Wikileaks has posted a single new document–a CIA Red Cell report contemplating what would (will?) happen if other countries begin to see the US as an exporter of terrorism. The document admits several cases where the US has exported terror–such as the widely known but downplayed fact that David Headley had a role in the Mumbai bombing.

In November 2008, Pakistani-American David Headley conducted surveillance in support of the Lashkar-i-Tayyiba (LT) attack in Mumbai, India that killed more than 160 people. LT induced him to change his name from Daood Gilani to David Headley to facilitate his movement between the US, Pakistan, and India.

More amusing is that CIA classifies as “secret” the fact that Irish-Americans provided the bulk of funding for the IRA.

Some Irish-Americans have long provided financial and material support for violent efforts to compel the United Kingdom to relinquish control of Northern Ireland. In the 1880s, Irish-American members of Clan na Gael dynamited Britain’s Scotland Yard, Parliament, and the Tower of London, and detonated bombs at several stations in the London underground.In the twentieth century, Irish-Americans provided most of the financial support sent to the Irish Republican Army (IRA). The US-based Irish Northern Aid Committee (NORAID), founded in the late 1960s, provided the Provisional Irish Republican Army (PIRA) with money that was frequently used for arms purchases. Only after repeated high-level British requests and then London’s support for our bombing of Libya in the 1980s did the US Government crack down on Irish-American support for the IRA. (S//NF)

Note, though, the CIA ignores state-sanctioned terrorism, such as with St. Ronnie’s tampering in Nicaragua.

After acknowledging that Americans may export terrorism overseas, the document envisions what would happen as other countries ask for reciprocity on the US’ sovereignty-infringing counterterrorism policies.

• Foreign regimes could request information on US citizens they deem to be terrorists or terrorist supporters, or even request the rendition of US citizens. US failure to cooperate could result in those governments refusing to allow the US to extract terrorist suspects from their soil, straining alliances and bilateral relations.
• In extreme cases, US refusal to cooperate with foreign government requests for extradition might lead some governments to consider secretly extracting US citizens suspected of foreign terrorism from US soil. Foreign intelligence operations on US soil to neutralize or even assassinate individuals in the US deemed to be a threat are not without precedent. Before the US entered World War II, British intelligence carried out information operations against prominent US citizens deemed to be isolationists or sympathetic to the Nazis. Some historians who have examined relevant archives even suspect that British intelligence officers assassinated Nazi agents on US soil. (S//NF)

[snip]

• If foreign regimes believe the US position on rendition is too one-sided, favoring the US, but not them, they could obstruct US efforts to detain terrorism suspects. For example, in 2005 Italy issued criminal arrest warrants for US agents involved in the abduction of an Egyptian cleric and his rendition to Egypt. The proliferation of such cases would not only challenge US bilateral relations with other countries but also damage global counterterrorism efforts.
• If foreign leaders see the US refusing to provide intelligence on American terrorism suspects or to allow witnesses to testify in their courts, they might respond by denying the same to the US. In 2005 9/11 suspect Abdelghani Mzoudi was acquitted by a German court because the US refused to allow Ramzi bin al-Shibh, a suspected ringleader of the 9/11 plot who was in US custody, to testify. More such instances could impede actions to lock up terrorists, whether in the US or abroad, or result in the release of suspects. (S//NF)

So, to sum up, in this common sense document that passes for the CIA thinking outside of the box, the CIA admits that the US is not all that different from other countries in exporting terrorism, and acknowledges that our hypocrisy on international law and reciprocity might lead to less cooperation on counterterrorism in the future.

Where do I sign up to produce this kind of milquetoast analysis?

Go read this Kevin Drum post. The important takeaway is this picture, showing that home prices had been, except for the last decade, utterly flat since World War II.

Kevin spends his post providing a bunch of reasons why people are so silly as to believe they’re going to get rich off of their house–things like the difficulty of adjusting for inflation and the rarity of coverage of markets (like Detroit) that have steadily lost value. As I said, go read the post, because it’s a fascinating read. (Admittedly, facing the hopefully imminent reality of losing a third of my home’s 2002 value makes me particularly interested.)

I’d like to raise another question raised by the graph, though: what the hell were we thinking? How did most of our society–including many “serious” experts–believe that spike was real–or sustainable?

