I wanted to take one last look at the Panetta declaration, this time with respect to what it says about classifying torture (also see Mary’s long comment and pmorlan’s comment on this topic).

NSC Officials Made This a Special Access Program, Not Director of CIA

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a "special access program" as "a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.

[snip]

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA "shall" "exercise" the function of creating special access programs pertaining to intelligence. But then the very next paragraph says "NSC officials established a special access program." One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it. 

And in case you were wondering whether the EO was really serious about the Director of CIA having to make the SAP, here’s the language from the EO:

Unless otherwise authorized by the President, only the Secretaries of State, Defense, and Energy, and the Director of Central Intelligence, or the principal deputy of each, may create a special access program. For special access programs pertaining to intelligence activities (including special activities, but not including military operational, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of Central Intelligence.

What do you want to bet that the "NSC Officials" who made this a SAP were not the Secretaries of State, Defense, or Energy–or their Deputies? 

Mind you, the passage does say, "unless otherwise authorized by the President," and this EO is the famous source of the Fourth Branch’s claims that he should be treated just like the President for the purposes of this EO, so if Dick Cheney happened to tell his Deputy, Scooter Libby, that it was time to make this a super secret program to keep it away from people like Colin Powell, I’m sure the Fourth Branch’s lawyer, David Addington, would have a legal excuse ready at hand. 

So, for the moment, let’s just note that there’s something funny going on with who made torture a special access program. 

TOP SECRET Torture Becomes Special Access After the Fact

Now, let’s talk about the funny things going on with when torture became a special access program. Bybee One–the memo generally authorizing torture–was not classified at all.  Bybee Two–the memo authorizing specific techniques–was classified TOP SECRET, but had no markings for a special access program. It appears that when these memos were written, the torture program was not yet a special access program.

The 2003 Yoo memo–written to authorize torture by DOD–is a special case, since it’s not part of the CIA program. It was classified SECRET. Yet it’s special, too, because of the funny treatment it got. As Bill Leonard testified, 

the OLC memo did not contain the identity of the official who designated this information as classified in the first instance, even though this is a fundamental requirement of the President’s classification system. In addition, the memo contained neither declassification instructions nor a concise reason for the classification, likewise basic requirements.

There’s more more–such as Leonard’s observation that the memo, which breaks all the EO’s rules on classification, was completed within a week of the EO that governs classification.

Finally, there are the 2005 memos–the Bradbury Memos (Techniques, Combined, CAT). All are classified TOP SECRET and all include what I understand to be redacted compartment information (the redacted word between TOP SECRET and NOFORN). In other words, it appears that this program did not start out as a special access program, but it became one, at the direction of "NSC Officials" some time between 2002 and 2005.

Cables Marked as SECRET Become TOP SECRET

Then there’s the last bit, wherein cables originally classified as SECRET apparently have become TOP SECRET.

In his declaration, Panetta notes that some of the documents in the declaration were not marked properly:

Many of the operational communications were originally marked as SECRET in our communications database even though they should have been marked as TOP SECRET, and some of the miscellaneous documents were not properly marked. While we are not altering original electronic copies, this error is being corrected for copies printed for review in this case.

Given that Panetta uses the word "many," I assume this means more than just the one operational cable from HQ to Field, dated November 30, 2002, that is marked SECRET on the CIA’s list of documents (I believe the other documents marked SECRET are what Panetta treats as "miscellaneous" documents). So, first of all, there’s the funny detail that the CIA has been representing these documents to be TOP SECRET to Judge Hellerstein since at least May 1, yet they’re only now getting around to telling him (now that they’re turning some over for his review) that they were originally actually marked SECRET.

But here’s another funny detail. Similar cables from 2004 (see documents 54 and 55) were also marked SECRET (though some in the same series–particularly those from HQ to Field–were marked Top Secret). Now I have no way of knowing that these cables are exactly analogous (though I suspect they include discussions about whether to torture Hassan Ghul), but they do pertain to torture and detention. 

So did they just discover all of these cables from the field should have been marked TOP SECRET from the start? Or did the rules change, once the program was designated–by people in NSC, not CIA–that it should be a special access program? Or is the SECRET designation a more recent phenomenon, one tied to the FOIA?

