Here’s one of the more curious details about yesterday’s surprise news that Steven Kappes was leaving the CIA.

Best as I can tell, the White House has not yet issued a statement about his retirement (at least not via the White House press list). Not even in a week when one of the key issues for which Kappes gets some credit, the elimination of loose nukes (in Kappes case, in connection with Libya), was much in the news. Obviously, Obama doesn’t have to nominate Kappes’ replacement and get it approved by the Senate, but wouldn’t you think the White House would have had a “thank you for all your service” comment prepared?

House Intelligence Committee Chair Silvestre Reyes’ statement mentioned Kappes’ departure, but not until he spent two paragraphs lauding Kappes’ replacement, first.

I want to extend my congratulations to Mike Morell for his selection to serve as the next Deputy Director of the Central Intelligence Agency.  I have had the pleasure of knowing Mike and, for the past nine years I have worked with him on a broad range of subjects. He is an exemplary CIA officer.Throughout his 30-year career with the agency, Mike has served with distinction. Whether serving at the Director’s right hand, leading the agency’s team of analysts, or serving as the principal briefer to the President, Mike’s diligence and commitment to duty, and to his country, will serve him well as he assumes his new role.

I know the agency appreciates the job Steve Kappes has done for the nation during his tenure. I will miss Steve’s insight and candor, and I wish him all the best as he moves on to his post-agency career.

CIA Director Leon Panetta’s statement does take the traditional form–lauding the retiring officer first, before announcing his replacement. But even there, Panetta downplays the news that Kappes is leaving.

When I came to the CIA in February of 2009, I was extremely pleased that Steve Kappes agreed to stay on as my Deputy.  He was a great partner and I, like so many others, valued his advice and experience.  Steve is a one-of-a-kind professional who has dedicated himself to the CIA.  He has helped me tremendously in guiding this great organization.  Having worked side-by-side on some of the toughest issues around, I’m proud to call him a friend.

Throughout his life, Steve has put the needs of others first, as he did in returning to the CIA in the summer of 2006.  He hadn’t planned on so lengthy a stay this time around.  So when he told me a few months ago that it was time for him to move on, I understood.  Steve has, to put it simply, more than met the highest standards of duty to the nation.  He excels at what he does, because he embodies the very best of this outfit—skill and loyalty, dedication and discipline, integrity and candor.  He also has, if you know him, one hell of a sense of humor.

After a superb career of public service that stretches back to the mid-1970s, when Steve was in the United States Marine Corps, he deserves the gratitude of his colleagues and his country.  As he prepares to retire in May, I know I speak for every one of you when I wish him and his family all the good things.

It was, of course, crucial to both of us that we find an outstanding successor.  Today, as we celebrate the achievements of one extraordinary public servant, I am announcing the promotion of another.  I have asked Michael Morell, a 30-year veteran of the Agency, to become our next Deputy Director.

Only Senate Intelligence Committee Chair DiFi (who of course championed Kappes to take this position last year) gets the announcement pitch perfect, a balance between the recognition for Kappes’ service and welcome to Morrell.

I deeply appreciate the service that Stephen Kappes has given to the CIA and to the United States over the course of his long career. I was very supportive of his decision to remain as Deputy Director in the transition between the Bush and Obama Administrations, and he has maintained stability at the Agency and been a great help and resource for Director Panetta over the past year. I wish Mr. Kappes the best in the next stage of his career.

I also look forward to working more closely with Michael Morell, the new CIA Deputy Director. Mr. Morell is a 30-year veteran of the CIA and has served in the past decade in a senior position overseas, in the Agency’s top internal management position, as the President’s intelligence briefer, and as the Deputy Director for Intelligence.

Now surely there’s not that much you can conclude from deconstructing retirement notices, but these do seem to suggest Kappes departure announcement was fairly sudden–and that it was welcome in some quarters.

Jeff Stein, whose report on Kappes’ departure echos his recent unflattering profile of Kappes, attributes Kappes departure at least partly to the investigations CIA is under.

A congressional intelligence committee source said Kappes, 59, was feeling ground down.There were “investigations of his interrogators,” the source said, and the White House was “taking away tools” in counterterrorism. There was also “growing unrest among [friendly foreign] intel services,” he added, over perceived restrictions on the CIA’s operational latitude.

[snip]

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

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

Six months, FWIW, would date those rumors to October, less than two months after John Durham’s investigation expanded to include Gul Rahman’s death.  And while I’m not sure the complexity referred to here portends legal problems for Kappes, it might suggest increased scrutiny on chain of command.

Or maybe it just means Kappes doesn’t like anyone overseeing the work his officers do.

Sorry I’ve been distracted all day. And yes, I will try to comment on the surprise news that Steven Kappes will be leaving the CIA next month later this evening.

But in the meantime, I wanted to look at this exchange between Arlen “Scrapple that used to be Haggis” Specter and Eric Holder on the recent al-Haramain verdict.

SEN. SPECTER: Mr. Attorney General, there will be another opportunity to test the constitutionality of the warrantless wiretaps through the appellate process and, hopefully, to the Supreme Court of the United States. And from the decision made by Chief Judge Walker recently in the San Francisco case, holding that the warrantless wiretaps were unconstitutional, saying that the requirements of the Foreign Intelligence Surveillance Act precluded the warrantless wiretaps, that there had to be probable cause and a warrant.

There was an opportunity to have a review by the Supreme Court of the United States in the case arising out of Detroit which federal court there declared the warrantless wiretaps unconstitutional. The Sixth Circuit cited there was no standing. I thought the dissent was much stronger than the two judges in the majority. Well-known that standing is frequently used as a way of avoiding deciding tough questions, and Supreme Court of the United States denied cert.

