect one was the Yoo Memo (which of course used the same argument about not being prosecuted that the bullet points would later do, but at least on paper, though not–as it has been revealed, in fact–applicable to CIA). But the point is that there really is a chain of command to show that from top to bottom Passaro was doing precisely what they wanted him to do, and that one of the things that surely contributed to Wali’s death were clearly approved techniques, whether they were done by Passaro or by others.

        • Jeff Kaye says:

          Fascinating, Mary. EW and readers, please forgive the OT here, but I think it is of interest.

          The Washington Post story, which fails to mention all the work the Christic Institute did to document the CIA, post-Church Commission, off-the-shelf enterprise that included Wilson, tends to corroborate the Christic Institute 1988 declaration. The latter, filed with U.S. District Court, Miami, was later published (long out of print) as “Inside the Shadow Government.”

          From the latter (footnotes omitted, but largely referencing a sworn statement by Wilson):

          In the mid-1970s, following the Watergate scandal and press reports of illegal CIA activities in the United States and abroad, Congress took action to limit CIA abuses. In 1974, Congress passed the Hughes-Ryan Amendment to the 1961 Foreign Assistance Act, requiring the director of the CIA to brief at least eight separate committees prior to any covert action other than simple intelligence-gathering. [This was repealed in 1980, and replaced with the Gang of Eight requirement; see CRS report — Jeff] In 1975, both Houses of Congress launched investigations into the CIA. The Church Committee in the Senate and the Pike Committee in the House of Representatives uncovered further evidence of the CIA’s history of widespread illegal activity.

          [Ted] Shackley anticipated that President Ford, if re-elected in 1976, would appoint him Director of the CIA. This would allow Shackley to continue “black” operations in his private capacity, avoiding as best he could the new oversight law. In 1975, Shackley, [Thomas] Clines, [Eric] von Marbod and [Edwin] Wilson began discussing contingency plans should Jimmy Carter or another reform-minded candidate win the presidency.

          In the summer of 1975, Shackley and his associates met at Wilson’s residence in Virginia to discuss setting up an off-the-shelf, self-financing, covert operations capacity with Shackley, Clines, [Richard] Secord, Wilson and von Marbod as operational officers….

          Shackley and his associates in the Enterprise formally created their private corporation in December 1978, when Shackley, Clines, Secord, von Marbod and Wilson met at a Crystal City, Virginia, Holiday Inn. Clines paid for the room with his American Express credit card. The group agreed at this meting that Ed Wilson would direct his attorney, Edward Coughlin of Geneva, Switzerland, to transfer $500,000 into a special Swiss bank account. These funds were, on information and belief, generated by Wilson through his earlier activities on behalf of the Enterprise, and would be used to capitalize and incorporate International Research and Trade Corporation (IRT). IRT would be the parent company through which the criminal racketeering activities of the Enterprise would be conducted after January 1979.

          The CI brief goes into a great deal of more info re Wilson, including his contacts with Somoza, his work in Libya, and Wilson’s work for the “super-secret Naval Intelligence Task Force 157” in Iran, supporting SAVAK. Wilson operated proprietary companies for the CIA going back to the early 1960s. I’d say he was put on ice.

          The Post article is a belated validation of Wilson’s sworn statement of December 17-18, 1987, made in the Christic Institute suit. The latter, who had won both the Silkwood case and the KKK Greensboro case, had this suit thrown out of court in 1989 on the eve of going to trial. Then, the judge ordered CI to pay fees of $1,000,000 to the defendants. This effectively destroyed the Christic Institute.

          From the Washington Post article:

          Under court order, Adler was permitted to sit in a locked vault at the Justice Department and read thousands of documents on Wilson. They didn’t prove that the CIA ever asked Wilson to sell C-4 to Libya. But they did document more than 80 contacts between the CIA and Wilson during his arms-dealing days: Shackley asked Wilson to acquire a Soviet missile, and to find a retirement home for a Laotian general who’d worked for the CIA. Another CIA official twice asked Wilson to supply anti-tank weapons for “a sensitive agency operation.” The agency proposed using Wilson to secretly sell desalinization plants to Egypt. And so on.

          The documents also showed that, within days of the Houston trial, the CIA had informed the Justice Department that the Briggs affidavit was false. Lawyers at both CIA and Justice argued that they had a “duty to disclose” the false testimony to Wilson and the judge, as required by law. But they never did….