It’s an important question because those same “serious” experts are treating that gigantic spike as if it should have been treated as real. The guys in Treasury continue their game of extend and pretend so as to spin out foreclosures more slowly, thereby insulating banksters from paying a price from treating this spike as if it were real, all the while suggesting the homeowners were each, individually, responsible for this collective decade of housing insanity. There’s little acknowledgment of how crazy the whole thing was.

And then consider how central this spike was to sustaining America’s economy. We’ve got entire cities and states whose entire culture of affluence was significantly dependent on this spike. The illusion that America hasn’t been in decline for the last decade relied on this spike. And we have yet to start talking about what we’ll replace the spike with (some Democrats had hoped to build a new bubble on green technology–which would at least have the bonus of providing necessary societal value–but unless Obama unleashes EPA to set new greenhouse limits, the do-nothing Senate looks determined to squelch efforts to invest further in green technology).

The spike in this graph really seems like a larger lesson about America: its failed media and pundit class, its fundamentally bankrupt finance-based economy, and its failing political culture.

I owe ROTL a hubcap, apparently, because while I’ve been distracted with the joy of moving in a historically bad housing market, the US won its long extradition battle over Viktor Bout.

Coincidentally, I actually found Douglas Farah’s book on Bout, Merchant of Death, half-read a few weeks ago, as I was packing up the house. So in the days before the Thai court agreed with the US extradition request, I picked up reading of Bout’s exploits during the Afghan and Iraqi wars. And reading the story at this distance, particularly given Russian efforts to prevent Bout’s extradition, I couldn’t help but think the US underplayed Russian involvement in Bout’s exploits.

Which one of the men who investigated Bout for years, Robert Eringer, seems to support.

Former FBI counterintelligence Robert Eringer, who until recently headed the Monaco Intelligence Service, doesn’t think so. In 2002, Eringer investigated Bout’s money-laundering activities, which were allegedly facilitated through Monaco by US-registered company Pastor International. Eringer claims that Russian weapons merchants, including Bout, used the company to launder nearly one billion dollars in sales profits between 1996 and 2001. But Eringer claims to have made another discovery during his investigation: namely that Bout had been “co-opted by the Russian external intelligence service (SVR)” and had been offered shelter by the Russian Federal Security Service in Moscow, despite being named in an international arrest warrant issued by Interpol.

I guess we’ll see whether there have been more formal ties between Bout and Russia (as well as what role Russian organized crime plays in the relationship) as his trial develops here in the states.

But the question is worth asking for what it might say about how countries enact foreign policy as globalization continues to erode the nation-state. In that model, ostensibly private arms dealers repeat the role our government (and Russia’s) did during the Cold War, destabilizing countries in a fight over spheres of influence. Of course, as weapons proliferate, the danger of it all increases.

Here’s what Farah had to say to NYT about the US’ long pursuit of Bout.

Mr. Farah said the United States began pursuing Mr. Bout in the 1990s after officials became alarmed that he was making conflicts more deadly by showering warring parties with weapons on an unprecedented scale, including weapons as sophisticated as attack helicopters.

“They became aware in the mid-1990s that he had fundamentally altered the way wars were being waged,” Mr. Farah said. “He was flying in planeloads of this stuff. There was a lot of alarm that we were facing something new. It was the privatization of warfare.”

Consider the irony, then, that a lawyer seeking a deposition from Erik Prince on a fraud suit had to go to Abu Dhabi yesterday–Bout’s old stomping grounds–to get it.

Blackwater private security firm founder Erik Prince was questioned on Monday in Abu Dhabi in connection with a fraud lawsuit filed by former employees that seeks millions of dollars in damages.”Mr Prince did appear for his deposition” or questioning under oath, Susan Burke, the lawyer who questioned him, told AFP.

[snip]

Burke said it was too early to say exactly how much money the lawsuit is seeking. “My analysis is that by the time we reach the jury, we will be seeking hundreds of millions of dollars.”

Most would go to the US government, she said, adding that former Blackwater employees Brad and Melan Davis, who filed the suit in December 2008, would also receive a percentage.

Citing the Davis’ experiences, the suit alleges that Prince and companies he controlled defrauded the US State Department and Department of Homeland Security via “false records, statements, claims, and omissions,” according to court documents.

This, just days after Blackwater got a light slap on the wrist for the same kind of weapons trafficking for which we’re about to try Viktor Bout.

The private security company formerly called Blackwater Worldwide, long plagued by accusations of impropriety, has reached an agreement with the State Department for the company to pay $42 million in fines for hundreds of violations of United States export control regulations.

