There’s an interesting passage in the DOJ IG discussion of Jack Goldsmith’s efforts to rewrite the Stellar Wind OLC memos (PDF 456).
The first passage describes Jim Comey permitting a lower standard of review to apply for activities already in process.
In explaining the rationale for the revise opinion, Comey described to the OIG his view of two approaches or standards that could be used to undertake legal analysis of government action. If the government is contemplating taking a particular action, OLC’s legal analysis will be based on a “best view of the law” standard. However, if the government already is taking the action, the analysis should instead focus on whether reasonable legal arguments can be made to support the continuation of the conduct.137
137 Goldsmith emphasized to us that this second situation almost never presents itself, and that OLC rarely is asked to furnish legal advise on an ongoing program because the pressure “to say ‘yes’ to the President” invariably would result in applying a lower standard of review. Goldsmith stated that OLC’s involvement in Stellar Wind was “unprecedented” because OLC is always asked to review the facts and formulate its advice “up front.”
If it was unprecedented on March 1, 2004, it quickly became common.
After all, Goldsmith was asked to consider how the Geneva Convention applied to various types of detainees in Iraq, after the Administration had already been and continued to render people out of that occupied country. And he was also in the midst of a review of the torture program.
Indeed, Daniel Levin, who would go on to reconsider torture approvals until Cheney booted him out of the way to have Steven Bradbury rubberstamp things, would have been a part of those discussions.
So when, in fall 2004, he was asked to reconsider torture, that lower standard of review would have been in his mind.
You could even say that this standard of review gave CIA an incentive to start and continue torturing Janat Gul, on whom they pinned their need to resume torture, even after they accepted he was not, as a fabricator had claimed, planning election year plots in the US. So long as they tortured Gul, Levin would be permitted to apply a lower standard to that torture.
In any case, if this was unprecedented then, I suspect it’s not anymore. After all, by the time David Barron first considered the drone killing memo for Anwar al-Awlaki, the Administration had apparently already tried to kill him once. And the Libyan war had already started when OLC started reviewing it (though they made a heroic effort to rule it illegal, which is a testament to just how illegal it was).
With regards to the Stellar Wind OLC, the discussion of what Goldsmith found so problematic is mostly redacted. Which is why I’m interested in his opinion that “‘we can get there’ as to [redacted] albeit by using an aggressive legal analysis.” That says that one of the things his opinion would approve — either the content collection of one-end foreign communications or the dragnet collection of telephone metadata — involved “aggressive legal analysis” even to meet this lower standard.
It’d sure be nice to know which practice was considered so marginally legal.
I’ve been reading Empire of Secrets, a book about the role of MI5 as the British spun off their empire. It describes how, in country after country, the government that took over from the British — even including people who had been surveilled and jailed by the British regime — retained the British intelligence apparatus and crafted a strong intelligence sharing relationship with their former colonizers. As an example, it describes how Indian Interior Minister, Sardr Patel, decided to keep the Intelligence Bureau rather than shut it down.
Like Nehru, Patel realised that the IB had probably compiled records on himself and most of the leaders of Congress. However, unlike Nehru, he did not allow this to colour his judgment about the crucial role that intelligence would play for the young Indian nation.
Patel not only allowed the continued existence of the IB, but amazingly, also sanctioned the continued surveillance of extremist elements within this own Congress Party. As Smith’s report of the meeting reveals, Patel was adamant that the IB should ‘discontinue the collection of intelligence on orthodox Congress and Muslim League activity’, but at the same time he authorised it to continue observing ‘extremist organisations’. Patel was particularly concerned about the Congress Socialist Party, many of whose members were communist sympathisers.
The reason Patel was so amenable to continued surveillance of some of his fellow Indian politicians (keeping tabs on his own supporters, as one IPI report put it) was his fear of communism.
And the same remarkable process, by which the colonized enthusiastically partnered with their former colonizers to spy on their own, happened in similar fashion in most of Britain’s former colonies.
That’s what I was thinking of on March 13, when John Brennan gave a speech to the Council on Foreign Relations. While it started by invoking an attack in Copenhagen and Charlie Hebdo, a huge chunk of the speech talked about the value of partnering with our intelligence allies.
Last month an extremist gunned down a film director at a cafe in Copenhagen, made his way across town and then shot and killed a security guard at a synagogue. Later the same day the terrorist group ISIL released a video showing the horrific execution of Coptic Christians on a beach in Libya.
The previous month, in a span of less than 24 hours, we saw a savage attack on the staff of the satirical newspaper Charlie Hebdo in France. We saw a car bomb kill dozens at a police academy in Yemen.
As CIA tackles these challenges, we benefit greatly from the network of relationships we maintain with intelligence services throughout the world. This is a critically important and lesser known aspect of our efforts. I cannot overstate the value of these relationships to CIA’s mission and to our national security. Indeed, to the collective security of America and its allies.
By sharing intelligence, analysis, and know-how with these partner services, we open windows on regions and issues that might otherwise be closed to us. And when necessary, we set in concert to mitigate a common threat.
By collaborating with our partners we are much better able to close key intelligence gaps on our toughest targets, as well as fulfill CIA’s mission to provide global coverage and prevent surprises for our nation’s leaders. There is no way we could be successful in carrying out our mission of such scope and complexity on our own.
Naturally these are sensitive relationships built on mutual trust and confidentiality. Unauthorized disclosures in recent years by individuals who betrayed our country have created difficulties with these partner services that we have had to overcome.
But it is a testament to the strength and effectiveness of these relationships that our partners remain eager to work with us. With the stakes so high for our people’s safety, these alliances are simply too crucial to be allowed to fail.
From the largest services with global reach to those of smaller nations focused on local and regional issues, CIA has developed a range of working and productive relationships with our counterparts overseas. No issue highlights the importance of our international partnerships more right now than the challenge of foreign fighters entering and leaving the conflict in Syria and Iraq.
We roughly estimate that at least 20,000 fighters from more than 90 countries have gone to fight, several thousand of them from Western nations, including the United States. One thing that dangers these fighters pose upon their return is a top priority for the United States intelligence community, as well as our liaison partners.
We exchange information with our counterparts around the world to identify and track down men and women believed to be violent extremists. And because we have the wherewithal to maintain ties with so many national services, we act as a central repository of data and trends to advance the overall effort.