So at this point, after a lot of specification, a lot of discussion, we do [not?] know, dispositively, whether the president’s power as commander in chief, under Article II, justifies warrantless wiretapping or whether the explicit provisions of Foreign Intelligence Surveillance Act govern.

Would you press to have the case coming out of the San Francisco federal court go to the Supreme Court for a decision there?

ATTY GEN. HOLDER: We have really not decided what we’re going to do at this point with the decision that was made by the judge. The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods. And a determination as to what we are going to do with the adverse ruling that we got from the chief judge — the district court judge, has not been made as yet. We are considering our options.

SEN. SPECTER: What do you think?

ATTY GEN. HOLDER: (Laughs.) Well, I think that I haven’t made up my mind yet. I think that we have to see what the impact will be on this case with regard to a program that I guess ended, I think, 2007, 2006.

My view is that, to the extent that — I can’t get in too many operational things here, but the support of Congress, the authorization from Congress to conduct these kinds of programs is a way in which the executive branch should operate. It is when the executive branch is at its strongest, when we have the firmest foundation, is when we work with members of Congress to set up these kinds of programs, and especially when one looks at, as you point out, you know, the requirements under FISA.

So I think that we will have to consider what our options are and try to understand what the ramifications are of the judge’s ruling in the Al-Haramain case.

Here’s my take (and bmaz will hopefully be along shortly to tell me how naive I’m being, from a wizened Defense Attorney perspective).

First, note Specter’s false premise, in which he asserts that:

• Vaughn Walker held that warrantless wiretaps were unconstitutional
• Walker further held that FISA required probable cause and a warrant
• SCOTUS has a chance to test the Constitutionality of the warrantless wiretapping program by reviewing the al-Haramain decision
• Holder could encourage this outcome by appealing the al-Haramain verdict

But I think this misreads Walker’s verdict and–more importantly–the grounds on which DOJ might appeal. The thing about Walker’s verdict that most pissed off DOJ is that he ruled that FISA trumps state secrets. What he then did was use that ruling to give the government a choice: either hand over a warrant for the wiretapping it did on al-Haramain, or he would judge that al-Haramain had been illegally wiretapped. I’m not a lawyer, but the actual wiretapping part of Walker’s decision, it seems to me, is a simple one about the plain text meaning of FISA. He didn’t rule on Bush and Yoo’s wacky theories of Article II power.

As I said, though, the really dangerous part of Walker’s ruling for DOJ was that certain laws might pre-empt what both the Bush and the Obama Administration would like to claim are unlimited powers to hide things–including crimes–behind State Secrets invocations.

Which is pretty much what Holder said: “The focus there had really been not necessarily as much on the legality of the TSP as the protection of sources and methods.” The focus of the ruling–certainly as he reads it–is about State Secrets, not the legality of the warrantless wiretapping program. So, using both the first person plural and the passive, Holder punts and says no decision has been made.

So Specter tries again, and asks what Holder thinks personally. And Holder–the guy who may well get overridden on his Gitmo decision, says, “I haven’t made up my mind yet.” Does this suggest that Holder–not Rahm Emanuel and Lindsey Graham, and not the lawyers who have been fighting this for four years–will actually get to make the decision himself?

Holder raises, as the first issue, what impact this decision will have on a program that ended in 2007. I’ve suggested it will have no impact, because if anyone else actually could prove standing in the way al-Haramain had to, we’d know about it.

But then Holder gets cryptic.

I can’t get in too many operational things here, but the support of Congress, the authorization from Congress to conduct these kinds of programs is a way in which the executive branch should operate. It is when the executive branch is at its strongest, when we have the firmest foundation, is when we work with members of Congress to set up these kinds of programs, and especially when one looks at, as you point out, you know, the requirements under FISA.

At first, this statement seemed like a statement effectively saying, “we’ve got our FISA Amendments Act, we’ve achieved the same results with the blessing of Congress, and so therefore the program we’ve got now is safe in any case.” That may be all he’s saying.

But I’m wondering if, instead, this is a reflection about whether the modified program would not carry the same risk of court review as the old program had. That is, I’m wondering whether Holder’s decision will be premised on whether the decision that FISA trumps State Secrets would be inapplicable to the statute–and the program–as it exists today.

I’m going to have to review the program on that front. But I’m guessing–and it’s just a wildarsed guess–that that’s what Holder is most concerned about with regards to Vaughn’s ruling.

The Committee feed is screwy right now, but cspan.org is carrying it. Pat Leahy will not be there today; he’s at a funeral. I don’t know if Herb Kohl (who will act as Chair) had an opening statement or not. But Jefferson Beauregard Sessions is up now whining about civilian trials.

(Incidentally, at 10, the House Judiciary Commitee will have Glenn Fine and Valerie Caproni talking about the Exigent Letter IG Report. I’ll do my best to keep my eye on that too.)

Sessions apparently doesn’t know there was a hearing last week in a military commission, which basically consisted of everyone looking at each other and admitting that MCs have no rules right now.

Here’s Holder’s statement.

Holder: 19 USA nominees and 17 Marshal nominees pending.

Holder now listing all the terrorists prosecuted in civilian courts.

Use every tool available. Includes both civilian and military commissions. Referred 6 cases to military commissions. It would seriously weaken national security not to have civilian trials.

9/11 Commission trial. No decision yet.

Kohl: Review of 240 detainees. In your testimony did not mention if and when you plan to close Gitmo. Update?

Holder: Still intention to close Gitmo. Once was bipartisan support for closing it. Both men who ran for President last year supported closing Gitmo. Will close as soon as we can.

Holder basically says they intend to use Thompson to hold people indefinitely.

Kohl raises Holder’s comment about reading Miranda rights to Osama bin Laden.

Kohl: Do you still believe civilian trials are better? When can this decision be made.

