March 28, 2024 / by 

 

The Timing of the Ramzi bin al-Shibh Tapes

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

Detainee #2

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

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

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

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

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

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

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

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

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

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

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

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

August 27, 2007: Alberto Gonzales resigns

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

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

September 17, 2007: Bush nominates Michael Mukasey Attorney General

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

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

September 25, 2007: A CIA email reports:

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

DIRECTOR [redacted]

Document Date: 08 NOV 2005

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

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

September 30, 2007: Rodriguez’ last day at CIA

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

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

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

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

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

November 8, 2007: Mukasey confirmed as Attorney General

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

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

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

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


Were the Ramzi bin al-Shibh Tapes Altered Like the Abu Zubaydah Tapes Were?

Given that the AP has filled in some details about the Ramzi bin al-Shibh tapes someone had hidden under a desk at CIA, I wanted to look back at the letter DOJ wrote to Leonie Brinkema in 2007, when the government first admitted it had been sitting on those tapes.

AP says the tapes were found all at once while DOJ only learned about them over a month’s time

As you recall, DOJ sent this letter on October 25, 2007, to tell Judge Leonie Brinkema (who had presided over the Zacarias Moussaoui trial) and a judge who had presided over appeals in that case that two CIA declarations DOJ had submitted–on May 9, 2003 and on November 14, 2005–“had factual errors.”

Here’s how the AP describes the tapes and their discovery:

The CIA has tapes of 9/11 plotter Ramzi Binalshibh being interrogated in a secret overseas prison. Discovered under a desk, the recordings could provide an unparalleled look at how foreign governments aided the U.S. in holding and questioning suspected terrorists.The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.

[snip]

When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

[snip]

The CIA first publicly hinted at the existence of the Binalshibh tapes in 2007 in a letter to U.S. District Judge Leonie M. Brinkema in Virginia. The government twice denied having such tapes, and recanted once they were discovered. But the government blacked out Binalshibh’s name from a public copy of the letter. [my emphasis]

The DOJ letter describes a slightly different (though not necessarily inconsistent) chronology. It claims the CIA informed DOJ first of one videotape, and then roughly a month later, of the second videotape and audiotape.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a video tape of the interrogation of [1.5 lines redacted] On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution. The evidence of the video tape, however, is at odds with the statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings.

At our request, CIA also provided us with intelligence cables pertaining to the interviews recorded on the two video tapes. Because we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations. Based on our comparison of the cables to the [redacted] videotapes, and keeping in mind that the cables were prepared for the purposes of disseminating intelligence, we found that the intelligence cables accurately summarized the substance of the interrogations in question. [my emphasis]

So the AP’s sources suggested that a staffer simply pulled out a box [Christmas in September!] and found all three tapes–presumably at the same time–whereas DOJ only found out about one tape at first, then sent CIA back to see if there were more. If, as the AP suggests, the CIA found the tapes all at once, then it suggests that the CIA withheld two of the tapes from DOJ until DOJ asked for them specifically. Given that DOJ reviewed the first tape on September 19 and the second and third on October 18, there seems to have been a delay in getting those second two tapes, which might either suggest the tapes weren’t found at the same time, or CIA was very slow in turning over tapes they already knew existed.

The DOJ’s explanation of why CIA didn’t mention the tapes assumes CIA didn’t check with CTC before writing the Declarations

Now, the AP reports that John Durham has expanded his investigation to cover the Ramzi bin al-Shibh tapes as well.

A Justice Department prosecutor who is already investigating whether destroying the Zubaydah and al-Nashiri tapes was illegal is now also probing why the Binalshibh tapes were never disclosed.

The Brinkema letter provides this explanation why the people who wrote the Declarations in 2003 and 2005 didn’t mention the tapes.

Unbeknownst to the authors of the declarations, the CIA possessed the three recordings at the time that the Declarations were submitted. We asked the CIA to ascertain the reason for such an error. [1.5 lines redacted] As best as can be determined, it appears that the authors of the Declarations relied on assurances of the component of the CIA that [one line redacted] unknowing that a different component of the CIA had contact with [one line redacted]

While this passage is heavily redacted, it seems to suggest DOJ claims the authors of the Declarations didn’t know which components of the CIA had had contact with Ramzi bin al-Shibh (and, potentially, Abu Zubaydah). But the AP reports the tapes were found lying around the Counterterrorism office. That seems to suggest (though we can’t be sure with all the redactions) that the people who wrote the Declarations had no clue that CTC was running the torture program.

Which is really only plausible if you ensure the people who wrote the Declarations were completely compartmented out of the most basic information about the interrogation program.

But I guess ensuring unbelievable levels of ignorance on the part of the CIA Declarants would be a good way to ensure none of the tapes were released pursuant to discovery in the Moussaoui trial.

The reviews DOJ did of the tapes recall the earlier CIA whitewash of the tape content

What I’m particularly interested in–particularly given the news that John Durham has expanded his investigation to cover the obstruction involved with these tapes–is the description of the review that DOJ conducted of the tapes.

On September 13, 2007, DOJ learned of the first tape. On September 19, they viewed the videotape and a transcript–the provenance of which they redact (so we don’t know if it was contemporaneous or whether it were done for the benefit of DOJ, and we don’t know who did it or whether it also involves translation). Then on October 18, CIA admitted it had another “video tape” and an “audio tape.” Once again, DOJ reviewed the tapes and read the transcript. Then, DOJ reviewed the intelligence cables based on just the “video tapes,” but not, apparently, the “audio tape,” “to ensure that the cables accurately captured the substance of the interrogations.” After assuring themselves that the version of the tapes they had reviewed the first time–the cables–was close enough “keeping in mind that the cables were prepared for the purposes of disseminating intelligence,” they then gave Brinkema the transcripts for all three tapes, but not the tapes themselves, to review.

I’ve got a couple of questions about DOJ’s actions here:

  • Why would they review the cables at all?
  • Why would they review the cables for the “video tapes” but not the “audio tape”?
  • Why would they give Brinkema the transcripts but not the videos?