On this and in innumerable other challenges, our cooperation with foreign liaison quietly achieves significant results. Working together, we have disrupted terrorist attacks and rolled back groups that plot them, intercepted transfers of dangerous weapons and technology, brought international criminals to justice and shared vital intelligence and expertise on everything from the use of chemical armaments in Syria to the downing of the Malaysian airliner over Ukraine.
These relationships are an essential adjunct to diplomacy. And by working with some of these services in building their capabilities we have helped them become better prepared to tackled the challenges that threaten us all.
With CIA’s support, I have seen counterparts develop into sophisticated and effective partners. Over time our engagement with partner services fosters a deeper, more candid give and take, a more robust exchange of information and assessments, and a better understanding of the world that often ultimately encourages better alignment on policy.
Another advantage of building and maintaining strong bilateral and multilateral intelligence relationships is that they can remain, albeit not entirely, insulated from the ups and downs of diplomatic ties. These lengths can provide an important conduit for a dispassionate dialogue during periods of tension, and for conveying the U.S. perspective on contentious issues.
In recognition of the importance of our liaison relationships, I recently reestablished a senior position at the CIA dedicated to ensuring that we are managing relationships in an integrated fashion. To developing a strategic vision and corporate goals for our key partnerships and to helping me carryout my statutory responsibility to coordinate the intelligence communities’ foreign intelligence relationships. [my emphasis]
We are and still remain in the same position as MI5, Brennan seems to want to assure the CFR types, in spite of the embarrassment experienced by our intelligence partners due to leaks by Chelsea Manning and Edward Snowden. Information sharing remains the cement of much of our relationships with allies; our ability to let them suck off our dragnet keeps them in line.
And of particular note, Brennan described these “strong bilateral and multilateral intelligence relationships …remain[ing], albeit not entirely, insulated from the ups and downs of diplomatic ties.”
The spooks keep working together regardless of what the political appointees do, Brennan suggested.
But that speech is all the more notable given the revelations in this Der Spiegel story. It describes how, because of the Snowden leaks, the Germans slowly started responding to something they had originally discovered in 2008. The US had been having BND spy on selectors well outside the Memorandum of Understanding governing the countries’ intelligence sharing, even including economic targets. At first, BND thought this was just 2,000 targets, but as the investigation grew more pointed, 40,000 suspicious selectors were found. Only on March 12 — the day before Brennan gave this remarkable speech — did Merkel’s office officially find out.
But in October 2013, not even the BND leadership was apparently informed of the violations that had been made. The Chancellery, which is charged with monitoring the BND, was also left in the dark. Instead, the agents turned to the Americans and asked them to cease and desist.
In spring 2014, the NSA investigative committee in German parliament, the Bundestag, began its work. When reports emerged that EADS and Eurocopter had been surveillance targets, the Left Party and the Greens filed an official request to obtain evidence of the violations.
At the BND, the project group charged with supporting the parliamentary investigative committee once again looked at the NSA selectors. In the end, they discovered fully 40,000 suspicious search parameters, including espionage targets in Western European governments and numerous companies. It was this number that SPIEGEL ONLINE reported on Thursday. The BND project group was also able to confirm suspicions that the NSA had systematically violated German interests. They concluded that the Americans could have perpetrated economic espionage directly under the Germans’ noses.
Only on March 12 of this year did the information end up in the Chancellery.
This has led to parliamentary accusations that BND lied in earlier testimony. The lies are notable, given how they echo the same kind of sentiment John Brennan expressed in his speech.
According to a classified memo, the agency told parliamentarians in 2013 that the cooperation with the US in Bad Aibling was consistent with the law and with the strict guidelines that had been established.
The memo notes: “The value for the BND (lies) in know-how benefits and in a closer partnership with the NSA relative to other partners.” The data provided by the US, the memo continued, “is checked for its conformance with the agreed guidelines before it is inputted” into the BND system.
Now, we know better. It remains to be determined whether the BND really was unaware at the time, or whether it simply did not want to be aware.
The NSA investigative committee has also questioned former and active BND agents regarding “selectors” and “search criteria” on several occasions. Prior to the beginning of each session, the agents were informed that providing false testimony to the body was unlawful. The BND agents repeatedly insisted that the selectors provided by the US were precisely checked.
As almost a snide aside, Der Spiegel notes that in spite of these lies, the public prosecutor has not yet been informed of these lies.
That is, the spooks have been lying — at least purportedly including up to and including Merkel’s office. But the government seems to be uninterested in pursuing those lies.
As Brennan said as this was just breaking out, the spooks retain their “strong bilateral and multilateral intelligence relationships …remain[ing], albeit not entirely, insulated from the ups and downs of diplomatic ties.”
And as with Brennan — who, as Gregory Johnsen chronicles in this long profile of the CIA Director published yesterday — the spooks always evade accountability.
On Monday, the NYT had a story on former Senator Bob Graham’s continuing efforts to shed light on the Saudi role in 9/11. The article cast Graham’s obstinance on the Saudi role in 9/11 against FBI efforts to get him to shut up, noting for example that the recent 9/11 follow-up report dismissed FBI’s former interest in a Florida couple that had ties to some of the hijackers (though the NYT did not note how hackish the report is).
Against FBI’s insistence the Saudis had no role on 9/11, NYT balances the comments of Graham’s former colleagues about his judgement. And they point to his prescience.
Mr. Graham’s refusal to drop what many in the intelligence community consider to be long-settled issues has stirred some private criticism that the former senator has been out of the game too long and is chasing imagined conspiracies in an effort to stay relevant as he lectures and writes books. Intelligence officials say the claims in the secret 28 pages were explored and found to be unsubstantiated in a later review by the national commission.
Former colleagues are not so ready to write off a lawmaker they remember for sounding the alarm against the invasion of Iraq. He warned that shifting attention to removing Saddam Hussein would debilitate efforts to rid Afghanistan of Al Qaeda, which Mr. Graham said posed a far greater threat to the United States.
“Bob Graham has proven to be prescient about many things,” said Jane Harman, the former California congresswoman who once served as the top Democrat on the House Intelligence Committee.
