Abu Zubaydah’s American-Taxpayer Paid Tour of the World

You should read two pieces in conjunction this morning. First, this Andy Worthington piece from last week, that lays out new details on the black site CIA used in Poland in 2002-2003.

On Friday, the Polish Border Guard Office released a number of documents to the Warsaw-based Helsinki Foundation for Human Rights, which, for the first time, provide details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002, and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania. The documents (available here and here) provide important information about the secret prison at Szymany, in northeastern Poland, and also add to what is known about the program in Romania, which has received far less scrutiny.

[snip]

Friday’s revelations by the Polish Border Guard Office are, however, even more significant, firstly because they include, for the first time, confirmation that N63MU flew into Poland on December 5, 2002, and secondly, because they provide details of the number of passengers on seven of the flights, as follows:

December 5, 2002: 8 passengers delivered

February 8, 2003: 7 passengers delivered; 4 others flown to an unknown destination

March 7, 2003: 2 passengers delivered

March 25, 2003: 1 passenger delivered

May 6, 2003: 1 passenger delivered

July 30, 2003: 1 passenger delivered

September 22, 2003: 0 passengers delivered; 5 flown to Romania

Then, read this AP piece, which fleshes out details about the first time that Abu Zubaydah and three other detainees went to Gitmo.

Four of the nation’s most highly valued terrorist prisoners were secretly moved to Guantanamo Bay, Cuba, in 2003, years earlier than has been disclosed, then whisked back into overseas prisons before the Supreme Court could give them access to lawyers, The Associated Press has learned.

[snip]

Before dawn on Sept. 24, 2003, a white, unmarked Boeing 737 landed at Guantanamo Bay. At least four al-Qaida operatives, some of the CIA’s biggest captures to date, were aboard: Abu Zubaydah, Abd al-Nashiri, Ramzi Binalshibh and Mustafa al-Hawsawi.

Together, the articles provide key new details of the global voyages that Abu Zubaydah and other key detainees took between CIA black sites. And the AP piece confirms something earlier revealed in the ICRC report completed in 2007 and released last year: that at least four of the High Value Detainees were in Gitmo in 2003-2004, until they were moved again precisely to hide them from the ICRC.

ICRC notes that four detainees believed that they had previously been held in Guantanamo, for periods ranging from one week to one year during 2003/4. They reported recognising this location upon return there in September 2006, as each had been allowed outdoors on a daily basis during their earlier time there. The ICRC has been assured by DoD that it was given full notification of and access to all persons held in Guantanamo during its regular detention visits. The ICRC is concerned, if the allegations are confirmed, it had in fact been denied access to these persons during the period in which they were detained there.

Now, the two pieces in conjunction answer key questions. As Worthington points out, we know from this that Abu Zubaydah and Rahim al-Nashiri (and, he adds, Ramzi bin al-Shibh) got moved from Thailand to Poland in December 5, 2002, as CIA was making their first efforts to close the Thai black site and destroy the torture tapes. And then the three of them, plus Mustafa al-Hawsawi, got moved to Gitmo the following September 24, 2003. Then, on March 27, 2004, they were taken away from Gitmo.

One implication of this, of course, is that the death threats used against al-Nashiri–reportedly investigated by John Durham (and, I have speculated, possibly one reason Philip Mudd retired in March) happened on Polish soil.

It also times interestingly with Jack Goldsmith’s tenure at OLC (October to July) and even more interestingly with the CIA IG Report (they got Zubaydah and Nashiri–against both of whom the IG Report described torture–out of Gitmo before Congress got a hold of the report).

But the two reports also lay out further area for inquiry. At least according to what detainees told the ICRC, at least one of the detainees who were in Gitmo in this early period were only there for a week. But that also suggests some of the four might not have known they were at Gitmo when they returned in 2006, perhaps because they didn’t have the same exercise privilege (and remember that detainees, at least as of a few months ago, still exercised only with those who they had been in black sites before, so they couldn’t compare notes). Does this mean others were moved to Gitmo’s “Strawberry Fields” after this first bunch?

Finally, note how CIA’s spokesperson, in his comment to the AP, wants this story to be about events that happened six years ago.

CIA spokesman George Little said: “The so-called black sites and enhanced interrogation methods, which were administered on the basis of guidance from the Department of Justice, are a thing of the past.”

Aside from the fact that Little said this while John Durham’s inquiry into the torture that exceeded the guidance of DOJ is ongoing, it also distracts attention from other inconvenient little facts: like the presumably ongoing existence of Camp No, and the weird qualification in Obama’s Gitmo closure orders limiting them only to those at Gitmo considered to be enemy combatants.

Still, kudos to Worthington and the AP for their work to tease out the global trajectories of these detainees.

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  1. Mary says:

    until they were moved again precisely to hide them from the ICRC

    That could be the preceise reason, but I’ll toss out another, that they were moved bc of the progress of the Iqbal/Rasul suit. In particular, to make sure they were all out of GITMO before the court issued its ruling.