There’s a lot that’s funny about the classification of this program. But it sure looks like they were making up the classifications–like the program itself–as they went along.

Josh is right–Jeanne Cummings’ report that the Chamber of Commerce is launching a "Campaign for Free Enterprise" seems to have regurgitated the Chamber’s press release uncritically:

The Politico has a report on a proposed plan from the US Chamber of Commerce to spend up to $100 million on opposing President Obama’s various economic, energy and health care reforms. But it’s a bit hard to distinguish the Politico article from a Chamber press release. Here are some nuggets from the article itself …

As the Obama administration encroaches deeper into the private sector and Congress contemplates more regulations, the U.S. Chamber of Commerce is launching a multimillion-dollar campaign to defend the free market system.

…

Taken together, the government could soon determine who gets a mortgage, which cars
consumers can buy, the type of treatments patients will get and how many credit cards a person can carry.

The government won’t let me buy a Toyota? Do I have to buy a GM car? Really?

 I’m guessing this claim came right from the press release, too:

The administration’s aggressive action on so many fronts has put the business community on defense in a way not seen in more than a decade — and it’s losing more often than it’s winning.

But in addition to questioning whether the business community is losing more than it’s winning–and whether we’ll still be able to buy Toyotas–I’d have liked Cummings to ask one more critical question: about timing. The Chamber of Commerce did not launch this campaign when Bush took an even bigger stake in AIG. It did not launch this campaign when the Federal Government dumped billions of TARP dollars to keep the banking system afloat. In fact, the Chamber’s Tom Donohue all but admits he’s happy that the bankers got to suck at the federal teat for the last nine months.

“Dire economic circumstances have certainly justified some out-of-the-ordinary remedial actions by government,” said Chamber President Tom Donohue, referring to the bank bailouts and the $787 billion economic stimulus program.

What bugs Donohue, apparently, is not the possibility that corporations can be massive recipients of federal welfare. What appears to bother him is that the federal government would ask something else in exchange or–shockers!!–compete with the private sector in something like health care (buzz me when Donohue starts complaining that FedEx has to compete against the postal service). 

This is a campaign to paper over the federal welfare corporations have been sucking up for the last nine months, an attempt re-set the narrative as if capitalism hadn’t almost completely collapsed.

“We have got to go out in a big-time way and remind all Americans that it was a free enterprise system based on the values of individual initiative, hard work, risk innovation and profit which built our great country,” he’s expected to tell Chamber board members Wednesday in a speech unveiling the program.

 And apparently, Cummings didn’t notice the whole corporations on welfare bit. 

Sheldon Whitehouse gave a barnburner of a speech last night, in which he described how egregious Dick Cheney’s lies about torture have been.

The speech goes further than President Obama’s and Russ Feingold’s and Carl Levin’s calls on Cheney’s lies in two ways. First, those other calls focused on whether the documents Cheney wants declassified actually say what he claims they say; Whitehouse focused on whether Cheney’s more basic claims about torture are true. And second, Whitehouse here focuses not on whether we needed waterboarding to get intelligence (Obama, for example, said, "the public reports and the public justifications for these techniques — which is that we got information from these individuals that were subjected to these techniques — doesn’t answer the core question, which is:  Could we have gotten that same information without resorting to these techniques?), but whether we actually got any useful intelligence from the methods at all. 

Whitehouse says that no further actionable intelligence was gained through the torture used on Abu Zubaydah after he was turned over to the CIA contractors for good. [Note: this transcript is my own–I found the Congressional Record copy after I did this. I’ve edited in response to Andersonblogs’ comment to take out ellipses and put in emphasis.]

So for a third time he was returned to the FBI and CIA agents, again for professional interrogation, but by now he had been so compromised by the techniques that were applied to him that even they were unsuccessful in getting further information. And as best as I have been able to determine, for the remaining sessions of 83 waterboardings that have been disclosed as being associated with his interrogation, no further actionable intelligence was obtained. And yet the story has been exactly the opposite. The story over and over has been that once you get these guys out of the hands of the FBI and military "amateurs" and into the hands of these "trained CIA professionals" who can use these tougher techniques, that’s when you get the information. In this case at least, the exact opposite was the truth. And this was a case cited by the Vice President by name. 

From that, Whitehouse makes appeals to his colleagues not to believe they’ve been told, just as Bob Graham appealed to his colleagues not to believe what they’d been told about the Iraq intelligence.