I’d love to have the lawyer folks–or anyone else–weigh in in comments. But here is one possible explanation. It’s possible that when DOJ reviewed the tapes they saw something on the tapes that they thought might be pertinent, even if it did not constitute a mention of Moussaoui or 9/11. You know–like the physical condition of al-Shibh, or some physical coercion? If so, that might explain why they didn’t review the cables from the “audio tape”–because they “saw” nothing on those tapes. (Alternately, it’s possible that CIA withheld the cables based on the audio taped interrogation when DOJ did its discovery review, which would be damning all by itself.)

They say they wanted to review the cables “[b]ecause we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations.” This sounds, partly, like CYA: they wanted to make sure the representations DOJ had made–as distinct from the CIA Declarations–were accurate and fair. But the fact they even did the review of the cables suggests they had their doubts. Add in the heavily caveated judgment that the cables did reflect the content of the interrogation (they seem to conclude the cables reflect the intelligence gained during the interrogation, but not some other aspects of it), and it sure seems like there’s a discrepancy between the “video tapes” and the cables. Just not one DOJ felt they were responsible for, given the terms of Brinkema’s order on discovery, at least not after Moussaoui had already plead guilty.

Now onto the description of the three tapes: 2 “video” tapes and 1 “audio” tape. Which, in plain language, would seem to suggest that the CIA had means to both record video (as they did with Abu Zubaydah and Rahim al-Nashiri in the same time period) as well as means to record audio. There are no indications the torturers in Thailand made audio tapes. There is, however, proof that by late 2002, the CIA had already altered the Zubaydah tapes such that the video in some of them had been destroyed; they showed nothing but snow.

In other words, I think it distinctly possible–particularly given that the tapes showed up in a box under a desk in the same CTC department that had knowingly tried to cover up the earlier tampering with the Zubaydah tapes–that the one “audio” tape didn’t start out that way, that it got altered in similar fashion to the Zubaydah tape.

That’s all wildarsed speculation, mind you.

But there is some evidence that Durham is not only investigating the 2005 destruction of the torture tapes but also the earlier, 2002, tampering with them. (And his investigation seems to have taken on new energy when he gave John McPherson–who was involved in CIA’s first attempt at covering up this tampering–immunity.) If Durham is collecting evidence that the CIA engaged in a cover-up of torture in its treatment of the Zubaydah tapes, then both the condition of the al-Shibh tapes (if they still exist) and CIA’s earlier treatment of them (including such things as making sure those who wrote Declarations for Brinkema were ignorant of who was running the torture program) would serve to round out his case (and potentially provide the forensic evidence now lacking for the Zubaydah tapes).

All of which probably answers my third question, why DOJ didn’t give Brinkema the tapes themselves. Mind you, I’m sure they accounted for that in the name of protecting sources and methods (you know? methods? fly them to Morocco for the scalpel-on-penis treatment!). But by withholding the tapes themselves, they prevented Brinkema from seeing whatever it is they saw when they decided they needed to review the cables to see if they were accurate.

Note how carefully the AP’s sources claim that the tapes show no “harsh interrogation methods” like waterboarding.

But current and former U.S. officials say no harsh interrogation methods, like the simulated drowning tactic called waterboarding, were used in Morocco. In the CIA’s secret network of undisclosed “black prisons,” Morocco was just way station of sorts, a place to hold detainees for a few months at a time.

“The tapes record a guy sitting in a room just answering questions,” according to a U.S. official familiar with the program.

But if Binyam Mohamed is telling the truth about the scalpel-on-the-penis treatment in Morocco (and thus far, his claims have held up against the documentary evidence), we know the claim that “Morocco was just a way station of sorts” is an out and out lie. But it still may be true that the tapes don’t show–or didn’t, before one of them became an audio tape, if that’s what happened–the approved methods of the CIA program itself. That doesn’t rule out the tapes showing other things–like the outright beatings that Mohamed describes having happened in Morocco.

Which appears to be one way the DOJ review of these tapes exactly matches McPherson’s review of the Zubaydah tapes in 2002. Both reviewed the tapes and the cables to see whether the cables were a reasonably accurate version of what appeared on the tapes. But both apparently stopped short of comparing the tapes to the limits on interrogation DOJ laid out in 2002. Because if you’re DOJ, it would sure suck to be looking at evidence of torture, huh?

Update: papau’s comment about the implausibility that CIA found the tapes under a desk reminded me I wanted to note one more difference between the DOJ version and the AP one. DOJ says the “CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.” AP almost suggests the discovery was accidental.

But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

There seems to be a related story here about why they were looking and discovering boxes full of torture evidence in 2007.


Abu Zubaydah’s American-Taxpayer Paid Tour of the World

You should read two pieces in conjunction this morning. First, this Andy Worthington piece from last week, that lays out new details on the black site CIA used in Poland in 2002-2003.

On Friday, the Polish Border Guard Office released a number of documents to the Warsaw-based Helsinki Foundation for Human Rights, which, for the first time, provide details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002, and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania. The documents (available here and here) provide important information about the secret prison at Szymany, in northeastern Poland, and also add to what is known about the program in Romania, which has received far less scrutiny.

[snip]

Friday’s revelations by the Polish Border Guard Office are, however, even more significant, firstly because they include, for the first time, confirmation that N63MU flew into Poland on December 5, 2002, and secondly, because they provide details of the number of passengers on seven of the flights, as follows:

December 5, 2002: 8 passengers delivered

February 8, 2003: 7 passengers delivered; 4 others flown to an unknown destination

March 7, 2003: 2 passengers delivered

March 25, 2003: 1 passenger delivered

May 6, 2003: 1 passenger delivered

July 30, 2003: 1 passenger delivered

September 22, 2003: 0 passengers delivered; 5 flown to Romania

Then, read this AP piece, which fleshes out details about the first time that Abu Zubaydah and three other detainees went to Gitmo.

Four of the nation’s most highly valued terrorist prisoners were secretly moved to Guantanamo Bay, Cuba, in 2003, years earlier than has been disclosed, then whisked back into overseas prisons before the Supreme Court could give them access to lawyers, The Associated Press has learned.

