The Memorandum of Notification the CIA Pretends Has Never Been Acknowledged

“We don’t do that sort of thing,” [Glenn Carle responded to a CIA Counterterrorism Center Deputy about “going beyond SERE” with a detainee].

“We do now,” Wilmington’s voice was flat. The conversation remained quiet.

“What about EO12333? We’ve never done that sort of thing. The Agency’d never do that. We’d need a finding, at least.”

[snip]

“We have it.” Wilmington’s manner brightened a little. “We have a letter from the president. We can do whatever we need to do. We’re covered.”

–Glenn Carle, The Interrogator: An Education, approved by CIA’s Publication Review Board prior to its summer 2011 publication

Yesterday, I described how the CIA appears to be refusing to release via FOIA any mention–or even a substitution mention–of references to the September 17, 2001 Presidential Memorandum of Notification the government claims authorizes torture and a bunch of other activities.

In this post I’d like to deal with AUSA Tara LaMorte’s March 9, 2012 claim that what I believe to be the MON has never been acknowledged before.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

Now, as it happens, the CIA made an extensive declaration about the MON in a statement from Marilyn Dorn, the CIA’s Information Review Officer, back in 2007. The description of it–item 61–starts on page 34.

The declaration is actually pretty funny. ACLU had asked for any declarations signed by the President authorizing the torture program. There is none. So in her declaration, Dorn as much as said this MON–which doesn’t mention interrogation–was the MON in question.

Item No. 61 requested a “Directive signed by President Bush that grants CIA, the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against Detainees.” The CIA did not locate a document signed by President Bush outlining interrogation methods that may be used against detainees. The CIA did locate one document signed by President Bush that pertains to the CIA’s authorization to set up detention facilities outside the United States. The document responsive to Item No. 61 is a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists.

So in response to ACLU’s FOIA, which basically said, “give us the legally-required MON that authorized torture,” Dorn said, “we don’t have one, but here’s what we’ve been using for all these years.” That’s pretty significant acknowledgment of what kind of authorization underlies the torture program.

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Peter Van Buren Says “Blowjob” to Hillary Clinton

Actually, he didn’t say blowjob. He said this, in a post pointing out the State Department’s rather inconsistent evaluation of what does and does not constitute poor judgment.

What if a video existed that showed a prominent State Department VIP on the roof of the Republican Palace in Baghdad receiving, um, pleasure of an oral nature from another State Department officer not his wife, or even his journalist mistress of the time? What if that video has been passed around among Marine Security Guards at the Embassy to the point where it is considered “viral” with many copies made? What if the Deputy Chief of Mission, hand in hand with the Diplomatic Security chief (RSO) at the time, decided that the whole thing needed to be swept under the rug and made to go away, at least until some blogger got a hold of it.

Would that count as poor judgement? What if it was published during his oft-delayed Congressional hearings? Funny that State aggressively punishes some extramarital fooling around while ignoring other, er, well-documented cases.

Or would the State Department once again excuse the act itself and instead punish the person who made the act public, claiming THAT was the example of poor judgement, the crime of not hiding State’s dirty laundry at a sensitive time?

Now, I have no idea who the VIP in question is (though I am rather interested in which journalist was sleeping with said VIP when he wasn’t otherwise engaged getting blowjobs on the roof of the Republican Palace, as it presumably affects her coverage).

I do, however, find the insinuation that Hillary chose to discipline someone who exposed such a spectacular blowjob rather than the blowjob recipient.

Unlike Van Buren, I really have zero problem that Hillary had a beer and went dancing in Colombia. But you’d think Hillary wouldn’t be using her authority to protect inappropriate blowjobs.

William Welch Leaving DOJ; Main Justice Circles The Ethical Wagons

Apparently the thrill is finally gone, or at least soon to be gone. Carrie Johnson at NPR has just reported:

A federal prosecutor who led the elite public integrity unit when the case against the late Alaska Sen. Ted Stevens collapsed has told associates he will leave the Justice Department.
….
A spokeswoman for the Justice Department and a representative for Welch had no comment on his departure, which one source said he characterized as a “retirement.”

Welch had been scheduled to lead a controversial prosecution later this year of former CIA official Jeffrey Sterling, who is accused of leaking secrets to New York Times reporter James Risen. That case has drawn widespread media attention because it could set important precedent on the issue of whether reporters enjoy some sort of legal privilege that could help them protect their sources.