Never one of the flashiest members of the Senate, Mr. Graham was seen more as a cautious, conscientious lawmaker eager to dig into the dry details of policy. His unglamorous reputation no doubt contributed to his inability to catch on during an abbreviated run for the Democratic presidential nomination in 2003. But his colleagues also saw him as a man who would not be easily dissuaded.
“Bob is kind of quiet, but once he is on to something, he is like a dog with a bone,” said Tom Daschle, the former Senate Democratic leader.
The NYT only raises Graham’s prescience on the Iraq War, not the “many things” Jane Harman raises (who didn’t overlap in the Gang of Four with Graham, but closely followed him).
But it’s worth reminding that, in addition to being right about the Iraq War, Graham was right about torture. Indeed, in his last months as ranking member on Senate Intelligence Committee, he made initial moves to learn more about CIA’s detention program, only to have Pat Roberts agree to stop the effort in early 2003. And, interestingly, Graham (and Nancy Pelosi, Graham’s counterpart on the Gang of Four) linked the two, tying the erroneous claims about Iraq to the non-briefings on torture they were getting in September 2002.
Now that they are explicitly stating that CIA lied in its September briefings on torture, Nancy Pelosi and Bob Graham are also both linking those lies with the lies they were telling–at precisely the same time–in the Iraq NIE. Here’s Pelosi:
Of all the briefings that I have received at this same time, earlier, they were misinforming the American people there were weapons of mass destruction in Iraq and it was an imminent threat to the United States. I, to the limit of what I could say to my caucus, told them, the intelligence does not support the imminent threat that this Administration is contending. Whether it’s on the subject of what’s happening in Iraq, whether it’s on the subject of techniques used by the intelligence community on those they are interrogating, every step of the way, the Administration was misleading the Congress.
And that is the issue. And that is why we need a truth commission.
And here’s Graham:
Yes, they’re obligated to tell the full Intelligence Committee, not just the leadership. This was the same time within the same week, in fact, that the CIA was submitting its National Intelligence Estimate on weapons of mass destruction in Iraq which proves so erroneous that we went to war, have had thousands of persons killed and injured as a result of misinformation.
Now, it’s quite possible Graham and Pelosi are tying these two lies together just to remind reporters how unreliable the CIA is. Perhaps they’re doing it to remind reporters of how they got burned leading into the Iraq War, trusting the spin of the Administration.
But perhaps they’re trying to say there’s a direct connection, an explicit one, between the NIE and torture. We know Ibn Sheikh al-Libi’s claims appeared in there. Did anything that came out of Abu Zubaydah’s interrogation? Or Ramzi bin al-Shibh?
Graham would have also been briefed on Stellar Wind, including in briefings with Harman, though he has been less outspoken about that.
None of this is to say these four issues — Saudi support for an enormous attack on the US, spying on Americans, torturing detainees, and trumping up the Iraq War — are connected (though all have ties). It just seems like Graham copped onto the larger project of obfuscation during his tenure on SSCI, in a way that is rather interesting.
Fresh off approving the phone dragnet for what might be the last time, Judge James Boasberg rejected Jason Leopold’s FOIA for the Panetta Report. Ultimately, Boasberg upheld a broad Exemption 5 deliberative privilege claim.
But his discussion to justify that claim is pretty funny. Basically, he says CIA doesn’t have to release the report because (presumably unlike everything else CIA has released on its torture) this report was frank and truthful.
[R]equiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent — i.e, inhibiting frank and open communications among agency personnel.
Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight on the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials.
Everyone knows the Panetta’s CIA is only supposed to talk about torture in highly produced torture snuff like Zero Dark 30. God forbid citizens be able to balance that propaganda against the actual truth.
Almost 3 years ago, I discovered that the judge in the ACLU torture FOIA, Alvin Hellerstein (who recently ordered the Administration to release images from torture), was trying to force the Administration to declassify a phrase making it clear torture had been authorized by the September 17, 2001 “Gloves Come Off” Memorandum of Notification. The phrase appeared on a January 28, 2003 Guidelines on Interrogation document signed by George Tenet (this post describes what great CYA including the phrase was).
In my reporting on it, I noted that National Security Advisor James Jones had secretly written a declaration in the suit arguing the phrase couldn’t be released. And I also noted that CIA’s own declarations conflicted about who had made torture a Special Access Program, CIA or the National Security Council.
Ultimately, however, the 2nd Circuit — in an opinion written by Judge Richard Wesley — reversed Hellerstein and permitted the Administration to keep that short phrase secret (though the Administration permitted that detail to be declassified for the Torture Report).
These issues have resurfaced in a related FOIA suit being reviewed by the 2nd Circuit (including Wesley and Judges Reena Raggi and Gerard Lynch).
Back in late 2012, Main Street Legal Services FOIAed the NSC for records on drone killing (including minutes of NSC meetings in 2011). The government refused to respond, arguing NSC is not an Agency subject to FOIA. So Main Street asked for discovery that might help it show that NSC is an Agency. It lost that argument with District Judge Eric Vitaliano, and this Appeal focuses on the issue of whether NSC is an Agency for purposes of FOIA or not.
In addition to pointing to statutory and historical reasons why NSC is an Agency, the appeal also points to things — including torture, but also including things like cybersecurity, crafting Benghazi talking points, and drone-killing — that were run out of NSC. The government, in response, argued that the President was very closely involved in NSC and presided over the Principals Committee, meaning NSC was too proximate to the President to be subject to FOIA. The response also keeps insisting that NSC is an advisory body, not anything that can make decisions without the President.
That back and forth took place in the first half of 2014.
Then, the Torture Report Summary got released, showing that CIA records indicate President Bush was not briefed on torture until 2006 but that NSC figures — Alberto Gonzales and Condi Rice, among others — told CIA torture was authorized. Main Street wrote a letter in February pointing to the evidence that the President was not in the loop and that NSC authorized torture.
The SSCI Report found that NSC committees, on which the President does not sit, debated, authorized, and directed CIA to apply specific interrogation techniques to specific detainees. In 2004, for example, CIA “sought special approval from the National Security Council Principals Committee” to use “enhanced interrogation techniques” on detainee Janat Gul. Thereafter, NSC principals met and “agreed that ‘[g]iven the current threat and risk of delay, CIA was authorized and directed to utilize” the techniques on Mr. Gul.