[snip]

Before dawn on Sept. 24, 2003, a white, unmarked Boeing 737 landed at Guantanamo Bay. At least four al-Qaida operatives, some of the CIA’s biggest captures to date, were aboard: Abu Zubaydah, Abd al-Nashiri, Ramzi Binalshibh and Mustafa al-Hawsawi.

Together, the articles provide key new details of the global voyages that Abu Zubaydah and other key detainees took between CIA black sites. And the AP piece confirms something earlier revealed in the ICRC report completed in 2007 and released last year: that at least four of the High Value Detainees were in Gitmo in 2003-2004, until they were moved again precisely to hide them from the ICRC.

ICRC notes that four detainees believed that they had previously been held in Guantanamo, for periods ranging from one week to one year during 2003/4. They reported recognising this location upon return there in September 2006, as each had been allowed outdoors on a daily basis during their earlier time there. The ICRC has been assured by DoD that it was given full notification of and access to all persons held in Guantanamo during its regular detention visits. The ICRC is concerned, if the allegations are confirmed, it had in fact been denied access to these persons during the period in which they were detained there.

Now, the two pieces in conjunction answer key questions. As Worthington points out, we know from this that Abu Zubaydah and Rahim al-Nashiri (and, he adds, Ramzi bin al-Shibh) got moved from Thailand to Poland in December 5, 2002, as CIA was making their first efforts to close the Thai black site and destroy the torture tapes. And then the three of them, plus Mustafa al-Hawsawi, got moved to Gitmo the following September 24, 2003. Then, on March 27, 2004, they were taken away from Gitmo.

One implication of this, of course, is that the death threats used against al-Nashiri–reportedly investigated by John Durham (and, I have speculated, possibly one reason Philip Mudd retired in March) happened on Polish soil.

It also times interestingly with Jack Goldsmith’s tenure at OLC (October to July) and even more interestingly with the CIA IG Report (they got Zubaydah and Nashiri–against both of whom the IG Report described torture–out of Gitmo before Congress got a hold of the report).

But the two reports also lay out further area for inquiry. At least according to what detainees told the ICRC, at least one of the detainees who were in Gitmo in this early period were only there for a week. But that also suggests some of the four might not have known they were at Gitmo when they returned in 2006, perhaps because they didn’t have the same exercise privilege (and remember that detainees, at least as of a few months ago, still exercised only with those who they had been in black sites before, so they couldn’t compare notes). Does this mean others were moved to Gitmo’s “Strawberry Fields” after this first bunch?

Finally, note how CIA’s spokesperson, in his comment to the AP, wants this story to be about events that happened six years ago.

CIA spokesman George Little said: “The so-called black sites and enhanced interrogation methods, which were administered on the basis of guidance from the Department of Justice, are a thing of the past.”

Aside from the fact that Little said this while John Durham’s inquiry into the torture that exceeded the guidance of DOJ is ongoing, it also distracts attention from other inconvenient little facts: like the presumably ongoing existence of Camp No, and the weird qualification in Obama’s Gitmo closure orders limiting them only to those at Gitmo considered to be enemy combatants.

Still, kudos to Worthington and the AP for their work to tease out the global trajectories of these detainees.


James Clapper Hedges on Providing Ongoing Updates on Special Ops Activities (and Other Disconcerting Answers)

As Josh Rogin and Marc Ambinder note, James Clapper is scheduled to get a vote tomorrow in the Senate Intelligence Committee on his nomination to be Director of National Intelligence. Ambinder reports that Kit Bond is most dissatisfied with Clapper at this point, the rest of the committee really ought to join in Bond’s dissatisfaction given his answers to their post-hearing questions. Take this response to Russ Feingold:

Success in the area of counterterrorism requires that the Intelligence Community and the Department of Defense coordinate their activities, and that congressional oversight not be fragmented. One example is Section 1208 of U.S.c. Title 10, which authorizes assistance to foreign forces, irregular forces, groups, or individuals supporting U.S. counterterrorism military operations. The Senate Armed Services Committee has expressed concern that U.S. Special Operations Command may be leveraging this authority for long-term engagement with partner nations, rather than exclusively to support operations, particularly in countries other than Iraq and Afghanistan. Information about the use of Section 1208 is therefore critical if the Intelligence Committee is to conduct oversight of how the U.S. government as a whole is fighting terrorism around the world.

• Will you ensure that this information is provided to the Committee?

Section 1208 of the FY 2005 National Defense Authorization Act, PL 108-375, requires the Secretary of Defense to submit an annual report “to the congressional defense committees on support provided to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating ongoing military operations by United States special operations forces to combat terrorism.”

If confirmed as the DNI I would not view the provision of DoD clandestine military operational information to the SSCI as being within my authority or responsibility; however, I would fully support an arrangement agreed to by the affected oversight committees for the submission of information to Congress concerning this matter. [my emphasis]

Feingold’s question pertains to this issue.

• Section 1208 (Support to Foreign Forces)

Section 1208 of the FY 2005 NDAA authorized DOD to reimburse foreign forces, groups, or individuals supporting or facilitating ongoing counter-terrorism military operations by U.S. special operations forces (SOF). The FY 2009 NDAA authorized $35 million a year for this authority through FY 2013. The Obama Administration did not request a change to Section 1208.

The HASC bill increases the annual budgetary authority to $50 million in order to limit funding restraints during the planning of Section 1208-funded operations. The HASC was generally supportive of Section 1208 programs and was pleased with more effective reporting of Section 1208-related activities. The HASC voiced concern, however, that Section 1208 should not to become a “train and equip” program managed by Special Operations Command (SOCOM). The HASC also expressed uneasiness over the use of private contractors to carry out Section 1208 activities and thus required additional reporting requirements to track such contracting.

