“Only Facts Matter:” Jim Comey Is Not the Master Bureaucrat of Integrity His PR Sells Him As

Since Jim Comey’s showy press conference yesterday, the press has rehashed Jim Comey’s carefully cultivated image as a Boy Scout, with outlet after outlet replaying the story of how he ran up some hospital steps once.

Sadly, even DOJ beat journalists seem unable to point out that that image has been carefully cultivated over years. Comey is a PR master.

But as I have written on several occasions, the story is more complicated. That’s true, first of all, because the 2004 hospital confrontation, in which Comey and a bunch of other DOJ officials threatened to quit and therefore allegedly shut down some illegal wiretap programs, did not end in March 2004. On the contrary, for the main unlawful program we know about — the Internet dragnet — that confrontation ended in July 2004 when, after some serious arm-twisting, DOJ got FISC presiding judge Colleen Kollar-Kotelly to authorize substantially the same Internet dragnet they refused to authorize themselves.  The arguments they used to pull that off are fairly breath-taking.

The hospital confrontation only served to hide illegal surveillance under a new rock

First, they told Kollar-Kotelly she had to reauthorize the dragnet because terrorists wanted to plan an election year plot; as I note below, that claim was largely based on a fabrication.

Then, they argued that the standard for approval of a bulk Pen Register/Trap and Trace order was the same (arguably lower) as any other PRTT order focused on an individual. Kollar-Kotelly, DOJ argued, had no discretion over whether or how to approve this.

DOJ told Kollar-Kotelly she had no authority to do anything but approve their expansive plan to collect Internet data from telecom switches. “[T]he Court ‘shall’ authorize a pen register … if an application brought before it complies with the requirements of the statute.” Even though, by collecting Internet metadata in bulk, the government would take away FISC’s authority to review whether the targets were agents of a foreign power, DOJ argued she had no authority to determine whether this bulk data — which she deemed an “enormous” amount — was “relevant” to the FBI’s investigations into terrorism.

And that meaning — which the government expanded even further in 2006 to claim the phone records of every single American were “relevant” to the FBI’s standing terrorism investigations — “requires no stretching of the ordinary meaning of the terms of the statute at all,” they claimed, in apparent seriousness.

DOJ further argued that’s the way the FISA court — which Congress created in 1978 to provide real judicial review while permitting the executive to keep its foreign spying secret — is supposed to work. Having FISC rubber-stamp the program they themselves had refused to authorize “promotes both of the twin goals of FISA,” DOJ argued, “facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.”

Their claim this involved oversight is especially rich given that DOJ and FISC argued then — and continued to argue at least through 2010 when John Bates would reauthorize and expand this dragnet — that the FISC had no authority to impose minimization procedures for bulk collected data, which has historically been the sole way FISC exercises any oversight. Then, during the period of the very first dragnet order, NSA “discovered” it was violating standards Kollar-Kotelly imposed on the collection (effectively, violating the minimization procedures). But in spite of the fact that she then imposed more requirements, including twice quarterly spot checks on the collection, those violations continued unabated until NSA’s Inspector General finally started, on Reggie Walton’s order, an (aborted) real review of the collection in 2009. At that point, OGC all of a sudden “discovered” that their twice-quarterly spot checks had failed to notice that every single record NSA had collected during that 5 year period had violated FISC standards.

In short, the program was never, ever, in legal compliance. That was the solution Comey achieved to the unlawful program he got shut down.

DOJ’s — Jim Comey’s — efforts to undercut FISC not only led to other really problematic FISC decisions based on this precedent (including, but not limited to, the phone dragnet in 2006 and upstream collection in 2007), but also gave illegal collection the patina of legality solely by making someone else authorize a program she couldn’t oversee.

DOJ deliberately bypassed Congress because they knew it wouldn’t approve the surveillance

Along with radically changing the nature of FISC in the wake of the hospital confrontation, DOJ — Jim Comey — affirmatively bypassed Congress because they didn’t want to tell America it was spying on them in bulk.

DOJ pointed to language showing Congress intended pen registers to apply to the Internet; they pointed to the absence of language prohibiting a pen register from being used to collect data from more than a single user, as if that’s the same as collecting from masses of people and as if that proved congressional intent to wiretap everyone.

And then they dismissed any potential constitutional conflict involved in such broad rereadings of statutes passed by Congress. “In almost all cases of potential constitutional conflict, if a statute is construed to restrict the executive, the executive has the option of seeking additional clarifying legislation from Congress,” the heroes of the hospital confrontation admitted. The White House had, in fact, consulted Majority Leader Tom DeLay about doing just that, but he warned it would be too difficult to get new legislation. So two months later, DOJ argued Congress’ prerogative as an independent branch of government would just have to give way to secrecy. “In this case, by contrast, the Government cannot pursue that route because seeking legislation would inevitably compromise the secrecy of the collection program the Government wishes to undertake.”

This was a pretty big assault on separation of powers, and not one justified by the efficacy of the program or the needs of the collection.

While I won’t go into it here, this is all about the best known part of the Stellar Wind program that was not so much “shut down” as “dumped into someone else’s legal lap.” There’s another aspect of Stellar Wind — one I don’t yet fully understand — that Comey reauthorized on his own, one that has gotten no reporting. I hope to return to this.

Comey’s DOJ lets itself be manhandled into reauthorizing torture and surveillance

There’s an intimately related effort Comey gets some credit for which in fact led to fairly horrible conclusions: torture. Jack Goldsmith, with Comey’s backing, also withdrew the shoddy John Yoo memo authorizing waterboarding and other torture (Goldsmith also prevented Yoo from retroactively authorizing more techniques).