The violations included illegal weapons exports to Afghanistan, making unauthorized proposals to train troops in south Sudan and providing sniper training for Taiwanese police officers, according to company and government officials familiar with the deal.

A key part of the settlement, of course, is that the company can continue to receive US contracts.

The settlement with the State Department does not resolve other legal troubles still facing Blackwater and its former executives and other personnel. Those include the indictments of five former executives, including Blackwater’s former president, on weapons and obstruction charges; a federal investigation into evidence that Blackwater officials sought to bribe Iraqi government officials; and the arrest of two former Blackwater guards on federal murder charges stemming from the killing of two Afghans last year.

But by paying fines rather than facing criminal charges on the export violations, Blackwater will be able to continue to obtain government contracts.

We’re about to try Russia’s version of Erik Prince for the same kinds of things we know Prince was doing. Meanwhile, Prince is hiding out where Bout once took refuge.

I suggest these twin legal proceedings ought to be viewed in tandem.

Dexter Filkins confirms today something that had been suggested in earlier reporting: Pakistan cooperated in our capture of Abdul Ghani Baradar in January to disrupt peace talks in Afghanistan.

Now, seven months later, Pakistani officials are telling a very different story. They say they set out to capture Mr. Baradar, and used the C.I.A. to help them do it, because they wanted to shut down secret peace talks that Mr. Baradar had been conducting with the Afghan government that excluded Pakistan, the Taliban’s longtime backer.

In the weeks after Mr. Baradar’s capture, Pakistani security officials detained as many as 23 Taliban leaders, many of whom had been enjoying the protection of the Pakistani government for years. The talks came to an end.

[snip]

“We picked up Baradar and the others because they were trying to make a deal without us,” said a Pakistani security official, who, like numerous people interviewed about the operation, spoke anonymously because of the delicacy of relations between Pakistan, Afghanistan and the United States. “We protect the Taliban. They are dependent on us. We are not going to allow them to make a deal with Karzai and the Indians.”

[snip]

“This is a national secret,” he said. “The Americans and the British were going behind our backs, and we couldn’t allow that.” American and British officials denied they were directly involved in talks with the Taliban.

Some of the Americans anonymously quoted in the piece deny Pakistan was driving the capture; elsewhere Filkins repeats suggestions that the CIA got used by Pakistan. So while the ISI seems ready to confirm their reasons for the capture, the US intent in it still remains murky.

But there seems to be a pattern of murky events scuttling peace negotiations of late.

Consider the May 25 drone strike in Yemen that also happened to kill a provincial official, Jabir al-Shabwani, trying to talk al Qaeda into making peace.

At first, the news from Yemen on May 25 sounded like a modest victory in the campaign against terrorists: an airstrike had hit a group suspected of being operatives for Al Qaeda in the remote desert of Marib Province, birthplace of the legendary queen of Sheba.

But the strike, it turned out, had also killed the province’s deputy governor, a respected local leader who Yemeni officials said had been trying to talk Qaeda members into giving up their fight.

[snip]

The May strike in Yemen, for example, provoked a revenge attack on an oil pipeline by local tribesmen and produced a propaganda bonanza for Al Qaeda in the Arabian Peninsula. It also left President Saleh privately furious about the death of the provincial official, Jabir al-Shabwani, and scrambling to prevent an anti-American backlash, according to Yemeni officials.

As with the Baradar capture, it remains unclear whether our partners used us, or whether we intended this outcome.But there does appear to be an emerging pattern of peace negotiations scuttled in one way or another.

(See also Yemen’s arrest of journalists intending to cover a “peace conference” launched by a Yemeni arms dealer today.)

This may just be al Qaeda’s attempts to prevent what happened in Iraq–the payoff of those sympathetic to their cause. Or it may be something else entirely.

But it sure seems like someone–quite possibly our “partners” in the fight against al Qaeda–badly wants to prevent peace from breaking out.

You’ve probably already read DDay’s and Atrios’s pieces on what some Treasury officials admitted about HAMP the other day. But partly because I want to link to this really comprehensive account of the entire meeting and partly because I want to elaborate on a point made in it, I thought I’d join in.

Basically, at some blogger chats last week, some folks at Treasury judged that, in spite of the catastrophic failure of HAMP to achieve its stated purpose–to help homeowners stay in homes either bought during a bubble or refinanced at a time when lending standards had been all but eliminated–it was still a good thing because it gave the banksters some time to recover from their catastrophic investment in the shitpile.