    Looking back it’s hard to remember, but it was never a sure thing that the Sup Ct would even grant cert in Rasul. The lower courts had dismissed 12ish or so petitioners out of hand. They could very well have been the el-Masri and Arar petitioners, with lower courts refusing to act and the Sup Ct then shrugging off even the responsiblity for writing a Korematsu or Dred Scott decision, by just refusing cert.

    Instead, and kind of surprisingly to many at the time, the Sup Ct took up the case and that was in the fall of 2003. Then, in the spring of 2004, oral arguments did NOT go as gov wanted. Not by a long shot. At about the same time, the first round of the Padilla case was going up on appeal and there the DOJ, in the person of Paul Clement, was affirmatively and positively representing to the Sup Ct a lie – that the US didn’t engage in torture or things like torture.

    So with the top tiers of DOJ or ex-DOJ (but with continuing obligations on veracity to the tribunals) knowing that this was false – the Ashcrofts, the Thompsons, the Yoos, the Philbins etc. – there was the living proof right there at GITMO, a place DOJ had told its torturers was a jurisdictional blackhole. But from the oral argument in Rasul, it wasn’t looking like a jurisdictional blackhole after all. [Wwhat Clement knew or didn’t know, asked about or deliberately failed to ask about, etc., would be nice to know, but neither the Courts nor COngress ever seemed to feel it was important enough – lies to the Sup Ct by Exec branch lawyers on Exec branch torture – to ask. Definitely the DOJ doesn’ bother with things like the prof ethics of its lawyers fibbing to the Sup Ct)

    And then to top it all off – the Abu Ghraib pics hit. The cases against soldiers at Abu Ghraib had been filed to very little fanfare and certainly no banner headlines or looped CNN references, quite a bit earlier. At that time, it was all going to be swept udner the rug.

    But now, in the spring or 2004, the torturers and DOJ were hit with a case on oral argument where the SUp Ct looked likely to grant habeas jurisdiciton to the previously DOJ certified blackhole of GITMO. Almost simultaneously, in Padilla, they watched as the DOJ (which had been handing out the torture candy in such nice wrappers) had also just made the affirmative representation to the SUp Ct -a widely noted representation given the release of the Abu Ghraib pics – that there was no torture going on. And to top it all off, the pics hit and created a reaction that those wrapped up in the torture – people who had actually gone far beyond having a rage outburst of frustration and instead truly become torturers in their essence – shocked them.

    In part it shocked them bc of the fact that they knew what the torture said and what they said was not what has been represented over and over. They KNEW that there was no “good faith reliance” on the torture memos, bc they knew that instead the memos specifically stated that it would be up to a jury (think the reaction to the Abu Ghraib pics again) to determine whether or not the torture inflicted really could have been done without an intent to torture. And they knew those memos pretty much flat out said – if what was done looks bad, there’s no way a jury will say there wasn’t an intent to torture.

    So, wandering OT, now it was time to not only move the detainees elsewhere, but also to take up the Rove tactic, the “make your weakness your strength” tactic. It was time to be ready to sell the pitch that the memos had been “gold shields” and that torturers were just acting in “good faith.”

    Except, of course, if you look at Bybee’s recent transcript, he blandly admits that there’s no way his memos could have been relied up even for the acts described in them. Think about that. Bybee is saying that he and OLC (and Rotunda would join in as an outside witness saying this same thing) and the AG (Ashcroft) and WH counsel (Gonzales, later to be AG) a raft of others at the time and after them as well, ALL KNEW that, as Congress was considering things like the DTA and MCA and amnesties and investigations etc. – as Congress was being TOLD by the Executive Branch (and look back to how ofter it was then laundered to come out of members of Congress’ mouths) that you couldn’t punish people who acted in good faith reliance on DOJ opinions – – the draftrs of those opinions knew they opinions were not being shared with Congress and that there could not conceivably be good faith reliance on them.

    Bybee has said so, Yoo has pretty much said so, Rotunda has said so, the memos themselves tell Rizzo that if they get to good faith in front of a jury they are sunk, etc.

    I saw a lot of references (other places, not here) to Bybees interview not having much new or interesting, but as frustrated as I was with the questions not asked, I found a few shockers in it and his outright representations that his opinions couldn’t be relied upon and he knew that the whole time Congress was considering legislation to grant amnesty and was taking hands off on investigations bc of the meme that you *couldn’t* prosecute people who tortured in reliance on DOJ opinions – – it was a nifty little insight into how to Con Congress and how to PTBarnum the US citizens.

    /r

      • Mary says:

        Which argument/click through? I’ll try to get it later today.