I want my colleagues and the American public to know that, measured against the information I’ve been able to gain access to, the story-line that we have been led to believe, the story-line about waterboarding that we have been sold, is false in every one of its dimensions, and I ask that my colleagues be patient and be prepared to listen to the evidence when all is said and done before they wrap themselves in that storyline.

One more point about this. Whitehouse (and Feingold, and possibly Levin) are speaking as people who have been involved in SSCI’s apparently meticulous review both of what was done to these detainees and what intelligence we got from that torture. Whitehouse’s statement–his list of the kinds of questions the SSCI is asking and his description of the difficulties Senators have in declassifying important information–suggest these views come at least partly out of that SSCI review.

At the heart of all these falsehoods lies a particular and specific problem: The "declassifiers” in the U.S. Government are all in the executive branch. No Senator can declassify, and the procedure for the Senate as an institution to declassify something is so cumbersome that it has never been used. Certain executive branch officials, on the other hand, are at liberty to divulge classified information. When it comes out of their mouth, it is declassified because they are declassified. Its very utterance by those requisite officials is a declassification. What an institutional advantage. The executive branch can use, and has used, that one-sided advantage to spread assertions that either aren’t true at all or may be technically true but only on a strained, narrow interpretation that is omitted, leaving a false impression, or that sometimes simply supports one side of an argument that has two sides–but the other side is one they don’t want to face
up to and don’t declassify.

This suggests Whitehouse has learned something, probably in that SSCI review, that totally debunks the claims that the Bush Administration made, but which he is prevented from revealing.

It sort of makes you wonder–particularly with his statement that he hopes and believes Obama will be better–whether this speech wasn’t designed to pressure Obama to make this information available now?

Update: thanks to RH, here’s the full speech via CSPAN:

I’m all in favor of an unrelenting focus on Dick Cheney’s role in torture, but I think David Corn’s focus on the possibility that Cheney’s briefing of Pat Roberts and Jello Jay on March 8 (and possibly March 7), 2005 is too narrowly focused. (h/t fatster via RawStory)

"The Senate intelligence committee’s study includes an examination  of how the committee was briefed on the CIA’s detention and interrogation program,"  says Phil LaVelle, a Feinstein spokesperson. "This includes briefings of committee leadership, and is not limited by who conducted the briefing." The committee has restricted this part of its review and is not examining briefings provided to other committees–such as the House intelligence committee–according to a congressional source familiar with the probe. But given that Cheney briefed two senior members of the Senate intelligence panel, the committee can review what Cheney told Roberts and Rockefeller about the interrogation program and evaluate whether his assertions were supported by the facts. That is, the Cheney briefing is fair game for the Senate investigators.

[snip]

So did Cheney make an honest presentation during the behind-closed-doors meetings with congressional leaders when he was veep? Feinstein can find out–if she wants to.

The Senate intelligence committee’s investigation is not wide-ranging–which may be good news for Cheney. According to a press release it issued, the committee is mainly focusing on what the CIA did, whether it remained in compliance with guidance it received from the Justice Department, and what was the value of the intelligence it obtained through the use of "enhanced and standard interrogation techniques."  That press release makes it seem unlikely that the committee is investigating whether the White House–with or without Cheney’s involvement–pressured the Justice Department to cook up legal cover for the CIA’s use of so-called enhanced interrogation techniques.

When I asked LaVelle whether the committee was examining the 2005 Cheney briefing, he declined to comment. The committee is not confirming or denying any specific aspects of its inquiry, including the witnessess it has or will be interviewing. But the committee has granted itself the authority to investigate what Cheney told committee members about the CIA interrogations. If it chooses not to do so, its probe will be incomplete. [my emphasis]

That is, I think Cheney’s role in persuading the SSCI not to investigate the torture program in 2005 may be one of the least interesting things the SSCI might be investigating wrt its CIA briefings. Consider two other items of interest:

CIA Claims to Have Briefed Democrats When It Didn’t

CIA once claimed to have briefed Bob Graham (and, presumably, Richard Shelby) on torture twice in April 2002, and twice in September 2002. In fact, it briefed them only once, in late September 2002, and according to Graham, did not brief them on torture.