But on July 2, 2004 — two weeks before Goldsmith left — the intelligence community found another detainee it just had to torture, Janat Gul, based on already questioned claims he wanted to plan an election year attack. They had a Principal’s Committee meeting to discuss what to do. After Jim Comey and John Bellinger left the meeting, the PC agreed to engage in torture again (though not waterboarding). Five days later Goldsmith wrote to ensure the IC knew this meant they had to follow the guidelines laid out under the original Yoo memo. By September, after Gul and some associates had been tortured extensively — each time with Dan Levin writing what I’m sure he imagined to be a soundly reviewed approval for the torture — Levin had approved waterboarding again, along with the techniques Goldsmith had prevented Yoo from retroactively and unilaterally authorizing. OLC repeatedly promised a more fulsome memo laying out the approval offered, ostensibly in reaction to an immediate need, in 2004. Jim Comey initiated that process in fall and December 2004. But in the end, the technique memos completed by Steven Bradbury in May 2005 authorized both waterboarding, as well as all the other conditions (primarily techniques use in combination) Comey seems to have tried to have set to make them impossible to use again. Comey resigned right before these memos were finalized, so it’s possible he made another — failed — attempt to prevent the illegal program by threatening to quit; he did, however, stick around for another three months before he moved onto his sinecures at Lockheed and Bridgewater.

Here’s the tragic thing about this unsuccessful effort to impose order on the torture program: it, like the Iraq War itself, was based on a fabricator.

CIA came to Comey and others, said, “this guy wants to attack the presidential elections so we need a dragnet and torture,” to which DOJ said okay.

The CIA in March 2004 received reporting from a source the torture report calls “Asset Y,” who said a known Al-Qaeda associate in Pakistan, Janat Gul — whom CIA at the time believed was a key facilitator — had set up a meeting between Asset Y and Al-Qaeda’s finance chief, and was helping plan attacks inside the United States timed to coincide with the November 2004 elections. According to the report, CIA officers immediately expressed doubts about the veracity of the information they’d been given by Asset Y. A senior CIA officer called the report “vague” and “worthless in terms of actionable intelligence.” He noted that Al Qaeda had already issued a statement “emphasizing a lack of desire to strike before the U.S. election” and suggested that since Al-Qaeda was aware that “threat reporting causes panic in Washington” and inevitably results in leaks, planting a false claim of an election season attack would be a good way for the network to test whether Asset Y was working for its enemies. Another officer, assigned to the group hunting Osama bin Laden, also expressed doubts.

[snip]

Nevertheless, the CIA took seriously Asset Y’s claim that Gul was involved in an election plot and moved quickly to gain custody of him after his arrest by Pakistan in June 2004. Even before CIA rendered Gul to its custody, Tenet started lobbying to get torture techniques reapproved for his interrogation.

On June 29, Tenet wrote National Security Adviser Condoleezza Rice seeking approval to once again use some of the techniques whose use he suspended less than four weeks earlier, in the hope of gathering information on the election season plot. “Given the magnitude of the danger posed by the pre-election plot and Gul’s almost certain knowledge of any intelligence about that plot” Tenet wrote, relying on Asset Y’s claims, “I request the fastest possible resolution of the above issues.”

[snip]

Soon after the reauthorization of the torture and the Internet dragnet, the CIA realized ASSET Y’s story wasn’t true. By September, an officer involved in Janat Gul’s interrogation observed, “we lack credible information that ties him to pre-election threat information or direct operational planning against the United States, at home or abroad.” In October, CIA reassessed ASSET Y, and found him to be deceptive. When pressured, ASSET Y admitted had had made up the story of a meeting set up by Gul. ASSET Y blamed his CIA handler for pressuring him for intelligence, leading him to lie about the meeting.

By 2005, CIA had concluded that ASSET Y was a fabricator, and Janat Gul was a “rather poorly educated village man [who is] quite lazy [who] was looking to make some easy money for little work and he was easily persuaded to move people and run errands for folks on our target list” (though the Agency wasn’t always forthright about the judgment to DOJ).

During Comey’s entire effort — to put order to the dragnet, to put order to the torture — he was in fact being led by the nose by the CIA, once again using the report of a fabricator to authorize actions the US had no business engaging in.

If that were all, I’d consider this a tragic story: poor Jim Comey trying to ensure the US does good, only to be undermined by the dishonest folks at the CIA, using asymmetric information again to ensure their ass gets covered legally.

Jim Comey refuses to review what he did in 2004 and 2005

But here’s the part that, in my opinion, makes being snookered by the CIA unforgivable. Thus far, Comey has refused to read the full Torture Report to learn how badly he got snookered, even though he promised Dianne Feinstein to do so in his confirmation process.

I am specifically intrigued by Comey’s apparent lack of curiosity about the full report because of his actions in 2005.

As these posts lay out (one, two), Comey was involved in the drafting of 2 new OLC memos in May 2005 (though he may have been ignorant about the third). The lies CIA told OLC in 2004 and then told OLC again in 2005 covering the same torture were among the worst, according to Mark Udall. Comey even tried to hold up the memo long enough to do fact gathering that would allow them to tie the Combined memo more closely to the detainee whose treatment the memo was apparently supposed to retroactively reauthorize. But Alberto Gonzales’ Chief of Staff Ted Ullyot told him that would not be possible.

Pat [Philbin] explained to me (as he had to [Steven Bradbury and Ted Ullyot]) that we couldn’t make the change I thought necessary by Friday [April 29]. I told him to go back to them and reiterate that fact and the fact that I would oppose any opinion that was not significantly reshaped (which would involve fact gathering that we could not complete by Friday).

[snip]

[Ullyot] mentioned at one point that OLC didn’t feel like it would accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

At the end, he said that he just wanted me to know that it appeared the second opinion would go [Friday] and that he wanted to make sure I knew that and wanted to confirm that I felt I had been heard.

Presuming that memo really was meant to codify the oral authorization DOJ had given CIA (which might pertain to Hassan Ghul or another detainee tortured in 2004), then further details of the detainee’s torture would be available in the full report. Wouldn’t Comey be interested in those details now?

But then, so would details of Janat Gul’s torture, whose torture was retroactively authorized in an OLC memo Comey himself bought off on. Maybe Comey has good reason not to want to know what else is in the report.

