Whither Stephen Kappes?

As I suggested yesterday, the investigation into Gul Rahman’s death means there’s a chance–teeny, presumably, but a chance nevertheless–that the investigation might move beyond the formerly-low level people implicated in the death (remember, both the guy who headed the Salt Pit and the station chief have gone onto bigger and better things at the CIA, so if they’re targeted in any case, it would be a bigger deal than any other prosecution).

The reasons why pertains, in significant part, to Stephen Kappes.

Jeff Stein laid out the reasons why in this profile of Kappes (which also emphasizes the degree to which he micromanaged issues during his tenure as Assistant Deputy Director for Operations from 2002-2004). As Stein explains, Kappes personally helped create cable traffic describing Gul Rahman’s death that would allow the CIA to claim his death was an accident.

According to an internal investigation, he helped tailor the agency’s paper trail regarding the death of a detainee at a secret CIA interrogation facility in Afghanistan, known internally as the Salt Pit.

The detainee froze to death after being doused with water, stripped naked, and left alone overnight, according to reports in the Washington Post and Los Angeles Times. He was secretly buried and his death kept “off-the-books,” the Post said.

According to two former officials who read a CIA inspector general’s report on the incident, Kappes coached the base chief—whose identity is being withheld at the request of the CIA—on how to respond to the agency’s investigators. They would report it as an accident.

“The ADDO’s direction to the field officer anticipated that something worse had occurred and so gave him directions on how to report the situation in his cable,” one of the former officials says.

“The ADDO basically told the officer, ‘Don’t put something in the report that can’t be proved or that you are going to have trouble explaining.’ In essence, the officer was told: Be careful what you put in your cable because the investigators are coming out there and they will pick your cable apart, and any discrepancies will be difficult to explain.”

As a result, the former official says, the Salt Pit officer’s cable was “minimalist in its reporting” on what happened to the prisoner. “It seems to me the ADDO should have been telling him, ‘Report the truth, don’t hold anything back, there’s an investigative team coming out, be honest and forthright. But that was not the message that was given to the chief of base by the ADDO.”

We know from Jay Bybee’s response to the OPR Report that from this cable traffic, CIA’s Counterterrorism Center wrote a declination memorandum

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager ofthe Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

Kappes coached the officer to craft the cable traffic to make Rahman’s death look like an accident, and then CTC (over which Kappes would also have had influence) then used those cables to repeat that claim.

Now that doesn’t mean that John Durham needed to or did get Kappes’ testimony about this coaching–or anything else that would directly implicate Kappes. But it does say that there is more evidence of a cover-up involving the highers up with Rahman than we know of with al-Jamadi (though don’t forget that hood that disappeared in al-Jamadi’s case, which is described in more detail here).

But it is worth remembering that Kappes left rather suddenly–and without as much fanfare as you’d expect–last April. At the time, Stein quoted sources tying Kappes’ fatigue with the job to investigations of the CIA, including torture investigations.

A congressional intelligence committee source said Kappes, 59, was feeling ground down.

There were “investigations of his interrogators,” the source said, and the White House was “taking away tools” in counterterrorism.

[snip]

Another former senior CIA official said Kappes’s resignation “has been in the works for some time. Why today? Not sure.”

“It’s been rumored for six months,” said another. “The idle speculation is that things have just gotten too complex with all the investigations going on.”

One way an investigation can get complex–and motivate someone to leave public service–is if a person is asked to testify. Which is not to say that happened–only that if Stein’s reporting is correct (indeed, if the IG Report focuses on the role of the cables in the report of the death), then Kappes should be a key witness in Durham’s investigation.

The importance of Kappes in any case Durham can make is wildarsed speculation at this point. But–even ignoring the missing hood in the al-Jamadi case–I suggest we think of recent developments as a three-fold development. Not only did DOJ reveal that Durham has an active investigation of Rahman’s death. But, as reported by Carrie Johnson, Durham is also consider false statements charges in the torture tape destruction.

Sources tell NPR the Justice Department is also looking at false statements charges against a CIA employee who may have lied about the destruction of interrogation videotapes.

And, as reported by Goldman and Apuzzo, sometime last month the CIA Inspector General was asking questions about the Khalid el-Masri case (though DOJ closed that case last year).