On HAMP, officials were surprisingly candid. The program has gotten a lot of bad press in terms of its Kafka-esque qualification process and its limited success in generating mortgage modifications under which families become able and willing to pay their debt. Officials pointed out that what may have been an agonizing process for individuals was a useful palliative for the system as a whole. Even if most HAMP applicants ultimately default, the program prevented an outbreak of foreclosures exactly when the system could have handled it least. There were murmurs among the bloggers of “extend and pretend”, but I don’t think that’s quite right. This was extend-and-don’t-even-bother-to-pretend. The program was successful in the sense that it kept the patient alive until it had begun to heal. And the patient of this metaphor was not a struggling homeowner, but the financial system, a.k.a. the banks. Policymakers openly judged HAMP to be a qualified success because it helped banks muddle through what might have been a fatal shock. I believe these policymakers conflate, in full sincerity, incumbent financial institutions with “the system”, “the economy”, and “ordinary Americans”. Treasury officials are not cruel people. I’m sure they would have preferred if the program had worked out better for homeowners as well. But they have larger concerns, and from their perspective, HAMP has helped to address those.

As these revelations about Treasury’s self-congratulation on HAMP have come out, I keep thinking of the word “parasite.” The folks we pay to keep our financial system running for the good of the citizens of the United States are unabashedly celebrating that they’ve made individual families’ lives more miserable because the banks–who while SCOTUS may treat them as people are not actually part of the “We the people” originally envisioned by the Constitution–will have time to recover from their own damn mistakes.

Our government is happy–not from the pain of the families, per se–but because a bunch of artificial entities that seem to have replaced “we the people” as those who will receive  “general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” from our government will be better off.

The guys in charge of our economy actually seem incapable of understanding who they work for–not to mention the additional problems their “qualified success” will cause. (What happens in a decade when large numbers of middle class kids can’t go to college because the government decided it was okay to subject their families to more misery during a foreclosure?)

Or, they don’t give a shit that this program asks homeowners to pay over and over for their mistakes, all to make sure the banksters never have to pay for their own.

Which is the other problem with this attitude. The alternative to HAMP, of course, is cram-down, in which the banksters have to cut the principle owed to them to what was probably more realistic value in the first place. Every time cram-down gets dismissed, the person dismissing it as an option mobilizes the language of morality, the need to make homeowners pay for buying more home than they could afford (assuming, always, they haven’t been laid off because the banksters ruined the economy or run into medical debt). But there seems to be no language of morality to describe the price banksters should have to pay by failing to do any real due diligence on loans or for accepting transparently bogus assessments of value. Heck, even the banksters get the equivalent of cram-down without a big morality play.

Treasury’s attitude about HAMP is not just evidence they’ve lost all track of who they work for and where the benefits of the economy are supposed to be delivered, but it also suggests that these Treasury folks have lost the most basic notion of capitalism, that if businessmen never pay for bad decisions, they’ll continue to make bad decisions.

And meanwhile, a whole bunch of “we the people” will be worse off because of the really twisted sense of purpose held by the folks working for “we the people.”

Here’s what the military judge in the Omar Khadr trial, Colonel Patrick Parrish, said to justify admitting Khadr’s own confessions as evidence. (h/t Carol Rosenberg, whose story on this ruling is here)

There is no credible evidence the accused was ever tortured as that term is defined under M.C.R.E.304(b)(3), even using a liberal interpretation considering the accused’s age. While Interrogator #1 [Joshua Claus] told the accused a story about the rape of an Afghan youth in an American prison, there is no evidence that story caused the accused to make any incriminating statements then or in the future. In fact, the credible evidence is that the accused started to make incriminating statements only after he learned the Americans found the videotape at the compound where the firefight took place which shows the accused and others making improvised explosives and placing them along the roadside at night. No statement offered against the accused was derived from, the product of, or connect to any story Interrogator #1 told to the accused.

Now, here’s what MCRE304(b)(3) says (PDF 206ff):

(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:

The first definition of treatment that could cause prolonged mental harm is:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

So Parrish is saying that the implied threat of rape does not constitute the “threatened infliction of severe physical pain or suffering.” And that’s even ignoring the part of Joshua Claus’ story–as told by Spencer–where the fictional youth raped in an American prison died as a result.