Holder: Reviewing decision. NY is not off the table. Have to take into consideration concerns raised by local community. Expect to be able to make determination in a number of weeks.

Sessions: Admin had been slow in making those nominations. I think if you look at where delays are are lack of nominations. You said 9/11 would be tried in NY. Caused quite a bit of controversy. I understand now WH suggesting that would be tried in NY. Makes me uncomfortable having politicians discussing where it’ll be tried. What is your position. Are you uneasy that WH is leaking statements about where it will take place.

Holder: Not sure if there have been leaks. National Security Team deciding. SecDef, SoS, Intelligence Community. Meet w/President every Tuesday. This is a trial that is unique. It does involve national security concerns.

Sessions: There is a venue problem.

Holder: You’re obviously a former US Attorney. If possibility that we move the trial, what would the possible venues be. What I will say is that SDNY is much larger place than simply Manhattan. Trying case in other venues beyond NY.

Sesssions, after having said he doesn’t want pols to decide where to have trials, is now criticizing Holder for making the decision w/o listening to Sessions.

Holder: Not many differences between civ and MC, biggest difference is interlocutory appeals. Much of other enhancements reflect what judges do on civ side.

Sesssions: when you try someone in civ court, lawyer, Miranda, discovery, when you hold them in MC, don’t have to charge them at all, POW, until over. They may be tried if you choose to try them.

Holder: Decisions based on what is best. Whole variety of concepts and things that have to be taken into consideration. Case by case basis, being most effective in particular trial.

DiFi: Degree to which this dialogue has escalated is unhealthy. Dems did not do to Bush following 9/11 wrt decision-making. I find it reprehensible. Best interest of the people of this nation, served by Admin, and the President having maximum flexibility as to which venue these defendants will be tried. I have never seen anything quite like this. It doesn’t matter that MCs which have been fraught w/controversy have convicted 3, two of whom are out. Doesn’t matter that Zazi will plead guilty.I was mayor in the wake of a major assassination. I know what happens in a city w/major scar tissue. Indefinite detention?

Holder: People we decide should be held under laws of war, judge has ability to see whether detention appropriate. We have won some cases, we have not been successful with others. Some of people ordered released by judges have been released. We use that power with thought of keeping American people safe. If you look at number of people at Gitmo, number of people we would seek to detain relatively small.

DiFi: Children subject to detention. We’ve had no response to that.

Hatch: Why revise prosecutorial guidelines on marijuana. Specific intention of making dangerous drugs illegal. Not WH’s vision of how controlled substances act should be enforced. Impending deadline of Adam Walsh Act.

Hatch wants more obscenity prosecutions.

Hatch: Undiebomber. You alone made this decision.

Between Hatch and Sessions, they should have practiced how to say “Abdulmutallab’s” name. Woe betide them if we get around to talking about Anwar al-Awlaki, that’s even harder to pronounce.

Holder: Decision has been shown to be the right one. The information that he has since provided as result of his decision to cooperate.

Feingold: Well aware of my support for federal trials. Continued strength. I have a statement that discusses that, asked to be place in record. COPs.

Here’s what Feingold’s statement for the record said about the 9/11 trials:

As members of this committee are aware, I strongly support the decision to try Khalid Sheikh Mohammed and other 9/11 plotters in our federal criminal courts.  We have a great track record of successfully trying and convicting terrorists in civilian courts.  The military commission system is largely untested, and these cases could easily get bogged down in years of legal challenges. The best way to bring these terrorists to justice swiftly is through our civilian courts.  It has been nine years since 9/11, and it is inexcusable that these men have not yet been brought to justice for what they did.

Whatever one might think of using the military commission system, it is simply not yet ready to start handling prosecutions.  The Military Commissions Act requires that the Secretary of Defense issue rules to govern those proceedings, and that has not yet happened.  It hardly seems possible to start using military commissions without the rule book.  The military commission system is also the subject of a constitutional challenge in the D.C. Circuit that is at only the beginning stages of litigation, and anyone charged in a military commission prosecution could bring yet another legal challenge to the system itself before any trial begins.  In fact, when a military commission defendant named Salim Ahmed Hamdan challenged a prior version of the military commission system, his case wound up in the Supreme Court after years of litigation.  It strikes me as not only possible, but very likely, that the first few military commission trials will be subjected to legal challenges, and that any trials would not begin for several years.

The federal criminal system, on the other hand, is available now.  It has been tested for literally hundreds of years, and we know it works because hundreds of people are sitting in federal prison today after being convicted of terrorism crimes in our federal courts.  We know that our federal judges and prosecutors have the experience needed to take on these cases because they’ve done it, again and again.  Indeed, the Department has achieved significant successes in the Zazi and Headley cases just in the past few months.  Both were serious terrorism cases, and in both cases the Department used the criminal justice system to obtain intelligence and ultimately guilty pleas.  So I support the Attorney General’s decision and believe it is the best decision for the security of this country.

Grassley: Thanks for anti-trust hearings on Ag. [Feingold also raised this.] People who represented detainees. Your staff refuses to give information, but DOJ managed to verify for Fox News. Call into integrity of employees of department. I agree w/department’s view that personal attacks inappropriate. Inquiry seeks to understand who is advising you on these issues.

Holder: I know that your request comes from good place. Hesitance I had has been borne out. Drag their reputations through the mud. Reprehensible ads used to question their patriotism. I’m not going to be a part of that effort. Their names are out there, it has been placed in public record. I will not allow good decent lawyers, done what John Adams did, done what our Chief Justice has said is what is good.

Grassley: Request from this committee. Recently said that attorneys representing unpopular people patriots, doubt you’d say same about those representing mafia. Does not keep central database of recusals. You know large lawfirms have conflict committees to ensure that rules are followed. Why shouldn’t DOJ have some centralized system of conflicts as private firms have.