All those details may be unrelated. It’s best to assume they are. But there’s a hint of possibility that they tie together some higher effort to cover up these cases.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

37 replies
  1. klynn says:

    Thanks for updating on Kappas. To think you were right about him. Do we know that all there was were cables? Just trying to figure the tie between the tapes and Kappas. Thanks for the NPR quote.That was the report I was mentioning in a privious post. I was just told the mechanic had destroyed my cars engine and it was being rebuilt. I was distracted.

    • emptywheel says:

      Dunno. They were still taping at the black sites at the time of Rahman’s death. But I don’t know that there were tapes of the Salt Pit.

      One other interesting detail.

      In Glenn Carle’s book–which we’ll have at FDL Book Salon on the 9th–he describes finally trying to convince DO to let his detainee free and to fix its torture regime. He sent two cables making that argument from a CIA station, probably Afghanistan, possibly from the Salt Pit itself.

      Yet the cables were effectively disappeared.

      That would have been in early 2003 sometime.

  2. rugger9 says:

    This is something that will eventually come out, unless the MOTUs succeed in clamping down on the access. Even then, there are more than a few people which may suddenly get religion at death’s door and talk.

    A bloody stain upon America was perpetrated by these cowards, from W/Darth on down, and our troops will never be safe from routine torture because we did it too. Before, they had a chance.

    • bobschacht says:

      This is something that will eventually come out, unless the MOTUs succeed in clamping down on the access. Even then, there are more than a few people which may suddenly get religion at death’s door and talk.

      I read somewhere recently that, at the time the torture was going on, EVERYBODY in the Bush administration is implicated in one way or another. If this is the case, something about sitting in front of a Grand Jury may set a few tongues wagging in order to shift blame to someone else.

      BTW, do these two cases represent the Obama administration’s “modified limited hangout” regarding torture? Let me see. How well did that work last time?

      Bob in AZ

  3. emptywheel says:

    One other detail: when former CIA guy John Brennan rolled out the new CT strategy the other day, he was introduced by John McLaughlin: former DDCI during all this torture stuff.

    Retrospectively I find that suspicious.

  4. Garrett says:

    In the al-Jamadi case, also don’t forget the bleach bottle. They disposed of the bloody hood. They scrubbed down the blood in the shower.

  5. klynn says:

    Suspicious? I’ll vote for creepy and suspicious! Let me clarify my question above. There are digital telegrams, end-to-end video, data, VoIP, networks…If there are multiple mediums that meet protocols for cables … I have no knowledge about cable methods. My questions are more thinking out loud.

  6. tjbs says:

    O/t serious question for the legal eagles.

    Although holder and penetta want the Torture/ Murder chapter closed because there is no statute of limitations on murder it will never close until the death of those involved. Because the current administration are ball-less cowards in upholding the law, in the unlikely event we elect an honest American President who supports the constitution and honors his oath “to faithfully execute the Office of President of the United States and will to the best of my Ability, preserve and protect and defend the constitution of the United States,” what would prevent him from prosecuting bush and cheney for torture/murder ?

    Holder’s opinion ?

    • rugger9 says:

      Not only the Constitutional oath applies, we have the OBLIGATION under the general conventions on torture negotiated by Ronald Reagan to prosecute any and all torturers in our jurisdiction even if they are not our nationals, and “just following orders” is not permitted as a defense.

      That’s why the Bushies may not want to travel too much, a judge in Spain, for example, may want to hold them. On a semi-related topic, China is also a signatory, and just had a state visit from the Sudanese president for whom a warrant is out on human rights violations.

  7. Jeff Kaye says:

    FYI, the link to Stein’s article goes to a scrubbed page. This is pretty recent I believe. In any case the Google cache is still available for the full article.

    Pages are being scrubbed more quickly and more comprehensively these days, it seems to me. I looked at one of the mefloquine at Gitmo articles I wrote with Jason Leopold the other day, and discovered links to a letter from William Winkenwerder to the Chair of the Military Affairs subcommittee of the House Armed Services Committee (where Winkenwerder was expressing his concerns in early 2002 about mefloquine, even while they were using full treatment doses of the drug on incoming Gitmo detainees) had been scrubbed. I

    In the past, I noted how APA scrubbed references to an infamous workshop it ran with the CIA and Rand Corp. considering ways to “overwhelm the senses” to “detect” deception.

    Ah, what an Orwellian world we now live in.