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” — meaning, presumably, Guantanamo Bay — but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day — he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up — and it’s terrible something would happen — but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. [my emphasis]

So the guy running the Kangaroo Court for this child soldier has decided that rape threats do not constitute a threat of severe pain or suffering.

Mind you, as I alluded to here and made explicit by Parrish’s ruling, Gitmo rules say specifically you can use information so long as the information itself was not collected using torture. Which is why Parrish is so careful to argue that Khadr’s confessions have nothing to do with that threat of severe pain or suffering that Parrish seems to think is no big deal, because then everything’s admissible!

In other words, the logic of Parrish’s ruling is that the use of rape threats as an interrogation tactic is no big deal, provided that it was an ineffective interrogation tactic.

When James Clapper testified before the Senate Intelligence Committee, he rejected one of the central criticisms in the WaPo’s Top Secret America series–that the redundancy in the Intelligence Community contributed to waste and intelligence failures.

Clapper disputed criticism of redundancy in intelligence programs, saying that duplication is sometimes a conscious decision. “One man’s duplication is another man’s competitive analysis,” he said.

Perhaps it should come as no surprise, then, that his first act as DNI is to add to the redundancy.

After my second week on the job, I wanted to let you know what an honor it is to be leading this Community of such skilled and dedicated professionals.

When President Obama asked me to lead the Intelligence Community he said he wanted someone who would continue to build our enterprise into an integrated team.  I have begun to embark on that process and wanted to share with you a few of my initial thoughts and plans.

I have asked DIA Deputy Director Robert Cardillo to join ODNI in the newly-created role of Deputy Director for Intelligence Integration.  While the specifics of this position are still being developed, it unites the roles of Analysis and Collection to elevate information sharing and collaboration between these two essential functions.

Admittedly, Clapper doesn’t explain what he just hired a top DOD intell guy to do, but it sure seems like it overlaps with the mandate of the National Counterterrorism Center.

NCTC serves as the primary organization in the United States Government for integrating and analyzing all intelligence pertaining to terrorism possessed or acquired by the United States Government (except purely domestic terrorism); serves as the central and shared knowledge bank on terrorism information; provides all-source intelligence support to government-wide counterterrorism activities; establishes the information technology (IT) systems and architectures within the NCTC and between the NCTC and other agencies that enable access to, as well as integration, dissemination, and use of, terrorism information.

NCTC serves as the principal advisor to the DNI on intelligence operations and analysis relating to counterterrorism, advising the DNI on how well US intelligence activities, programs, and budget proposals for counterterrorism conform to priorities established by the President.

And the move is all the more bizarre given that Clapper only has this job because the Administration chose to fire Dennis Blair rather than hold Michael Leiter, the Director of the NCTC, responsible for failing to connect the dots on the UndieBomber attack, even though it appears that Leiter deserves more of the blame. So if I’m right that this new position is duplicative of the NCTC position, then the Administration has chosen not to fire the guy most responsible for missing the UndieBomber clues, and instead fire the DNI and replace him with a guy that–rather than firing the guy most responsible for missing the UndieBomber clues–will instead just create a second version of that guy’s position.

Now in an ideal world, the next time someone misses an attack, we’ll be justified in firing Clapper, since he’s the guy who opted for redundancy rather than holding one person responsible. But I’m guessing by then Clapper will be capitalizing on his inevitably short tenure as DNI, getting rich heading six or eight intelligence contractors.

Remember that Jeremy Scahill report that listed Colombia among the 75 places where JSOC has deployed?

The Nation has learned from well-placed special operations sources that among the countries where elite special forces teams working for the Joint Special Operations Command have been deployed under the Obama administration are: Iran, Georgia, Ukraine, Bolivia, Paraguay, Ecuador, Peru, Yemen, Pakistan (including in Balochistan) and the Philippines. These teams have also at times deployed in Turkey, Belgium, France and Spain. JSOC has also supported US Drug Enforcement Agency operations in Colombia and Mexico. The frontline for these forces at the moment, sources say, are Yemen and Somalia. “In both those places, there are ongoing unilateral actions,” said a special operations source. “JSOC does a lot in Pakistan too.”

In my post on it, I noted that we’re engaging in belligerent activities without apparent legal approval to do so. But that was because this program seemed to use the legal approval to fight al Qaeda to fight other entities, like Latin American leftist terrorist or drug cartels.