This is interesting, actually fascinating news. As Carrie notes the Sterling matter is hanging in the lurch. In fact, it is waiting on an interlocutory appeal decision from the 4th Circuit over claims that the DOJ, once again led by Welch, played fast and loose with critical evidence disclosure. I do not, however, think that the impetus behind this somewhat surprising announcement. The 4th case appears to have completed briefing with the government’s filing of a redacted reply about six weeks ago; however, I don’t think a decision is likely coming that fast and federal appellate courts are not that leaky. Although, to be fair, District and Circuit courts do, occasionally in media intensive cases, give the parties a heads up a decision is coming.

More likely, this is more fallout from the Ted Stevens case and the Schuelke report. In fairness to Welch, he was not one of the hardest hit DOJ attorneys in Schuelke’s report, but he was blistered by Schuelke at Schuelke’s testimony in front of the Senate Judiciary Committee in late March:

Schuelke said tight deadlines before the lawmaker’s October 2008 trial and a series of missteps within the Justice Department’s public integrity unit where leaders William Welch and Brenda Morris “abdicated supervisory responsibility” contributed to the evidence sharing lapses. The failings prompted new Attorney General Eric Holder to abandon the case in 2009; Stevens died a year later in a plane crash after he had lost his Senate seat.

The odds are fairly good that the DOJ is putting the finishing touches on its long awaited OPR report on the Stevens fiasco and, after Schuelke, needs a sacrificial lamb. And Welch is a prime candidate to be sacrificed. But that would beg the question of what will they do about Brenda Morris, whose conduct in Stevens was much more egregious and central, as a supervisor, that even that of Welch. And it should not be forgotten that Brenda Morris was also smack dab in the middle of another catastrophic black eye for the DOJ, the Alabama bingo cases. So, there are some real questions for DOJ there.

As to William Welch though, with both the OPR report nearing completion, and the prospect of a House Judiciary inquiry looming later this week, it would seem that Welch’s newfound desire for “retirement” has a bit of a forced edge to it.

One last thing should be kept in mind: the legislation proposed by Lisa Murkowski and having key bi-partisan backing after Stevens and the Schuelke Report, to reform federal evidence disclosure rules for the DOJ. The DOJ is literally, and cravenly, apoplectic about the proposed reform and has promised they have “learned their lesson” and that everybody should just “trust us”.

DOJ had been fighting disclosure reform hard for quite a long time; but there will never be better momentum than is present now, and they know it. Any seasoned criminal defense attorney will confirm that the far more open and reciprocal discovery rules found at the state level in several more enlightened jurisdictions (I can vouch for this in Arizona, which is one of them) work far better than the archaic disclosure rules extant in federal court. It would be a huge benefit to fairness in the criminal justice process, and it IS an attainable goal. And that, too, may be why we are seeing the sacrifice of William Welch.

Episode Three of Who Rules Your World? Begins: The Leak Retribution Event

Episode one of Who Rules Your World?, pitting Barack Obama against Rupert Murdoch, passed mostly under the radar. The “privatize education” event ended in an early draw when the darling of both contestants, Michelle Rhee, resigned in disgrace for a cheating scandal. Though in truth, Murdoch’s loss of a big NY state contract (the contract opportunity arose out of Obama’s Race to the Top program) and Obama’s determination to continue his reforms using executive orders tips the balance to the President.

Episode two of Who Rules the World?, the illegal wiretap cover-up, has thus far been a clear Obama win. Within weeks after taking office, Obama reaffirmed the state secrets invocations of his predecessor. And while al-Haramain still fights to impose penalties in its successful case against the government, Obama has otherwise succeeded in shielding the government for any accountability for illegal wiretapping. Crucially, John Brennan, who had a role in the illegal wiretap program, has suffered no consequences for his role in the scandal.

Rupert’s son James has not enjoyed the same luck Brennan has. He had to resign from BSkyB to prevent News Corp’s hacking scandal from endangering the rest of the corporation’s business plans. Add in the substantial fines News Corp has already paid and the likelihood that a number of people involved in its illegal wiretap program will do jail time, and it’s clear that Obama has won the illegal wiretap coverup hands down.

Episode Three of Who Rules Your World?, leak retribution, might be more interesting. Sure, the retribution against Jeff Sterling for his employment dispute with John Brennan and John Kiriakou for revealing members of the torture squads (a program Brennan also had ties to) are ongoing. But the case against Thomas Drake for exposing the graft involved in NSA’s illegal wiretap contracts blew up in spectacular fashion; plus, the failure of the retribution against Drake has led to more revelations about the illegal wiretap program.