Holder: Legitimate concern.

Grassley: FOI. Presidential Memoranda on FOI.FY 2009, Agencies cited FOI exceptions more than FY2008. B5 used 70,000 times, compared to 47,000 times in 2008.

Durbin: Courageous position to take, and the right one, SCOTUS ruled that detainees had right to habeas, Bush admin, right to counsel. Inspiration in Fox news. If anyone decides to represent Gitmo detainee, can’t be trusted. If legal representation or possible inclinations toward one party or another, where does it end? You’re standing up for a fundamental principle that does go back to John Adams. Men and women who’ve had the courage to stand up. I hope the record will reflect, it was Bush Admin that said Gitmo detainees had right to counsel. Miranda warnings. A lot of question about using Article III Courts, for fear of Miranda warnings. Policy of Bush?

Holder: I think a good case can be made that once people get Miranda information can flow. Especially in terrorism cases, and the lengthy sentences in Article III hearings.

Durbin: Richard Reid. How long after he was detained by Bush DOJ was it before given Miranda.

Holder: A few minutes.

Durbin: Five minutes.

Durbin: Those who are arguing that we have to shift to MC side would have to explain why we’d put aside this history of success.

Holder: Article III court can plead guilty to capital offense.

Lindsey Graham: President Obama has said we’re at war with al Qaeda. Some people don’t believe in that. Times when Article III court would be superior. Financier, more charging capabilities.

Holder confirms 48 detainees slotted for indefinite detention.

Lindsey: Lindsey now complaining that Robertson supported Slahi’s habeas petition. If presumption should follow al Qaeda, once you’re a member, presumption that you’re still a member of al Qaeda. One reason why Congress needs to be more involved.

Lindsey: If you send new detainees to Afghanistan, you’re going to bring down Afghan government.

Schumer: Want to reaffirm how difficult it would be to have trial in densely populated area.

Holder: It has not been ruled out. Would take into consideration.

Cardin [who calls it “Guantamano”]: Asks about making review for indefinite detention transparent so international community can see it. Holder says he’s working w/interagency, and also Graham.

Cardin: If we don’t put sunlight on it, if we don’t engaged intl community, this war’s not going to end anytime soon.

Holder: need to deal with it on symbolic level.

Of course, what remains unsaid is that the REASON why Abu Zubaydah and al-Qahtani can’t be tried is because we tortured them into insanity.

Cornyn: Financial crisis, border, healthcare fraud. Criminal prosecution can be deterrent . One thing that’s been missing is show trials.

Holder: Madoff, other ponzi.

Cornyn: Who is coordinating investigation?

Holder: Me, financial task force.

Franken: Merger of Comcast and NBC. Want to delve into it a little bit. Concerned because I see potential of consolidation of media that is very frightening. Want the best for NBC. If this goes through, will Verizon and AT&T buy studios? Are we going to be seeing situation where 5 companies own all information we get. Very dangerous situation. Familiar with FinSyn in early 90s. Remember that basically networks prohibited from owning own programs, during testimony that all networks said why would we buy our own programs [heh] we’re in the business of getting ratings. Right now we have this incredible concentration, reduced competition for independent producers. Comcast, yes, it’s a vertical integration, but also horizontal, both have sports programming,

Holder: If determination were made that it would violate anti-trust. Not at liberty to talk about much. Ongoing investigation, one that antitrust div that has shown itself to be appropriately aggressive.

Franken: Varney previous DOJ anti-trust, significant conditions. Skeptical but still open to imposing conditions. I have problems with imposing conditions. Hard to enforce them. Almost inevitably expire after a few years. Make sure that DOJ conditions would actually have enough teeth, and long enough life, would really impose real conditions to prevent very thing I’m fearing.

Holder: Take myself away from NBC Comcast. A wide range of things that can be done.

Franken: Can affect cable bill.

Holder: Now I’m concerned.

Franken: The way to Holder is through his pocketbook.

Klobuchar: Commend on Petters case, Ponzi.

Klobuchar: Cybercrime.

Whitehouse: Associate myself with remarks DiFi made. Emblems of American Justice, admired and revered around the world, justifiably take great pride. Blindfold and balance, not torch and pitchfork. Values of Article III courts, experiential base. Prosecutors can know how it’s going to play out. Hundreds of Article III terror prosecutions. Of the MC, a number were plea agreements.

Holder: I think that’s correct.

Whitehouse: Raises Goldsmith statement talking about novel legal issues that might render MCs ineffectual. Legislature has no proper business in exercise of prosecutorial discretion.

Holder: Letter from me and SecDef, inherently Executive Branch function.

Whitehouse: Graham’s remarks, flexible pragmatic and aggressive. A good one.

Specter: Oppty to test warrantless wiretaps unconstitutional.

Holder: We have not decided. Protection of sources and methods. A determination as to what we’re going to do has not been made. We are considering our options. I haven’t made up my mind yet. We have to see what the impact will be on this case, wrt program that ended in 2007, 2006, to the extent that the support of congress is the way in which Exec branch should operate. When we work w/Congress to set up these programs. When we look at requirements under FISA. We will have to consider what our options are and understand what the ramifications are.

Specter: I’d urge you to get a decision. I’ve filed a bill to compel SCOTUS to decide it.

Specter: Miranda warnings. All it means is that statements made by subject of interrogation cannot be admitted into evidence. When you dealt w/someone like Christmas day bomber, caught red handed, didn’t need confession. I would hope they not be given.

Holder: Intelligence. I think we have to have flexibility. They did not give Miranda warnings in initial interaction. Gathering of intelligence of critical importance.

Sessions, to Specter: Good to see you in that [Chair’s] chair, except it’s on the other side of the aisle.

Specter: This is not on an aisle.

Sessions: Yes, it’s in the middle of the room.