Wednesday, the Colombian aspect of our paramilitary activities became even more illegal, because a Colombian court struck down that country’s cooperation agreement with the US because it lacked Congressional approval. (h/t Max Fisher who has a bunch of interesting links on this development)

A high court in Colombia has voided an accord with the United States that would allow an increased U.S. presence on seven Colombian military bases. The ruling on Tuesday by the Constitutional Court declared the agreement signed by outgoing President Alvaro Uribe unconstitutional because it bypassed approval of the Congress.

The agreement was signed in October and faced intense criticism from Colombia’s more left-leaning neighbors, including Venezuela and Bolivia. President Juan Manuel Santos (pictured above right), who was inaugurated on Aug. 7, enjoys a wide political majority in Colombia’s Congress and told reporters Wednesday that the ruling would have no effect on cooperation between the U.S. and its closest ally in Latin America.

It may well be that Uribe’s successor, Santos, simply gets Congressional approval for this. But until that happens, this decision serves to heighten questions about US involvement in Latin American, not least with regards to incursions into populist Venezuela and Ecuador.

As Adam Isacson explains, this won’t prevent US paramilitaries from doing what they have already been doing.

U.S. military and contractor personnel were still acting under the authorities laid out in a series of old accords (1952, 1962, 1974, 2004, 2007), whose validity the Colombian court did not challenge.Under these old accords, U.S. personnel have already been frequently present at the seven bases listed in the DCA, as well as several others. The difference is that today, there is no “free entry”: each U.S. deployment is subject to a series of Colombian government approvals that would be unnecessary under the DCA. It also means that construction of new facilities at the Palanquero airbase in Puerto Salgar, Cundinamarca – for which Congress appropriated $46 million in 2010 – cannot yet begin.

But it may result in more scrutiny–in Latin America, at least–at what our troops and contractors are doing. (It also may increase pressure on the Administration to pass the free trade accord with Colombia.)

This is a rather interesting public statement from the guy who–at least before Elena Kagan and her obscure views on executive power got sworn in–was the swing vote on SCOTUS. (h/t fatster)

“Article III courts are quite capable of trying these terrorist cases,” [Justice Anthony] Kennedy said, agreeing with [an earlier panel that endorsed civilian, rather than military, trials].

[snip]

It was clear, he said, that an “attack on the rule of law has failed,” referring to the use of military tribunals to try terrorist suspects, often before panels in Guantanamo Bay, Cuba.

Mind you, this is not exactly a surprise. Aside from Kennedy’s votes in past terrorism-related cases, his opinion in Boumediene was as much a defense of Article III prerogative as it was a defense of habeas per se. Which is why I’m interested in the context of his “attack on the rule of law” quote–because it sure sounds like he’s fed up with efforts on the part of both the Bush and Obama Administrations to usurp the powers of the courts.

And if he feels that way, I hope he nagged those judges in the 9th he was partying with to hurry up and finish their Jeppesen opinion so he can vote to uphold some limits on state secrets…

I wanted to point out two details of timing on the Ramzi bin al-Shibh tapes:

• The tapes were made after CIA started getting worried about making interrogation tapes
• The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

The tapes were made after CIA already started getting worried about making interrogation tapes

The AP says the tapes were made while al-Shibh was in Morocco for the first time–sometime between September 17, 2002 and March 7, 2003.

When FBI agents finally had a chance to interview Binalshibh, they found him lethargic but physically unharmed. He projected an attitude suggesting he was unconcerned he had been caught.

Before the FBI made any real headway, the CIA flew Binalshibh on Sept. 17, 2002, to Morocco on a Gulfstream jet, according to flight records and interviews.

Current and former officials said this was the period when Binalshibh was taped. His revelations remain classified but the recordings, the officials said, made no mention of the 9/11 plot. It’s unclear who made the tapes or how they got to the agency’s Langley, Va., headquarters.

In March 2003, Binalshibh was moved to a Polish facility code-named Quartz soon after his mentor, Mohammed, was nabbed in Pakistan.

This would mean al-Shibh arrived in Morocco (and therefore the tapes were made) sometime after some people met at Langley and decided they should destroy the Zubaydah tapes.

On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.

[snip]

Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]

The CIA appears to have already been manipulating briefing records, possibly to give the appearance of Congressional support for either the program or the destruction of the tapes.