The SASC bill does not raise the Section 1208 funding level, and the committee expressed dissatisfaction with current reporting. SASC voiced concern that SOCOM may be using 1208 funds to leverage long-term engagement with partner nations rather than exclusively for supporting military operations by U.S. special operations forces to combat terrorism. The SASC asked SOCOM to review their Section 1208 execution to eliminate such leveraging. [my emphasis]

In other words, the House Armed Services Committee has expressed concern that DOD is using this Special Ops provision to train allies in military operations, and using contractors to do so. As Feingold notes, the Senate Armed Services Committee is concerned that in the guise of supporting distinct operations, DOD is engaging in long-term operations.

To me, this reads like DOD is using this provision to engage in war in countries against which we’re not at war: like Somalia and Yemen. This sounds like the authority DOD is using to engage in operations–including drug related ones–in 75 countries, as Jeremy Scahill has reported.

So Russ Feingold, presumably thinking of the way in which the Bush Administration started using Special Ops for covert actions partly to hide them from the intelligence committees, asks the retired general nominated to head the Intelligence Community whether he would share information with the intelligence committees about the activities. And Clapper responds, I’m not legally obligated to. But, if the Armed Services Committees agree, we can do some info sharing. Nothing, incidentally, about sharing the information in as timely fashion as the CIA would have to share information on less risky covert ops. Just a yearly report, I guess.

Now perhaps Clapper’s willingness to share information is all well and good and I shouldn’t worry.

But then there’s Clapper’s answer about how to improve information sharing in the Intelligence Community. The answer: to give ODNI the same secrecy provisions that CIA and NSA have.

In addition, if confirmed, I will also look to Congress if legislative changes are needed to facilitate information sharing. For example, information sharing and the IC’s ability to analyze intelligence information would be enhanced if Congress enacts legislation to give the ODNI the same operational files exemption granted to CIA, NGA, DIA, and NSA.

As an example why this is important, the operational files exception is what CIA has used to explain why it didn’t reveal the existence of the torture tapes in response to legal inquiries on records on torture. And further note, this is the single, solitary change that Clapper said he’d like to make legislatively, even while he suggested that legislative fixes weren’t needed for other broken aspects of the IC.

And that extends to putting our satellite and telecom surveillance under civilian control. When Kit Bond asked Clapper why he had flip-flopped on his earlier stated desire to move NGA and NSA under civilian control, one of his stated newfound concerns with doing so pertained to civil liberties.

In your meeting with me last week, you said that while you once believed that the DNI should have departmental authority over military intelligence agencies like NGA, you no longer believed that would be wise. Please take me through the evolution of your thinking on this important issue.

• What led you to believe it would be a good idea and what changed your mind?

I don’t recall saying that the DNI should have “departmental authority” over military intelligence agencies like NGA, however when the IRTPA was being debated in the Congress, Gen Hayden (then serving as Director of NSA) and I (then serving as Director of NGA) suggested that another paradigm should be considered: moving the agencies who’s first letter is “N” (as in national) out of the Department of Defense, and under the operational control of a DNI, might have merit. Putatively, although not expressed that way at the time, this would mean a “Department of Intelligence.” I have since come to believe that this arrangement would not be workable, since it could pose profound civil liberties challenges, and the “donor” Department (DOD) would, over time, regenerate the capabilities lost to the “Department of Intelligence,” since the support rendered by these agencies is so integral to warfighting.

Now, to be fair, Clapper may well be right about DOD’s interest in recreating these entities (though Congress would have to approve their budgets!). But it seems to me moving NSA and NGA might be better for civil liberties, as it would make it harder for some clown like John Yoo to claim that the military in hot pursuit could wiretap apartment buildings as he did in one of his opinions.

But it’s the last two issues might be of greatest concern.

First, as Kit Bond noted, Clapper somehow managed to overlook the timeline stipulated by transparency questions and neglected to list his 2006-7 affiliation with a number of intelligence contractors, including GEOEYE, 3001, Inc., Sierra-Nevada Corp, CSIS, US Geospatial Intelligenc Foundation, and DFI International (the last as COO). For a discussion of why this is important, see Tim Shorrock’s post on it.

Then, finally, there’s Clapper’s answers about the Iraq NIE:

During your confirmation hearing you noted that you agreed with the findings of the Committee’s Iraq report. that you were very familiar with the flaws in the NIE. having had your “fingerprints on it” as a member of the National Intelligence Board, and that you could “attest. since [you were] there, [the failure] was not because of politicization or any political pressure. It was because of ineptness.”

• Did you see any evidence during this period that the Intelligence Community provided intelligence assessments of Iraq to the Administration that differed, in substance, from those provided to Congress and the public?

No, from my vantage as Director of (then) NIMA, I did not see any evidence that the Intelligence Community provided intelligence assessments on Iraq to the Administration that differed, in substance, from those provided to Congress and the public.

• Did you ever hear a member of the Administration say something publicly about the intelligence on Iraq that you believed at the time was not supported by the intelligence?

I wondered about the certitude with which some in the administration spoke about the presence of WMD in Iraq, but I had no basis from my position as Director of NIMA to question those statements.

Of course, Congress never saw the full NIE, so by definition, the Administration got substantially different information–like some key footnotes–than most of Congress got.

Now, I’m at a bit of a loss because my books are all packed up, so I won’t find this detail directly. cBut implicit in Clapper’s answer is a claim that the NGA never gave the Administration information on–for example–what it was seeing in the Tora Bora area that didn’t get passed onto Congress. Clapper is claiming that all the wackadoodle satellite reports of WMD that Scooter Libby made the Iraq Survey Group chase down got shared with Congress.

I don’t buy it.

Then there’s the view Clapper did endorse: the claim that Saddam had snuck all his WMD out of Iraq before we got to it–something that, as head of NGA, he presumably should have had information to rebut.

Frankly, it pains me to see Kit Bond taking the lead on raising questions about Clapper’s nomination here while Dems help the Obama Administration rush him through before the August break.

This is a guy who appears to disagree with everything the Senate Intelligence Committee purports to believe about the DNI position. And yet even while they’re not getting cooperation on making changes to the position itself, they’re giving the Administration everything it’s asking for about its nominee.