Sure, he may be doing so to prevent Jason Leopold from liberating the report via FOIA. But in doing so, he is also refusing to examine his own actions, his own willingness to reauthorize the dragnet and torture he had just shut down in the service of a lie. He is refusing to consider whether the deals he made with the devil in 2004 were unsound.

Even here, I might just consider this a tragic story, of a morally just man bested by bureaucratic forces both more sinister and dishonest than Comey.

Except for Comey’s Manichean view of the world.

His world is separated into the Good Guys who should have access to encryption and the Bad Guys who should not, the loyal people like Hillary who can be “extremely careless in their handling of very sensitive, highly classified information” with no legal consequences and the disloyal people like Thomas Drake who get prosecuted for doing the very same things.

That’s not the world where self-proclaimed Boy Scout Jim Comey assents to the reauthorization of torture and dragnets based on a fabrication with no repercussions or even soul-searching.

I mean, I get it. There is no place for Boy Scouts in the top ranks of our national security state. I get that you’re going to lose bureaucratic fights to really immoral causes and manipulative spooks. I get you’re sometimes going to get the so-called trade-off between liberty and security wrong, especially when you get lied to.

But given that reality, there is no place for pretend Boy Scouts. There is no place to pretend your world is as easy as running up some hospital steps, victory!, we’ve vanquished presidential abuses so let’s go dismantle separation of powers! That’s just naive, but in the service of the FBI Director, it legitimizes a really unjust — morally-rather-than-legally-based — method of policing.

Comey seems to believe his self-created myth at this point, and that’s a very dangerous spot for a guy deigning to be the investigator and prosecutor of who is loyal and who disloyal.

Update: Matthew Miller wrote up his criticism of Comey’s abuse of power here.

Update: Here’s an interview I did for Pacifica on the email question generally.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

CIA Lied about Leaking to Screw David Passaro and Protect Bush and Tenet

In the SSCI Torture Report, it has two references to how press people were leaking details of the the torture program to the press even while lawyers were claiming that the program was top secret. In this document, someone notes “our Glomar fig leaf is getting pretty thin.” In this one, a lawyer admits the declaration he had just written “about the secrecy of the interrogation program” was “a work of fiction.”

This document explains why the CIA was playing such games: to screw over David Passaro, a CIA contractor who was being tried for assaulting a detainee.

I know there is an urgency about the 7th Floor to attempt to defend the CIA program in the public domain. However, we need to have the 7th Floor confront the inconsistency in filing a CIPA declaration in Passaro about how critical it is to keep this information secret and at the same time planning to reveal the darn near the [sic] entire program. These goals are not obviously compatible.

I’ve written about Passaro at length before. Here’s a summary of what happened, which is basically that an insurgent suspect was brought into a remote base and — after being interrogated by 4 different people — died. Passaro was indicted just as the (and probably because) the Abu Ghraib scandal was breaking. Before he was indicted, he had a period working at Fort Bragg, during which he put together a bunch of documents to defend himself, which was then confiscated. But he clearly intended to expose details about the torture program and the Gloves Come Off Memorandum of Notification (Passaro was working under a separate program authorized by the MON, the Counterterrorism Pursuit Teams). Of particular note, he asked for documents pertaining to CIA torture that would have clearly implicated George Tenet and George Bush (because, effectively, Passaro’s activities were directly authorized by that same MON).

In response, Passaro got bullshit discovery, some document that had been superseded by the ones that would have implicated the two Georges, rather than the one that would have made it clear techniques he was accused of using against the detainee had been approved, indirectly in that MON, by the President.

There are, in my opinion, several other reasons (witnesses and other information withheld) why Passaro did not get a fair trial. So I don’t actually know whether we know what happened and who should have been found guilty for it.

But one thing is now clear.

Even while CIA was leaking information to the press in an effort to spin their torture program, they were at the same time submitting sworn declarations in Passaro’s case designed to ensure he wouldn’t get the documents proving that George Tenet and George Bush had ordered precisely the kinds of things he was being tried for doing. The CIA was lying to protect the muckety-mucks, to include the President, while fucking the scapegoat, the one guy the government still points to to pretend they can prosecute torture.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

CIA Finally Declassifies “Gloves Come Off” Memorandum of Notification Reference

Screen Shot 2016-06-14 at 3.22.25 PM

Back in 2012, I wrote a series of posts on the Obama Administration’s extraordinary efforts to censor this title. (post 1, post 2, post 3, post 4, post 5, post 6post 7, post 8)

The title was part of some smart CYA on the part of George Tenet. When things started to go south with the torture program in 2003, he wrote this document, ostensibly putting order to the torture program, but also making it clear the whole thing operated on Presidential authority. (The document, which should have been released to David Passaro in his criminal trial for torturing a detainee who subsequently died, was withheld, which prevented him from pointing out anything he did, he did with Presidential approval, so Tenet’s CYA didn’t help him at all.)

The judge in ACLU’s lawsuit to liberate torture documents, Alvin Hellerstein, decided the language should not be censored, and ordered the government release it. Then National Security Advisor Jim Jones wrote a secret declaration stating that it could not be disclosed. All the while, ACLU thought they were fighting to release a description of waterboarding, when in fact Hellerstein was trying to force the Administration to release the single detail that torture had been done on the President’s order.

But the Second Circuit overruled Hellerstein, declaring these 8 words a source and method (for the record, I guessed exactly what was behind the redaction so their secret was only useful for legal challenges).

That the torture program operated pursuant to a Finding (that is, as a covert op) had long been known thanks to blabby CIA types like John Rizzo. But it was formally declassified as part of the Torture Report. It got released today as part of a Jason Leopold lawsuit.

So there you have it. “Presidential Memorandum of Notification of 17 September 2001.” A secret Obama fought to the circuit court, now public for all the world to see.