        While I agree with this:

        Aside from the fact that Little said this while John Durham’s inquiry into the torture that exceeded the guidance of DOJ is ongoing, it also distracts attention from other inconvenient little facts: like the presumably ongoing existence of Camp No, and the weird qualification in Obama’s Gitmo closure orders limiting them only to those at Gitmo considered to be enemy combatants

        in part (and posts become too long and unreadable if you plug in everything) I really do think the fact that the leak on Durham’s investigation that goes to SOX charges is pretty important in what is going on there. If he’s going with SOX, he’s not investigating the (likely out of SOL) torture that “exceeded” the guidance of DOJ. Plus, Bybee, Rotunda, etc. have all undercut that as even a legitimate concept for the investigation, since they are saying they didn’t give guidance on the torture.

        Horton has a piece up now – no time to dig up the link – on what I rambled about when the “reliance” memo first came out – that it is a series of everyone saying “based on what you are telling me” that is so circular it can’t walk from a to b; with the lawyers saying “here are the standards for if it’s torture – does it do a or b or c” and then the lawyers saying (but with no affidavits or anything else as attachmetns) “and YOU have told US it doesn’t do a or bo or c, so if that’s right, you are ok” and then the CIA saying, “okdokey, we’re relying in good faith that since we told you we weren’t torturing and you guys have siad that if we say we aren’t, we aren’t, they we can rely on your opinion that we aren’t” – although Horton’s focuses on the doctors/psychs involved]

        Anyway – the SOX charge has very limited elements and none of them would involve getting into torture and intent much at all – it would be a very very very “clean” charge where no one really talks about torture at all (if the leak has any validity) and since destruction by CIA of the classified torture vids is so far removed from what the intent and applciation of SOX is/was, it is likely to be a litigation that will meander along for years with no real discovery or revelation other than technical arguments and likely interlocutory appeals on the statute itself, all of which will just impose more and more time and launder what was done more and more thoroughly. IM(biased, cynical, unhappy)O, fwiw.

        So I agre with you on all the things it leaves dangling, but wanted to rant about why I don’t think the Durham investigation does anything constructive on the danglers.

        And of course, it’s not like Clement’s is the only DOJ name that has been tied to a case where evidence was suppressed. Dannehy and Durham have their own ties (as has been noted here) to a case where the court was unhappy – and not as willing to launder evidence suppression as the courts in the torture cases have been.

        • bmaz says:

          Can somebody tell me what precise sections and provisions of Sarbanes-Oxley are supposedly being contemplated here and how it applies to federal government executive branch action as opposed to corporate private sector action? Hey, maybe it really works – I don’t know all that much about SOX – but I am not seeing it.

          • Mary says:

            This is what I’m assuming they are referring to – it was Sec 802 of SOX

            http://www.law.cornell.edu/uscode/18/1519.html

            § 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

            Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

            Title 11 being the bankruptcy code, btw.

            Lots of issues on that one – plus the fact that one part of SOX has already been stricken as unconstitutional and there were some severability issues. But what they are saying is that the statute intended to make it a crime to destroy docs to hinder an agency, as opposed to court, proceedings would also apply to drag the courts into an argument between agencies and if you had the IG report done when the tapes were destroyed – well, I don’t think those shakes are an earthquake. fwiw, imo, and I may even not have the provision they mean.

            • bmaz says:

              But doesn’t the title specify the act as pertaining to “public company” corporate activity? The federal government is not a public company……

              • JasonLeopold says:

                Yes. It does. And requires boards of directors and CEOs and CFOs to certify that SEC filings are accurate. There are also some whistleblower protections in there. But the language in Sarbanes Oxley was directed at corporations and their executives

              • Mary says:

                yes
                See why, if the leak is correct (and it may not be) I’m not overly impressed? They do carve out the provisions from the act and stick them in the crim code provisions without the same kind of clarification, but as a non-expert on litigation, crim defense, SOX, torture/obstuction etc. I still gotta watch the gait and call it more lame than a slow walk.

                Of course, that Boeing subsidiary might qualify, hard to say.

                @27 – it would have been much worse to move after the ruling. Or at least, you’d think. But with the Sup Ct perfecting their ostrich imitations, probably not. Nothing seems to warrant any reaction over the last 6 years or so, and definitely not since Obama’s “change” caused so many courts to have to query DOJ with “are you SURE you aren’t changing your position now that there’s a new President?”

                OTOH, there would be more liability to attach to DOJ itself with respect to its knowledge if it was in oral argument knowing that the torture conspiracy it had organized had victims sitting right there at GITMO for the habeas ruling and ESPECIALLY since, by then, they had discovered that someone like Zubaydah probably didn’t even fall under the AUMF, much less the Yoo torture predicates of being a HV AQ Operative. You wouldn’t want some difficult questions to be asked by the court about detainees at GITMO (it wouldn’t be asking about detainees at black sites in the Rasul proceeding) and have someone like an AZ there when Clement was answering.