Holder: If bin Laden were captured, I can see no reason why he’d be given Miranda warnings. Concern with Miranda warnings only whether that information would be excluded. We have sufficient information.

Sessions: With Abdulmutallab, as a result of not giving Miranda, may create many defenses that would not otherwise exist. Rule would simply be that you expect these terrorist individuals be taken into military custody. We’ve done that a number of times.

Sessions keeps interrupting Holder.

Holder: FBI agents, had presence of mind, understand did not have to give him Miranda warnings.

Oops, Lindsey just said this: Obviously, we’re not torturing these people but we’ll have the authority to do that.

He means authority to interrogate, but didn’t say it.

Graham: What additional rights would a person have if transferred to Thomsen?

Holder: We don’t know yet.

Graham: Congress could give some direction. I think Lamberth has been very open about Congress needs to help. Have you been reading those?

Holder laughs.

Holder: yes, I have to read them.

Graham: We’re in a dilemma as a nation. GB has changed their rules to allow people to be held up to 1 year. We have the right here, if you’re an enemy combatant, law of war takes over.

Graham wants to make have non-arbitrary indefinite detention, even after govt loses habeas case.

Lindsey: 59% of American people opposed to closing Gitmo. Why?>

Holder: politicization and misinformation.

Lindsey: Alternate theory, a lot of people worried that we don’t have a coherent policy. I think it would be helpful to focus not only on our allies, but also on Americans. Tell them we’ll keep them secure. We’ve got to assure American people that we’ve got an enduring system. Let’s park some of the rhetoric.

Holder: Point you last made a good one, incumbent on people like myself, what our intentions are and to explain to them, ways I have not done, so degree of assurance, that in addition to whatever I have mentioned, factors you have mentioned is why approval has dropped.

I’ve been looking through some old FOIA documents and noticed an interesting email exchange turned over in one of last August’s document dumps (PDF 21-22). It’s an email chain between a CTC lawyer (whose name we don’t know) and John Rizzo and others regarding a draft of the Combined OLC Memo. I’ve reversed the order of the email string so it appears chronologically.

02/02/05 12:56PM

From: CTC Lawyer

To John Rizzo [and others, redacted]

cc: [redacted]

Subject: Draft OLC opinion on combined techniques has arrived

OLC wants our comments ASAP (if we have any hopes of having it completed and signed by COB Friday).

OLC also asks if its OK to share this draft opinion with appropriately cleared DOD (Jim Haynes, [redacted] and a few others) and State attorneys (currently only two, Will Taft and now also John Bellinger).

---

02/02/05 01:26PM

From: John Rizzo

To: CTC Lawyer

cc: [redacted]

Who are “a few others” at DOD? [redacted] cleared into EITs, and perhaps [redacted] (check on this) but no one else in DOD OGC, as far as I know. Outside of lawyers, I don’t see this is any of anyone’s business on the DOD policy side.

---

02/02/05 01:38PM

From: CTC Lawyer

To: John Rizzo

cc: [redacted, fewer total recipients than first email]

Agree this should be limited to lawyers. I thought, though, that perhaps [redacted] was EIT briefed. The expert, of course, is [redacted].

Now, there are a whole slew of reasons I find this email exchange to be interesting.

Note the date: February 2, 2005. That was two days before Daniel Levin’s last day at OLC, which explains the rush to get this memo approved “by COB Friday.” In other words, this represents Daniel Levin’s last ditch attempt to finish the OLC memo before he moved over to NSC. But this email chain also suggests that Levin believed this memo–the Combined memo–was very close to completion at that point. Compare that with what the OPR Report says about Levin’s involvement in the Combined memo.

On December 30, 2004, [redacted] provided Levin a copy of a 20-page document entitled “Background Paper on CIA’s Combined Use of Interrogation Techniques.” [two lines redacted] On January 15, 2005, [redacted] sent Levin an updated copy (December 2004) of the OMS Guidelines and provided comments on portions of Levin’s January 8, 2005 replacement draft of the Classified Bybee Memo. 104

[snip]

In describing his work on the issue of EITs, Levin said the CIA never pressured him. Rather, he said it only “mad’e clear that they thought it was important,” but that “their view was you guys tell “Us what’s legal or not.” He stated, how~ver, that the “White House pressed” him on these issues.’ He commented: “I mean, a part of their job is to push, you know, and push as far as you can. HO’pefully, not push in a ridiculous way, but they want to make sure ‘you’re not leaving any executive power on the table.”

When Levin left the Department in early February 2005, Bradbury became OLC’s Acting AAG. 105 Bradbury continued to work on a replacement for the Classified Bybee Memo, as well as a second classified memorandum that “considered the legality of the combined use of EITs. 106

Bradbury’s point of contact at the CIA for these memoranda was CTC attorney [one line redacted] Correspondance from [redacted] to Bradbury indicates that the CIA provided its comments on the Combined Techniques Memo to OLC on March 1, 2005.

[snip]

106 Levin started working on the combined techniques memorandum before he left the Department, but was unable to complete it before his departure.

So not only does this say that Levin got much further on the Combined memo than it had previously appeared he had, but it seems that the focus was already on the Combined memo, rather than the Techniques memo.

That’s all the more interesting given something I showed last June. As the OPR passage above makes clear, the memo on Combined Techniques sent to Levin on December 30, 2004 (see PDF 39-57) formed the basis for the Combined Techniques OLC memo. But, as the May 10, 2005 Combined memo and the memo itself makes clear, waterboarding was not included in that memo. In fact, we know CTC sent Bradbury material on waterboarding and sleep deprivation on April 22, 2005 (PDF 104-107) that ultimately filled out his part of his Combined memo. (And note that got sent just two days after Jim Comey resigned.)