          Last October, Judge Hughes, a Reagan appointee, threw out Wilson’s conviction, denouncing the government’s “fabrication of evidence.” If the jurors had known about Wilson’s 80 CIA contacts, Hughes wrote in a scathing 29-page decision, they “very likely would have believed Wilson’s theory and acquitted him.”

        • Jeff Kaye says:

          Stretching OT to the limit (and please tell me, bmaz or EW to back down in such cases), but the prosecutor in the Wilson case, Lawrence Barcella, who withheld the CIA info, also headed the House task force in 1992-93 that investigated charges around the Reagan “October Surprise” in 1980. According to a 2005 Robert Parry article, “the Barcella-led task force hid substantial evidence pointing toward Republican guilt as well as the involvement of some Barcella associates in the scandal.”

  7. Mary says:

    Mad Dog – I don’t know that he needed to be qualified as an interrogator to a jury, if he could show the court and the jury documents from DOJ, CIA, etc. claiming that CIA operatives can beat the crap out of anyone scot free bc they aren’t in the US and then couple them with documents from DOJ giving a big thumbs up as okey dokey all kinds of activities like beatings (wallings have to sound at least as bad to a jury as heating someone) as authorized activities for interrogators.

    All the nuances (whether he was trained as an interrogator, whether someone was a high value detainee, etc.) aren’t really nuances, bc they were never based on any real legal underpinnings. The legal analysis isn’t really that it’s not assault bc he’s trained – – it’s that it’s not assault bc the DOJ said it was OK to do.

    I’m pretty sure he heard a lot about those kinds of authorizations and memos – EW’s prior posts and the specifications in some of the pleadings indicate that.

    • MadDog says:

      …I’m pretty sure he heard a lot about those kinds of authorizations and memos – EW’s prior posts and the specifications in some of the pleadings indicate that.

      I’m thinking that most of what was requested for discovery was stuff that Passaro’s defense team learned ex post facto along with the rest of us as memos and opinions dribbled out years later, and therefore, of little relevance to what Passaro actually knew on the ground at the time back in June 2003.

      My central point is that regardless of what the government did in authorizing the torture techniques, good ol’ boy Passaro was not in the CIA/DOJ loop at the time back in June 2003, and therefore these documents had little relevance to his acts at that time.

      He didn’t know about them at the time back in June 2003, and could not therefore use their existence as retroactive cover for his misdeeds.

      • emptywheel says:

        I’m thinking that most of what was requested for discovery was stuff that Passaro’s defense team learned ex post facto along with the rest of us as memos and opinions dribbled out years later, and therefore, of little relevance to what Passaro actually knew on the ground at the time back in June 2003.

        Not quite right. What he requested was stuff that, at the least, he learned while at Fort Bragg awaiting potential indictment, so years before we learned of them.

        And while it’s not clear whether he had seen documentation before he did what he did (though I would bet money he knew that SERE had been reversed engineered), he’s got about 8 comments from witnesses in teh record who all said CIA was allowed to do stuff like this.

        • Jeff Kaye says:

          And while it’s not clear whether he had seen documentation before he did what he did (though I would bet money he knew that SERE had been reversed engineered), he’s got about 8 comments from witnesses in teh record who all said CIA was allowed to do stuff like this.

          I’ll join you with that bet, and I know we’d win! Why else is he asking for that material? Passaro knew quite well what was going on. I don’t think he gained any followers by trying to blackmail the Agency. Like Wilson, you don’t free-lance, unless you have powerful backers or connections. Nor will they like it if you try and use what you know in your defense. These people are quite serious.

      • Mary says:

        I don’t agree.

        You are, I think, approach the issue of liability for criminal assault as if it really were a situation of whether or not there was some kind of “good faith reliance on advice of counsel” (which, in what is too long to go into here, there isn’t, even for those who got the memos directly, much less the field operatives who didn’t get them, based on the legal requirements for a good faith reliance defense)

        He didn’t need that for his defense bc it would have completely confused the snot out of the jury to have a profer of memos where the US DOJ is saying that the US can’t try the CIA for assaults it commits on detainees, not because they are acting in good faith reliance on the opinion, but because the DOJ is saying flat out that the conduct is not prosecutable.