The question of who authorized torture thus became a central issue at the oral argument in this suit on March 2 (this discussion starts after 34:00). After Raggi raised this issue, Wesley went on with some urgency about the possibility that someone started torturing without the input of the President.
Judge Wesley: Are you saying then that anything the CIA did in terms of enhanced interrogation techniques clearly, was clearly a Presidential directive?
NSC Counsel Jaynie Lilley: No, your honor —
Wesley: Well then, well if that’s not the case, its a very curious position for you to take because some of these bear heavy burdens. Some of these assertions that you’re making that the President is at the end of all these decision chains bear heavy burdens and I don’t quite understand it. Congress said sole duty is to advise and assist the President. If someone else decides to use enhanced interrogation techniques and we decide that this is done by the group, solely by the advisor, assistant to the President, then it’s the President’s decision is it not? Did the decision flow through the NSC?
Lilley: Your Honor, many decisions–
Wesley: Would it, structurally, I’ll it easier, would it structurally have flowed through the NSC as it’s currently structure pursuant to presidential order and an act of Congress, would a decision to conduct enhanced interrogation techniques have flowed through the NSC up to the President. Pursuant to the way it’s structured now.
Lilley: Your Honor, let me be sure I’m answering the question that your asking. There are decisions that are made on matters of national security policy that come through the various–
Wesley: Pursuant to law and the structure of the NSC who had the authority? Did only one person have the authority to order enhanced interrogations techniques?
Lilley: Your Honor, –
Wesley [voice is rising]: Yes or no?!
Lilley: I cannot speak to individual decisions –
Wesley: Well, if you can’t tell me, then you’re telling me that then the President perhaps didn’t make that decision. And then you’re telling me that someone else did. And if someone else did, then I begin to have a problem. Because I have a hard time understanding how their sole function is to advise or assist the President if suddenly they decide, independent of any Presidential approval, that they can torture someone!
Lilley: Your Honor–
Wesley: It’s very simple Counselor, and I’ve been troubled by the government’s position on this throughout. I’ve been troubled — for twenty years the Office of Legal Counsel said that this was an Agency. And then suddenly in a letter, in 1994, for some reason the Agency flips. We have in the legislative record, we have the committee notes from the two committees, and what is one of the entities that’s listed when they decided to include the Executive office, what is one of the Agencies that Congress lists, one of the groups that Congress lists as an Agency? The NSC. Who created the NSC? The President didn’t. An act of Congress did. An Act of Congress creates two of the Subcommittees. A very curious advisor forced on the President — it sounds like a Separation of Powers issue to me. But, tell me. And then I won’t ask again. And if you don’t want to answer my question don’t answer.
Pursuant to the way the it is currently structured if in your view the NSC is solely an advisory authority, who had the authority to order enhanced interrogation techniques? Who?
Lilley: In any matter of national security policy, there are two places where decisions can be made. One by the President and one by that Agency with the statutory authority to take the act.
Wesley: So you’re telling me that the CIA had the authority to do that?
Wesley: The Director of the CIA could have done this independent of the President’s directive?
Lilley: Your Honor, I cannot speak to that.
Wesley: But for purposes of this discussion you’re saying ‘not someone in the NSC’?
Lilley: The NSC could not — does not direct any individual Agency to take individual actions.
Wesley went onto to describe the plight of the CIA that might not want to do something (torture) it has been ordered to do by the NSC, “it’s on him, legally, not on the NSC.” “Yes, your Honor,” Lilley agreed.
While Wesley didn’t say so, that is, precisely, what Tenet argued when he noted Torture was done pursuant to Presidential order on his 2003 Interrogation document, dodging responsibility for torture. But if Lilley’s claim is correct, then CIA bears all the legal responsibility for torture.
At the end of the hearing, Wesley asked Lilley whether they intend to respond to Main Street’s letter. When Lilley said no, Wesley and Raggi specifically instructed Lilley to respond, noting actual page numbers.
In its response on March 16, the government — some members of which have been arguing for months that the NSC approved torture at every step of the process — newly asserted (ignoring the references that show Bush was never briefed until 2006) that George Tenet was only getting NSC’s advice; he was not being ordered or authorized by them.
Another cites a CIA official’s notes indicating that the Principals Committee “agreed” that CIA was “authorized and directed” to engage in certain activity, confirming the CIA had such authority, and that the then-Attorney General approved the resulting action. See id. at 345. These references confirm that the NSC functions in accordance with the advice and assistance role assigned to it by statute and by the President (currently in Presidential Policy Directive-1) as an interagency forum for coordination and exercises no independent decisional authority. The authority for the underlying decisions rested with the relevant heads of departments and agencies or the President himself.
Remember, DOJ has been claiming it never opened this document. Has it now done so?
But the SSCI evidence that Bush was never briefed is a point Main Street made in a letter last night.
Defendant still fails to explain who authorized the torture if not NSC, as CIA’s own records describe, especially given that CIA did not brief the President until years later.
A great deal of documentation shows that “NSC” (or rather, Dick Cheney and David Addington) authorized torture. But the NSC is trying to sustain the unsustainable position that a Memorandum of Notification not listing torture authorized torture, that Bush never got briefed on torture, and that all those meetings at which NSC members (and Dick Cheney) authorized torture didn’t amount to authorizing torture.
Because if it admitted the truth — that NSC or the Vice President authorized torture without any review by the President — then it would make all these documents, the 9000 documents President Obama got CIA to successfully hide, subject to FOIA.
And then we’d really start having some fun.
Update: I’ve added some to my transcription from the hearing and some additional analysis.
In early 2010, Chelsea Manning discovered that a group of people Iraq’s Federal Police were treating as insurgents were instead trying to call attention to Nuri al-Malki’s corruption. When she alerted her supervisors to that fact, they told her to “drop it,” and instead find more people who were publishing “anti-Iraqi literature” calling out Maliki’s corruption.
On 27 February 2010, a report was received from a subordinate battalion. The report described an event in which the FP detained fifteen (15) individuals for printing “anti-Iraqi literature.” By 2 March 2010, I received instructions from an S3 section officer in the 2-10BCT Tactical Operations Center to investigate the matter, and figure out who these “bad guys” were, and how significant this event was for the FP.
