The AP and Politico have competing stories up speculating that–along with clearing brush this week–Obama might pay Ted Kennedy a visit. The AP, relying entirely on speculation, suggests a visit could be a big boost for Obama’s efforts to pass health care reform, one of Kennedy’s lifelong goals. The Politico, relying on an email from a Kennedy aide, says Obama is not and never was scheduled to visit Kennedy.

But a Kennedy aide said in an e-mail Friday that an Obama-Kennedy visit is not going to happen and was never in the works.

Given Kennedy’s apparent health struggles of late, it may be that he’s not up to meeting with Obama in the first place, and particularly not if Obama comes with press corps in tow.

That said, for the next week, Obama will be one 10 to 15 mile chopper ride away from the man who perhaps unexpectedly bestowed on Obama the Kennedy mantle–and in doing so, had a significant role in getting Obama elected. Obama owes Kennedy, Obama is flailing with legislation Kennedy cares deeply about, and this may be the last time Kennedy can collect on Obama’s debts to him.

Therein may be the problem.

After all, the AP is correct that even reports of an Obama visit to Hyannisport would boost Obama’s fortunes and presumably those of health care legislation. A visit followed by a call to "Do it for Teddy!" might inspire Democrats (and possibly some of Kennedy’s close friends on the other side of the aisle) to pull together to get this done.

But for what bill?

Discussions I’ve seen on a potential visit all focus on Obama’s current trajectory, which appears to be an attempt to pass insurance company reform under the cover of public option kabuki. None of that discussion on a potential Kennedy visit focuses on the HELP bill–Kennedy’s bill, shepherded through by Chris Dodd. One that resembles those passed through the House, including a public option. 

If I were Kennedy, I wouldn’t let Obama set foot in my house unless he promised to ditch the Rahm/Messina plan to follow the Baucus plan. If I were Kennedy, I’d use this opportunity to kick Obama’s ass for embracing that fraudulent kabuki after all the things Kennedy has done to help Obama.

And if I were Obama, I might take that opportunity to pivot. To adopt Kennedy’s bill, to ride the rising anger of the Democratic base and Kennedy’s legacy to pass real health care reform.

Politico says it won’t happen (though there’s just enough flexibility of schedule and close press events built into Obama’s transit to pull it off). But if it were, it’d be Obama’s opportunity to come away fighting a fresh battle–the battle to pass Ted Kennedy’s healthcare reform bill, to pass the Ted Kennedy Healthcare Reform Bill, rather than the corporatist crap for which he’s currently flailing.

Update: Major Garrett tweets:

WH Spox Burton: "no plans" for Obama to visit ailing Sen. Kennedy. Plans can change, tho. Many expect they will.

MadDog pointed to this passage in NYT’s story on the new revelations from the CIA IG report.

Besides the inspector general’s report, other documents expected to be released Monday are a 2007 Justice Department memo reauthorizing the C.I.A.’s “enhanced” interrogation techniques, documents that former Vice President Dick Cheney has said provide evidence that the interrogation methods produced valuable information about Al Qaeda; and Justice Department memos from 2006 concerning conditions of confinement in C.I.A. jails.

Best as I can tell, these are:

2007 Justice Department memo: The OLC memo Spencer was the first to report. From his Windy report:

As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program.

2006 Justice Department memos: The SSCI Narrative describes these to be interpretations of the DTA and the Hamdan decision.

In June 2006, in Hamdan v. Rumsfeld, the Supreme Court held that Common Article 3 of the Geneva Convention applied to the conflict with Al-Qa’ida, contrary to the position previously adopted by the President. Common Article 3 of the Geneva Conventions requires that detainees “shall in all circumstances be treated humanely,” and prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment” and “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” At the time of the Hamdan decision, the War Crimes Act defined the term “war crime” to include “a violation of Common Article 3.”

In August 2006, OLC issued two documents considering the legality of the conditions of confinement in CIA facilities. One of the documents was an opinion interpreting the Detainee Treatment Act; the other document was a letter interpreting Common Article 3 of the Geneva Conventions, as enforced by the War Crimes Act. These documents included consideration of U.S. constitutional law and the legal decisions of international tribunals and other countries.