Meanwhile, we’re just beginning to see how News Corp will respond to the efforts of Fox Mole, now exposed as Joe Muto, for passing embarrassing videos to Gawker. It will be particularly interesting to see how Fox balances retribution with a desire to prevent any more embarrassing revelations. Though of course, Fox is hampered because unlike Obama, he can’t make Fox Mole unemployable by withdrawing his security clearance. Unlike national security whistleblowers, Muto’s employment prospects probably just got a lot rosier, as other news outlets scramble to add to News Corp’s discomfort.

It’s probably just as well that Obama is winning Who Rules Your World? by such margins at this point. I wouldn’t want Rupert to get smart ideas about trying to compete in the assassinations category.

Did Covert Officer A–Whose Identity John Kiriakou Allegedly Leaked–Leave the CIA?

DOJ has apparently failed in its efforts to get John Kiriakou to agree to a plea deal; they’ve just indicted him.

Interestingly, the indictment describes Covert Officer A–whose identity Kiriakou allegedly leaked–differently than the complaint did. The complaint described him this way:

Covert Officer A is currently a covert CIA employee whose relationship to the CIA has been classified for more than two decades.

Here’s how the indictment describes him:

Covert Officer A was a covert CIA employee whose association with the CIA has been classified for more than two decades. Covert Office A was a covert agent as defined at Title 50, United States Code, Section 426(4), and the United States Government was taking affirmative measures to conceal Covert Officer A’s intelligence relationship to the United States. The association of Covert Officer A with the [Rendition, Detention, and Interrogation] Program was also classified and constituted national defense information. [my emphasis]

With the exception of the bolded passage, the information on Covert Officer A’s relationship to the CIA is now all past tense.

Which suggests several possibilities: That Covert Officer A’s status has been changed to permit this prosecution; Covert Officer A is no longer covert (though is still classified); Covert Officer A has left the CIA; or that Covert Officer A is no longer alive. Update: DOJ says this is the way they normally write their indictments.

Alternately (given the way the CIA screws up leak investigations) maybe they were giving Pat Fitzgerald bad information during the investigation. Nahh! The CIA wouldn’t screw up another leak prosecution, would they?

Update: Compare how they describe Covert Officer A with how they describe Deuce Martinez–whose employment, but not identity–is described in the past tense.

Officer B was employed by the CIA as an analyst assigned to the CIA Counterterrorism Center. Though the fact that the CIA employed Officer B was not itself classified, the associations of Officer B with the RDI Program and with the Abu Zubaydah operation were classified and constituted national defense information.

Update: The DOJ announcement says Covert Officer A “remains covert.”

 

Anonymous DOJ Statement: “Trust Us”

The Senate Judiciary Committee is holding a hearing today to review the results of the Schuelke report on the prosecutorial misconduct in the Ted Stevens case and to entertain the Lisa Murkowski bill requiring disclosure. In response, DOJ submitted a statement for the record, opposing any legislation enforcing its discovery obligations.

When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, toensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement–for the first time in the history of the Department of Justice–that every federal prosecutor receive refresher discovery training each year.

In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources.

In short, DOJ is saying, “trust us. We don’t need a law requiring us to do what case law says we need to.”

Right off the bat, I can think of 5 major problem with this statement:

No one has been held accountable

We are three years past the time when Stevens’ case was thrown out. Yet none of the prosecutors involved have been disciplined in any meaningful way.

No doubt DOJ would say that it will hold prosecutors responsible if and when the Office of Professional Responsibility finds they committed misconduct. But in the interim three years, DOJ as a whole has sent clear messages that it prefers protecting its case to doing anything about misconduct. And–as Chuck Grassley rightly pointed out at the hearing–thus far no one has been held responsible.

This statement may claim DOJ is serious about prosecutorial misconduct. But its actions (and inaction) says the opposite.

Even after this training, discovery problems remain

As the DOJ statement lays out, in response to the Stevens debacle, DOJ rolled out annual training programs for prosecutors to remind them of their discovery obligations.

And yet, last year, Leonie Brinkema found that prosecutors in the Jeff Sterling case had failed to turn over critical evidence about prosecution witnesses–one of the problems with the Stevens prosecution. The prosecutor involved? William Welch, whom Schuelke accused of abdicating his leadership role in the Stevens case (note, DOJ says the CIA is at fault for the late discovery; but Welch is, after all, the prosecutor who bears responsibility for it).

If William Welch can’t even get discovery right after his involvement in this case and, presumably, undergoing the training DOJ promises will fix the problem, then training is not enough to fix the problem.

Eric Holder won’t run DOJ forever

The statement focuses on Holder’s quick decision to dismiss the case against Stevens, as if that, by itself, guards against any similar problems in the future. But before Holder was AG, Michael Mukasey was–and Judge Emmet Sullivan grew so exasperated with Mukasey’s stonewalling on this case, he ordered him to personally respond to questions about the case.