Over the course of my research, I found that none of the individuals had previous ties with anti-Iraqi actions or suspected terrorist or militia groups. A few hours later, I received several photos from the scene from the subordinate battalion.
I printed a blown up copy of the high-resolution photo, and laminated it for ease of storage and transfer. I then walked to the TOC and delivered the laminated copy to our category 2 interpreter. She reviewed the information and about a half-hour later delivered a rough written transcript in English to the S2 section.
I read the transcript, and followed up with her, asking for her take on its contents. She said it was easy for her to transcribe verbatim since I blew up the photograph and laminated it. She said the general nature of the document was benign. The documentation, as I assessed as well, was merely a scholarly critique of the then-current Iraqi Prime Minister, Nouri al-Maliki. It detailed corruption within the cabinet of al-Maliki’s government, and the financial impact of this corruption on the Iraqi people.
After discovering this discrepancy between FP’s report, and the interpreter’s transcript, I forwarded this discovery, in person to the TO OIC and Battle NCOIC.
The TOC OIC and, the overhearing Battlecaptain, informed me they didn’t need or want to know this information any more. They told me to “drop it” and to just assist them and the FP in finding out where more of these print shops creating “anti-Iraqi literature” might be. I couldn’t believe what I heard, (24-25)
At the time, David Petraeus was the head of CENTCOM, the very top of the chain of command that had ordered Manning to “drop” concerns about Iraqis being detained for legitimate opposition to Maliki’s corruption.
Manning would go on to leak more documents showing US complicity in Iraqi abuses, going back to 2004. None of those documents were classified more than Secret. Her efforts (in part) to alert Americans to the abuse the military chain of command in Iraq was ignoring won her a 35-year sentence in Leavenworth.
Compare that to David Petraeus who pretends, to this day, Maliki’s corruption was not known and not knowable before the US withdrew troops in 2011, who pretends the US troops under his command did not ignore, even facilitate, Maliki’s corruption.
What went wrong?
The proximate cause of Iraq’s unraveling was the increasing authoritarian, sectarian and corrupt conduct of the Iraqi government and its leader after the departure of the last U.S. combat forces in 2011. The actions of the Iraqi prime minister undid the major accomplishment of the Surge. (They) alienated the Iraqi Sunnis and once again created in the Sunni areas fertile fields for the planting of the seeds of extremism, essentially opening the door to the takeover of the Islamic State. Some may contend that all of this was inevitable. Iraq was bound to fail, they will argue, because of the inherently sectarian character of the Iraqi people. I don’t agree with that assessment.
The tragedy is that political leaders failed so badly at delivering what Iraqis clearly wanted — and for that, a great deal of responsibility lies with Prime Minister Maliki.
Unlike Manning, Petraeus adheres to a myth, the myth that this war was not lost 12 years ago, when George Bush ordered us to invade based on a pack of lies, when Petraeus and his fellow commanders failed to bring security after the invasion (largely through the priorities of their superiors), when Paul Bremer decided to criminalize the bureaucracy that might have restored stability — and a secular character — to Iraq.
Of course, Petraeus’ service to that myth is no doubt a big part of the reason he can continue to influence public opinion from the comfort of his own home as he prepares to serve his 2 years of probation for leaking code word documents, documents far more sensitive than those Manning leaked, as opposed to the 35 years in Leavenworth Manning received.
Which is, of course, a pretty potent symbol of our own corruption.
Yesterday, Pat Leahy issued a Sunshine Week statement criticizing Richard Burr for attempting to reclaim all copies of the Torture Report, but also complaining that State and DOJ haven’t opened their copy of the Torture Report.
I also was appalled to learn that several of the agencies that received the full report in December have not yet opened it. In a Freedom of Information Act (FOIA) lawsuit seeking release of the full report, Justice Department and State Department officials submitted declarations stating that their copies remain locked away in unopened, sealed envelopes. I do not know if this was done to attempt to bolster the government’s position in the FOIA lawsuit, or to otherwise avoid Federal records laws. I certainly hope not. Regardless of the motivation, it was a mistake and needs to be rectified.
The executive summary of the torture report makes clear that both the State Department and the Justice Department have much to learn from the history of the CIA’s torture program. Both agencies were misled by the CIA about the program. Both should consider systemic changes in how they deal with covert actions. Yet neither agency has bothered to open the final, full version of the report, or apparently even those sections most relevant to them.
Today, Ron Wyden issued a Sunshine Week release linking back to a February 3 letter Eric Holder is still ignoring. The letter — which I wrote about here — addresses 4 things: 1) the unclear limits on the President’s ability to kill Americans outside of war zones 2) the common commercial service agreement OLC opinion that should be withdrawn 3) some action the Executive took that Wyden and Russ Feingold wrote Holder and Hillary about in late 2010 and 4) DOJ’s failure to even open the Torture Report. Wyden’s statement, lumps all these under “secret law.”
U.S. Senator Ron Wyden, D-Ore., renewed his call for Attorney General Eric Holder to answer crucial questions on everything from when the government believes it has the right to kill an American to secret interpretations of law. The Justice Department has ignored these questions or declined to answer them, in some cases for years.
“It is never acceptable to keep the basic interpretations of U.S. law secret from the American people. It doesn’t make our country safer, and erodes the public’s confidence in the government and intelligence agencies in particular,” Wyden said. “While it is appropriate to keep sources, methods and operations secret, the law should never be a mystery. Sunshine Week is the perfect time for the Justice Department to pull back the curtains and let the light in on how our government interprets the law.”
This may be secret law.
But I find it interesting that both Wyden’s letter and Leahy’s statement tie covert operations to the lessons from the Torture Report.
There are many reasons DOJ (and FBI) are probably refusing to open the Torture Report. The most obvious — the one everyone is pointing to — is that by not opening it, these Agencies keep it safe from the snooping FOIAs of the ACLU and Jason Leopold.
But the other reason DOJ and FBI might want to keep this report sealed is what it says about the reliability of the CIA.
The CIA lied repeatedly to DOJ, FBI, and FBI Director Jim Comey (when he was Deputy Attorney General) specifically. Specifically, they lied to protect the conduct of what was structured as a covert operation, CIA breaking the law at the behest of the President.