It doesn’t feel so momentous, does it?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Lawyer Who Filed Crime Report against SSCI Staffer, Robert Eatinger, Complains about Lack of Trust

Robert Eatinger, whose name was redacted 1,600 times in the Senate Torture report, and who went on to file a crime report against Senate staffers for using materials provided to them by CIA, is complaining about lack of trust in this summary of Edward Snowden’s role in surveillance debates.

“The loss in trust with the U.S. public and businesses has a real operational effect. Despite Hollywood portrayals, U.S. intelligence has limited authorities, personnel, and resources,” Robert Eatinger, former senior deputy general counsel at the CIA, said. “Our intelligence agencies depend on the willingness of U.S. persons and companies to provide information and assistance, either voluntarily or through a contract mechanism. A loss in trust reduces the number of Americans willing to assist our intelligence agencies. It reduces not only voluntary assistance but also the number of companies willing to enter into contracts.”

“We have seen recent examples of major U.S. companies not only declining to help U.S. intelligence, but activity seeking to frustrate it. Perhaps the most obvious is Twitter, Inc.’s recent directive to the data analytics company Dataminr to cease selling data, not precisely defined in the press reporting, to U.S. intelligence agencies,” Eatinger added.

At least according to Twitter, this is a false representation of what has happened. Twitter says that its policy on Dataminr selling data to the intelligence community is longstanding, not a recent change.

Constitution Project’s Katherine Hawkins actually tried to have Eatinger’s name unredacted in the released summary via the formal process to do so, with no luck.

I can think of few things that have eroded trust in recent years than the serial coverups of CIA’s torture, in which Eatinger has had a central role.

So I guess they went to the expert in eroding trust.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Hillary Promises Not to Order the Military (!?!) to Torture

Though I agree with the general sentiment that Donald Trump should not be trusted with America’s nuclear codes, there’s a lot I loathed in Hillary’s foreign policy speech yesterday.

Her neat espousal of American exceptionalism, with the specter that another country could make decisions about our lives and jobs and safety, is especially rich coming from a woman who has negotiated several trade deals that give corporations the power to make decisions about our lives and jobs and safety.

I believe with all my heart that America is an exceptional country – that we’re still, in Lincoln’s words, the last, best hope of earth. We are not a country that cowers behind walls. We lead with purpose, and we prevail.

And if America doesn’t lead, we leave a vacuum – and that will either cause chaos, or other countries will rush in to fill the void. Then they’ll be the ones making the decisions about your lives and jobs and safety – and trust me, the choices they make will not be to our benefit.

That is not an outcome we can live with.

The rest of her riff on American exceptionalism — with weird claims like, “America’s network of allies is part of what makes us exceptional” and “Allies provide staging areas for our military” — is worth an entirely separate post.

Her cavalier invocation of dead bodies and prolonging depressions exhibits a lack of self-awareness.

I’m frankly baffled by her description of her plan to defeat ISIS, as well as her warnings elsewhere about allowing terrorists in Syria or emboldening ISIS, both of which past Hillary actions have done.

We need to lash up with our allies, and ensure our intelligence services are working hand-in-hand to dismantle the global network that supplies money, arms, propaganda and fighters to the terrorists. We need to win the battle in cyberspace.

[Applause]

And of course we need to strengthen our defenses here at home.

That – in a nutshell – is my plan for defeating ISIS.

Hillary never talks about how she’ll get the Saudis — one of those allies she wants to “lash up with” — to stop fostering terrorism. That seems like a first step.

I’m even more curious what she intends with “strengthening our defenses here at home,” especially coming just lines after she falsely claimed San Bernardino was an ISIS attack? We already arrest scores of people for their support for ISIS, for doing things like RTing ISIS propaganda. To do much more — and to find the San Bernardino couple before they attacked — would have required far more domestic spying. Is that what Hillary has planned?

But here’s the thing that most disturbs me about her hawkish speech. Note how she attacked Trump for his embrace of torture.

He has said that he would order our military to carry out torture and the murder of civilians who are related to suspected terrorists – even though those are war crimes.

[snip]

So it really matters that Donald Trump says things that go against our deepest-held values. It matters when he says he’ll order our military to murder the families of suspected terrorists. During the raid to kill bin Laden, when every second counted, our SEALs took the time to move the women and children in the compound to safety. Donald Trump may not get it, but that’s what honor looks like.

Two times in a formal, pre-written speech, delivered with tele-prompters, Hillary claimed Trump had said he’d order our military to carry out torture and murder of civilians. But that’s not what he said. He spoke generally, and when speaking of torture he has talked about “interrogators,” without reference to agency. Sure, that could mean DOD (and some DOD interrogators did torture under George Bush). It could also mean the FBI, the agency which currently leads high value interrogations and which John Brennan has said must have its “own processes and procedures and laws that govern its activities,” separate from the techniques permitted in the Army Field Manual.

But the assumption of everyone listening to Donald Trump’s promise to torture was that he’d ask CIA to do the business. Both former CIA Director Michael Hayden and current CIA Director John Brennan thought that’s what he meant, anyway.

While Hillary was Secretary of State, the government killed the son of Anwar al-Awlaki, effectively murdering the family of a suspected (dead) terrorist.

It’s bad enough that she’s lecturing Trump about our deepest-held values. But she’s also not promising to the one thing she appears to be promising: refusing to order the CIA — not the military — not to torture.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

CIA Achieves a Whole New Scale of Torture Evidence Destruction

I once made a list of all the evidence of torture the CIA or others in the Executive Branch destroyed.

I thought it time to start cataloging them, to keep them all straight.

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Dunlavey’s paper trail “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

(I put in the Cheney fire because it happened right after DOJ started investigating the torture tape destruction.)

Since that time, there have been at least two more:

  • CIA stealing back copies of cables implicating the President from SSCI servers
  • Someone modifying one of the black sites at which the 9/11 defendants were tortured, with Gitmo approval

But apparently, last summer, CIA’s Inspector General destroyed something else: both his disk-based and server based copies of the Torture Report.