Then, CIA claimed to have briefed Jello Jay on torture in February 2003. That, too, was a false claim. 

Thus, CIA never briefed the Ranking Democratic Member of SSCI on torture until after KSM had been waterboarded–yet CIA claimed that it had.

CIA May Have Lied about "Cruel and Inhuman"

In addition, CIA appears to have lied to SSCI about whether or not it had to comply with the Convention Against Torture’s prohibition on cruel and inhuman treatment. I laid out the tensions underlying the issue in this post, which shows SSCI was pushing for a review of this issue for ten months before OLC finally reviewed it and produced a memo saying that, since our torture was useful, it did not shock the conscience.

And in fact, this issue is precisely what Mary McCarthy said the CIA lied about.

A senior CIA official, meeting with Senate staff in a secure room of the Capitol last June, promised repeatedly that the agency did not violate or seek to violate an international treaty that bars cruel, inhumane or degrading treatment of detainees, during interrogations it conducted in the Middle East and elsewhere.

But another CIA officer — the agency’s deputy inspector general, who for the previous year had been probing allegations of criminal mistreatment by the CIA and its contractors in Iraq and Afghanistan — was startled to hear what she considered an outright falsehood, according to people familiar with her account. It came during the discussion of legislation that would constrain the CIA’s interrogations.

At a time when the Senate had a number of efforts (a Dick Durbin bill, and the McCain amendment) to restrain torture, the Administration repeatedly told the Senate that CIA complied with CAT. I think we’re going to find, ultimately, that CIA had been given an explicit exemption from CAT by the Administration (which would explain why the SSCI narrative focuses so closely on it). 

David Corn has real news here that their briefings are a subject of the SSCI’s investigation. But I think the question of whether Dick Cheney lied to the SSCI may be nowhere near the most interesting part of that. 

Oh boy, I can’t wait until First Draft’s Athenae gets ahold of this.

An AP reporter apparently wrote, on FaceBook, what a lot of bloggers have been saying about big media managers who ruin their companies: that the management ought to be held responsible. But then, one of his FaceBook friends higher up the AP food chain ratted him out, and he got formally reprimanded for the comment. And now the AP suggests that the reporter got reprimanded because his comment might "damage AP’s reputation as an unbiased source of news."

Richard Richtmyer, a Philadelphia-based newsman, set off Tuesday’s tempest with a seemingly harmless comment posted to his Facebook profile late last month criticizing the executive management of newspaper publisher McClatchy, whose stock plummeted following a 2006 acquisition of San Jose-based Knight Ridder.

“It seems like the ones who orchestrated the whole mess should be losing their jobs or getting pushed into smaller quarters,” Richtmyer wrote on May 28. “But they aren’t.”

McClatchy, like countless other newspaper publishers, happens to be a member of the AP’s newsgathering cooperative. Had the comment been uttered in real life, it likely would have dissipated into the rank air of a Philly journo bar. But Richtmyer had some 51 AP colleagues as Facebook friends, some of them higher up in the AP food chain. One turned out to be a “mole” — Richtmyer’s description — and the reporter was given a firm talking-to by AP management, who put a reprimand letter in his employment file.

Paul Colford, a spokesman for New York-based AP, declined in an e-mail to address Richtmyer’s case. But he said that “guidance offered to AP staff is that participation on Twitter and Facebook must conform with AP’s News Values and Principles.” That ethics policy says writers “must be mindful that opinions they express may damage the AP’s reputation as an unbiased source of news. They must refrain from declaring their views on contentious public issues in any public forum.”

Aside from the absurdity that Ron Fournier is still employed at AP, yet management is going after this guy, consider what this says about AP’s understanding of "unbiased."

AP’s management worries that it would be seen as "bias" to suggest that another corporation’s management, having made a crappy business decision, should be held accountable. AP thinks it would be biased to suggest that capitalism is supposed to work the way it’s supposed to work, for managers to be held accountable when they damage shareholder value. 

No wonder no one is covering all the crappy business decisions MSM managers have been making of late–it’ll get you accused of pro-capitalist bias, I guess.

Of course, that’s probably not what’s going on here–AP is probably a lot more concerned that their clients, including McClatchy, will get pissed off and stop paying for AP content if AP states the obvious that these managers made a poor business decision.