    • klynn says:

      I posted a link to one of Cynthia’s post last week and it was scrubbed. The link worked when I posted and was broken about two minutes after I posted. The good news, when this happens it draws attention to what direction to take towards the truth.

          • bmaz says:

            If and when you find bad links etc. let us know; not only so we can fix them, but figure out the pattern causing it. Thanks.

            • rosalind says:

              (when i clicked on this post from EW’s home page, it took me to a post from 7/14/09 5:08pm “Bacon, Boobs & a Blowjob”. heh. i returned to the homepage, clicked on this post again, and this time it worked. Mac OS X ver 10.5.8, Firefox ver 3.15.19)

        • fatster says:

          Ah, thanks so much for letting us know.

          Here’s a disturbing drone O/T:

          Al Qaeda-linked website threatens Monrovia drone maker’s executives

          LINK.

  8. Aeon says:

    The Stein link is working fine for me.

    Also, the word is that Kappes’ departure was due to the Khost fuckup that resulted in the deaths of 7 CIA officers and contractors, not for any interrogation or torture related malfeasance.

  9. MadDog says:

    OT – Via Jennifer Epstein over at Politico:

    New counterterrorism center chief announced

    President Barack Obama plans to nominate the top lawyer at the National Security Agency as the next director of the National Counterterrorism Center, replacing a predecessor who started on the job during the Bush administration, the White House announced Friday afternoon.

    The president’s pick is Matthew Olsen, the NSA’s general counsel. A White House statement says he would bring “a strong voice and critical knowledge to integrate intelligence in order to protect Americans across the nation and around the world.”

    If confirmed by the Senate, Olsen would replace Michael Leiter, a former Navy fighter pilot who has led the center for 4 ½ years…

    Anyone see a pattern here?

    • MadDog says:

      Some more background on Matthew Olsen:

      Via the Los Angeles Times:

      …In addition to the NSA, Olsen has worked in the intelligence field at the Justice Department and the FBI. From 2009 to 2010, he oversaw the task force that reviewed the intelligence on detainees held at the prison in Guantanamo Bay in Cuba.

      From 1994 to 2006, Olsen was a federal prosecutor in the U.S. attorney’s office for the District of Columbia.

      And via the AP:

      …Olsen, 49, currently serves as the general counsel for the National Security Agency. He has also held high-level roles in overseeing intelligence matters at the Justice Department and the FBI. From 2009 to 2010, Olsen directed the task force that, on Obama’s orders, reviewed the intelligence on detainees held at the Guantanamo Bay prison in Cuba…

      …Michael Chertoff, who served as homeland security secretary under Bush and has worked with Olsen, called him a smart, dedicated public servant who would “capably carry on the outstanding work of Mike Leiter” if confirmed by the Senate.

      • MadDog says:

        And more background via the WaPo:

        …Olsen left the Justice Department in June 2010 to join the NSA. Before leaving Justice, where he worked for 18 years, he directed the inter-agency Guantanamo Review Task Force, overseeing the Obama administration’s assessment of every detainee at Guantanamo Bay as part of its plan to close the facility…

        …Olsen has been immersed in national security law and issues for much of the past decade.

        From 2004 to 2005, he served as special counsel to the director of the FBI, where he focused on counterterrorism and intelligence investigations. That was followed by a stint in the U.S. Attorney’s office in D.C., where he was chief of the national security section. From 2006 to 2009, Olsen was a deputy assistant attorney general in the Justice Department’s National Security Division, supervising the implementation of the Foreign Intelligence Surveillance Act…

  10. Mary says:

    Wither his BFF – Diane Feinstein? I know she’s been giving Obama grief over Afghanistan pullouts (her friends make so much more money while we leave American troops over there to be blown up) but I also remember back to when she just couldn’t accept the appointment of Panetta to head CIA, unless Obama promised her Kappes as a watcher for Panetta.

    Which can’t have endeared him to Panetta. And then there’s the Kappes-Libya ties, which are a bit more embarassing now that we are trying to assassinate Khadafi (although al-Libi has already been suicided and disposed of, so that probably brought Kappes a lot of pals).

    There’s probably a decent amount of politics in what has survived, if you could ever dig through all of it. What you have to know first and foremost is that they have thoroughly protected DOJ itself as the top priority. So anything that walks back or through DOJ isn’t going to get any examination. But if Obama can get a kick in at DiFi and the Kappes-Libya ties are on the wane as far as importance and Obama can go into election with the ability to tell all the disenchanted that he, “is too, uh huh, he is” doing something other than being an asshole on Executive branch torture murder – those have been weighed in.