But last August, a chagrined Christopher R. Sharpley, the CIA’s acting inspector general, alerted the Senate intelligence panel that his office’s copy of the report had vanished. According to sources familiar with Sharpley’s account, he explained it this way: When it received its disk, the inspector general’s office uploaded the contents onto its internal classified computer system and destroyed the disk in what Sharpley described as “the normal course of business.” Meanwhile someone in the IG office interpreted the Justice Department’s instructions not to open the file to mean it should be deleted from the server — so that both the original and the copy were gone.

At some point, it is not clear when, after being informed by CIA general counsel Caroline Krass that the Justice Department wanted all copies of the document preserved, officials in the inspector general’s office undertook a search to find its copy of the report. They discovered, “S***, we don’t have one,” said one of the sources briefed on Sharpley’s account.

Sharpley was apologetic about the destruction and promised to ask CIA director Brennan for another copy. But as of last week, he seems not to have received it; after Yahoo News began asking about the matter, he called intelligence committee staffers to ask if he could get a new copy from them.

Sharpley also told Senate committee aides he had reported the destruction of the disk to the CIA’s general counsel’s office, and Krass passed that information along to the Justice Department. But there is no record in court filings that department lawyers ever informed the judge overseeing the case that the inspector general’s office had destroyed its copy of the report.

Two key parts of this story: Sharpley appears to have no idea who decided to nuke the report off the IG server. Hmmmm.

And DOJ has been suppressing this detail in filings in the FOIAs for the Torture Report itself (which may be what led Dianne Feinstein to make an issue of it last week).

Click through if you want a really depressing list of all the ways Richard Burr is trying to disappear the report.

I guess I shouldn’t be surprised that the entire report got disappeared. But destroying the whole thing is rather impressive.

Update: Katherine Hawkins reminds of of another one: the hood Manadel al-Jamadi wore when he suffocated to death while being tortured disappeared under circumstances the CIA IG considered non-credible.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

What Agency Is Claiming Hillary Received SAP Emails?

The political world is a-twitter over the latest in the Hillary email scandal, Fox News’ report that there were emails sent to Hillary classified at the Special Access Program level. To Fox’s credit, Catherine Herridge liberated the letter itself.

To date, I have received two sworn declarations from one IC element. These declarations cover several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET, and TOP SECRET/SAP levels. According to the declarant, these documents contain information derived from classified IC element sources. Due to the presence of TOP SECRET/SAP information, I provided these declarations under separate cover to the Intelligence oversight committees and the Senate and House leadership.

Note, the letter makes clear that those reporting Hillary had two SAP emails may not be correct: Charles McCullough’s letter doesn’t say how many emails were SAP and how many were CONFIDENTIAL. And the letter is conveniently written in a form that can be shared with the press without key information that would allow us to test the claims made in it.

For example, one critical detail in assessing claims about classification pertains to which IC element claims Hillary received SAP email.

That’s relevant because some agencies have more credibility in their classification claims than others. If this is CIA making the claim, for example, we should assume it’s bogus, because CIA — and its Chief of Litigation Support, Martha Lutz — routinely makes bogus claims.

I described, for example, how Lutz shamelessly claimed documents dating to 1987 on dialing a rotary phone were appropriately retroactively classified SECRET after 2006 to back the only piece of evidence admitted at trial that Jeffrey Sterling mishandled classified information.

Martha Lutz, the CIA’s Chief of Litigation Support and the bane of anyone who has FOIAed the CIA in the last decade, was on the stand, a tiny woman with a beehive hairdo and a remarkably robust voice. After having Lutz lay out the Executive Orders that have governed classified information in the last two decades and what various designations mean, the government introduced four documents into evidence — three under the silent witness rule — and showed them to Lutz.

“When originally classified were these documents properly classified as secret,” the prosecution asked of the three documents.

“They weren’t,” Lutz responded.

“But they are now properly classified secret?”

“Yes,” Lutz answered.

[snip]

[T]he defense explained a bit about what these documents were. Edward MacMahon made it clear the date on the documents was February 1987 — a point which Lutz apparently missed. MacMahon then revealed that the documents explained how to use rotary phones when a CIA officer is out of the office.

That’s a big part of why Sterling is sitting in prison right now: because Lutz was willing to claim, under oath, that a 28-year old document on dialing rotary phones still (rather, newly) needed to be protected as SECRET.

But it’s not just this one case: pretty much everyone who has FOIAed CIA in recent years has a Martha Lutz story, because the agency has such a consistent history of making transparently false classification claims to hide CIA’s activities, even those that are widely known.

Just as an example, the torture program was (and possibly the still-classified aspects continue to be) a SAP.  Keep that — and the many publicly known details, such as that Alfreda Bikowsky was central to some of the biggest abuses about torture, that CIA managed to bury in the Torture Report not because they’re secret but because having them officially discussed puts CIA at legal risk — in mind as everyone wags around that SAP label. If CIA is making the SAP claim, the claim itself should be suspect, because there’s such an extensive history of CIA making such claims when they were transparently bogus. Earlier in this FOIA, CIA claimed that Hillary’s staffers could only learn about the Pakistani drone program from classified information, when you’re actually better off learning about such things from Pakistani and NGO reporting; in the end McCullough sided with CIA, not because it made sense, but because that’s how classification works.

I’m on the record as thinking Hillary’s home brew server was an abuse of power and really stupid to boot. But I’m also really hesitant to make blind claims from unnamed Original Classification Authorities on faith, because the record shows that those claims are often completely bogus.

Hillary receiving a SAP email may say terrible things about her aides. Alternately, it may reinforce the case that the CIA is an out-of-control agency that makes ridiculous claims of secrecy to avoid accountability. We don’t know which of those things this story supports yet.

Update: Told ya.

The Central Intelligence Agency is the agency that provided the declarations about the classified programs, another U.S. official familiar with the situation told POLITICO Wednesday.

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered ‘per se’ classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

The source noted that the intelligence community considers information about classified operations to be classified even if it appears in news reports or is apparent to eyewitnesses on the ground.