              • JasonLeopold says:

                also:

                In addition, the Sarbanes-Oxley Act of 2002 has expanded the federal law of obstruction by adding new sections to 18 U.S.C. § 1512 and enacting a new statute, 18 U.S.C. § 1519, creating additional crimes relating to alteration, destruction, mutilation or concealment of records, documents, or objects. Section 1512(c) requires acting corruptly with intent to impair the item’s integrity or availability for use in “official proceedings,” defined by 18 U.S.C. 1515 to include proceedings before federal courts, agencies, Congress, and regulatory proceedings involving the insurance business. This statute is particularly striking in providing, in subsection (f), that an official proceeding need not be pending or about to be instituted at the time of the offense and that the document need not be admissible in evidence or free of a claim of privilege. Section 1519 relates to any matter within the jurisdiction of a federal department or agency or any case filed under title 11 (bankruptcy) and requires intent to impede, obstruct or influence the investigation or administration of such a matter or case. It also includes actions taken “in relation to or contemplation of” a matter or case.

                  • bmaz says:

                    Yeah, I think that is the thought process if they are really considering this. They want to maintain the privilege assertion and, possibly, have a slightly lower threshold for intent. BUT, like Mary, I think it is just fucking lame and I can already think of ten or twelve different ways I could argue bogosity to a judge or jury. It is like charging someone with interference of contractual relations when they kidnap, abuse and/or murder your wife. It is just asinine. This shit is not rocket science. Torture tape destructors could be prosecuted tomorrow; and convicted. Easy. And even Bybee and Yoo, if you read closely enough, admitted that a jury wouldn’t buy their crap for a second and would convict. The DOJ keeps carping about how “hard and complex” it all is. Bullshit.

    • bobschacht says:

      …the DOJ, in the person of Paul Clement, was affirmatively and positively representing to the Sup Ct a lie – that the US didn’t engage in torture or things like torture.

      Isn’t it against the law to lie to the Supremes? Shouldn’t that alone be grounds for disbarment?

      Bob in AZ

      • Mary says:

        Give the man a cyber ding for that answer.

        If it was knowing or negligence based. If not, it should still have been grounds for disbarrment of the DOJ lawyers who knew it was a false representation being made to the courts and who would have had the additional obstruction issue of NOT providing that important info the Solicitor Gen either before the Oral Argument or, at a minimum, directly afterwards. And Clement can’t just say he didn’t know – he has duties with respect to making reasonable inquiry into the factual validity of his representations to the court – if he’d heard stories or if, oh, say, there were files and files of FBI (part of DOJ) agents making complaints and he never bothered to request any info about what he was going to represent to the court, etc.

        Anyway, if Clement really (and cleanly) didn’t know anything, then guys like Ashcroft and apparently Thompson (Bybee and the OPR report are very hands off on their treatment of Thompson) and definitely Bybee (who was on a bench at the time, but still) and Philbin and Yoo – – those guys would have had the same duty to correct the record. That kind of duty continues, to correct misreps, esp with ongoing and repeating cases, so it would also have applied to Comey and Gonzales and McNulty and Goldsmith and Levin and probably assorted COSs – depending on his knowledge likely a Margolis – and Levin had info from both his COS position at FBI and his OLC slot, etc.

        See what I mean when I say, over and over, that the stuff that has hard facts to it and definite obligations attaching to it just got ignored and yet would have been a much better and more concrete avenue for attaching consequences than some YMCA belly dance class shake and shimmy over whether or not the opinions were well written?

        Write a crappy opinion all you want – it’s going to be hard to nail down. But go look at what happened to lawyers who played fast and loose with the courts and discovery issues in the Qualcom case. No existential meanderings on what they could or could not have meant or intended – BAM for not following the rules.

        Instead, IIRC Scalia (well after he knew that Clement had engaged in huge misreps to the court) made it public that Clement was the S Ct’s “sentimental favorite” to move up from Dep to Sol Gen and recently Lithwick over at Salon had Clement joining her and Dillinger to do cutesy play by plays of the Sup Ct’s rulings last session. All without ever asking him how he thought some of those decisions might have played out if the lawyers involved had given the court fibs instead of facts.

        *sigh*

        I’m beat down whenever I think about it all.

        Off to do real work.

        • klynn says:

          Great comment. It would make a great follow-up post to this post by EW.

          Mary, thank you again.

          Here’s the title:

          BAM for not following the rules.

        • bobschacht says:

          I’m beat down whenever I think about it all.

          Mary,
          I’d like to think that some of your “real work” is right here, keeping us informed. Keeping Truth alive, and exposing Falsehood and Deception takes time and effort. Thanks!

          Bob in AZ

    • bmaz says:

      Heh, I was wondering how long it would take for you and Mr. Clement to appear here. Not long. Brings warmth to my heart.

    • Jeff Kaye says:

      Cert in Rasul and Abu Ghraib revelations sent a shock wave through the torturers’ camp. Within DoD, as an upcoming article I’m helping on will demonstrate, a crack-down ensued (or rather, more likely, a review of operations that would allow a cover-up) that put every DoD component by January 2004 under notice that it was going to be investigated re compliance with adherence to human subjects standards on research. Now, if you add in that experiments were being done upon the HVD and most likely others, the switch to move them back to the CIA black sites was to hide them not only from the courts, but from exposure at a critical time. It’s one thing to hide prisoners from the ICRC, which we knew they were doing — they discussed it, remember, in the Oct Gitmo minutes with the BSCTs, J. Fredman, Beaver, etc. — but even if CIA had control of the prisoners at Guantanamo, if a DoD review were taking place at Gitmo, and investigators were roaming around, they had to scoot those prisoners out of there.