    I’d even venture a guess that the overall Afghan/Pakistan situation has been weighed in. When Rahman was killed, he wasn’t tied to al-Qaeda, he was tied to Hekmatyar. Since we invaded, Hekmatyar has worked with the Taliban and al-Qaeda, but that was very much in line with his fights against the Soviets while occupying – he was never one going abroad to target “infidels” but instead reacting to invasions.

    It was a poke right in his eye to torture Rahman to death. Right now, Hekmatyar seems to be one of the only insurgency leaders Karzai can gain any ground with in his attempts to put something in place in Afghanistan. A US delivery of a head on a plate for Rahman’s death might help progress the pull out initiatives in Afghanistan.

    With this DOJ, I don’t buy anything not having a huge political taint – good people wouldn’t be working for men like Bush or Obama, Holder or Ashcroft or Gonzales etc. – for long.

    jadedfwiw.

    • SaltinWound says:

      I was thinking the same thing. Kappes was a progressive hero for a while, mainly because he was in a feud with Goss. We turned Comey into a champion, even though he is squarely against us on most issues. Just because people were opposed to Bush, often for narrow reasons or turf wars, does not mean they stood for something great. I always felt the same thing about Valerie Plame. I have no reason to think she was doing fantastic work in Iran.

  11. Mary says:

    I also wonder, btw, if a “wither, Mary McCarthy is in order?” The false statements comes to mind.

  12. earlofhuntingdon says:

    You make a nice case for obstruction of justice. Pity the DoJ no longer works for the US Government. It now spends its time immunizing the powerful from legal jeopardy, not subjecting them to it.

  13. bluewombat says:

    Is John Durham conducting the investigation into Gul Rahman’s death and the other one?

    How straight of a shooter do we think he is? It seems to me he gave everyone a free pass in his previous investigation.

    Am I correct in assuming the OP’s headline should be “Whither Stephen Kappes?,” or are you making a pun on his withering away?

    Finally, I try to keep up with these things as best I can, but, as a former journalist, I’d like to suggest that it might be helpful if you explain arcane terms so as not to unduly puzzle the reader.

    For example: “Declination memorandum.” I assume that means someone declines to do something. But there are six defintions for the word at answers.com:

    1.A sloping or bending downward.

    2.A falling off, especially from prosperity or vigor; a decline.

    3.A deviation, as from a specific direction or standard.

    4.A refusal to accept.

    5.Magnetic declination.

    6.Astronomy. The angular distance to a point on a celestial object, measured north or south from the celestial equator.

    Am not trying to be unduly smart-alecky. Your research is extraordinary, but if you puzzle your readers, you will limit your effectiveness.

    • Mary says:

      “How straight of a shooter do we think he is?”
      As noted, I’m jaded, but he’s a “shooter” who has voluntarily worked for successive torture/murder administrations with successive AGs who have smilingly and, again, voluntarily, waded into the bloody waters and pronounced them just fine.

      I don’t anyone as a “straight shooter” who voluntarily picks working for and with torturers as their career path. Some get little choice, some have little understanding, but he’s one of the guys who have been around the block more than a few times and he picked his beds. Notice that nothing that will touch the DOJ upper echeolons adversel in any way has been picked to pursue. He’ll never lose one nights sleep over the protection market he’s put himself in, or over the nightmares Maher Arar’s children will have as they understand what DOJ decided to do to their faher.

      Based on where he has chose to work for the periods of time he has chosen that, and through the evolution of his workplace, my biased opinion guess is that he’ll shoot in line with career and political (not to be confused with Dem v Rep, but more a matter of powerrising v. powerwaning) motivations. The DOJ has blatantly lied to the courts without even a poke back for over a decade – that doesn’t exactly promote “straight shooters.”

        • bobschacht says:

          IF they’re caught in the open, on U.S. soil. However, if you work for Blackwater or have diplomatic cover in a Foreign Country, different rules apply.

          “Have Gun, Will Travel” used to be a pretty good adventure series. Paladin actually had a conscience, and exercised it whenever he could. He challenged his work order whenever he thought he should, when things didn’t turn out quite as his employer had claimed.

          The last one of those paladins that I heard of was Pat Tillman.

          Bob in AZ

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