Note, too, that there are only two video tapes (plus the “audio” tape I’ve raised questions about here). If the audio tape were, in fact, just an audio tape, that would leave two video tapes. Which is how many tapes existed of Rahim al-Nashiri’s interrogations, at least by the time they did the inventory. That’s presumably because al-Nashiri was taken into CIA custody after the point when–on October 25, 2002–HQ told the Thai black site to record over tapes every day.

It is now HQS policy that [redacted] record one day’s worth of sessions on one videotape for operational considerations, utilize the tape within that same day for purposes of review and note taking, and record the next day’s sessions on the same tape. Thus, in effect, the single tape in use [redacted] will contain only one day’s worth of interrogation sessions.

Now we know they kept two (or maybe three) tapes for al-Nashiri (presumably taking notes off one day’s tape while the other was being used to record new interrogations) because the tape inventory shows the following:

Detainee #2

[Tape] 91 [Redacted]tape and rewind #2

[Tape] 92 3 [Redacted] use and rewind #3 [redacted] final

While obviously we have no such inventory showing the al-Shibh tapes, it is possible that they were used in the same manner as the al-Nashiri tapes were–to collect just one day’s worth of interrogation to assist in transcription or note-taking. (And remember, ultimately there were transcriptions made of the al-Shibh tapes, though we don’t know when that happened). It’s possible then–though this is just a wildarsed guess–that the existence of just three tapes suggests they were started after HQ decided to tape over tapes (so after October 25), or that they first implemented the policy for al-Shibh sometime before October 25.

Also note the content of the last three–presumably chronologically–tapes of Abu Zubaydah. Tapes 89 and 90 are “use and rewind” #1 and #2. But the tape just before that–tape 88–has “no video but there is sound.” Thus, the last three tapes from Abu Zubaydah consist of two video tapes and one “audio” tape, just like the three tapes from al-Shibh.

If in fact the 2-3 al-Shibh tapes only include the last days of his interrogation on which taping was used, then the AP source’s claim that they simply show him sitting in a room being interrogated doesn’t mean that the tapes contained no forensic evidence of something else–more abusive interrogations that happened on earlier days. After all, the tapes would no longer “show” what had happened during earlier interrogation sessions.

One more note about this early period. One question the AP raises is when and how the tapes were moved from Morocco to Langley.

It’s worth remembering that the Zubaydah and al-Nashiri tapes were also moved at one point. In a cable from HQ to the field (we know this from Vaughn Indices that described this cable before it was released) written on December 3, 2002, just days after John McPherson reviewed the torture tapes and presumably discovered they had been tampered with, someone says:

It was a mistake to move [redacted] tapes [redacted] in light of Ref C guidance.

Notably, given that this refers to tapes being moved in the past tense on December 3, this may suggest the tapes were moved from the black site before it was finally closed. Mind you, the detail may be completely irrelevant to al-Shibh’s tapes, but they do suggest people in the field were moving tapes without clear approval from HQ.

The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

As I noted here, the story the AP’s sources told (that a person stumbled across a box under a desk with all three al-Shibh tapes in it) and the story DOJ told Leonie Brinkema (that they learned first of one tape, and then, after asking CIA to make sure there were no more) differ in key ways.

But that difference gets all the more interesting given indications that CIA was trying to figure out what had happened to the Zubaydah tapes in precisely the same time period. Here’s how the chronology works (with some potentially-related personnel moves included):

August 27, 2007: Alberto Gonzales resigns

September 13, 2007: A CIA attorney notifies DOJ of the existence of one of the al-Shibh tapes

September 14, 2007: CIA reports Michael Sulick will replace Jose Rodriguez

September 17, 2007: Bush nominates Michael Mukasey Attorney General

September 19, 2007: DOJ reviews the al-Shibh tape and compares it to the transcript; DOJ subsequently asks CIA to check to see if there were more tapes and to provide the cables they had reviewed as part of the discovery review

September 25, 2007: White House withdraws John Rizzo’s nomination to be CIA General Counsel in response to pressure from Democrats about the legality of torture methods

September 25, 2007: A CIA email reports:

Below is the information for the cable granting approval to destroy the [redacted] tapes

DIRECTOR [redacted]

Document Date: 08 NOV 2005

File Number [redacted] — No clue about thisfile number, searched in [redacted] with zero returns.