      Message to future investigating panel: When did the DoD reviewers, authorized by the office of the Director, Defense Research & Engineering come to Gitmo? Was it just after March 27, 2004?

      The move may have been made simply out of fear of the Rasul outcome, but I think, given what we already know about the fact a parallel experimentation program was working along with the torture, that the exigencies of protecting and operating that program were also in play.

      • Jeff Kaye says:

        I see re MadDog @9, there was more than one investigatory body sniffing around. And then there were all those atheist Jewish lawyers waiting to pounce, and those liberal gay judges. Gee, what’s a CIA torturer to do?

    • JasonLeopold says:

      I would argue that the HVDs were moved after the Rasul decision. I think this is an important story but the AP report says they were moved before Rasul because the Bush administration saw the writing on the wall. How could they have seen the writing on the wall before oral arguments were made?

      • JasonLeopold says:

        I should add that I make that argument based on info that comes from many of the lawyers representing HVDs. I hope to have a report up on that as soon as I finish a story I am co-writing with Jeff.

      • Mary says:

        Some hit and miss drive by while I’m waiting for info on real work –

        I noticed that the AP article says the oral arguments were going to be in June, but that’s not right. For Rasul, they were scheduled for April.
        http://www.oyez.org/cases/2000-2009/2003/2003_03_334/
        That still makes the move AP says happened in March end up as b4 the oral arguments, but it’s an odd fact to get wrong.

        I think the Morocco references in the article are interesting. I’m not familiar with anyone else referring to Morocco as anything but an extraordinary rendition to torture site, like Egypt and Syria, before – this article makes it sound as if the CIA had more of a presence at and control over interrogation at the Rabat torture site.

        As to which way the wind blows – the actual grant of cert was the first big blow. Another date to keep in the loop is Maher Arar filing his lawsuit January 2004. I would agree with you that there’s reason to question the veracity of the March dates, bc what torturers tell the truth? But it’s conceivable that they wanted them gone before even the oral arguments took place and someone from DOJ had to take the bull by the horns and decide what versions of facts v. fibs they were going to argue to the court. You’d hate to have your torture victims at GITMO if the DOJ flinched over fibbing to the courts in oral argument.

        And the DOJ is littered with lawyers who have all kinds of contacts and ties with the Justices.

        So I could buy that they did want to move them before oral argument – also, if they did it after what looked like an oral argument gone badly – it would look even worse on the culpability front. fwiw.

        • JasonLeopold says:

          yes it is an odd fact to get wrong and it’s just one reason why it doesn’t make sense to me that they were moved before oral arguments were even made. Wouldn’t it be much worse, from a legal standpoint, if they were moved after Rasul? Who would admit to that though? Still, you make good points

          • Jeff Kaye says:

            The article does give the correct date for the Rasul decision (June 28), so the timeline on oral arguments is a clear mistake the authors and their editors didn’t catch.

            The appeal to the Supreme Court was made on September 2, 2003. Cert was granted by SCOTUS on Rasul on November 10, 2003. The hearing was on April 20, 2004, and the decision made on June 28, 2004.

            So, we have the prisoners transferred to Guantanamo after the appeal to SCOTUS was made. Perhaps the government was supremely confident that the case would never be accepted. But it was. Yet even then, after Nov. 10, the prisoners remained at Guantanamo another four months or longer (until supposedly late March, longer if Jason is correct).

            My contention is that other factors besides Rasul played a role in these moves, or rather, we cannot make sense of them on the basis of the Rasul timeline alone. The biggest flaw in the argument it was about Rasul is the story that they were sent to Guantanamo after SCOTUS said it would rule on Rasul. That was pretty risky, heh?

            The AP story (and hence the sources) wanted to make clear that Strawberry Fields was merely a holding pen, and no interrogation happened there. That might be true (though who can believe a word they say), but they are not saying no experimentation happened there. In fact, the government continues to lie about the existence of experiments, but I think there was much more data to collect from their special “guinea pigs”.

            • JasonLeopold says:

              Great job breaking this down Jeff. I think if we ever get to see the additional flight logs it will help flesh out the narrative even more with regard to the timeline.

            • Mary says:

              So, we have the prisoners transferred to Guantanamo after the appeal to SCOTUS was made. Perhaps the government was supremely confident that the case would never be accepted. But it was. Yet even then, after Nov. 10, the prisoners remained at Guantanamo another four months or longer (until supposedly late March, longer if Jason is correct).