It seems safe to assume, then, that the draft Daniel Levin tried to push through before he left did not include waterboarding.

So, as it turns out, CIA didn’t respond to the memo until almost a month later, when Steven Bradbury, rather than Levin, got to decide what went into the memo. And, presumably, waterboarding got stuck back into that memo after Levin was long gone.

Now add in the actual content of the email exchange: the CTC lawyer was passing on Levin’s request to be able to share the memo with DOD and State. CIA seemed to have no big problem with it being shared with State (which is surprising because both Taft and Bellinger–who had just moved to State when Condi moved over as Secretary of State–were torture skeptics). But they did not think that this memo was “anyone’s business on the DOD policy side.”

Now, we don’t know with whom OLC shared the document (or even whether Bradbury, who liked to work in secret, shared the memo with State or DOD after all). But we do know that DOD used the Bybee Memos written for CIA as part of its authorization for Mohammed al-Qahtani’s treatment, and we know that John Yoo let Scott Muller review the Yoo Memo before it was finalized. That is, these memos written for one of the agencies tended to be used to serve as authorization for the other agency, and vice versa.

Now, even if I’m right that waterboarding wasn’t yet in the memo when Levin sent it for “final” review in February 2002, I assume  waterboarding got added back into the Combined memo because of a request from CTC. After all, that’s where the additional information on waterboarding came from. Nevertheless, I find it interesting that DOD might have been in the loop at a time when waterboarding may have gotten added back into the Combined memo.

But there’s another reason the content of this email is so interesting: because of what we know Levin did two days later, on his last day at OLC. Levin wrote Jim Haynes (one of the people he had wanted to share the Combined Memo draft with) to tell him, formally and perhaps for the first time in writing, that the Yoo Memo had been withdrawn. Levin asked CIA to share a document with DOD that authorized torture (though probably not waterboarding). And two days later, for some reason, he wrote to make sure that there was some final, definitive document telling DOD not to use the Yoo Memo that had led DOD to believe that anything goes.

One of the most important ways in which humane societies struggle to deter outbreaks of mass violence is by working to pursue justice, so that would-be war criminals might think twice about their actions after seeing that perpetrators of such crimes are being aggressively pursued and held to account for their crimes.

DOJ Criminal Division Chief, Lanny Breuer, boasting of the formation of the Human Rights and Special Prosecutions Section at DOJ, while speaking at a Holocaust Remembrance Program held by the Jewish Community Relations Council of Greater Washington.

I don’t, in any way, mean to equate the war crimes committed by our own government in the last decade with the Holocaust. I do, however, mean to remind those in a position to do something about “pursuing justice” that more recent war crimes remain virtually unexamined.

Remember the OPR Report? No, not the OPR Report on John Yoo’s laughably bad torture memos. I’m talking about the OPR Report on John Yoo’s even worse memo(s) authorizing domestic surveillance. The Torture OPR Report notes that it was the domestic surveillance memo, and not the torture memos, that first clued Jack Goldsmith into how dangerous John Yoo was.

Because of the problems with Yoo’s NSA opinions, Goldsmith asked Philbin, who was familiar with Yoo’s work at OLC, to bring him copies of any other opinions that might be problematic.

And it was OPR’s investigation into the domestic surveillance memo–not the investigation into torture memos (as far as we know)–that George Bush tried to spike by refusing investigators the clearance to conduct the investigation.

Last we’ve heard official mention of this OPR investigation was last July, in the combined IG Report on warrantless wiretapping. At that point, we know, the investigation was not yet complete.

Title III of the FISA Amendments Act required that the report of any investigation of matters relating to the PSP conducted by the DOJ Office of Professional Responsibility (OPR) be provided to the DOJ Inspector General, and that the findings and conclusions of such investigation be included in the DOJ OIG review. OPR has initiated a review of whether any standards of professional conduct were violated in the preparation of the first series of legal memoranda supporting the PSP. OPR has not completed its review.

Since then we’ve heard nothing.

It turns out, I asked DOJ a week and a half ago about the report and got a “Oh, let me do research.” I did a follow-up last week (as it happens, on Friday, the day Dawn Johnsen withdrew her nomination) and got a very different response: “We don’t comment on OPR investigations.” Now, perhaps that’s just a prudent response after all the accusations Yoo and Bybee made that OPR was leaking information on the Torture memo investigation.

Still.

I find the secrecy around the domestic surveillence OPR Report all the more interesting given that DOJ still hasn’t decided what to do about the 2006 White Paper used to justify warrantless wiretapping after Jim Comey and Jack Goldsmith realized the inherent powers argument failed. Mind you, David Barron’s OLC passed what appears–from Glenn Fine’s description–just as troubling as those two earlier memos back on January 8, 2010. So maybe it doesn’t matter. Maybe we’re doomed to have OLC recklessly authorize illegal wiretapping of Americans in the dark of night, no matter who’s in charge there.

Nevertheless, it does seem worthwhile to remember that John Yoo was investigated not just for his egregious torture memos, but also for saying the President didn’t have to follow the law–even the laws saying that Presidents can’t wiretap Americans.

I guess, in addition to President Rahm Emanuel and Attorney General Lindsey Graham, Deputy Attorney General Robert Gibbs sees the wisdom in putting aside rule of law for political expediency.

Some policy advisers have wondered why the administration’s flack is so often in attendance, but insiders fluent in the administration’s power dynamics know Obama values his views. According to one administration official, who would not be quoted speaking about internal White House discussions, Gibbs late last year pointed out the political perils of letting the Justice Department try Khalid Sheikh Mohammed in a civilian court and has urged the president to ignore Wall Street critics who argue Obama has adopted too populist a tone when speaking out against executive bonuses. [my emphasis]

You know, when Karl Rove unacceptably took over DOJ, he did so to support world domination. He had a plan.