Of course, both DOJ generally and FBI specifically continue to partner with CIA as if nothing has gone on, as if the spooks retain the credibility they had back in 2001, as if they should retain that credibility. (I’m particularly interested in the way FBI participated in the killing of Anwar al-Awlaki, perhaps relying on CIA’s claims there, too, but it goes well beyond that.)
That’s understandable, to a point. If DOJ and the FBI are going to continue pursuing (especially) terrorists with CIA, they need to be able to trust them, to trust they’re not being lied to about, potentially, everything.
Except that ignores the lesson of the Torture Report, which is that CIA will lie about anything to get DOJ to rubber stamp criminal behavior.
No wonder DOJ and FBI aren’t opening that report.
One of just three issues this Playboy interview [marginally SFW] with Dick Cheney pressed him on (the other two being whether Bush misjudged Putin and whether Cheney’s father loved him) was whether President Bush had been briefed on the torture program.
James Rosen starts by asking whether Bush was briefed on the actual methods.
You have become publicly identified with the so-called enhanced interrogation techniques that CIA officers used when questioning suspected terrorists. Your critics call those techniques torture. To your knowledge, was President Bush briefed about the actual methods that were to be employed?
I believe he was.
It would have been useful had Rosen actually read the SSCI Torture Report, because even that explains that Bush was briefed — in 2006. “[T]he president expressed concern,” the report noted, “about the ‘image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself.”
Rosen then presents the disagreement between John Rizzo and George Tenet, who have said Bush wasn’t briefed, and the President himself. Cheney responds by describing a specific, undated briefing in Condi’s office.
We ask because in Decision Points, the former president’s 2010 memoir, he recalls having been briefed on the EITs. Yet former CIA general counsel John Rizzo, in his 2014 memoir, Company Man, disputes that and says that he contacted former CIA director George Tenet about it, after reading the president’s book, and that Tenet backs him up in the belief that Bush was not briefed.
No, I’m certain Bush was briefed. I also recall a session where the entire National Security Council was briefed. The meeting took place in Condi Rice’s office—I don’t think Colin Powell was there, but I think he was briefed separately—where we went down through the specific techniques that were being authorized.
Rather than pointing out that Cheney doesn’t even say Bush was at that briefing in Condi’s office (or asking for a date, which I suspect is the real secret both Bush and the CIA are trying to keep), Rosen simply asks why Cheney is certain. He then raises James Risen’s account of Bush being given plausible deniability, which Cheney quickly turns into an assessment of whether Risen has credibility rather than providing more details on when and how Bush was briefed.
Why do you say you’re certain Bush was briefed?
Well, partly because he said he was. I don’t have any doubt about that. I mean, he was included in the process. I mean, that’s not the kind of thing that we would have done without his approval.
To that point, New York Times reporter James Risen wrote in State of War: The Secret History of the CIA and the Bush Administration, published in 2006, “Cheney made certain to protect the president from personal involvement in the internal debates on the handling of prisoners. It is not clear whether Tenet was told by Cheney or other White House officials not to brief Bush or whether he made that decision on his own. Cheney and senior White House officials knew that Bush was purposely not being briefed. It appears that there was a secret agreement among very senior administration officials to insulate Bush and to give him deniability.”
I don’t have much confidence in Risen.
That’s not the question. Is what he alleges here true or false?
That we tried to have deniability for the president?
I can’t think of a time when we ever operated that way. We just didn’t. The president needed to know what we were doing and sign off on the thing. It’s like the terrorist surveillance program. You know, one of the main things I did there was to take Tenet and National Security Agency director Michael Hayden in hand and get the president’s approval for what we were doing, and there’s a classic example why I don’t believe something like this. The president wanted personal knowledge of what was going on, and he wanted to personally sign off on the program every 30 to 45 days. To suggest that somehow we ran a system that protected the president from knowledge about the enhanced interrogation techniques, I just—I don’t think it’s true. I don’t believe it.
I find Cheney’s invocation of the dragnet really, really interesting. After all, even according to Bush’s memoir, he didn’t know key details about the dragnet. Cheney told him it was going to expire on March 10 that day. Moreover, when Jim Comey briefed him the following day, he learned of problems that Cheney and others had kept from Bush.
Thus, Cheney’s invocation of the dragnet is actually a documented example of Bush not being adequately briefed.
Plus, it’s interesting given the timing. If I had to guess at this point, I would say that Bush was likely briefed on details of torture in 2004, in the wake of the Abu Ghraib scandal, not 2006. Indeed, that may explain the 7 week delay between the time Tenet asked for reaffirmation of torture approval and when it actually got fully approved — not to mention Tenet’s still inadequately explained resignation (in Tenet’s memoir, he says it was because of the “Slam Dunk” comment attributed to him in Bob Woodward’s book many weeks earlier).
Which brings us back to Cheney invoking a vaguely remembered briefing, this one in the Oval Office.
But can you say as a fact “I know that’s not true,” rather than having to surmise?
I can remember sitting in the Oval Office with deputy national security advisor Stephen Hadley and others—I think others were in there—where we talked about the techniques. And one of the things that was emphasized was the fact that the techniques were drawn from that set of practices we used in training our own people. I mean, we were not trying to hide it from the president. With all due respect, I just don’t give any credence to what Risen says there.
Cheney’s got nothing — or at least nothing he’s willing to share. And certainly nothing to document Bush being briefed before torture started.
Which is, again, what I suspect to be the issue: Bush was briefed, maybe even before the 2006 briefing the Torture Report documents. But not before the bulk of the torture happened.
On March 12 of this year, Dianne Feinstein plaintively asked Jim Comey to read the full SSCI Torture Report. Before giving a really lame answer about how FBI doesn’t torture to excuse why he (and his staffers) hadn’t read, perhaps even opened, the report, he asserted he had read the Executive Summary. “You asked me to do it during my confirmation hearing, I kept that promise and read it.”
Particularly given what we now know — specifically, that Comey concurred in an opinion retroactively authorizing the torture of Janat Gul, whom the Torture Report shows was tortured largely to get torture approved again — that led me to review precisely what transpired between Comey and Feinstein during his 2013 confirmation process. Granted, the report was not yet public, so no one could ask Comey directly whether he knew that’s what CIA was scheming — to torture Janat Gul largely to get torture approved again — at least not publicly.