I guess MSM manamgement isn’t all that different from Rod Blagojevich, with his alleged efforts to extort the Chicago Tribune to stop criticizing him.

The detail that Abu Zubaydah was waterboarded 83 times in a month and Khalid Sheikh Mohammed got into the OLC memo via the CIA IG Report released May 2004. So, too, did the reports that CIA interrogators exceeded the guidelines laid out in the Bybee Two memo. And the conclusion that the torture couldn’t be said to have stopped any attacks? That was in the CIA IG Report, too.

Which is why the IG Report’s reported release–on June 19–might be big news.

Or, it might be 400 pages of mostly redacted content. 

In new responses to lawsuits, the C.I.A. has agreed to release information from two previously secret sources: statements by high-level members of Al Qaeda who say they have been mistreated, and a 2004 report by the agency’s inspector general questioning both the legality and the effectiveness of coercive interrogations.

The Qaeda prisoners’ statements, made at tribunals at the detention camp at Guantánamo Bay, Cuba, were previously excised from transcripts of the proceedings, but they will be at least partly disclosed by this Friday, according to a court filing. The report by the inspector general, whose secret findings in April 2004 led to a suspension of the C.I.A. interrogation program, will be released by June 19, the Justice Department said in a letter to a federal judge in New York.

Precisely how much the agency will disclose, however, remains to be determined, as the administration is clearly struggling to decide where to draw the line. In both cases, which involve separate Freedom of Information Act lawsuits filed by the American Civil Liberties Union, the documents are likely to be redacted to withhold information the C.I.A. still considers especially delicate.

Me? I’ll be pleasantly surprised (though not satisfied) if they release pages 85 though 91, which talk about the (in)efficacy of the program. It was in response to these six pages that at least some of Dick Cheney’s CYA documents were written.

And the detainee statements from their CSRTs? Maybe we’ll finally learn why Rahim al-Nashiri was only waterboarded two times.

Well here’s a really really telling passage from Leon Panetta’s declaration on why he can’t turn over the torture documents to the ACLU.

Information concerning the names and titles of CIA personnel, and information concerning CIA organization, functions, and filing information, has also been withheld from the documents at issue based on FOIA Exemptions b(1) and b(3). Names and identifying information of CIA personnel, and CIA contractors and employees of other federal agencies involved in clandestine counterterrorism operations, also has been withheld on the basis of FOIA Exemption b(6), as the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.1

1 As described in the attached Vaughn index, 62 of the 65 documents at issue contain names or identifying information of Agency employees or personnel involved in clandestine counterterrorism operations. [my empahsis]

And sure enough, every cable from the field includes this dual invocation of FOIA exemptions to protect the identities of those involved in torture.

Exemption b(3) … This document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949 … and thus is protected by Exemption b(3).

[snip]

Exemption b(6) – This document also contains information relating to the identities of personnel engaged in counterterrorism operations, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The public interest in disclosure of this information does not outweigh the harm to the individual whose privacy would be violated, and thus the information is protection from disclosure by Exemption b(6).

They can’t protect James Mitchell and his crowd by invoking the CIA Act of 1949, of course, becase the guys in charge of the torture weren’t employees of the CIA. So instead, they’re invoking privacy protection that even the CIA seems to think might be dodgy.

And curiously, this is not what they have done in the past. Compare what appears in this Vaughn Index with the FOIA exemptions invoked for this set of apparently similar documents from 2004. Like a lot of cables in this series, Document 55 is a clandestine cable from Field to HQ. Yet it only invokes b(3) to protect identities, not the more general b(6) to protect the privacy of individuals involved.

In addition, this document contains information about CIA official titles, internal organizational data, and names that are properly withheld under exemption b(3), pursuant to section 6 of the of the Central Intelligence Agency Act of 1949.

In a world in which our own government is using contractors to conduct unwarranted invasions of our privacy, there’s something utterly perverse about our own government then inventing FOIA exemptions to protect contractors from "unwarranted invasion" of their privacy.

Just two or three more bits on this Panetta declaration and the related Vaughn Index (Part One, Part Two).