But apparently we’ve decided to shred the Constitution for no other reason than a press flack thinks it would be smart.

I wrote in my last post on David Passaro that he knew precisely how to defend himself (go here for general background on Passaro and his case). Even before he was indicted, Passaro asked for discovery on CIA’s rules of engagement for detainee interrogations, which he tied to SERE techniques well before the connection had been made publicly.

Which is why Passaro’s requests–and CIA’s refusals–for interrogation guidelines are so interesting. While much of those early discovery requests remain redacted, on November 18, 2004 Passaro requested:

• All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
• All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
• “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
• “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces“
• “[A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
• All information on Passaro’s training [my emphasis]

At some point (the document appears to have been sent on January 23, 2006), the government handed over the only such description it gave to Passaro’s team (see PDF 21), what they claim was a December 3, 2002 cable sent in support of operations in Afghanistan and along the Pakistan border.

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Now, the cable is interesting on its own right. It has not, to the best of my knowledge, appeared in any FOIA document dump or even Vaughn Declaration. Though we know that Langley sent a long cable to the Thai black site on November 30, 2002. And in the beginning of December there was cable traffic back and forth about closing that black site and destroying the torture tapes. The date certainly suggests the cable to Afghanistan might have been a response to Gul Rahman’s November 20, 2002 death at the Salt Pit, particularly with its prohibition on any “deliberate environmental deprivations.”

Note, too, the language the CIA used: “in support of ongoing CIA operations in Afghanistan and along the Pakistan border.” The reference to Pakistan sure sounds like a tacit admission that CIA was working in Pakistan already by that point.

But the really disturbing part of this document is CIA’s claim that this policy governed the interrogation of Abdul Wali in June 2003. After all,. the month after they sent this cable, George Tenet issued Guidelines to cover the CIA interrogation of detainees, guidelines that “control” over guidelines previously sent by the Directorate of Operations. That is, Tenet’s Guidelines, not the December 3, 2002 cable, would seem to have been the operative guidelines in June 2003.

And these guidelines, addition to approving, as “standard” two of the three initial techniques used with Abdul Wali (sleep and food deprivation), also describe a set of Enhanced Techniques for use with approval by Headquarters. At least three of these Enhanced Techniques–walling, abdominal slap, wall standing, and stress positions–were also, arguably, the treatment used with Wali. He was repeatedly slammed against a wall, hit in the stomach, and forced to do the “iron chair” for at least an hour at a time.

While the document, by itself, doesn’t say anything about whether or not the techniques would have been approved for use with Wali (I’ll look at that closer in a follow-up post), it does seem that the CIA deliberately refused to turn over to the defense a document that would have shown some of the treatment used with Wali was not only (with approval) acceptable, but for some techniques, “standard.”

Mind you, there are at least two ex parte filings that might include this document (or the other documents Passaro requested), one in November 2005 and one in January 2006. So the only question here is whether the government turned over the Tenet document to the Court, but not the defense.

But in any case, they certainly avoided admitting to the jury that CIA considered some of the techniques used with Wali standard.

Glenn Greenwald just tweeted this fairly unsurprising article reporting that Anwar al-Awlaki’s family would like the US to take him off their kill lists.

His father, Nasser al-Awlaki, a former minister of agriculture and rector at the University of Sanaa, called on the US on Sunday to end the hunt for his son.

“If Washington stops targeting [him] by threatening to abduct, capture, or kill him, Anwar will cease his statements and speeches against it,” he told Al Jazeera.

Somehow, I think a lawsuit challenging the legal basis under which the US would kill a US citizen with no due process would be a lot more effective than this sort of offer.

What’s even more interesting about the story, however, is the claim from Yemen that there is not sufficient evidence to target al-Awlaki.

But Yemeni authorities said on Saturday that they had not received any evidence from the US to support allegations that the US-born al-Awlaki is recruiting for an al-Qaeda offshoot in Yemen.

“Anwar al-Awlaki has always been looked at as a preacher rather than a terrorist and shouldn’t be considered as a terrorist unless the Americans have evidence that he has been involved in terrorism,” Abu Bakr al-Qirbi, the Yemeni foreign minister, said.

His announcement came after a powerful Yemeni tribe threatened to use violence against anyone trying to harm al-Awlaki.

Recall that David Ignatius reported last month that the idea of targeting al-Awlaki first came from Yemen, not DC. Yemen requested that the US government conduct an intelligence collection-capture-kill operation against al-Awlaki last October.

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

What happened next is haunting, in light of subsequent events: The CIA concluded that it could not assist the Yemenis in locating Aulaqi for a possible capture operation. The primary reason was that the agency lacked specific evidence that he threatened the lives of Americans — which is the threshold for any capture-or-kill operation against a U.S. citizen. The Yemenis also wanted U.S. Special Forces’ help on the ground in pursuing Aulaqi; that, too, was refused.

Now, if powerful tribes are promising violence if al-Awlaki is targeted, I can imagine that Yemen might want to deny not only making this request, but also that sufficient intelligence exists to kill al-Awlaki.

But it raises the question of whether there really is any intelligence justifying al-Awlaki’s targeting. If Yemen, who first asked for us to move against al-Awlaki, now claims it has no justification to do so, then who does have intelligence justifying such an act?

Aafia Siddiqui has been at the center of one of the many mysteries flowing from the Bush and Obama administrations’ conduct of  intelligence operations. A Pakistani native and former MIT scientist, background on Siddiqui can be found several places, including a Seminal diary by ondelette here.

The stories of Siddiqui’s disappearance and  her recent trial in the US are too convoluted to easily summarize.  For purposes of the story now emerging — the possible appearance of Siddiqui’s daughter — the bare bones are that, after returning to Pakistan from the US, Aafia Siddiqui was named by Khalid Sheikh Mohammed in his US-run torture interrogations.  Shortly thereafter, in March, 2003, Siddiqui disappeared. Her three children —  oldest son Ahmed, 4-year-old Maryam and her infant son, Suleman — disappeared with her.