Cheney’s documents: Reporting elsewhere suggests this will include more than just the two documents Cheney requested, but a few others. They will basically argue, for example, that Khalid Sheikh Mohammed provided a ton of information, but they will not consider whether torture was the most effective way of getting him to provide that information. As Spencer has reported, both Ron Wyden and Russ Feingold supported their release.

Okay, it looks like a busy week for us here.

But notice what is not on this list?

The Office of Public Responsibility report, which has been due out all summer, and last we heard was at the CIA being reviewed to protect (presumably) John Rizzo’s role in crafting OLC memos that claimed to authorize torture.

Which is all very convenient for Eric Holder’s reported plan to name a prosecutor to investigate torture (I’m guessing this will happen this week, if not tomorrow itself), but not to investigate the process that went into "authorizing" torture.

If it is, indeed, DOJ’s plan to release all the other torture documents save the OPR report, it will have the effect of distracting the media with horrible descriptions of threats with power drills and waterboarding, away from the equally horrible description of lawyers willfully twisting the law to "authorize" some of those actions. It will shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways. It will hide the degree to which torture was a conscious plan, and the degree to which the oral authorizations for torture may well have authorized some of what we’ll see in the IG Report tomorrow.

If it is, indeed, DOJ’s plan to release the IG Report and announce an investigation without, at the same time, releasing the OPR report, it will serve the goal of exposing the Lynndie England’s of the torture regime while still protecting those who instituted that regime.

After the insurance industry started squawking when Henry Waxman started demanding more details about their business practices, Jello Jay Rockefeller has gotten into the act (h/t Susie).

A U.S. Senate Democrat asked the top 15 health insurers to explain what portion of premiums go to profits versus patient care, putting further pressure on the companies to explain their business practices as Congress considers sweeping health reform legislation.

In letters to the companies on Friday, Sen. John Rockefeller also asked for information about how insurers disclose financial practices to customers.

If nothing else, Waxman and Jello Jay are keeping the AHIP schlep trying to accuse them of being mean busy. At some point, Robert Zirkelbach will have the credibility of Baghdad Bob.

"Some in Washington are trying to shift the focus to the insurance industry rather than talk about solutions to the health care concerns raised by the American people," Zirkelbach said.

Let’s just hope Jello Jay and Waxman figure out a way to collect—and use (or, barring them collecting it successfully, using that) this information as things heat up next month.

I might yet have to ditch the moniker Jello Jay.

My guess is no–my guess is that we’ve got disappeared detainees floating on some carrier somewhere. But this is important, but small, progress.

In a reversal of Pentagon policy, the military for the first time is notifying the International Committee of the Red Cross of the identities of militants who were being held in secret at a camp in Iraq and another in Afghanistan run by United States Special Operations forces, according to three military officials.

[snip]

The new Pentagon policy on detainees took effect this month with no public announcement from the military or the Red Cross. It represents another shift in detention policy by the Obama administration, which has already vowed to close the American military prison at Guantánamo Bay, Cuba, by next year and is conducting major reviews of the government’s procedures for interrogating and detaining militants.

[snip]

Under Pentagon rules, detainees at the Special Operations camps can be held for up to two weeks. Formerly, the military at that point had to release a detainee; transfer him to a long-term prison in Iraq or Afghanistan, to which the Red Cross has broad access; or seek one-week renewable extensions from Defense Secretary Robert M. Gates or his representative.

Under the new policy, the military must notify the Red Cross of the detainees’ names and identification numbers within two weeks of capture, a notification that before happened only after a detainee was transferred to a long-term prison. The option to seek custody extensions has been eliminated, a senior Pentagon official said.

 And credit to General Petraeus, who seems to have brought this approach from Iraq to Afghanistan.

There are still a lot of problems here. It sounds like ICRC gets the names and ID numbers of detainees, but not yet the access to talk to them. If so, then there is still not an outside monitor on detainee conditions. So the Breedlove review of the Special Operations prisons–described in the article–can’t be assumed to truly reflect the conditions in the prisons. And if the ICRC doesn’t get access, it still means we’re flouting the Geneva Conventions. 