The AP’s “Most Complete Published Account” that Leaves Out Torture

The AP’s DOJ and intelligence writers have a story out on the Durham investigation that purports to be “the most complete published account” of the destruction of the torture tapes. Only, it ignores key details that have already been published which paint a much more damning picture of the tapes and their destruction.

First, the news. The AP story does reveal the following new details:

  • The name of the guy in Thailand–then station chief Mike Winograd–involved in the destruction of the tapes
  • The news that the guy who destroyed the torture tapes–former CTC and Clandestine Services head Jose Rodriguez–is still lurking around Langley as a contractor with Edge Consulting
  • The observation that Rodriguez did not include the two CIA lawyers who “approved” the torture tape destruction (Steven Hermes and Robert Eatinger, who have been identified before) on his order to destroy them, which is perceived within CIA as highly unusual
  • The hint that prosecutors may use Sarbanes-Oxley to establish the requirement to keep the tapes as well as the detail that John Durham has prosecuted two of the only half a dozen cases that have used this Sarb-Ox provision
  • A list of reasons why all the requests that should have covered the tapes purportedly don’t:

_In early May 2003, U.S. District Judge Leonie M. Brinkema told the CIA to reveal whether there were interrogation videos of any witnesses relevant to the case of Zacarias Moussaoui, who was charged as a Sept. 11 conspirator. But that order didn’t cover Zubaydah, who Brinkema ruled was immaterial to the Moussaoui case, so the CIA didn’t tell the court about his interrogation tape.

_A judge in Washington told the agency to safeguard all evidence related to mistreatment of detainees at Guantanamo Bay. But Zubaydah and al-Nashiri were held overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.

_A judge in New York told the CIA to search its investigative files for records such as the tapes as part of a Freedom of Information Act suit. But the CIA considered the tapes part of its operational files and therefore exempt from FOIA disclosure and did not reveal their existence to the court.

_The Sept. 11 commission asked for broad ranges of documents, but never issued a formal subpoena that would have required the agency to turn over the tapes.

As such, the story adds valuable insight into the strategies that John Durham may be using to prosecute Jose Rodriguez and others.

But the story buys into certain well-cultivated CIA myths that obscure some other important details of the story:

  • The story replicates CIA’s favored narrative about why the tapes were made–“to prove that interrogators followed broad new rules Washington had laid out”–and why they were destroyed–to protect the identities of officers involved in the interrogation.
  • The story presents Winograd’s justification for destroying the tapes–“the inspector general had completed its investigation and McPherson had verified that the cables accurately summarized the tapes”–without any discussion of the fact that McPherson acknowledged evidence of tampering with the tapes during the IG Report and couldn’t say whether the techniques reflected the guidance given to the torturers.
  • The story ignores all evidence of earlier destruction of evidence and cover-up of criminal acts.
  • This claim–“The White House didn’t learn about the tapes for a year, and even then, it was somewhat by chance”–is either further evidence of a cover-up or simply false.

Let’s start with the primary fiction–that the tapes were designed solely “to prove that interrogators followed broad new rules Washington had laid out.” Aside from indications they were used for research purposes about the efficacy of the methods they were using, this claim suffers from a fundamental anachronism. After all, when the taping started on April 13, 2002, Washington had not yet laid out the broad new rules ultimately used to authorize Abu Zubaydah’s torture on August 1, 2002. Bruce Jessen didn’t even complete his proposed interrogation plan until three days after taping started.

Although, if “Washington” had indeed given Abu Zubaydah’s torturers broad rules three and a half months before the Bybee Memo was signed–reports have said that Alberto Gonzales authorized that treatment on a day to day basis–then that by itself would provide an entirely different logic for why the tapes were made and then destroyed (which is sort of the argument Barry Eisler makes in his book Inside Out).

That said, we know that already in April 2002, the torturers had exceeded the 24-48 limits on sleep deprivation set by DOJ and NSC. Which sort of blows the whole claim that CIA believed the torturers had remained within established guidelines…

But we also know that CIA not only knew that it had blown by the broad rules it had been given, but that the tapes provided some indication that they had. That’s why AP’s uncritical acceptance of Winograd’s justification is so problematic–it ignores the evidence reported in the IG Report that significant portions of the torture tapes–including two waterboarding sessions–had been altered or destroyed. McPherson, of course, didn’t find this earlier destruction of evidence “noteworthy.” But he did say, when asked five months after his report on the tapes whether the techniques on them reflected the guidance given to the torture team, that he would have to consult that guidance before he answered.

Now, to be fair, AP is only reporting Winograd’s justification for destroying the torture tapes. I’m not challenging that he did say that (indeed, it reflects the publicly available cable traffic). But the AP ought to point out to its readers the wiggle room here. The AP accepts the CIA claim that they made the tapes to make sure the torturers followed the rules set for them in Washington. But then why not point out that their justification for destroying them adopts a different standard–whether the tapes matched the log, rather than whether the tapes matched the guidelines? Why not note that McPherson himself admitted that he hadn’t reviewed for the latter standard, and that the IG Report clearly concluded the torture had exceeded the standards laid out for the torturers. Had the AP laid this critical detail out, then it might not be so mystified about why McPherson needed immunity or what his testimony might be able to reveal about the reasons why Jose Rodriguez ordered the tapes destroyed.

Which gets to the earlier evidence of a cover-up. We know–and Jay Bybee has confirmed–that the torturers did not follow the rules laid out for them. Further, there are hints that the tapes might have shown far more severe sleep deprivation than approved in the rules, sleep deprivation the CIA would used to authorize using that amount of sleep deprivation. Add in the possibility that the torturers used the mock burial that John Yoo would later refuse to approve and subsequently call torture.

There are very clear reasons why the torturers and those in CTC who authorized that torture–starting with Jose Rodriguez–might not want evidence that they exceeded limits on torture lying around in a safe in Thailand. And there are pieces of evidence that suggest the cover-up of what, since it exceeded DOJ guidelines, would be torture by anyone’s measure, started in 2002. In addition to McPherson’s odd report, there are also the curious details about the briefing record to Congress. Starting with the three day period in which Jose Rodriguez gave Nancy Pelosi and Porter Goss an incomplete briefing, followed the next day by the decision to destroy the tapes, followed the next day by some alteration of the only record of the Pelosi briefing. The Pelosi briefing, similar games with Bob Graham’s briefing, and the odd briefing Crazy Pete Hoekstra got the day the torture tapes were destroyed suggest that CIA’s briefings were all an attempt to put some legal fig leaf on the destruction of evidence of torture.