After seven years, Siddiqui suddenly reappeared in Afghanistan, where the US alleged she was involved in the attempted shooting of an American soldier as she was being detained for interrogation. When Aafia was  apprehended in Afghanistan, a boy was with her. The US handed off the boy to Afghan intelligence while they shipped Siddiqui to the US for trial.

Pakistan became involved diplomatically over the child and demanded his return. He was handed over to Siddiqui’s family in Pakistan, but her other children have remained missing. There has been controversy in Pakistan over the status of the boy and whether he truly was Siddiqui’s son or not.

Last weekend a girl approximately 12 years old, who spoke only English and Persian and claimed her name was  “Fatima,” was dropped off in front of the home of Siddiqui’s sister.  Some stories indicate an American named “John” may have been with her. Dawn reported a senior policeman described that the girl was:

… wearing a collar “bearing the address of the house in case she wandered off”.

That was last week.

This week, April 11 marks the start of a visit by Pakistan’s Prime Minister, Yousuf Raza Gilani, to the US.  He had been under pressure from the Pakistani press, Senate, courts and Siddiqui’s family (who have been highly critical of Gilani) to take up the case of Aafia Siddiqui in his meetings with the administration scheduled for this week. Today, as those meetings are about to begin, Pakistan’s Interior Minster, Rehman Malik  has confirmed that the young girl left in the street with a collar on her neck is Maryam.*

While this stands in contrast with earlier statements by Siddiqui’s sister that “the finger prints of teenage girl were not matched with the prints of her niece, Mar[y]am” the Interior Ministry’s statement is based upon DNA testing. Those results reveal that Siddiqui’s ex-husband, Amjad Khan, “cannot be excluded” as the father of the two children:

“The DNA profile obtained from blood samples of Maryam Khan alias Fatima, Ahmad Muhammad – her brother – share the STR Genetic Markers with the DNA profile obtained from blood sample of Dr Amjad Khan. Based on the DNA analysis, Dr Amjad cannot be excluded as the biological father of Maryam alias Fatima,” concludes the National Forensic Science Agency’s report, an exclusive copy of which is available with Daily Times. The laboratory is run by the Interior Ministry.

My online search for a US  source discussing the story originally came up with a reference in a WaPo story, buried at the end of the story on Pakistani forces battling Taliban. But the link for the cached reference (“Separately, Interior Minister Rehman Malik said a Pakistani girl left outside a house in Karachi on Sunday was the daughter of Aafia Siddiqui, a Pakistani…”) no longer includes that reference.

In any event, this story about the possible return of Maryam had been getting cautious play throughout the middle east when the girl appeared, last week. Now, with the Interior confirmation that the girl is Maryam, the story is been receiving much more play. Some headlines (and a Pakistan Senator) assert that the girl had been held the last seven years at Bagram.

The Pakistan Ledger (caveat:  not necessarily an unbiased or hard core news site) ran as it’s headline, “US Bagram Air Force base girl prisoner, 12 released” an also ran the information on the DNA report

According to reports, the girls’ DNA matched that of Ahmed, Dr Aafia’s son. The report has been handed over to the investigation police.

Several reports, including the Ledger,  are mentioning that the release of the young girl might be linked  to intervention by Afghan President and Obama ex-bff, Hamid Karzai.

Mr. Karzai had told the family that if no questions were asked, he would return the child to the family.

From another report,

Terming the visit of Afghan President, Hamid Karzai, a key factor in making the efforts of the government and the Interior Minister productive, (Siddiqui’s sister) said that the rehabilitation of Maryam would be started soon

And from the Indian Express, earlier, when the girl had been discovered but not DNA tested:

Claiming that Afghanistan President Hamid Karzai had indicated recently that Aafia’s daughter would return home, Fauzia (Siddiqui’s sister) said, “If this girl is my sister’s daughter then now this issue will be settled in Islamabad.”

Meanwhile, Press TV reports that a Pakistani Senator and chairman of the Pakistani Senate’s Standing Committee on Interior, Senator Talha Mehmood, “slammed the US for keeping the child in a military jail in a cold, dark room for seven years.”

Almost everything you hear about the targeted story (Maryam’s discovery) and the larger story (Siddiqui’s disappearance and subsequent US conviction) should, imo, but taken with a grain of salt.  But what we do have are some strongly competing narratives at work.

Karzai and the US administration have severe rifts. Pakistani Prime Minister Gilani is on his way to the US (and had apparently earlier refused to put any discussions of Siddiqui on his scheduled talks with the US ).  Karzai is reported as making some claims about the return of the girl. A girl appears and, as the Prime Minister is arriving in the US, Pakistan’s Interior Minister and a Pakistani Senator are holding press conferences, one confirming that the girl is Siddiqui’s long missing daughter and the other alleging she was held in a dark cell at Bagram by the US military.

Meanwhile, the Secretaries, Gates and Clinton, are out in force today, calling Karzai a “reliable partner.”

The cast of characters and plot lines in the Siddiqui mystery are complex — courts in Pakistan, the CIA,  competing political factions, KSM, large street rallies and protests, a Pakistani Prime Minister and Interior Minister, Afghan leader Karzai, the US Department of Justice, Charles Swift who handled the Hamdan case (and represented Siddiqui in her trial), courts in the US, missing bullets, missing children, competing fingerprint and DNA information, and more.

The only thing missing from this international tale of intrigue? Dedicated reporting by the US press.

*A Reuter’s slide show of yesterday’s meeting between Malik, Siddiqui’s sister and the young girl can be found here.