        When you then have someone prosecuted for the same/similar conduct DOJ said was not prosecutable you also run into a boatload of issues that have to be dealt with before the defense even gets to the “dazzle the jury” point (go back and read about the trial of the Green Beret who shot the LIbyan dissident in Colorado, btw – it’s tangentially part of the Wilson case – and see how the dazzle and confuse the jury approach works there)

        Those include issues such as the same agency – DOJ – giving the advice that the offenses can’t be pursued and through another office pursuing them; selective prosecution, and a raft of other issues.

        The gist of the DOJ and interdepartment memos wasn’t that it was ok to do the things in the memos because someone was CIA or because the victim as high value al-Qaeda or because someone was trained as an interrogator – although all those kinds of things are lumped into the memos without much effort to elucidate a legal argument for their incorporation. The heart of the memos wasn’t that it was ok to rely on bad OLC memos. The heart of the memos as the DOJ saying that the government couldn’t prosecute for US citizens beating the crap out of nonUS citizens overseas.

        Obviously – the fact of the trial of Passaro would then put DOJ itself in a really substantial bind. DOJ is DOJ – the fact that different people are involved notwithstanding, if the AG and OLC sign off on the department not being able to go after someone in that situation, then they do go after some – but not the ones they gave the memos too – you really have a selective prosecution set up that is going to cause them nightmares.

        imofwiw

        • emptywheel says:

          Well, and they had the audacity to respond to the Yoo memo and say, “so what? we withdrew it?!?!”

          Of course they didn’t withdraw it until after Wali’s death. And what they didn’t tell Passaro’s team is that CTC had put together its own document, with the help of two lackeys in DOJ, saying that the same principle applied to CIA too. A document that had tacit approval from the Principals Committee (which reapproved the program on July 29, 2003, after having seen a presentation including a slide outlining that document.

          One more thing.

          Goldsmith decided, finally, that the Bullet Points weren’t a real OLC document on June 10, 2004. Passaro was indicted a week later.

          • Mary says:

            Well, and they had the audacity to respond to the Yoo memo and say, “so what? we withdrew it?!?!”

            That’s one of those “you can’t make this stuff up” parts.

            And the bullet points timing is very revealing. The power of timelines – I wish i could remember dates and names.

            • emptywheel says:

              Bullet point “final” was sent from CTC to Philbin on 6/16/03. Wali died on 6/21/03. Now, Philbin objected to the bullet points, but the CTC still maintained they counted on 7/29/03 at that Principals meeting.

              And then they were formally disavowed on 6/10/04. He was indicted on 6/17/04.

              • Gitcheegumee says:

                And then they were formally disavowed on 6/10/04. He was indicted on 6/17/04.-EW

                Director Tenet Resigns (washingtonpost.com)Jun 3, 2004 … CIA Director George J. Tenet, dogged by controversies over a string of U.S. intelligence setbacks, has decided to resign for personal …
                http://www.washingtonpost.com/wp-dyn/articles/A12296-2004Jun3.html – Similar

                To reiterate:

                Tenet abruptly resigns 6/03/04.

                They(Bullet points) were formally disavowed 6/10/04.

                Passaro indicted 6/17/04.

                NOTE: That is one week exactly between each event,fwiw.If my memmory serves me correctly, Passaro wanted Tenet and Gonzales to testify.

                • emptywheel says:

                  Yeah, there’s a lot going on with Tenet’s resignation. I’ve traced in detail how it ties to Tenet’s request for formal reauthorization of the program–basically something with Bush’s name on it. It didn’t come until mid-late July.

                  And you also need to include all the people who quit at the same time:

                  Goldsmith
                  Tenet
                  Muller

                  • emptywheel says:

                    Oh, and don’t forget that this happened between the time (May 8) when Cheney met with Fitz on the Plame thing and may have been within days of Bush learning Fitz wanted to talk to him too. The CIA was still sort of protecting Cheney on the leak, though Cheney’s attacks on people at CIA on torture would begin to break down their willingness to cover up for his deliberate leak of Plame’s ID.

                  • qweryous says:

                    “And you also need to include all the people who quit at the same time:”

                    Theodore Olson

                    U.S. Solicitor General, June 11, 2001 to July 10, 2004.

                    One incident concerning Ted Olson- the Ashcroft hospital visit.

                    Which occurred in March of 2003.