But what kind of commitment did they get?
First of all, at least in the public hearing, Comey did not promise to fulfill Feinstein’s request. Moreover, she requested that he do more than read the Summary — she said he should read all 6,000 pages, emphasizing the importance of the case studies (which would show far more specifics about what was done to Janat Gul than the Summary does).
I’d like to ask you to personally review our report. It’s a big deal to review it — it’s 6,000 pages. But I think it’s very important. You have that background. And I think it’s important to read the actual case studies.
During his turn, after pointing to how shoddy the memo Comey did concur in was, Sheldon Whitehouse reiterated Feinstein’s request that Comey read the entire report, noting that the specific details of the torture cases showed how much CIA lied about what went on. (It’s not clear whether the details surrounding the Janat Gul case would have been clear before Whitehouse left SSCI, so it’s not clear whether he knew those specific details — the ones most pertinent to Comey’s role on concurring in torture — during this hearing.)
In any case, after recommending he read the full report, Feinstein then went on to the memo Comey did concur in, asking him to explain why he had said in an email that the Principals were “unaware” or “willfully blind” when they reapproved torture.
Feinstein: You described telling Attorney General Gonzales that CIA interrogation techniques were, quote, simply awful, end quote. That quote, there needed to be a detailed factual discussion, end quote of how they were used before approving them and that, quote, it simply could not be that the Principals would be willfully blind.
Here’s the question: Why did you believe that there was a danger that the Principals on the National Security Council were unaware, or willfully blind to the details of the CIA program?
Comey: Thank you Senator. Because I heard … I heard no one asking that third critical question. As you recall I said [in response to a Pat Leahy question] I think there are 3 critical questions with any counterterrorism technique, but especially with the interrogations. Is it effective — something the CIA was talking about. Is it legal under the — Title 18 Section 2340, the legal question. And then this last question, is this what we should be doing. And instead, I heard nothing, and in fact it was reported to me that the White House’s view was only the first two questions matter. If the CIA says it works and DOJ will issue a legal opinion that it doesn’t violate the statute, that’s the end of the inquiry. And, as you said, Senator, I thought that was simply unacceptable.
The answer is interesting given that — earlier in the hearing — he had confirmed (or at least claimed) to Pat Leahy what I believed to be true, that he was out of the loop on the Article 16 CAT memo. I’ve believed that because on May 31, 2005, Comey was still trying (futilely) to influence the Principals through Alberto Gonzales, while still framing the discussion in terms of the earlier May 10 memo, not the May 30 one that got finalized the day before.
He also seemed unaware in his email that (as reported by the Torture Report) CIA had started torturing Abu Faraj al-Libi 3 days earlier, based on the May 10 memos and anticipating the May 30 one.
But he should have known — because he was in the loop on some discussions going back to the previous summer — that CIA felt it needed a memo addressing whether torture complied with the Constitution and therefore the Convention on Torture. Indeed, that’s what CIA had demanded in a July 29, 2003 hearing Comey attended part of; is he now claiming (which would be possible but notable) that they only addressed that demand after he and Bellinger left the meeting? That claim, given Comey’s emphasis on 18 USC 2340 rather than legal questions more generally, is rather curious.
In any case, Comey’s answer last week now appears all the more lame, given that Feinstein had in fact asked him to read the full report, not just the summary.
In any case, having gotten Comey to agree during his confirmation hearing to the notion that there are things the US shouldn’t do, even if they’re legal, Feinstein took this principle, and tried to get Comey to apply it to force feeding at Gitmo.
Feinstein: You have looked at the Combination of EITs, the manner in which they are administered, and you have come to the conclusion that they form torture. These are people, now, 86 of them, who are no threat to this country. They’ve been cleared for transfer, many of whom are being force fed to keep them alive. In my view, this is inhumane, and I am very curious what you would say about this.
Comey refused to do so, at first making the same argument he is now: force-feeding at Gitmo is not part of the FBI’s job, then pleading ignorance about the practice (and, seemingly, protecting the use of force-feeding in an area where it’d be more pertinent to FBI use, especially given its use to get informants on gangs in California’s Pelican Bay, in US prisons).
Comey: If I were FBI Director, I don’t think it’s an area that would be within my job scope. But I don’t know more about what you’re describing than what you’re describ–
Feinstein: Well, let me just say it’s within all of our job scopes to care about how the United States of America acts.
Comey: I agree very much with that Senator. And I do also know that there are times in the Bureau of Prisons when the Federal authorities have had to force feed someone who’s refusing to eat and they try to do it in the least invasive way. What you’re describing I frankly wouldn’t want done to me but I don’t know the circumstances well enough to offer an opinion. I don’t think it would be worth much at this point.
Ultimately, though, Comey didn’t really fulfill his standard of reviewing to make sure counterterrorism techniques are effective and legal as well as reasonable. But that’s not surprising, because he didn’t exercise that standard in defending the phone dragnet either.
That’s not the end of the public exchange between Feinstein and Comey during his confirmation process, however. She asked him one more question on torture while invoking the report in her Questions for the Record.
In December 2012 the Senate Intelligence Committee adopted a bipartisan 6,300-page Study of the CIA’s former detention and interrogation program. The review is by far the most comprehensive intelligence oversight activity ever conducted by the Committee. The Study— which builds a factual record based on more than 6 million pages of intelligence community records—uncovers startling new details about the management, operation, and representations made to the Department of Justice, Congress, and the White House. I believe the Study will provide an important lessons learned opportunity for Congress, the executive branch, and the American people. You have testified that you raised objections about the CIA interrogation program with Attorney General Gonzales in May 2005 before departing the Department of Justice. In one of your emails that was made public in 2009, you described telling the Attorney General that the CIA interrogation techniques were “simply awful,” that “there needed to be a detailed factual discussion” of how they were used before approving them, and that “it simply could not be that the Principles would be willfully blind.” In your confirmation hearing you expressed frustration that there was not a wider policy discussion on this matter, which you believed—rightfully so—was of great importance and contrary to our values and ideals as a nation.
Should you be confirmed, how will your experience raising concerns about CIA’s so-called “Enhanced Interrogation Techniques” behind closed doors influence your approach and leadership at the Federal Bureau of Investigation, your interactions with Congress, and your communications with the American people?