But if we could be sure we were getting out of the disappearances business that would be small progress.

If you follow me on twitter, you know that I’ve been anticipating the Republican attack on the Obama vacation by pointing out what Bush was doing 8 years ago (ignoring the PDB) or Cheney was doing 7 years ago (claiming Iraq was close to having nukes).  So I want to give Andrea Mitchell kudos for–as I hoped reporters would do yesterday–calling out this bogus attack.

And KO’s take on this last night might as well have been a "best of" emptywheel’s "brush clearing" tweets.

We’ll see more of this attack in the mere 10 days that Obama is taking away from DC.  May the rest of the press corpse dismiss it with at least as much disdain as Mitchell mustered.

In a jello-wrestling match between Rahm Emanuel and Henry Waxman, I think I’d bet on the latter. While Rahm has been frantically and loudly pursuing two opposing strategies–the Messina-Baucus welfare program for the insurance industry hidden under the guise of the public option kabuki, Waxman has been quietly preparing for battle in September. And it sounds like the insurance industry is getting increasingly worried that Waxman will be better prepared than Rahm and his little kabuki dance.

House Energy and Commerce Chairman Henry Waxman raised eyebrows this week when he launched a financial probe into the nation’s largest insurance companies, which are at the center of the health reform battle.

Now POLITICO has learned that Waxman’s recent investigation began almost a month earlier than previously thought – with letters to the insurance industry’s powerful trade group and its consultant regarding grassroots tactics.

A committee spokeswoman defended the probes – saying lawmakers need to know that private insurance money is being spent effectively as part of the effort to control costs. But the trade group, America’s Health Insurance Plans, is crying foul, saying Waxman is merely trying to bring it in line behind his version of the health reform bill.

"Congressional oversight is not a tool that should be used to chill dissent," said AHIP spokesman Robert Zirkelbach. "These investigations are nothing more than politically motivated, taxpayer-financed fishing expeditions designed to intimidate and silence health plans."

Now, I don’t for a second think that Waxman can win this on his own, that even armed with the information he’s seeking (assuming the insurance industry doesn’t stall, which they will) he will be able to silence Baucus and his industry-owned cohort.

But at the very least, what Waxman will succeed in doing is demonstrate that his legislative foes haven’t even considered (or, more likely, would like to hide) the business realities of those whose bidding they’re doing. You’re going to have health insurance executives asking for a huge subsidy at the same time as they cry foul when asked to provide some documents about their business. And those hysterical cries will be pitted against some very rational voices speaking quietly about cost control–precisely what the Blue Dogs and the insurance industry shills claim to be pursuing.

“If we’re going to get health costs under control, we need to make sure that our private health insurance dollars are spent as efficiently as possible. That means our premium dollars should be paying hospitals and physicians for providing health care, not wasting resources on administrative bloat,” she said.

Oh, and as I suggested in my earlier post on this, Waxman will just happen to be collecting information that Evan Bayh would rather we didn’t have. 

I’m getting a feeling that the untold–and developing–story of this health care debate is that when Waxman was forced to push through an imperfect bill with the Blue Dogs on his committee, when he got stuck in negotiations with Rahm just before the break, he realized he was getting screwed. And, lucky for us, he was in a position to do something about it, to prepare for the fight that will come in September.

I was going to leave well enough alone–to take Marc Ambinder’s limited apology for labeling DFHs who believed the threat level system to be politicized as "gut haters," accept that he is at least thinking about these things, and move on.

But there are a couple of passages from his post that really embody the things that–as I said before-make his take on the threat levels an excellent example of what I think is wrong with Village journalism–and why. Ambinder has been describing his thought process for assessing the threat levels (both then as now) as akin to someone in Plato’s cave whose entire reality consists solely of the shadows he sees on the wall of the cave.

For example, take his revised assertion that it was correct to distrust the DFHs belief that the threat levels were politicized.

I still think that some journalists were right to be skeptical of the doubters at the time. I think that some journalists were correct to question how they arrived at the beliefs they arrived at.