Update: I meant to link this earlier. It’s a complaint submitted to ISOO from Katherine Hawkins detailing all the things CIA kept classified in the Torture Report that aren’t, or were improperly classified.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

James Clapper’s Twisted Definition of an Insider Threat

Back when I reviewed the goodies the House Intelligence Committee had given James Clapper in this year’s Intelligence Authorization, I noted the bill eliminated this report on potential conflicts in outside employment (see clause u).

The Director of National Intelligence shall annually submit to the congressional intelligence committees a report describing all outside employment for officers and employees of elements of the intelligence community that was authorized by the head of an element of the intelligence community during the preceding calendar year.

That change — which will make it harder for people to track the kinds of conflicts of interest a number of top NSA officials recently got caught with — survived in the Omnibus into which the Intelligence Authorization got integrated. Which probably means we’ll be seeing more spooks getting paid by contractors on the side.

Yesterday, WaPo described a reporting requirement that had been in the Senate Intelligence Authorization, but got watered down in the Omnibus: a report on promotions revealing whether those being promoted were “unfit or unqualified.”

Under a provision drafted by the Senate Intelligence Committee this year, intelligence agencies would have been required to regularly provide names of those being promoted to top positions and disclose any “significant and credible information to suggest that the individual is unfit or unqualified.”

As WaPo explained, the measure was an effort by Dianne Feinstein to prevent the kinds of things reported in the SSCI Torture Report, where people with a history of abuse were put in charge of interrogation programs, or the example of Alfreda Bikowsky (whom WaPo describes but doesn’t name), whose series of failures qualified her for increasingly senior positions at CIA. WaPo makes clear this kind of failing upwards continues at CIA.
More recently, a top CIA manager who had been removed from his job for abusive treatment of subordinates was reinstated this year as deputy chief for counterintelligence at the Counterterrorism Center.
In short, the measure was meant to ensure that CIA (and other agencies) weren’t led by a bunch of abusive incompetents. But James Clapper couldn’t allow that apparently, because abusive incompetents would apparently decline promotion if they would be revealed to oversight committees as abusive incompetents.

U.S. officials offered multiple explanations for Clapper’s objections. Several said that his main concern was the bureaucratic workload that would be generated by legislation requiring so much detail about potentially hundreds of senior employees across the U.S. intelligence community.

But others said that U.S. spy chiefs chafed at the idea of subjecting their top officials to such congressional scrutiny and went so far as to warn that candidates for certain jobs would probably withdraw.

Lawmakers were told that “some intelligence personnel would be reluctant to seek promotions out of concern that information about them would be presented to the Hill,” said a U.S. official involved in the discussions.

So he balked and Congress watered down the requirement. Here’s what remains of the measure:

(a) DIRECTIVE REQUIRED.—The Director of National Intelligence shall issue a directive containing a written policy for the timely notification to the congressional intelligence committees of the identities of individuals occupying senior level positions within the intelligence community.

The fine print on the requirement probably provides ways for Clapper to squish out of it in many cases by invoking covert status (which, in turn, likely means CIA will expand its current practice of pretending top managers are covert to protect them from scrutiny) or otherwise claiming senior people are not sufficiently senior to require notice.

So rather than preventing the CIA and other agencies from promoting abusive incompetents, the measure will likely lead to them being hidden further behind CIA’s secrecy.

Which is interesting, especially given another Intel Authorization measure that survived in the Omnibus, that I earlier described as an effort to make sure spooks and those in sensitive positions aren’t joining EFF or similar organizations.

The committee description of this section explains it will require DNI to do more checks on spooks (actually spooks and “sensitive” positions, which isn’t full clearance).

Section 306 directs the Director of National Intelligence (DNI) to develop and implement a plan for eliminating the backlog of overdue periodic investigations, and further requires the DNI to direct each agency to implement a program to provide enhanced security review to individuals determined eligible for access to classified information or eligible to hold a sensitive position.

These enhanced personnel security programs will integrate information relevant and appropriate for determining an individual’s suitability for access to classified information; be conducted at least 2 times every 5 years; and commence not later than 5 years after the date of enactment of the Fiscal Year 2016 Intelligence Authorization Act, or the elimination of the backlog of overdue periodic investigations, whichever occurs first.

Among the things ODNI will use to investigate its spooks are social media, commercial data sources, and credit reports. Among the things it is supposed to track is “change in ideology.” I’m guessing they’ll do special checks for EFF stickers and hoodies, which Snowden is known to have worn without much notice from NSA.

Remember, one complaint Clapper had about the gutted requirement he identify the abusive incompetents being promoted at intelligence agencies is the added bureaucracy of tracking just those being promoted in management ranks. But he apparently had no problem with a requirement that ODNI track the social media of everyone at all agencies to make sure they’re going to keep secrets and don’t harbor any “ideology” changes like support for the Bill of Rights.

That is, Clapper’s perfectly willing to expand his bureaucracy to look for leakers, but not to weed out the dangerously incompetent people ordering potential leakers around.

Apparently, to James Clapper, people who might leak about those unfit for management are more dangerous insider threats than having entire centers run by people unfit for management.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Eli Lake Defends the “Rectal Feeding” Consensus in DC

Democrats and Republicans do not agree that waterboarding to capture terrorists was a crime, but many do agree it was a blunder.

That’s the central wisdom offered by Eli Lake, in a piece arguing against a Human Rights Watch report calling on renewed accountability for torture based on the evidence presented in the Senate Torture Report.

It’s a bit of a muddle. Obviously, Lake’s reference to waterboarding invokes the understanding of torture prior to the SSCI Report, which revealed far more than waterboarding, including anal rape masquerading as rectal feeding. If there’s a consensus he’s defending, it’s a consensus about waterboarding and “rectal feeding.”

By the end of his piece, he argues both that his claimed consensus is breaking down, and that it still holds — though here, again, he’s focusing on waterboarding, not the anal rape that’s also at issue.