But that’s not the most important oddity about Congressional briefings on torture and the torture tapes. The AP reports that the White House didn’t know of the tapes until May 2004.

That’s funny.

If that’s true, then what happened at the meeting between CIA and the White House some time before February 22, 2003 regarding how to respond to Jane Harman’s letter that–among other things–objected to the destruction of the torture tapes? And why did the CIA go to apparent lengths to share the Pat Roberts briefing with the White House differently than they did the Jane Harman one? Mind you, it is possible that none of these documents show documentary evidence that the CIA consulted with the White House when deciding what to do with Harman’s written warning not to destroy the torture tapes (though, if as it appears, the White House got Pat Roberts’ MFR showing his approval to destroy the torture tapes, then the White House did know about the torture tapes). But if the CIA was working so closely with the White House on these briefings–one of three stated intents of which was to get approval to destroy the torture tapes–then the only way the White House didn’t know about the tapes is if the CIA very carefully gave the White House plausible deniability.

Which would, itself, provide yet more evidence that CIA knew it was involved in a cover-up.

Here’s the bottom line. There is a great deal of evidence that Jose Rodriguez knew as early as September 6, 2002 that he needed to destroy evidence of the torturers exceeding the guidelines set in DC. According to anyone’s definition, that means Rodriguez knew years before he had the tapes destroyed he was destroying evidence of torture, even by Jay Bybee’s and possibly John Yoo’s measure.

Yet the AP–in their “most complete published account”–doesn’t even mention that torture?


Jose Rodriguez Briefed Pelosi and Goss in Deceptive Abu Zubaydah Briefing

As MadDog noted, Judicial Watch just got some new documents detailing briefings Congress received. Or rather, they got new documents providing further proof that CIA has no fucking clue what it said to Congress during some key briefings (this batch shows, for example, that the fall 2003 briefings were never finalized into a Memo for the Record, just as earlier ones weren’t, and PDF 48 shows that many key briefings weren’t recorded).

But in what I’ve reviewed so far, the new documents reveal one important new detail. Page 44 of this PDF provides a mostly redacted record of the briefing CIA gave Porter Goss and Nancy Pelosi on Abu Zubaydah’s torture on September 4, 2002. We know–because both Goss and Pelosi have described this detail the same way–that CIA did not tell the House Intelligence leadership that it had already tortured Abu Zubaydah. CIA told Goss and Pelosi about waterboarding, but spoke of it as a technique that might hypothetically be used in the future, not something that had been used 83 times on one detainee the prior month.

But we haven’t known who gave that badly deceptive briefing. Mind you, I had my suspicions. I thought it likely that Jose Rodriguez, then head of Counterterrorism Center, and the guy who ordered the torture tapes destroyed three years later, was a likely candidate to have done that briefing. But there was no proof.

Until today.

Assuming CIA’s own documentation is accurate (always a big assumption, given the CIA), then Jose Rodriguez–listed as D/CTC–is the one who gave Goss and Pelosi that deceptive briefing.

Jose Rodriguez went on to participate in destroying evidence of torture that should have been briefed to Congress. And these documents prove (again, presuming CIA’s documents are accurate) that Jose Rodriguez was deceiving Congress about torture right from the start.


John Yoo: Stupid Political Hack AND Craven Addington Disciple

If ever there were a doubt that John Yoo was not just a craven lackey for David Addington, but also a stupid political hack, his op-ed today puts that doubt to rest. After whining about how mean the Senate Judiciary Committee was to Robert Bork and Clarence Thomas and John Roberts (!) and Sam Alito, Yoo launches into the kind of fantastic ravings you’d expect from Glenn Beck.

Republicans can also use the filibuster to return the federal government to its proper role in our constitutional system. When Obama chose Sonia Sotomayor for the Supreme Court last year, the jury was still out on the president. It wasn’t clear if Obama was a moderate technocrat, as much of the electorate hoped, or if he was a man of the left, as Republicans feared.

That answer is now clear. At home, Obama has launched a broad campaign to redistribute wealth and engineer social change. He and his large congressional majorities enacted a wasteful $800 billion stimulus, increased the national debt by 50 percent in two years, and nationalized the health-care sector – fully one-sixth of the economy.

On national security, Obama kept to the Bush-Petraeus drawdown schedule for Iraq and reluctantly surged troops to Afghanistan. But he has tried his best to fit the war against al-Qaeda into the box reserved for criminal activities: He promised to shut down Guantanamo Bay, abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators, announced a civilian trial in New York City for 9/11 plotter Khalid Sheikh Mohammed, and automatically treated al-Qaeda’s Christmas Day bomber as a criminal suspect.

[snip]

The GOP will earn public support for its actions, but more important it will be returning the Supreme Court to the original meaning and purpose of the Constitution. The framers wanted the federal government to play a limited role in domestic affairs, and an energetic one to protect the national security against unforeseen emergencies and war. They did not establish a government to redistribute income or impose a socialistic vision of regulated markets. The Constitution’s preamble declares its purpose: to “provide for the common defense” and “promote the general welfare,” not balance the common defense and promote special interests. If President Obama doesn’t send the Senate a nominee who understands those words, the Supreme Court vacancy could be another issue to await the results of the November elections.

John Yoo, apparently, had no problem with the way George Bush redistributed wealth to the very rich with the Wall Street Bailout and huge cuts in the estate tax. And he seems to have missed the news that Obama has embraced the kind of tools of unchecked executive power–including the ability to target American citizens for death with no due process–that John Yoo loves. And how cute that John Yoo now questions the kind of civilian trials that Bush used with Richard Reid and (eventually) Jose Padilla.

But what I’m most amused by is Yoo’s critique of Obama’s choice to forgo torture (kind of).