              My contention is that other factors besides Rasul played a role in these moves, or rather, we cannot make sense of them on the basis of the Rasul timeline alone. The biggest flaw in the argument it was about Rasul is the story that they were sent to Guantanamo after SCOTUS said it would rule on Rasul. That was pretty risky, heh?

              emph added

              Cert wasn’t granted unitl November, so they didn’t get moved after SCOTUS said it would rule, only after an appeal was filed. A bajillion cases get appealed to the SUp Ct and the Court doesn’t take most of them. With dismissals from both the Dist and DC Cir courts and with Eisentrager and so few facts available to the petitioners, I’m betting they were “supremely” (was that intentional? *g*) confident.

              But I also bet that there were, like the Iraq war, different reasons for different aspects of what happened. But Rasul was pretty important IMO, along with a lot of other litigation aspects (Arar’s case, their el-Masri problem that Tenet has tried to say he didn’t know about until April 2004 but which others at CIA active in the torture programs knew about much earlier, the Human Rights Watch report focusing in places on CIA activities near Bagram that came out in early March 2004, the CIA IG report was getting some finishing touches in March with an April release around the corner. In addition you had Goldsmith getting on board at OLC and bringing the memos into doubt and in March in particular you had Comey becoming acting and the hospital showdown which might have (but never was) been a prelude to DOJ doing an about face on CIA.

              Youcan kind of see why they needed someone like Gonzales to end up as AG and why they really needed BUsh to be re-elected.

              • Jeff Kaye says:

                Thanks. You caught my error, but I think my argument still stands. Why would they keep the prisoners at Gitmo four months or more after cert was granted? Why would they take the risk to even transfer there after the appeal was made? Supremely confident, indeed (and I did mean the pun) — maybe in the administration, but I don’t see the spooks making such a decision. That’s a huge risk to take.

                I think we are in agreement that there were many factors involved in these moves. I just don’t see the Rasul timeline lining up as sufficiently explanatory on its own. I also believe there are important aspects to this story that we simply do not know as yet. The lack of any clear overlay in regards to the timeline of these prisoner moves means that we must seek yet further to understand.

  2. klynn says:

    …as Congress was considering things like the DTA and MCA and amnesties and investigations etc. – as Congress was being TOLD by the Executive Branch (and look back to how ofter it was then laundered to come out of members of Congress’ mouths) that you couldn’t punish people who acted in good faith reliance on DOJ opinions – – the draftrs of those opinions knew they opinions were not being shared with Congress and that there could not conceivably be good faith reliance on them.

    Bybee has said so, Yoo has pretty much said so, Rotunda has said so, the memos themselves tell Rizzo that if they get to good faith in front of a jury they are sunk, etc.

    (my bold)

    Mary, thank you.

    EW, thanks for the post and the urging to read the links.

  3. MadDog says:

    …It also times interestingly with Jack Goldsmith’s tenure at OLC (October to July) and even more interestingly with the CIA IG Report (they got Zubaydah and Nashiri–against both of whom the IG Report described torture–out of Gitmo before Congress got a hold of the report)…

    I wonder if the “CIA Inspector General Special Review: Counterterrorism Detention and Interrogation Activities” report (158 page PDF) wasn’t a prime motivator for that 1st “vacation” to Gitmo?

    As that report notes on page 47:

    …93. (S//NF) The [redacted 4-5 characters] and debriefer did not request authorization or report the use of these unauthorized techniques to Headquarters. However, in January 2003, newly arrived TDY officers [redacted 10-11 characters] had learned of these incidents reported them to Headquarters. OIG investigated and referred its findings to the Criminal Division of DoJ. On 11 September 2003, DoJ declined to prosecute and turned these matters over to CIA for disposition.

    These incidents are the subject of a separate OIG Report of Investigation…

    (My Bold)

    So on 11 September 2003 the DOJ does a prosecution declineation and turns the matters over to the CIA, and later that same month, the CIA does a “let’s get ’em out of Dodge” transfer away from the Black Sites because the Sheriff may be coming to town.

  4. alinaustex says:

    [email protected] 5

    OT but bmaz today I sent you an email care of “contact us”- regarding an idea I had about putting some veterans to work in their own charter service. This could also work for disabled veterans too . I sent it to you in the hopes of feedback . If you had time to respond to it would really appreciate your thoughts .

    many thanks alinaustex

  5. fatster says:

    Obama selects veteran investigator as CIA watchdog

    “David B. Buckley, currently a senior manager for Deloitte Consulting, will have to be confirmed by the U.S. Senate before he can fill the watchdog post charged with unearthing abuses inside the spy agency.”

    LINK.

    • bobschacht says:

      “David B. Buckley, currently a senior manager for Deloitte Consulting, will have to be confirmed by the U.S. Senate before he can fill the watchdog post charged with unearthing abuses inside the spy agency.”

      Deloitte…Deloitte… that name rings a bell. The Wikipedia sez

      Deloitte Touche Tohmatsu (also branded as Deloitte) is one of the largest professional services organizations in the world and one of the Big Four auditors, along with PricewaterhouseCoopers, Ernst & Young, and KPMG.