I was trying to make this point in my earlier post, but thankfully Ambinder gives me a chance to do it again. Ambinder describes himself as assessing the threat levels by understanding what the different "sides" in the debate were saying, assessing their credibility, and then deciding which was right based (I guess) on each side’s credibility. He suggests that he was right to dismiss the DFHs’ claims–and therefore the assertion that the threat levels were politicized–based on the DFHs themselves. In neither Ambinder’s original column nor in his follow-up does Ambinder accept that there was an abundance of evidence that a journalist might use to assess the threat levels himself, to assess the claims the DFHs were making independently of their credibility or lack thereof. So to use the cave analogy, Ambinder was satisfied that–having identified that the shadow he was seeing on his cave wall came from we DFHs, he had no need to turn around and look at the thing itself, to assess it of his own accord.

Then there’s Ambinder actually weighing whether he can, now, conclude that the threat levels were politicized. In his follow-up post he weighs Ridge’s statement in the context of his squabbles with Rummy and Ashcroft.

Reading the excerpts from Tom Ridge’s book, it is not clear to me that he is actually arguing against interest, or that he is correct. No doubt, Don Rumsfeld and John Ashcroft had very strong views about terrorism, but simply because Ridge — who disagreed with Rumsfeld and Ashcroft about many, many things — had a feeling that Rumsfeld was trying to tinker with an election’s outcome does not, by a mile, prove anything.

Which follows up on his assertion that he couldn’t assess the terror levels in 2004 because he had no raw intelligence. 

And yet — we, too, weren’t privy to the intelligence. Information asymmetry is always going to exist, and, living as we do in a Democratic system, most journalists are going to give the government the benefit of some doubt, even having learned lessons about giving the government that benefit.

Now, I actually agree with Ambinder that Ridge’s statement is more limited than it has been made out to be. Ridge is talking about a debate that did not end up in an elevated threat level right on the eve of the elections. He’s not talking–as I originally assumed–of the elevated threat level during the DNC, which was one of the most egregious examples for DFHs. And it is true that Fran Townsend and John Ashcroft and Andy Card are pushing back on this.

So I’m not averse to evaluating the pissing match that is about to ensue about this claim–I’ve already started to do so myself.  

But what is interesting about Ambinder’s description of his own assessment–then, and now–of the threat levels is that he resorts to "official" sources, raw intelligence and representations from the players after the fact. But he still doesn’t engage with the set of data that we DFHs used to correctly interpret the threat assessments as politicized–the sheer number of elevated threat assessments, the timing of them, the absurdity of "threats" that were treated as valid. Or, if raw intelligence is your kind of thing, the process that we now know went into those threat assessments–the torture of Abu Zubaydah that resulted in those absurd threats. Or the torture of Hassan Ghul in August 2004 after he had been in custody since January of that year, just in time to support election eve scare-mongering. All of that is part of the process and evidence of politicization, but Ambinder doesn’t touch it.

My point being that Ambinder stubbornly clings to the data he considers valid–"official" sources. He not only appears to accept data solely from those official sources or from a false objective assessment of two sides of a debate, but he takes those official sources at their word. He treats, for example, the One Percent Doctrine on faith, without wondering how a guy really motivated exclusively by a "doctrine" that you have to prevent any possible threat, no matter how small, would turn around and out a CIA counter-proliferation expert because her husband was challenging him politically. Ambinder at least seems to interpret any Ridge versus Ashcroft and Rummy disagreements as an equal fight, without also noting the number of times Ashcroft created press circuses to announce the arrest of yet more "aspirational" terrorists or considering Rummy’s fondness both for institutional propaganda like the Rent-A-General program and for making assertions that fly in the face of all reality. Ambinder reifies "official" sources both to the exclusion of a whole bunch of other evidence and in such a way that limits his ability to at least publicly challenge the credibility of those official sources based on their past record. These official sources are filtered–both through the natural egotistical self-promotion and by the conditions (such as torture) that underlie them. That’s true of the Bush Administration and the Obama Administration and any other administration. But rather than try to sort through that–or consider other data, such as simple patterns built up over time–Ambinder throws up his hands and says, "information asymmetry," and concedes that professional journalists "give the government the benefit of some doubt" rather than try to fight through it or use alternative sources as well.