                    Then again there may have been some other reason.

                    He was involved in some other cases…

                    • emptywheel says:

                      Yeah, I think it was torture generally too. Remember his Deputy had been made a fool before SCOTUS on April 28. And he wasn’t in the loop on any of these opinions.

                      Anyway, thanks for the reminder, Olson is a key one.

                    • qweryous says:

                      “Remember his Deputy had been made a fool before SCOTUS on April 28.”

                      Those pictures…after essentially saying we don’t do things like that…

                      “And he wasn’t in the loop on any of these opinions.”

                      I thought that he argued some of those cases, and the duties of the position- wasn’t he the supervisor of those preparing these cases and so on?

                      A few possibilities that turned up quickly:

                      From Olson’s Bio at Gibson Dunn link:
                      http://www.gibsondunn.com/lawyers/Documents/TedOlsonCasesBriefedandArgued12.11.09.pdf

                      Cheney v. United States District Court, 547 U.S. 367 (2004). Federal
                      Advisory Committee Act (FACA); Separation of Powers; the Presidency;
                      Appeals of Interlocutory Orders.

                      Rasul v. Bush; Al Odah v. United States, 542 U.S. 466 (2004). Article III
                      Jurisdiction; Habeas Corpus; Enemy Combatants.

                      Christopher v. Harbury, 536 U.S. 403 (2002). Immunity of Public Officials;
                      Bivens.

                      Also found this:

                      “Olson boasts about Clement as a prize catch for the government. He recalls checking out Clement with the conservative street — Silberman, Scalia, and Ashcroft. They raved about him, portraying him as someone in the mold of none other than Roberts — then a top-tier Supreme Court advocate with Hogan & Hartson. Clement quickly set a “24-carat gold standard” for advocacy and integrity, Olson says.

                      So in 2002, when Yoo went to Olson to urge him to organize a task force to get a handle on the impending wave of post¿9/11 litigation, Olson turned to Clement. “It didn’t take great thought to think some of these issues would get to the Supreme Court,” says Clement, “and it made sense that we should be making pretty much the same arguments.” Soon Clement was extending his portfolio beyond the Supreme Court, arguing terrorism cases at the circuit and district court levels — which is beyond an SG’s normal bailiwick. By April 2004, three separate cases — Rumsfeld v. Padilla, Rasul v. Bush, and Hamdi v. Rumsfeld — converged on the Court in the same argument cycle, along with another high-profile case, Cheney v. United States District Court, now best known for Scalia’s refusal to recuse himself even though he’d gone duck hunting with the appellant, Vice President Dick Cheney. Olson argued two of the four cases, and Clement argued two — Padilla and Hamdi.”

                      Emphasis NOT present in the original.

                      Note: Clement above is Paul Clement who replaced Ted Olson as Solicitor General after he resigned.

                      The above from an article titled:

                      “Paul Clement Stays Cool in Court Hot Seat” subtitle
                      “He’s the government’s point man for defending anti-terror policies ¿ which can lead to some uncomfortable moments”

                      Legal Times by Tony Mauro January 1, 2007 LINK:
                      http://www.law.com/jsp/nlj/legaltimes/PubArticleLT.jsp?id=1167386814039

                      Description of Clements ’embarrassment’ at the Supreme Court at that link also:

                      “Clement is secure enough in his position that when he is asked about the exchange with Ginsburg about torture, he answers diplomatically, but makes it crystal clear that he was not happy about what happened that day. “Part of being a lawyer is taking the facts, including the bad facts, and putting them in context. If you don’t have all the facts you’d like to have, you sort of lose the opportunity to do your job,” Clement says in an interview at his office. These are apparently his first extended remarks on the issue. “There are lots of things, if it had come out the night before, that a lawyer could say to the Court . . . all kinds of things you could do.”

                      But it did not happen that way. “Whether they are directly relevant or really bad atmospheric facts,” Clement says, “when it comes out after you’ve had your chance to talk to the Court and put everything in context, it’s about the worst thing that can happen to you as a lawyer.” So bad, in fact, that Clement disclosed that he considered filing a supplemental brief with the Court explaining his unfortunate answer and supplying the context he would have given if he’d known about the prison abuse beforehand. But he decided to let it be. (He would not detail how he would have explained Abu Ghraib away.)”