Subject: EYES ONLY FOR [REDACTED] — DDO APPROVAL TO DESTROY [REDACTED]VIDEO TAPES

September 30, 2007: Rodriguez’ last day at CIA

October 5, 2007: Someone forwards, with no comment or explanation, the September 25 email searching for the destruction approval cable

October 15, 2007 (roughly): A group of conservatives test Michael Mukasey on whether or not torture is illegal

October 18, 2007: DOJ reviews the second and third al-Shibh tape

October 18, 2007: In confirmation hearings, Michael Mukasey refuses to say waterboarding is torture

October 25, 2007: DOJ informs Leonie Brinkema of factual errors in two declarations submitted in Moussaoui case

November 8, 2007: Mukasey confirmed as Attorney General

Mind you, we don’t know how long after CIA discovered the first al-Shibh tape they told DOJ about it. But the known dates show that CIA told DOJ about just one of three tapes the day before CIA announced publicly that Rodriguez would be leaving (I think one possible explanation for the discovery of the tapes is just that they were discovered in boxing up Rodriguez’ worldly belongings). The fact that a CIA lawyer revealed the singular tape to DOJ is all the more intriguing given that it occurred at about the same time as Rizzo–then Acting General Counsel–had to withdraw his nomination because of his role in approving torture (and potentially, in covering it up); was he the lawyer who told DOJ about the al-Shibh tapes? And again, though we don’t know the actual date when CIA told DOJ there were two more tapes, in what appears to be the interim period, someone at CIA started looking for the cable approving the destruction of the Zubaydah tapes, without much immediate luck (though presumably they would have at least hints of Rodriguez’ central role in destroying the tapes).

Given how all this coincides with Alberto Gonzales’ resignation and his replacement by Michael Mukasey, it is possible that the September 25 and October 5 searches for the torture tape destruction approval were a response to a DOJ request–either in conjunction with their preparation to reveal the al-Shibh tapes to Brinkema, or possibly in conjunction with another inquiry. (Note, OPR first got copies of the Combine and CAT OLC memos on August 29, so for some reason new torture information was being shared at DOJ at precisely this time). But it certainly seems possible that DOJ first learned of the destruction of the Zubaydah tapes as they learned about the al-Shibh tapes, such that when DOJ told Brinkema that CIA’s review  was complete, they included within that the Zubaydah tapes.

Aside from suggesting that the al-Shibh videos may have been tied to a more general early inquiry into the destruction of the torture tapes (one presumably stymied by Michael Mukasey, who had had to promise to do no torture investigation in order to be appointed AG), it raises questions about the declaration to Brinkema. It’s worth looking at the hedged language DOJ used in their October 25 letter:

The Government respectfully submits this letter to inform the Court that two ex parte declarations previously submitted by the Central Intelligence Agency (“CIA”) in this case contain factual errors concerning whether interrogations of certain enemy combatants were audio or video recorded.

[snip]

We are unaware of recordings involving the other enemy combatant witnesses at issue in this case [half line redacted].

[snip]

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determined whether it was in possession of any other such recordings for any of the enemy combatant witnesses at issue in this case.

[snip]

1 [redacted] was one of the enemy combatant witnesses whom Moussaui wanted to call to testify on his behalf; [two lines redacted]

[snip]

The fact that audio/video recording of enemy combatant interrogations occurred, and that the United States was in possession of three of those recordings is, as noted, inconsistent with factual assertions in CIA declarations [dated May 9, 2003 and November 14, 2005]

Start with the final passage: “audio/video recording … occurred” and the US was “in possession of three of those recordings.” This language would be consistent with knowledge of the Zubaydah tapes, provided that the person making the statement knew they had been destroyed. As to the rest of it, look how carefully DOJ seems to emphasize Moussaoui’s focus on al-Shibh’s interrogations. The redactions noted here may include a reference to Zubaydah or al-Nashiri. Or it may be that DOJ was simply very careful to always caveat those statements to refer to the enemy combatants that Moussaoui had asked about by name by the May 2003 declaration.

In any case, it sure seems to reflect a knowledge on the part of DOJ that someone had destroyed the torture tapes. And given the identification of the date that destruction was approved–November 8, 2005–DOJ would have known that the tapes had been destroyed days before DOJ told Leonie Brinkema they didn’t “have” video tapes of the interrogations at question.

Good thing for the Bush Administration they were able to convince someone already implicated in torture (through the Padilla case) to promise not to investigate torture, huh? Because it sure seems like DOJ already knew of this obstruction when Mukasey took over at DOJ.