At the end of the Obama administration, that bipartisan consensus is beginning to erode. In 2008, both the Democratic (Obama) and Republican (Senator John McCain) candidates opposed torture and favored closing Guantanamo. In 2015 Donald Trump has come out enthusiastically for waterboarding, pledging to authorize its use again if elected president. Carly Fiorina has defended waterboarding, saying it yielded valuable intelligence, and Jeb Bush has said he is open to repealing the ban on torture imposed by Obama.

Nonetheless other Republicans have held a firmer line. Both Ted Cruz and Rand Paul voted for the anti-torture amendment this summer. Many progressives hope this bipartisan opposition to torture can hold together after Obama leaves office. But this consensus will break apart if a foreign court prosecutes George W. Bush for a crime Barack Obama has long considered a blunder.

Key to understanding Lake’s call to hold off on investigating the torturers, though, is that “anti-torture amendment” that Cruz and Paul support but Carly and Trump might not. Here’s how HRW describes the amendment — which is a call to adhere to the Army Field Manual — in its report.

On June 16, 2015, the US Senate passed an amendment proposed by senators John McCain and Dianne Feinstein to a defense spending bill (the National Defense Authorization Act for Fiscal Year 2016) that if it becomes law, could codify much of what is in Obama’s executive order 13491.[549] The amendment passed in the Senate by a vote of 78-21.[550] The entire bill was then vetoed by Obama over other issues, but a similar provision remained in the compromised version bill which, as of this writing, was expected to be signed into law by the President.[551] It provides that any individual detained by the US in an armed conflict can only be interrogated in ways outlined by the US Army Field Manual on Intelligence Interrogations. It also requires review and updating of the manual within three years to ensure that it reflects current best practice and complies with all US legal obligations and requires that the International Committee of the Red Cross get “notification of, and prompt” access to, all prisoners held by the US in any armed conflict.[552] It is already clear under US law that torture and other ill-treatment is illegal but this requirement would help to more specifically restrain the physical action certain US interrogators could take.[553] However, it is also impossible to know for sure how future administrations will interpret its obligations under the provisions. Additionally, an exemption for the FBI, the Department of Homeland Security, and other federal “law enforcement entities” was added to the compromised version of the bill.

That is, the amendment actually defers the review of techniques in the AFM to the next Administration, potentially a Cruz or Paul one, and doesn’t apply to the FBI.

As I and–especially–Jeff Kaye have pointed out, however, so long as the AFM has Appendix M in it, it can’t be considered a reliable guard against torture. Here’s part of what Kaye had to say about the watered down form in which the amendment was passed.

In what Democratic Senator Dianne Feinstein called a “minor” change to the National Defense Authorization Act (NDAA), a mandated review of the Army Field Manual (AFM) on interrogation was moved from one year to three years from now.

According to a “Q&A” at Human Rights First last June, the mandated review of the AFM was part of the McCain-Feinstein amendment to the NDAA, and was meant “to ensure that its interrogation approaches are lawful, humane, and based on the most up-to-date science.”

The fact there was any “review” at all was really a response to criticism from the United Nation’s Committee Against Torture, which demanded a review of the AFM’s Appendix M, which has been long criticized as allowing abusive interrogation techniques, including isolation, sleep deprivation, and sensory deprivation.

[snip]

While it is a good thing that waterboarding and other SERE-derived forms of torture are not to be allowed anymore — and they were part of an experimental program in any case — long-standing forms of torture are now protected by law because they are part of the Army Field Manual itself.

[snip]

When the pre-veto version of the NDAA was passed — the version that made the Army Field Manual on interrogation literally the law of the land — all the liberals and human rights groups stood up and applauded. None of them mentioned that only months before the UN had criticized the document for use of abusive techniques, and in particular the use of isolation, and sleep and sensory deprivation noted above. Not one.

So what we have now — what Lake would like to uphold — is a deferral of the issue to a potential Republican Administration. That’s not actually a consensus preventing torture at all .

Along the way to Lake’s conclusion showing any consensus against torture isn’t really a consensus against torture, he does cite to some people — Jack Goldsmith (prior to the report, though I suspect he’d still say the same, even though I’m not sure Americans would be as supportive of “rectal feeding” as of a whitewashed description of waterboarding), Glenn Carle, Raha Wala — who oppose reopening the torture question inside the United States. Yet along the way Lake keeps dodging DOJ’s approach to it.

Part of the problem for Human Rights Watch is that the Justice Department has already investigated cases where CIA officers went beyond the legal guidelines, and ended this probe in 2012 without pursuing prosecutions. Pitter pointed out that the federal prosecutor in this case, John Durham, has acknowledged that there were limitations on the evidence available to his team. Nonetheless, the Justice Department has not taken up the issue again.

DOJ has not taken up the issue again because it has refused to open the Torture Report. DOJ can’t very well consider the additional evidence (on top of talking to victims, which HRW did for its report) in the report so long as it doesn’t open it.

Which actually supports HRW’s point: there’s a conspiracy to cover up this torture, and given that it won’t be investigated here, other countries have an obligation to do so.

I actually think Lake misses a way to make his muddled argument much stronger. For one, I think there might be more consensus, blindly defending the US, if a foreign court started prosecuting the US for torture. If HRW gets its way — and foreign governments investigate torture — you’ll see a lot more agreement that the US shouldn’t have to submit to the review of other countries.

But I actually think the fact the anti-prosecution consensus is now defending anal rape and not just waterboarding is key. If we discussed the anal rape as such — as HRW does — it becomes a lot harder to defend (though there is admittedly far too much public tolerance of rape in criminal prisons in this country, to say nothing of Gitmo, to believe more candid discussion that this was really always about rape would sway the public).