                      Emphasis NOT present in the original.
                      /blockquote>

                  • Mary says:

                    Esp Muller. jmo, but I’d even put him up over Tenet on the hmmmmmm list.

                    @50/52 – I don’t buy that Clement was just innocently sitting out there, knowing nothing. Among other things, he had this little thing called a duty to exercise reasonable due diligence to confirm that he was making truthful representations.

                    So what are the questions he didn’t ask of his client? He’s not a criminal defense lawyer in his presentations to the court on behalf of Gov, with a lot of questions he’s deliberately NOT going to ask his client (and therefore not going to present info to the S Ct about, as if he were giving an institutionally complete response)

                    The FBI, DOJ’s investigative branch, was busting at the seams by the time of the S Ct oral argument with allegations of abuse and torture. You can’t just have FBI not give the SOl Gen’s office that info AND the Sol Gen’s office not ask for it and then give, as the EXEUCTIVE’S INSTITUTIONAL response to the Court an affirmation that we don’t torture. You god damned well have to first freaking ask your government client, someone with knowledge and authority in the Exec, for the info.

                    He damned well should have filed a supplemental brief. There’s a CONTINUING duty to correct the record. These are the things that no one at OPR is being asked to look into bc of the focus on whether or not the opinions were good work product. You don’t have to get into those questions when you have a flat out misrepresentation to the Sup Ct right there, chalked up to DOJ.

                    And didn’t Clement get involved in review of torture memos with Bradbury later? I can’t remember, but didn’t Bradbury circulate memos pretty far and wide? If so, then Clement would have had an additional duty triggered to correct the record when he was received those additional facts relating to not just current torture but to the statu of older torture under memos in existance at the time of his oral argument.

                    He was given the kind of bye that a non-political lawyer in front of a non-political judicial body would have never received.

    • emptywheel says:

      Right, and one argument he made that no one contested was that he was trained in assault as part of renditions, and therefore he was trained to do the stuff he was doing.

      • Mary says:

        I find the fact that he was trained in renditions, btw, to be the most interesting part of the whole thing.

        One thing we haven’t seen is any kind of authorizations for a lot of what took place with the extraordinary renditions that were going on. I think you’d have a hard hard time under the torture statutes at the time explaining how you engage in renditition without it being a threat to someone’s life. Masked me assaulting you, stripping you, gagging, hooding, the anal assaults with drugs all combined with being kidnapped – a lot of what doesn’t end up ever getting discussed – preliminaries – is front and center for renditions.

  8. klynn says:

    BUt the question of what his superiors said is one of the reasons why, IMO, they couldn’t turn over the Tenet document. It wasn’t just that the doc admitted CIA used techniques similar to what Passaro was using. But it also required things like medical intake and paperwork that there is some reason to believe they were avoiding in Asadabad, and it may not have been CIA trying to do the avoiding.

    Clearly he was trying to establish the chain of authority that gave him his green light to be an interrogator and how to conduct such activities.

    Both of those were, to some degree, moot, since the techniques were put into place before CIA got control of the interview

    I think he realized that even if he didn’t get any of the information, his early discovery requests alone probably made many people shake.Eventually someone has to ask, “How did he know to ask for that?”

    Look at what is happening now with what remains outside of the redactions irt his discovery requests. Many important confirmations and further connecting of the dots by EW and bmaz.

    I bet he is reading this. Or his lawyer is. And they are thankful.

    • emptywheel says:

      One of the things that’s amazing is that they repeatedly, in May 2004 and November 2004 and leading into the trial after the CIPA, redacted even the REQUESTS for guidance on interrogation, even after they had missed it elsewhere.

      They were really really panicked about just this issue.

      • klynn says:

        That issue alone could make an interesting post.

        I am surprised the judge did not eventually state, “How in the world did you know to ask for X,Y and Z in your discovery requests?”

        • emptywheel says:

          Yeah. His requests for info on interrogation protocol really closely maps to what the IG said in the report–but he had more than the IG Report did. So it is rather telling the way they try to excise out mention of interrogation protocols entirely.

          • klynn says:

            And another thing, how in the world could the three judge appeals panel look at the lists of discovery requests and not come to the conclusion we are able to come to here in these threads? He could not just pull those lists out of his arse.

            Come on judges. For the love of justice…What were you justice types thinking?