RESPONSE: My experience as Deputy Attorney General reinforced my long-standing view about the importance of fostering a culture of transparency, which I will bring to the FBI if I am confirmed as its new Director. I believe, as I did when I served as Deputy Attorney General, that if there are questions about whether proposed conduct is appropriate—consistent with our values —we should seek a vigorous debate about that conduct before going forward. In those circumstances, I am prepared to detail my concerns and reasoning to the relevant stakeholders, as I have done in the past. If confirmed, I intend to foster a culture at the Bureau that encourages subordinates to provide their candid advice to me and transparency with Congress and the American people, consistent with the Bureau’s law enforcement and national security responsibilities, and long-standing Executive Branch confidentiality interests.
Comey’s tribute to transparency is pretty absurd, given that under him his Agency has stalled on IG reports and redacted things from Congress that were shared in the previous IG Report.
But it’s also a throwaway question. I think Feinstein wanted Comey to reveal that he would share things he discovered with Congress. Given his nod to “Executive Branch confidentiality interests,” there’s no reason to believe he would.
Still, this question was even further away from the question of, “did you know, when you concurred in torture you now claim to recognize as torture, that the victim was someone tortured in part because CIA didn’t vet a fabricator (again) and in part because CIA was so anxious to win torture approval’?
It still doesn’t ask the question Comey should now be asked: when you concurred in retroactively authorizing the torture of Janat Gul, did you know CIA had been lying about him for the better part of a year? Did you know you were concurring in the torture of a man largely torture for legal cover?
I asked both Senator Feinstein’s office and the FBI whether any more specific question got asked in classified fashion but I got a No Comment and a non-answer.
My guess is that Feinstein didn’t come to a realistic understanding of just how cynical the CIA is and was until they started spying on her earlier this year, and so didn’t ask the questions during confirmation that might have made Comey’s willingness to — again — play useful idiot to the CIA’s crimes (including in investigating their spying on Congress).
But it deserves to be noted, even then, Comey was claiming that it is not the FBI Director to investigate the crimes committed by agents of the government.
In the interest of describing why CIA’s efforts to invent a reason to torture Janat Gul are so important, I wanted to do a very quick summary of what I understand CIA’s legal means of avoiding criminal prosecution was.
Torture began — certainly at surrogates overseas — long before anyone even thought of having OLC write memos for it. At that point, the legal cover for the torture would have been only the Presidential Finding signed September 17, 2001 (which said nothing explicit about torture; but then, it probably also said nothing about killing US citizens with drones though it did cover the use of killing high value Al Qaeda figures with drones).
I believe Ali Soufan’s complaints about the methods used at the Thai black site created a problem with that arrangement. When he — an FBI Agent — came away saying what they were doing was “borderline torture,” it created legal problems for the CIA, because an FBI Agent had witnesses a crime. I think Soufan’s reaction to the coffin-like box they intended to use with Abu Zubaydah caused particular problems.
All that came to a head in July 2002, when lawyers responding to “an issue that had come up” asked for a pre-declination memo from Chertoff, even while they were trying, among other things, to get approval to use “mock burial.” I don’t know that Criminal Chief Michael Chertoff was all that squeamish about torture, except with Soufan’s complaint about the coffin, it made mock burial (and with it, I suspect, mock execution) unsupportable by DOJ.
On July 13, 2002, three things happened. John Rizzo presented the torture techniques to people at DOJ. Having had that presentation, Chertoff refused to pre-decline to prosecute. So John Yoo wrote a fax that CTC would ultimately use in crafting the legal direction to torturers (and in recommending against prosecution in the future).
Three days later, David Addington appears to have told Yoo to include presidential immunity language in more public OLC memos. All the important work was being negotiated via back channels (remember, Jay Bybee was busy protecting Cheneys’ Energy Task Force from any oversight); the front channels involving Condi Rice were in a large part show.
But that led to the position where CIA was working off a two page fax that Yoo had freelanced to produce which provided absolutely no description of or limitation on techniques. But DOJ held CIA it to the August 1, 2002 memo.
Within short order, CIA was using techniques that had never been approved. Importantly, they hosed down Gul Rahman before he froze to death, not waterboarding, per se, but an additional technique not approved by DOJ.
When Inspector General John Helgerson started investigating in early 2003, DOJ told him he could develop the fact pattern to determine if any crimes had been committed. So CTC worked with Jennifer Koester and John Yoo to develop their own legal guidelines that not only would include some more of the torture techniques they had used but not approved, but also include a “shock the conscience” analysis. That’s what the IG used to assess whether any crimes had been committed, which is important, because he found that torture as executed did humiliate detainees (and therefore violated the Constitution), but could point to (invalid) legal analysis pre-approving this. (Remember, Dick Cheney got an early review of all this.)
The problem was, DOJ’s OLC refused to accept that document. In June 2003, Patrick Philbin refused. And in May 2004, Jack Goldsmith did again.
So it was not just that Goldsmith withdrew the Bybee Memos (though said CIA could use all the torture techniques except waterboarding while he worked on a replacement). It’s that DOJ refused to accept CIA’s own legal analysis as DOJ’s official opinion. CIA was more anxious about getting some document judging the torture didn’t violate the Constitution. That’s what (as I’ll show) CIA was demanding when they raised the case of Janat Gul to get the Principals to reauthorize the use of torture in July 2004.
Just on the case of Janat Gul — who was detained based off a fabricated claim of election year plotting — CIA got OLC’s Daniel Levin to authorize all the old techniques (including waterboarding) as well as the 4 that CIA had used but not approved. Significantly, that included water dousing, the “technique” that had contributed to Gul Rahman’s death.
But that left two other concerns: the constitutional problem, and the use of techniques in combination, which (among other things) had led to severe hallucinations in 2004. That’s what the 2005 memos were meant to do: use the torture Hassan Ghul and Janat Gul had survived in 2004 to provide a rubber stamp on both the combination issue and the Constitutional one, and provide it roughly in time to be able to use to torture Abu Faraj al-Libi (though the third 2005 memo actually got signed after al-Libi’s torture began).
Neither Hassan Ghul (who was very cooperative before torture) nor Janat Gul should have been tortured. The latter probably was largely just to have one tortured body, any body, on which to hang new OLC memos.