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As Bush Did with Judy Miller, Obama Insta-Declassifies for David Ignatius

One more point about the David Ignatius wankfest today.

In his story pitching OBL as a still-ambitious terrorist rather than an out-of-touch idiot, David Ignatius claimed the documents he based his article on had already been declassified.

The scheme is described in one of the documents taken from bin Laden’s compound by U.S. forces on May 2, the night he was killed. I was given an exclusive look at some of these remarkable documents by a senior administration official. They have been declassified and will be available soon to the public in their original Arabic texts and translations. [my empahsis]

But National Security Council spokesperson Tommy Vietor says that’s not yet the case.

A White House spokesman confirmed that the documents found in the raid are in a declassification process that is “still ongoing,” and National Security Council spokesman Tommy Vietor said it “would likely be a few months before they’re fully available” to the media and public. (The CIA had no comment.) [my emphasis]

Either these documents are declassified, in which case the White House should be handing them out to anyone who asks, or they’re not yet declassified, in which case, someone should be prosecuted for handing them to Ignatius.

The most likely explanation, however, is that the Administration is playing the same game the Bush Administration played with Judy Miller, sharing still-classified documents with a reporter who will spin things in a favorable light, so as to pre-empt any response a
more open assessment of the documents will have. That the Obama Administration is doing it to support his reelection and not an illegal war doesn’t make the ploy any less cynical.

BAE F-35 Hack Confirmed

I’ve long complained that the government’s obsession with WikiLeaks is badly misplaced. After all, DOD and some of its contractors simply can’t keep their networks secure from Chinese hackers. So if our chief rival can take what it wants, why worry so much that actual American citizens have access to what China can take with abandon?

Case in point. The Australian has confirmed what was initially reported three years ago: China hacked BAE to steal performance information on the F-35.

CHINESE spies hacked into computers belonging to BAE Systems, Britain’s biggest defence company, to steal details about the design, performance and electronic systems of the West’s latest fighter jet, senior security figures have disclosed.

The Chinese exploited vulnerabilities in BAE’s computer defences to steal vast amounts of data on the $300 billion F-35 Joint Strike Fighter, a multinational project to create a plane that will give the West air supremacy for years to come, according to the sources.

[snip]

One of those present said: “The BAE man said that for 18 months, Chinese cyber attacks had taken place against BAE and had managed to get hold of plans of one of its latest fighters.”

This plane will have taken more than $385 billion to develop and will take $1 trillion to sustain. It is the most expensive weapons system in history. And yet for 18 months, the Chinese were just living on (at least) BAE’s networks taking what they wanted. How much of the considerable cost and rework on this program comes from the data on it China has stolen along the way?

In fact, I’m wondering whether China isn’t borrowing from our own playbook: during the Cold War, we made Russia go bankrupt by engaging in an arms race it couldn’t afford. China doesn’t need to do that. By hacking our data, they can just make us go bankrupt by setting up an arms race between our contractors and its hackers. With the result that we build a trillion dollar plane that it can already exploit.

And yet the government’s priority seems to be shutting up leakers who reveal its crimes, not networks that reveal our biggest military secrets.

Leak Prosecutions: Enforcing Secrecy Asymmetry Does Not Equate to Rule of Law

Matt Miller has a piece in the Daily Beast defending the Obama Administration’s prosecutions of leakers. Now, as Josh Gerstein notes, Miller makes his work easier by cherry-picking which cases to discuss; he doesn’t mention Thomas Drake, who was pretty clearly trying to expose waste and fraud (as well as the government’s choice to spend more money to provide less privacy protection). And he doesn’t mention Bradley Manning, who is alleged to have leaked at least some materials that expose war crimes and a lot more than expose abuse (though note, DOD, not DOJ, is prosecuting Manning).

But Miller’s argument suffers from a much bigger problem. He operates under the assumption that the sole crux of legitimacy arises from a distinction between whistleblower and leaker that he presents as absolute.

To start with, that distinction isn’t absolute (as Manning’s case makes clear). But even with John Kiriakou, whom Miller does discuss, it’s not absolute. Recall what Kiriakou was charged with: leaking the identity of a still covert officer involved in the torture program, being one of up to 23 people who leaked that Deuce Martinez–who was not covert–was involved in the torture program (though didn’t do the torture), and lying to the CIA Publication Review Board about the classification of a surveillance technique details of which have been readily available for decades (and which seems to be related to the Secret PATRIOT GPS application targeting American citizens in probable violation of the Fourth Amendment). In other words, two people involved in an illegal program and one technique that was probably improperly classified and since become another questionably legal executive branch spying technique.