  9. 1boringoldman says:

    It seems appropriate to this discussion to ask the question, “What actually killed Abdul Wali?”

    from Meet David Passaro, the Only CIA Guy Prosecuted for Detainee Abuse

    According to the government, when Passaro started questioning Wali, he told the guards, “his rules were different,” his “only rule was not to cause permanent injury.” …testified that Passaro slammed Wali’s face against the wall, kicked Wali, slammed him onto the ground, then subjected him to an hour of “iron chair.” When Wali could no longer hold that position, Passaro hit Wali with his Maglite flashlight. Passaro kicked Wali in the groin. The next day, June 20, Wali started showing signs of delirium and complained of stomach pain. The government says even after Wali was in this condition, Passaro continued to beat him, this time using the Maglite to blind him before hitting him. On June 21, Wali started asking the guards to shoot him. He was sluggish and appeared to be hallucinating. He collapsed (the government says Passaro kicked him after he collapsed), and within two hours, he died. The US turned Wali’s body over to his family and never did an autopsy.

    Wali was taken into custody on the 18th, but didn’t meet David Passaro until the 19th. By the 20th, he showed signs of delirium and complained of stomach pain. By the 21st, Wali started asking the guards to shoot him. He was sluggish and appeared to be hallucinating. He collapsed … and within two hours, he died.

    With that timeline, the injury that killed him must’ve come on the 19th, the first day of his “interrogation.” The most likely candidate for that kind of rapid deterioration and death would be a ruptured bowel with widespread peritoneal contamination and sepsis [signs of delirium and stomach pain]. The symptoms of the 21st follow [sluggish and appeared to be hallucinating].

    So what happened on the 19th? Passaro kicked Wali and kicked Wali in the groin [you also mention hit in the stomach in this post]. What the sequence suggests to me is that Passaro kicked or hit Wali in the abdomen on their first encounter hard enough to literally bust his gut. That’s no abdomenal slap. That’s a vicious power punch or kick. And Wali would’ve been pretty sick in his cell on both the nights of the 19th and 20th.

    I agree with your line of thinking that Passaro knew how to defend himself, knew all about SERE and probably its use, and the information was withheld from his trial. But there’s another part of this story, somewhere Passaro got the idea he could do whatever he wanted to do so long as he didn’t “cause permanent injury.” I wonder who told him that, or who didn’t tell him the limits. He delivered a vicious fatal punch on day one. And Wali was desperately ill from it that night and the night before his death – unseen or unreported.

    • emptywheel says:

      Actually, you don’t know who caused the fatal damage.

      The guards who came on duty during the night of the 18th were using sleep deprivation and iron chair with him. They were alone in the room with him for extended periods, and Wali allegedly tried to attack them. They kept using stress positions with him after he started disintegrating.

      Sometime before the 19th, someone who remains unidentified interrogated Wali, perhaps on that same night of the 18th-19th. There is no testimony that I know of that describes what happened in that interrogation.

      And there are inconsistencies in the testimony about Passaro, particularly what appears to be (though I haven’t confirmed this) changed testimony from the interpreter.

      Point being not that I want to have Passaro over for dinner. But the real story is that DOD appears to have decided to treat this guy as a ghost (which is why they got CIA involved at all). They didn’t keep the records they normally would keep. There is one person who appears to have had time with Wali. And extended time with others also using torture they almost certainly weren’t authorized to use (unless the mystery visitor had the authority to tell them to use it, which is gut feel, IMO, very likely).

      And DOD wouldn’t do an autopsy.

      I agree that a lot of evidence points to Passaro. But there are some big holds in the evidence chain.

  10. 1boringoldman says:

    I withdraw the “who” but I hold the point on “what killed him.” What a nasty case. He didn’t die from stress positions. He was slugged in the gut by someone who really meant to do some serious hurt, and did. I guess “And DOD wouldn’t do an autopsy” means that they knew what they’d find, and didn’t want to find it…

    • emptywheel says:

      Maybe, but if we read the non-autopsy as DOD knowing who did it, that would say Passaro didn’t do it. I’m not sure I’m willing to go there yet either. But yes, it’s a big mess.

      I’m re-reading stuff on ghost prisoners, and even though Wali was just in custody for 3 days, you see why and how that becomes such a big problem.

  11. lysias says:

    Didn’t Olson quit the government because he was so miffed about his office’s not being told about the torture?

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