      According to the organization’s website as of 2008[update], Deloitte has approximately 165,000 staff at work in 140 countries, delivering audit, tax, consulting and financial advisory services through its member firms.

      Well, yeah, so Deloitte plays with the Big Boys… But wasn’t there something more?

      …it absorbed Arthur Anderson in 2002 in the wake of the Enron scandal…
      …its HQ is in Switzerland…

      Sarbanes-Oxley regulations apply to what combinations of services Deloitte’s U.S. member firm can provide a client. For example, a particular client may not be able to engage Deloitte for both corporate audit and consulting services at the same time. Additionally, Deloitte staff in client-facing positions must certify independence from financial interests in the firm’s clients at least annually to avoid conflicts of interest and insider trading.

      Hmmmm. must be more to that…

      Notable current and former employees…

      * R. Anthony Benten – Treasurer of The New York Times Company (2005–present)
      * Fred Goodwin – CEO of the Royal Bank of Scotland (2001–2008)…
      # Chloe Smith – Member of the British Parliament (2009–)
      # Eric Forth – Member of the British Parliament (1983–2006)
      # Vito Fossella – Member of the U.S. House of Representatives (1997–2009)
      # Bill Owens – 40th Governor of Colorado (1999–2007)
      # Pierre Pettigrew – Canadian Minister of Foreign Affairs (2004–06)
      # Tom Ridge – 45th Governor of Pennsylvania (1996–2001), – Assistant to the President for Homeland Security (2003–2005), – US Secretary of Homeland Security (2003–2005)…

      What am I missing? Wasn’t there something more?

      Bob in AZ

      • fatster says:

        Oh, here’re a couple of items from the recent past.

        *$50million fine to settle SEC charges “that it failed to prevent massive fraud of cable company Adelphia Communications Corp.”
        LINK.

        Here’s a great list where, as you’ll see, they were the auditor for some firms caught cheating (Imagine that!).

        I’ll try and find a couple more, assuming my memory is prodding me correctly.

  6. JasonLeopold says:

    On a side note, in his book “State of War,” James Risen wrote that after the prisoners were shuffled from one black site prison to another (P. 30) “the CIA set up one of its secret prisons in Guantanamo, separate from the main Camp X-Ray, but closed it down after U.S. court rulings began to cast doubt on whether prisoners held in Guantanamo would come under the protections of U.S. law.”

    on the same page and continuing to page 31 he discusses Bright Light, which in his book he says the location was secret but noted that KSM and AZ were held there.

  7. Mary says:

    BTW – Michelle’s vacation is getting at least as much attention as the brush cutting vacation.

  8. Jeff Kaye says:

    “There was obviously a fear that everything that had been done to them might come out,” said al-Nashiri’s lawyer, Nancy Hollander.

    Worse for the CIA, if the Supreme Court granted detainees rights, the entire covert program was at risk.

    Zubaydah and al-Nashiri could tell their lawyers about being waterboarded in Thailand. Al-Nashiri might discuss having a drill and an unloaded gun put to his head at a CIA prison in Poland.

    Well, I’d say that what has come out has been mostly (Abu Ghraib photos aside) what they have allowed under some duress to come out. So we know about the drill, but not about the drugging, for instance. We know Mitchell was there, but there were at least a dozen interrogators going through the Thai prison, and we don’t know most of their identities. We know about the EITs, but very little about other treatments. For instance, in the Bradbury May 2005 memo to Rizzo, we describes the “baseline” pre-treatment of the prisoners prior to delivery for EIT treatment. We know this included sensory deprivation and isolation, but very little details, and the entire thing is cast off in a sentence or so. Nor has anyone bothered to follow up what that could have been about, or what this looked like.

    The lawyers for the “detainees” are not allowed to discuss what they know from their clients because that material is classified. Even when material is discussed at a military commissions hearing, as Carol Rosenberg reported last week or so, when something comes up they don’t want you to hear, the reporters are taken out, or the testimony covered by white noise (as she reported when the question as to what drugs had been given to a prisoner came up).

    Finally, there are all those redactions, and not only in CIA or DoD released documents, but the SASC report remains redacted with no unredactions since its release. The SSCI hearings are also classified. The government has worked hard to use every instrument at their control to make sure that even with the guarantee of attorneys or habeas hearings, that much of the truth will not be allowed to see the light of day.

    Big thanks to EW, Jason, AP, Andy Worthington and others trying mightily to get to the bottom of these crimes.

  9. Jeff Kaye says:

    I think note should be made in this particular thread that there is some movement in Poland to have Polish leaders tried for war crimes for harboring the CIA torture prison. From the WSJ (as linked in another article by Andy Worthington that expands upon this aspect of the story):

    In the latest development, Poland’s former leaders Kwasniewski and Miller may stand trial before the State Tribunal, a rarely-used special court designed to try Poland’s top officials according to Polish daily Gazeta Wyborcza. The prosecutor on the case wants to ask the Speaker of Parliament to start the criminal procedure against the former leaders, according to the report….