[He] abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators…

You see, John Yoo has always pretended he neutrally read the law when he wrote his torture memos. He claimed, repeatedly, that he just did the legal analysis and had no stake in the policy decision. He suggested that he didn’t care, one way or another, whether Bush and Cheney embraced torture, he was just the lawyer doing analysis in isolation from those policy questions. He further has claimed that he only approved limited torture, not the techniques described by the press (which happen to match what the CIA IG saw on the torture tapes).

But all that, of course, is proven to be bullshit, as John Yoo bases his critique of Obama on the claim that Obama has chosen not to use the illegal tactics that Yoo himself authorized. That’s not only an admission–on the part of Yoo–that his claims to political neutrality were all lies. But it’s a repudiation of the very expansive claims to executive power that John Yoo holds dear: after all, if the executive has absolute authority to decide how to implement foreign policy, than the disgraced hacks from the past Administration have no business critiquing the exercise of that authority. The unitary executive is not a requirement that the executive always choose the most extreme policy just for shits and giggles, but rather that the executive has the authority to decide what to do, even including choosing less abusive but more effective policies (which is not to say Obama has always taken that approach).

John Yoo was always an embarrassing hack. But for some reason, the upcoming SCOTUS fight has made him reveal his hackery in full splendor.


Dick Cheney’s Counterterrorism Incompetence Continues to Endanger Us

When I was out tromping around Yosemite (!!) on Friday, one of Najibullah Zazi’s co-conspirators, Zarein Ahmedzay, plead guilty to two terrorism-related charges.

Mark that up as yet another counterterrorism victory for civilian courts.

But it’s more than that. As Isikoff and Hosenball emphasize, the government revealed on Friday that Zazi and Ahmedzay received instructions from two top al Qaeda figures–Saleh al-Somali and Rashid Rauf–in 2008. Here’s how DOJ reveals the detail in their press release:

As Ahmedzay admitted during today’s guilty plea allocution and as reflected in previous government filings and the guilty plea allocution of co-defendant Najibullah Zazi, Ahmedzay, Zazi and a third individual agreed to travel to Afghanistan to join the Taliban and fight against United States and allied forces. In furtherance of their plans, they flew from Newark Liberty International Airport in Newark, N.J., to Peshawar, Pakistan at the end of August 2008. Ahmedzay and the third individual attempted to enter Afghanistan but were turned back at the border and returned to Peshawar.

Within a few days, Ahmedzay, Zazi and the third individual met with an al-Qaeda facilitator in Peshawar and agreed to travel for training in Waziristan. Upon arriving, they met with two al-Qaeda leaders, but did not learn their true identities. As the government represented during today’s guilty plea, the leaders were Saleh al-Somali, the head of international operations for al-Qaeda, and Rashid Rauf, a key al-Qaeda operative. The three Americans said that they wanted to fight in Afghanistan, but the al-Qaeda leaders explained that they would be more useful to al-Qaeda and the jihad if they returned to New York and conducted attacks there. [my emphasis]

Now, that’s interesting for several reasons. Rauf, as you might recall, had a key role in planning the foiled 2006 attempt to use liquid explosives to blow up airliners (potentially using the same TATP Zazi was going to use in his plot). The British were busy conducting a solid law enforcement investigation of the plot and were working with Pakistan to extradite Rauf. But partly in an effort to shore up Bush’s crappy poll numbers, Cheney and the guy who ordered the destruction of the torture tapes, Jose Rodriguez, asked the Pakistanis to pick up Rauf before the Brits could finish their investigation. Here’s how Ron Suskind described what happened.

NPR: I want to talk just a little about this fascinating episode you describe in the summer of 2006, when President Bush is very anxious about some intelligence briefings that he is getting from the British. What are they telling him?

SUSKIND: In late July of 2006, the British are moving forward on a mission they’ve been–an investigation they’ve been at for a year at that point, where they’ve got a group of “plotters,” so-called, in the London area that they’ve been tracking…Bush gets this briefing at the end of July of 2006, and he’s very agitated. When Blair comes at the end of the month, they talk about it and he says, “Look, I want this thing, this trap snapped shut immediately.” Blair’s like, “Well, look, be patient here. What we do in Britain”–Blair describes, and this is something well known to Bush–”is we try to be more patient so they move a bit forward. These guys are not going to breathe without us knowing it. We’ve got them all mapped out so that we can get actual hard evidence, and then prosecute them in public courts of law and get real prosecutions and long prison terms”…

Well, Bush doesn’t get the answer he wants, which is “snap the trap shut.” And the reason he wants that is because he’s getting all sorts of pressure from Republicans in Congress that his ratings are down. These are the worst ratings for a sitting president at this point in his second term, and they’re just wild-eyed about the coming midterm elections. Well, Bush expresses his dissatisfaction to Cheney as to the Blair meeting, and Cheney moves forward.

NPR: So you got the British saying, “Let’s carefully build our case. Let’s get more intelligence.” Bush wants an arrest and a political win. What does he do?

SUSKIND: Absolutely. What happens is that then, oh, a few days later, the CIA operations chief–which is really a senior guy. He’s up there in the one, two, three spots at CIA, guy named Jose Rodriguez ends up slipping quietly into Islamabad, Pakistan, and he meets secretly with the ISI, which is the Pakistani intelligence service. And suddenly a guy in Pakistan named Rashid Rauf, who’s kind of the contact of the British plotters in Pakistan, gets arrested. This, of course, as anyone could expect, triggers a reaction in London, a lot of scurrying. And the Brits have to run through the night wild-eyed and basically round up 25 or 30 people. It’s quite a frenzy. The British are livid about this. They talk to the Americans. The Americans kind of shrug, “Who knows? You know, ISI picked up Rashid Rauf.”

DAVIES: So the British did not even get a heads-up from the United States that this arrest was going to happen?