Before he insisted in his declaration, implausibly, that he wasn’t trying to hide embarrassing information that might show legal wrong-doing, Leon Panetta gave this general explanation for why he couldn’t release this information:

I want to emphasize to the Court that the operational documents currently at issue contained detailed intelligence information, to include: intelligence provided by captured terrorists; intelligence requirements that CIA prioritized at specific points in time; what the intelligence community did not know about enemies in certain time frames, i.e., intelligence gaps;

[snip]

Much information in the documents is intelligence that was being provided to the field and intelligence that was being gathered from the interrogations. This sensitive intelligence provides important insight into what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest. I have determined that the disclosure of intelligence about al Qai’da reasonably could be expected to result in exceptionally grave damage to the national security by informing our enemies of what we knew about them, and when, and in some instances, how we obtained the intelligence we possessed.

Remember, earlier this year the ACLU and CIA agreed that the Agency could exclude raw intelligence cables from this FOIA response.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. [my empahsis]

Nevertheless, even before Panetta says he can’t turn over this material because it would reveal the identities of our counterintelligence officers and the location at which we conducted these interrogations, he says he can’t turn over this material because it’ll reveal the intelligence that went into and came out of the interrogations, even though this is not the primary record of intelligence gathered in the interrogations.

Now, there’s one obvious reason Panetta’d be fearful of releasing this stuff; he doesn’t want to reveal how we prioritized the information we sought from Abu Zubaydah and Rahim al-Nashiri. Imagine the scandal, of course, if the cables were to reveal that the first questions we asked Zubaydah after waterboarding him in August 2002 pertained to purported ties to Iraq? (I have no evidence it was and the CIA said they didn’t tie any Iraq questions to waterboarding–but that’s the sort of question we ought to be asking.)

Ahem.

But I’m particularly interested in the key thrust of his concern: intelligence gaps. Panetta says the US citizens cannot have these documents because they’ll reveal what we "did not know about enemies in certain time frames." It’ll reveal "what the CIA knew–and did not know, i.e. intelligence gaps–at specific points in time on specific matters of intelligence interest."

Aside from the obvious governance reason to reveal that–if the CIA was totally ignorant about stuff when it shouldn’t have been, the taxpayer ought to know that–consider his emphasis on gaps and timing.

What we didn’t know and when we didn’t know it.

I can think of one really big intelligence gap that the CIA filled either before or after it started torturing Abu Zubaydah: the critical detail that Abu Zubaydah was not–as George Bush had proclaimed–the mastermind of the 9/11 attacks, but was instead a sort of travel agent for a training camp that al Qaeda had tried to shut down as a competitor.

I can see why it’d be embarrassing to have to reveal that fact–not least because of the President’s crowing about catching the purported mastermind of the attacks. After all, if Abu Zubaydah wasn’t who we claimed him to be–if he wasn’t a top al Qaeda figure with actionable intelligence on upcoming attacks–then the whole torture thing becomes illegal.

I can see how Leon Panetta wouldn’t want us to learn when the CIA found about this critical detail. 

Update, July 21: As this post describes, the CIA explains that the timelines and outlines are derivative records, and therefore permissibly withheld from the Vaughn Index.

In my last post, I noted that the CIA’s selection of materials for the Vaughn Index (Part One, Part Two) just happened to avoid any deliberative discussions from April and May, when interrogators were reportedly getting approval for techniques on a regular basis.

In this post, I will look at what the CIA has included and excluded from the later part of its Vaughn Index–the materials in which the torture tapes and their destruction were discussed. I’ve taken the timelines I did in this post and added in what we learn from the Vaughn Index–the additions are bolded.

Once again, the CIA’s selection of materials for Hellerstein’s reviews appear very careful. While the materials include specific details on waterboarding, they appear to exclude the main investigative records surrounding both the torture and the destruction of the tapes.