What Ambinder is doing–and the reason I think it fair to say his statements represent a lot of what is wrong with Village journalism–is following certain professional habits: the observation of the world through a constant on-the-one-side-on-the-other-side filter and, along with that, through the filter of official sources treated as such. Those professional habits have been incredibly well documented (one book that has influenced me on this is Timothy Cook’s Governing with the News). And those professional habits serve as a sort of self-imposed cave that permits journalists a view only on the shadows of reality, even after such a time when a more direct view is possible, even to lay observers. (Or perhaps especially to lay observers.)

Now that we’re beyond the "gut haters" slur and my own vulgar language, this is ultimately a discussion about two things. First, a tendency among Village journalists to use the on-the-one-side-on-the-other-side false objectivity as a way to–as Glenn documents–dismiss one perceived side of a debate without ever having to do the work of independently assessing the data they are using. And, more generally, this is another incident in a long series of them in which Village journalistic methods have proven to be catastrophically ineffective at assessing the truth.

The problem is Ambinder and most other Village journalists remain, obstinately, in their cave. On the health care debate, for example, the deathers got a hearing because they were defined as one of the two sides of the debate. Admittedly, they were (after several weeks) dismissed as cranks, but not before they started bringing guns to town halls. But the process of dismissing them as cranks has occupied the Village’s time, rather than an exposition of what is really in the existing health care plans. This was exacerbated by the treatment of Sarah Palin and Chuck Grassley as legitimate sources because there are "official" representatives of the Republican Party, when any assessment of what they were saying ought to disqualify them as legitimate voices (though admittedly, Obama bears a ton of responsibility for Grassley’s centrality in the debate).  So we’re getting this entire health care debate filtered through Ambinder’s cave, and we may well not get health care as a result, and a lot of people will unnecessarily die or go bankrupt as a consequence.

There’s a reason we DFHs got so outraged over this. Not just because we were dismissed as cranks when plenty of evidence showed (and still shows) we were right. But because the refusal of journalists to come out of their caves and report on the reality, rather than the filtered reality their professional habits leads them to favor, has real, awful consequences for our country and its citizens.

Less than a month after the NYT first revealed the CIA had destroyed torture tapes, I suggested that Doug Jehl’s November 9, 2005 story may have been the precipitating factor that led the CIA to destroy the torture tapes.

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The agency said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." It reaffirmed that statement on Tuesday, but would not comment on any classified report issued by Mr. Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law.

The officials who described the report said it discussed particular techniques used by the C.I.A. against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world. They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the C.I.A. since he was captured in March 2003. Mr. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

I’ve seen the report’s publication date as either April or May 2004–but in any case, at almost exactly the same time CIA briefed Addington, Gonzales, and Bellinger on the torture tapes. Which makes Helgerson’s claim that he "reviewed the tapes at issue" during that period particularly interesting. Helgerson’s report–which focuses on the treatment of a number of named detainees–may have relied on those torture tapes to form the judgment that the CIA was engaged in cruel and inhuman treatment. In fact, it’s even possible that the CIA briefing in May 2004 pertained not just to Abu Ghraib (which was, after all, a DOD operation, not a CIA one), but also to the fact that the CIA IG had just declared in a written report that the tactics used (and presumably shown in the tapes) amounted to illegal treatment of detainees.

From Hosenball and Isikoff’s preview of Monday’s IG Report, it sounds like I was right.

Nashiri’s interrogators brandished the gun in an effort to convince him that he was going to be shot. Interrogators also turned on a power drill and held it near him. "The purpose was to scare him into giving [information] up," said one of the sources. A federal law banning the use of torture expressly forbids threatening a detainee with "imminent death."

According to the sources, the report also says that a mock execution was staged in a room next to a detainee, during which a gunshot was fired in an effort to make the suspect believe that another prisoner had been killed. The inspector general’s report alludes to more than one mock execution.