    Kwasniewski told Gazeta Wyborcza that Poland had cooperated with the CIA under his watch…. But he again denied the CIA operated a secret detention facility there.

    “There was no prison,” he said. “I have no information about Americans torturing prisoners in Poland.”

    …. A majority behind the concept that the country must reveal its secrets and prosecute its leaders for cooperating with their U.S. ally may be difficult if not impossible to build.

  10. Mary says:

    Argh – just had my comment eaten.

    Jeff – I do think they might have been “supremely” (*g*) confident. The appeal being filed in Sept was almost a non-issue. A bajillion appeals are filed and especially when they are about matters summarily dismissed by the lower courts on jurisdiction issues, it was a real longshot for Rasul to get cert in November.

    I do agree that there isn’t just one timeline or one issue at play. By March, though, you had Arar’s lawsuit filed and in the pipeline; you had el-Masri held and the terrorism crew at CIA wondering what to do with him, especially since all kinds of people in Macedonia who know about the US contacts made a permanent disappearance more problematic; you had knowlege of the fact that new sources were getting or had the Abu Ghraib pictures, you had Goldsmith retooling things at OLC and in March you also had the first show of spunk from the DOJ with the Hospital Showdown (it withered to nothing, but at the time they didn’t know it would); you had info being wrapped up for the IG report coming out the next month after delays; you had a whole boatload of convergences and among them, the knowledge that AZ very clearly wasn’t what CIA had told DOJ he was. Not only that, but he (AZ) was an integral part of the arrest warrant issued in Padilla and that damn case was going up too, with a spooky (for the spooks) Second Circuit decision.

    A lot of crap lined up to hit and the need to use a civilian airlines to do the tranfers too, right?(or am I wrong on that – were they using military planes for these transfers?) So some salepitching may have been going on to get the airlines ready to jump in and do their assist on rendition back to torture sites.

    I don’t know if thing can ever be nailed down to just one timeline.

    @32, yep – so you can see why I’m not overly impressed, but I think JL may be right that they are going to be going with the 1512 c addition instead of my link.

    That provides that,
    http://www.law.cornell.edu/uscode/18/usc_sec_18_00001512—-000-.html

    (c) Whoever corruptly—
    (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
    (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
    shall be fined under this title or imprisoned not more than 20 years, or both.

    even though they stuck it under witness tampering. With 1512 (c) you get the benefit of (f) also:

    (f) For the purposes of this section—
    (1) an official proceeding need not be pending or about to be instituted at the time of the offense; and
    (2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.

    But yes, while the SOX amendment got stuck under the general criminal provisions of 18 USC, SOX itself was predicated on public company compliance issues.

    You also get the benefits of some of the rest of the witness tampering provisions with respect to overseas jurisdiction, state of mind (although that doesn’t get you around the corruptly requirement) and conspiracy aspects.

    (g) In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance—
    (1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government agency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency; or
    (2) that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.
    (h) There is extraterritorial Federal jurisdiction over an offense under this section.

    (k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

    • bmaz says:

      It still seems lame to use statutes designed specifically for “public companies” when there are perfectly good regular criminal statutes available. And, yes, I am convinced it is so they can maintain complete privilege and classification and not allow any process that could build a record going up the ladder, as well as seeking a lower threshold for intent. It is fucking craven and deplorable. It is a willful dereliction of their duty to uphold the law.

    • qweryous says:

      “A lot of crap lined up to hit and the need to use a civilian airlines to do the tranfers too, right?(or am I wrong on that – were they using military planes for these transfers?)”

      Spook planes.

      Some info and a tail number at the Andy Worthington article linked by EW at the top. The planes, flight plans, and varied sightings have been a subject of interest. The likely plane in this case and it’s info may be viewed here

      There may be a few updates to the flight history for this plane due to these recent articles.

      edit: The likely plane collecting the detainees and rendering them to Gitmo was N313P.

    • Garrett says:

      I do agree that there isn’t just one timeline or one issue at play.

      Complex timelines too, on December 2002.

      As Worthington points out, we know from this that Abu Zubaydah and Rahim al-Nashiri (and, he adds, Ramzi bin al-Shibh) got moved from Thailand to Poland in December 5, 2002, as CIA was making their first efforts to close the Thai black site and destroy the torture tapes.

      The December 3, 2002 “Closing of facility and destruction of classified information” memo is in the Durham 13 documents.

      Al-Nashiri being assessed “compliant,” before the take-back, about ten days after arrival in Poland, is suggestive of the level of harshness there.

      And just a lot of stuff happening around the time, including what seems a greater-than-usual number of deaths.

  11. Mary says:

    Argh argh argh – I swear on my screen it looked like 39 was eaten. Damn – I’ give up with computer stuff for today – still running malware for another problem.

    • bmaz says:

      Yeah, thanks for that. First thing I got when I clicked on it was a giant pop-up ad for Laura Ingraham and her book “The Obama Diaries”. Ugh.