The IG Report materials

One chunk of material pertains to the IG Report on interrogation eventually published in 2004. The materials in the index include:

January 9, 2003: Review of Interrogation Videotapes. A 5-page memorandum for the record written by a CIA attorney. The document contains information relating to the contents of the destroyed videotapes, pre-decisional information pertaining to policy and legal guidance, confidential communications between the attorney and CIA personnel, and attorney work-product.
February 3, 2003: Interview report
February 10, 2003: Interview report
May 9, 2003: Notes from Tape Review. A 47-page handwritten document of notes from a review of the videotapes that was written in the field with a one-page email enclosed. The notes and email include information concerning the destroyed videotapes that was incorporated into a final report.
May 22, 2003: Trip Report. A 4-page memorandum for the record written by a CIA employee. The document contains information regarding the destroyed videotapes, and recommendations and opinions of CIA employees.
June 17, 2003: Notes of CIA Attorney Discussion. A 6-page record of handwritten notes from a CIA employee discussing the interrogation videotapes with a CIA attorney. The notes include details concerning the destroyed videotapes, communications between the attorney and Agency management, and attorney work-product.
June 18, 2003: Email
June 18, 2003: Interview report

A few interesting details about these materials. We know from the IG declaration submitted in this case that the IG review was initiated in January 2003. I earlier wondered whether that January 9 document was the document that initiated the review; I can’t tell one way or another from the description. But I find it interesting that it is titled "review of interrogation videotapes." Is it possible that the entire IG review started as a review of the torture tapes?

As expected, those May documents appear to have been the work product of the IG’s trip to view the torture tapes.  I’m pretty interested that the CIA did not let Hellerstein review any of the interview reports. Are they worried about letting him see the product of the IG’s investigation?

The torture tape scandal materials

One chunk of the material pertains to the CIA’s reaction as the torture tape scandal broke in December 2007. Note, I’ve put these amongst the other known dates from the scandal.

December 3, 2007: Review of Potential Public Statement. A 3-page email chain between a CIA employee and his management discussing comments on a two-page attachment that is a draft of an Agency statement regarding the destroyed videotapes.
December 5, 2007: NYT informs CIA they’re going to publish story on tapes
December 6, 2007: Michael Hayden writes letter to CIA personnel explaining matter; NYT breaks story of torture tape destruction
December 8, 2007: DOJ opens preliminary investigation into torture tape destruction
December 10, 2007: Trip Report. A one-page email from a CIA employee to his management, with a 4-page attachment that is a memorandum for the record written by a CIA employee. The document contains information concerning the destroyed videotapes and preliminary recommendations and opinions of CIA employees.
December 10, 2007: 2-page email
December 11, 2007: Hayden briefs SSCI on the torture tape destruction, discussed the techniques used on Abu Zubaydah, including waterboarding
December 12, 2008: ACLU moves to hold CIA in contempt for destroying torture tapes
December 28, 2007: 7-page interview report
January 2, 2008: Mukasey announces appointment of John Durham to conduct investigation into torture tape destruction
January 7, 2008: Notes Concerning Destroyed Tapes. A one-page email between a CIA employee and his management with a 12-page attachment of notes concerning the destroyed videotapes. The email discusses the attachment; first hearing on ACLU’s contempt motion
January 10, 2008: CIA submits motion opposing contempt

As we discussed in my last post on this, the first document appears to be the CIA’s initial reaction (and potential public statement) to learning the NYT was going to break this story.

I find it interesting that there’s a "trip report" from the days after DOJ announced a preliminary investigation of the torture tape destruction.

More interesting, I note that the CIA did not give Hellerstein the interview report that precedes Mukasey’s decision to appoint John Durham. As a product of an ongoing investigation, this may be proper. But once again, Hellerstein doesn’t get to see the investigations underlying the torture and tortore tape destruction.

The unknown timelines and notes

And then there are a slew of undated documents, many of them timelines and outlines. Of those, we get only:

Not Dated: A one-page note which summarizes details of waterboard exposures from the destroyed videotapes.
Not Dated: A 3-page memo which summarizes details of waterboard exposures from the destroyed videotapes. 

I find this particularly interesting. The CIA is willing to give undated descriptions of waterboarding itself to Hellerstein. But not any timelines that would put those waterboarding scenes into the context of what they did with Abu Zubaydah and al-Nashiri over time.

Update, July 20: As this post explains, the CIA claims that the gaps in production come from the presence of "derivative" cables that were permissibly withheld from the Vaughn Index.

In footnote 2 of his declaration, Leon Panetta explains that eight of the documents included in the Vaughn Index (Part One, Part Two) he turned over to Judge Hellerstein represent deliberative process, so can’t be turned over.

 As described in the attached Vaughn index, documents 28, 54, 56, 57, and 59-62 contain deliberative process privileged information; and documents 59 and 60 contain attorney-client communications and attorney work product.