But the entire investigation arose because defense attorneys with Top Secret clearance used the covert officer’s name in a still-sealed filing about the abuse their client had suffered at the hand of the US, possibly–though we don’t know–at the hand of the covert officer (because he is covert, the defense attorneys did not use the officer’s name or picture with their client).

Now, I have no way of knowing (nor does Miller) Kiriakou’s motive, and his case will probably end in a plea, meaning we’ll never get to learn it at trial. But the very genesis of the case–the defense attorneys’ attempts to learn who had tortured their clients so as to be able to adequately represent them–arises from the government’s failure to prosecute anyone for torture and its insistence on withholding arguably relevant information from legal teams, presumably in part to prevent them from attaining any redress for that torture in courts.

So regardless of Kiriakou’s motive, to argue for the legitimacy of his prosecution as events have transpired is to distract from the larger system in which the government uses secrecy to avoid legal consequences for its own crimes–regardless of what that does for justice.

And it’s not just with Gitmo detainees’ lawyers that the government has withheld information to prevent justice being done. It did that with al-Haramain, the Maher Arar suit, Jeppesen Dataplan–the list of times when the government has claimed something, even a widely known fact, is super duper secret just so it can’t be sued or prosecuted is getting quite long and tired. And, of course, it continues to do it with the Anwar al-Awlaki killing, preferring inconsistent claims of Glomar and state secrets to full accounting not just of Awlaki’s killing, but of the claims about Presidential power more generally.

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According to DOD Inspector General Definition, Bradley Manning Did Not “Leak”

The unclassified version of the DOD Inspector General report on leaks within DOD over the last three years (that is, during the Obama Administration) defines “leak” this way.

Unauthorized disclosure of SCI [Secure Compartmented Information] to the public which is defined as: “A communication or physical transfer of [SCI]information to an unauthorized recipient.” DoDD 5210.50, Section 3.2, “Unauthorized Disclosure of Classified Information to the Public,” dated July 22, 2005. [second bracket original]

A leak is a leak of Secure Compartmented Information, not just classified information.

To be sure, the report’s own insertion of that second bracket makes it clear this definition applies to this report. Congress focused on SCI information when it ordered the IG to do the report in a classified annex of this fiscal year’s Defense Appropriation:

The investigation shall contain the following: an inventory of the leaks of SCI data including those attributed to a “senior administration official” from the past three calendar years; the actions taken to investigation each of the events; which of the investigations were referred to the Department of Justice; and what additional actions were taken after the Department of Justice investigation.

The House Appropriations Committee didn’t require the IG to inventory all classified leaks, just the SCI ones.

Nevertheless, as defined, Bradley Manning’s alleged leaks are classified, not SCI.

Whereas this report shows that people from Obama’s Administration, including at least one senior administration official, have been leaking SCI.

We confirmed with DoD components that some unauthorized disclosures of SCI to the public did occur within DoD between December 23, 2008 and December 23, 2011. Among the unauthorized SCI disclosures to the public reported, a DoD Senior Official was directly attributed as a source of unauthorized SCI disclosures to the public. DoD components also reported that they followed established DoD guidance and procedures for forwarding unauthorized disclosure cases to the Department of Justice for action when appropriate.

Now, again, this report is the unclassified version; I’m sure the report provided more detail in the classified version sent to the Chair and Ranking Member of 10 different committees and subcommittees.

But note what this results paragraph doesn’t say. While it confirms at least one of the leaks from a senior administration official was unauthorized, it only cataloged the unauthorized leaks, suggesting there may be more SCI leaks that were authorized (consider, for example, the leaks of a range of compartment names to Bob Woodward, which John Rizzo suggested were part of “one big authorized disclosure,” or reported cooperation between DOD and CIA and Hollywood on the movie about Osama bin Laden’s killing, itself the subject of a different investigation).

Further, while Congress mandated the IG do so, this unclassified report does not explain what happened to these SCI leak referrals at DOJ. Has DOJ been pursuing the SCI leaks by senior administration officials as diligently as it has pursued people like Thomas Drake, who was charged with retaining information, much of it of disputed classification?

One thing’s clear: whether to make political hay or out of genuine concern about the Administration leaks, Congress is honing in on how many of these leaks were authorized and whether DOJ investigated the unauthorized ones. Granted, the most interesting results here remain classified (let’s see whether the 10 committees and subcommittees can withstand the temptation of leaking a classified report on leaking).

But it does begin to show that the Administration that has accused more leakers of “espionage” than all others combined itself leaks far more sensitive information.

(h/t Steven Aftergood who first reported on the IG Report)

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