The CIA also used “rectal rehydration” or “rectal feeding” which, as described in the Senate Summary, would amount to sexual assault, on at least five different detainees. The practice, not known to have been authorized by the OLC, involved inserting pureed food or liquid nutrients into the detainee’s rectum through a tube, presumably without his consent.[343]The CIA claims this was a medically necessary procedure and not an “enhanced interrogation technique.”[344] The Senate Summary, however, states the procedure was done “without evidence of medical necessity.”[345] Medical experts report that use of this type of procedure without evidence of medical necessity is “a form of sexual assault masquerading as medical treatment.”[346] At least three other detainees were threatened with “rectal rehydrations.” Allegations of excessive force used on two detainees during rectal exams to do not appear to have been properly investigated.[347] One of those two detainees, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomaticrectal prolapse.[348] Some CIA detainees have also reported having suppositories forced into their anus,[349] and other detainees have reported CIA operatives sticking fingers in their anus.[350]

But once you defend anal rape in the terms CIA and its supporters do — that obviously bogus claim that it served as feeding or rehydration — you quickly get to an ongoing practice that is often contraindicated by medical necessity but used for coercion: forced feeding at Gitmo. Excruciating nasal feeding, rather than excruciating rectal feeding.

Here’s what documents submitted in Abu Wa’el Dhiab’s bid lat year to halt his own forced-feeding revealed.

[T]hese documents reveal[] that back on May 7, one of the government’s primary rebuttals to claims about the conditions under which Dhiab was force fed last year was not to refute those claims, but rather to claim he had no standing to complain because he was not — at that point — being force fed.  Only 6 days later Gitmo cleared Dhiab to be force fed.

Underlying this discussion is Dhiab’s claim that the government has made the standards for force feeding arbitrary so as to be able to subject those detainees leading force feeding campaigns to painful treatment to get them to stop.

To substantiate that argument, the memorandum unsealed on Friday lays out the changes made to Gitmo’s force feeding protocol in November and December. Those changes include:

  • Deletion of limits on the speed at which detainees could be force fed
  • Elimination of guidelines on responding to complaints about speed of force feeding
  • Change of weight monitoring from daily to weekly
  • Deletion of chair restraint guidelines (DOD made a special SOP to cover restraint chair they have thus far refused to turn over)
  • Expansion of scenarios in which prisoners can be force fed, including those at 85% of ideal body weight (IBW)
  • Deletion of provisions against on-off force feeding
  • Discontinuation of use of Reglan (this has to do with potentially permanent side effects from the drug)
  • Replacement of phrase “hunger strike” with phrase “medical management of detainees with weight loss”

In response, the government argued (at a time Dhiab was not eating but before they put him on the force feeding list) that he didn’t have standing because he had not been force fed for 2 months.

That is, Dhiab argued compellingly that force-feeding as it sometimes occurs at Gitmo is about coercion through pain, not about medical necessity.

Particularly during periods of broad hunger striking in Gitmo, it hasn’t been (primarily) about feeding prisoners who don’t want to eat. It has been about breaking resistance.

Along with Appendix M, the force-feeding practices at Gitmo are another thing the UN objected to last year.

And while Dhiab has been released, the 75-pound Tariq Ba Odah remains on hunger strike, though the Obama Administration still claims the authority to detain him (Odah has been cleared for release since 2010) and force-feed him, even though years of the process have created severe medical problems with doing so.

On this issue — the use of torturous techniques to coerce submission — I absolutely agree with Lake there is consensus. While some — including Dianne Feinstein and Gladys Kessler (who has seen videos of the process) oppose it — we’re not seeing any legislation to stop the practice and the Executive continues to insist it has absolute discretion in treatment of detainees at Gitmo so long as it is willing to claim it’s doing so for their own good, however dubious those claims may appear. That’s true, in part, because Democrats don’t want to discomfit their president.

And so, in the end, I agree with Lake that there is a consensus in DC. I’d even argue it’s nowhere near as fragile as he suggests by the end of his piece.

But I’d also argue the consensus that it is okay to nasally or rectally “feed” human beings — in some cases, for years — so long as you can excuse the obviously coerced submission involved with a claim of medical necessity is precisely why others should intervene. Lake may be right that there’s a consensus saying “rectal feeding” shouldn’t be prosecuted, but that doesn’t mean that consensus is defensible.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Comey Sending Out His Allies as Ferguson Effect Truthers

When Chuck Rosenberg, the Acting EPA Chief, echoed Jim Comey’s suggestion that increased surveillance of cops had led to a chilling effect leading them to stop doing their jobs …

Chuck Rosenberg, head of the U.S. Drug Enforcement Agency, said Wednesday that he agrees with FBI Director James Comey that police officers are reluctant to aggressively enforce laws in the post-Ferguson era of capturing police activity on smartphones and YouTube.

“I think there’s something to it,” Rosenberg said during a press briefing on drug statistics at DEA headquarters in Arlington. “I think he’s spot on. I’ve heard the same thing.”

… I reminded that Rosenberg is also Comey’s former Chief of Staff, from when Comey was Deputy Attorney General in the Bush Administration.

Which is why I find it interesting that the White House has suggested President Obama raised the issue with Comey in a meeting this week.

Asked whether Mr. Obama would call in the two men to discuss the issue privately, Mr. Earnest noted that Mr. Comey met with the president last week, and he strongly hinted that the president chided his F.B.I. director on the subject.

“The president is certainly counting on Director Comey to play a role in the ongoing debate about criminal justice reform,” Mr. Earnest said, suggesting that Mr. Obama expected Mr. Comey to uphold the president’s view on the matter.

While he was Comey’s CoS, remember, Comey made sure he was in the loop on torture discussions he otherwise wouldn’t be, as Comey made an effort to limit some of what got approved in the May 2005 torture memos. That was partly to make sure the torturers didn’t use his absence to push through the memo, but also partly (it seems clear now) to lay out his own record of events.

Given the timing (and the distinct possibility Rosenberg endorsed Comey’s Ferguson Effect views after Comey got chewed out by the President), this feels like a concerted bureaucratic stand. Of course, these two allies’ role atop aggressive law enforcement agencies, Comey just 2 years into a 10-year term, stubbornly repeating police claims, is a pretty powerful bureaucratic stand for cops who want to avoid oversight.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.