Given the report that interrogators were cabling HQ on a daily basis for approvals for interrogation techniques, I was interested in which of the cables included in the index of all torture tape related documents the CIA previously identified would be labeled "deliberative process"–it’s a way to identify which of the cables included actual discussion about techniques. I was particularly interested in whether any of the more remarkable cables–the 28-page cable from Field to HQ written on May 6, 2002, or the 4-page cable from HQ to Field sent on May 28, 2002–were included among these deliberative documents.

Those two cables–which, I have speculated, might be key cables in the early decision-making on torture–were not included among the selection of all the documents that CIA identified "for review for potential release." In fact, the only deliberative cable included among those that Judge Hellerstein will now review is one dated August 20, 2002, long after the CIA got formal approval to use torture techniques. (In addition, the first of the two interrogation logs–the one dated April 13, 2002–is considered to include deliberative records, though the second one–dated August 4, 2002–does not.)

But I don’t think that was an accident.

The CIA was, as I understand it, ordered to give over a selection of these. Sometimes, agencies are ordered to give over every tenth document out of a total collection, but I don’t believe they were here. Sometimes, agencies will simply pull every 10th document, and explain if they deviate from that pattern. But the CIA appears to have submitted a more random selection (though, they supplied a greater percentage of the later documents talking about the torture tape destruction). By comparing the total index with the Vaughn index, though, we can get a sense of what the CIA did include. For most of the series of cables reporting to and from the field, the CIA submitted fairly regular cables–every 10, 11, or 12 cables. From June 22, 2002 through August 20, 2002, they appear to have submitted every 10 document, like clockwork (in addition to the handwritten log dated August 4). (It’s impossible to exactly identify a pattern from after that because so many of the cables are the same length, though it is possible that it sticks pretty close to the every tenth cable pattern.)

But things in April–when the FBI and CIA were fighting over control of the interrogation and Abu Zubaydah was reportedly cooperating with the FBI–and May–when the small box was introduced at least two months before OLC approved its use–things are a bit more irregular. In April, for example, the CIA submitted documents 1, 12, 1922, 32, 42 or 43, and 53 (plus the handwritten log, which was document 3); that gives you gaps of 11, 7, 13, 10, 10, 10, 10, and 10 documents (not including the log in the series). In May, CIA submitted documents 64, 65, or 66, 77 or 78, 89 or 90, document 99, 110, 123, 134, 146, document 155 or 156, ad 165; while it’s harder to pin down the gaps, there is necessarily one 13-document gap early in the month, a 9-document gap between May 8 and 11,  another 13-document gap between May 14 and 17, a 12-document gap between May 20 and 24, and one 9-document gap between May 24 and 30. 

In other words, whereas later in the series the CIA just provided every tenth document, for this early period, they cherry-picked what they submitted. And magically avoided any of the documents that didn’t fit the pattern of length or sender and recipient of the rest of the documents. And also happened to avoid sending any cable that could be considered deliberative.

We have reports that some of these cables include detailed descriptions of interrogation methods to request approval. But none of those were turned over to Judge Hellerstein.

I said last night that these documents–the full set of all 580 documents–would show that the techniques used in practices exceeded the guidelines included in the Bybee Two memo.  But there’s a very good chance the most damning documents are not among the 65 the CIA selected for Hellerstein’s review.

Update: To be fair to Panetta, he says the selection intentionally included some of the most sensitive documents. (Thanks to rincewind for reminding me.)

The documents at issue, however, were purposefully selected for review based on the sensitive operational information they contain. Where non-operational documents are at issue, as is the case with a portion of the documents within the scope of the recent remand order, the CIA will consider such documents for release.

Of course, we’ve got to trust the CIA on this point, at least for now. And from what I’ve seen so far, I’m not sure I do trust them. 

Update: William Ockham corrected an important error in my calculations–pointing out that document 22, not 19, was included (meaning the documents pulled from April are regular). He suggests the other irregularities may come from an algorithm that does not pull from HQ to Field or Field to Field cables, and some bugs that otherwise introduce the irregularities. The gap that still doesn’t adequately explain, it seems, is the 110 to 123 to 134 gap in May, which is precisely the period I’m most interested in. But bear in mind that this might be a computer issue, and not any intentional cherry-picking from the CIA.