Before leaving office, Bush administration officials confirmed that Nashiri was one of three CIA detainees subjected to waterboarding. They also acknowledged that Nashiri was one of two al Qaeda detainees whose detentions and interrogations were documented at length in CIA videotapes. But senior officials of the agency’s undercover operations branch, the National Clandestine Service, ordered that the tapes be destroyed, an action which has been under investigation for over a year by a federal prosecutor.

Not only did al-Nashiri’s torturers laugh in his face, the wielded a drill and a gun to make him falsely confess that al Qaeda had nukes.

I can see why they couldn’t let tapes of that lie on a shelf. 

The AP FOIAed Mark Sanford’s calendars and discovered him traipsing about on some undisclosed trips using supporters’ planes. Make sure you read through to the second page, though, where the AP discloses that the Republican Governor’s Association paid for one of Sanford’s nookie runs.

Sanford arranged to meet with his mistress in one of the 2008 RGA trips that he did not disclose. He had been traveling to Ireland for RGA in November, and arranged a meeting with the woman when he returned, according to records he released after the affair became public.

So let’s see. The RGA paid for Mark Sanford’s nookie runs. The NRSC doubled the salary of John Ensign’s mistress and put her son on the payroll. The RNC paid to keep Palin in Prada (which may not have helped her sex life but it sure made for some starbursts in Rich Lowry’s living room).

And yet the NRCC is the Republican entity with the ethics and accounting problems?

(Photo credit: http://www.flickr.com/photos/loauc/ / CC BY-SA 2.0)

It was bad enough that the Bush Administration did away with attorney-client privilege via their warrantless wiretap program. Now the Obama Administration appears to be trying to intimidate lawyers defending Gitmo detainees by threatening them with prosecution for trying to ascertain the identities of those involved in abusing their clients.

The Justice Department recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees charged with organizing the Sept. 11, 2001, attacks, according to sources familiar with the investigation.

Investigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs, the sources said. The lawyers were apparently attempting to identify CIA officers and contractors involved in the agency’s interrogation of al-Qaeda suspects in facilities outside the United States, where the agency employed harsh techniques.

If detainees at the U.S. military prison in Cuba are tried, either in federal court or by a military commission, defense lawyers are expected to attempt to call CIA personnel to testify.

This seems akin to me with the practice of refusing to tell defense attorneys what was done to their clients, including withholding Abu Zubaydah’s own diary.

But for a more informed take on what’s going on, check out this Bill Leonard post (remember, he used to head ISOO, the organization in charge of the federal security classification and after the AIPAC defendants won the right to call him to testify, the government case against the defendants fell apart). 

With the above as background, it is useful to look at the facts as reported in the WaPost article and assess exactly what the government is trying to do with the critical national security tool of classification. First of all, the classified nature of an intelligence officer’s cover is not sacrosanct. For example, earlier this year Andrew Warren was identified as the CIA Station Chief in Algeria when he was charged with drugging and sexually assaulting two women.

The ready disclosure by the government of Warren’s identity brings up an important provision of Executive Order 12958, as amended, which governs the classification of national security information and which is thus instrumental in investigating any alleged illegal disclosure of classified information. Section 1.7(a) of the order states that "In no case shall information be classified in order to: (1) conceal violations of law…". I have confronted many in government who take the position that this provision has next to no meaning. They argue that this section only prohibits the classification of information with the intent of concealing a violation of law. As such, they argue that classification could legitimately have the "unintended consequence" of concealing a violation of law. Although I do not agree with such a narrow interpretation, it would prove useful to examine the government’s intent in the use of classification in the case of defense attorneys reportedly showing detainees photos of CIA officers.

 [snip]

First of all, there is no evidence that the government took steps to conceal the identity of the CIA officers from the detainees themselves — otherwise showing photos to the detainees would be pointless. In view of the fact that no detainee is authorized access to classified information, the government apparently violated its own provisions by failing to conceal the intelligence officers identity from the detainees.

There’s more–some of which folks here may agree and disagree with. 

But Leonard does raise interesting challenges to the government’s intent to hide the evidence of its own wrong-doing even while winning cases against those it tortured.