SUSKIND: Did not get a heads-up. In fact, the whole point was to mislead the British…The British did not know about it, frankly, until I reported it in the book… [my emphasis]

And that, in turn, had two effects. First, it screwed up the British investigation, making it much harder for them to convict the plotters remaining in the UK. In addition, it put Rauf in Pakistani, not British, custody. In 2007, he was allowed to escape, when Pakistani authorities let his uncle, rather than the police, escort him back to prison after a court appearance. And that’s why Rauf was free to plan further plots in the UK and, apparently, Zazi’s planned attack on the NY Subway.

American authorities claim to have killed Rauf (and Saleh al-Somali) with two separate drone strikes in late 2008. But it remains unclear whether Rauf actually died in that 2008 strike.

So he may still be out there, because Dick Cheney wanted to boost Bush’s poll ratings rather than let the Brits develop their case and extradite Rauf into secure custody in 2006.

I’ve been wondering since Zazi was arrested why the right-wingers don’t want to talk about him at all, ignoring the Zazi case to instead squawk about the underwear bomber. I’m beginning to wonder if this is the reason: Dick Cheney’s refusal to let law enforcement work four years ago exposed us to at least three more years of Rauf’s plotting.

A bunch of NY subway riders may have almost gotten killed last September 11 because Dick Cheney wanted to boost poll numbers in 2006 rather than let law enforcement work.


The Interview Questions

I talked yesterday about one of the puzzling documents in last week’s FOIA dump. In this post, I wanted to try to figure out why the most puzzling document–the Interview Questions from PDF 106-108. The document has no date nor any office information–it’s just a 3-page list of questions marked Top Secret.

Given how little we have to go on, this is just a wildarsed guess. But I’m guessing the questions were used in CIA Inspector General’s review of the torture program while interviewing someone who, while at CTC, had had a supervisory role over the program. And I’m guessing John Durham withheld this document under the law enforcement privilege because he was using these questions to make better sense of the interview report, which presumably is one of the interview reports identified to have ties to the torture tapes, but which remains classified.

At first, I wasn’t sure this was a set of questions from the IG Report. But question 24, which asks about a specific EIT used with Rahim al-Nashiri at what must be a third black site, maps onto the IG Report’s description of the use of a gun and a drill to threaten al-Nashiri in what, too, must have been al-Nashiri’s second black site (because we know the Thai black site closed in December 2002). Significantly, it was a CTC debriefer who made these death threats against al-Nashiri.

In addition to the interview report of John McPherson (PDF 33-37) there are two or three IG interview reports associated with the torture tapes. The Vaughn Index of hard-copy documents shows an interview report dated February 19, 2003. The interrogation index shows interview reports from February 3 and February 10, 2003.  Assuming these are three different interviews, one of the interviews is probably the interview in question. Significantly, we know from a number of Vaughn Index entries that there was some discussion about how to arrange for the IG to review the tapes on February 7, 2003, so it’s possible that the interview in question preceded the IG’s efforts to go review the tapes.

In any case, the items of interest to John Durham’s investigation must be the CTC officer’s response to the following two or three questions.

8. What is the background related to the decision to videotape interrogations [redacted]?

9. What are your views regarding whether the tapes should be destroyed?

10. What was the rational [sic] for transferring responsibility from [redacted]?

I’m assuming the answers to those questions–in one of the actual interview reports–is considered too classified to be released in any form.

One more item on this point. Note the document at PDF 95-99, which is clearly someone within the IG office forwarding a trip report from the torture review to the person who originally wrote the trip report. Most of this clearly pertains to the review of the videotape. But the last two paragraphs or so refers to three interviews.

Finally, one more question all this raises. When did the IG decide to review the torture tapes? When did the IG review become the big delay on destroying the torture tapes? We know it happened before February 5, 2003, when Scott Muller briefed Jane Harman and Porter Goss, because she references the IG review in her letter objecting to their destruction. But the Abu Zubaydah document written some time in January doesn’t mention an IG review.


The Abu Zubaydah Document

One of the most curious documents turned over in last week’s FOIA dump is the last one, titled “The CIA Interrogation of Abu Zubaydah” (PDF 110-122). While these are just wildarsed guesses, I suspect it may either have been a summary developed for the CIA Inspector General’s office for use in its review of the torture program or a summary to prepare Stan Moskowitz, then head of CIA’s Office of Congressional Affairs, to brief the Gang of Four in early February 2003.

The Timing

This document must have been written between January 9 and January 28, 2003. On PDF 117, the document describes CIA’s Office of General Counsel completing its review of the torture tapes; that report was finalized on January 9. The same page describes the “Guidelines on Interrogation Standards,” which was ultimately signed by George Tenet on January 28, as not yet having been approved. The document makes no mention of the Inspector General’s plan to review the torture tapes impacting the decision on destroying the torture tapes, that decision was initiated in early February. It also refers to the need to brief Congress on the torture tapes in the future.

The Structure

The document includes a long Top Secret section, followed by a short summary of the document classified Secret. That suggests that the audience of this document might in turn have its own audience with which it could use the Secret summary. So, for example, if the IG were the audience, it might be permitted to use the summary description in its final report. If Gang of Four members were the audience, they might be permitted to keep the Secret summary but not to see the Top Secret report.

The Top Secret section of the document has the following sections (each section has its own classification mark, which shows in the margin, which is how we know where redacted titles appear):

  • Abu Zubaydah: Terrorist Activities
  • Injuries at Time of Capture
  • Highlights from Reporting by Abu Zubaydah
  • [Completely redacted section]
  • Interrogation Techniques Used on Abu Zubaydah
  • [Redacted title and page and a half, though this section includes discussion of videotapes and training, which suggests the section describes the management controls on the torture]
  • [Completely redacted section]

The Hand-Written Notes

Curiously, this document showed up in the January 8, 2010 Vaughn Index but not–as best as I can tell–in the November 20, 2009 Vaughn Index (or, if it showed up in the earlier Index, John Durham had not yet protected it under a law enforcement privilege). That means that the document existed as an electronic document. Yet, as the Vaughn Index tells us, this document has “handwritten marginalia” on it. These are presumably what the redactions are to the right of the main text on PDF 111 and 112. The redactions on PDF 113 are also wider than other sections, suggesting there is marginalia there, too.

In other words, the reader of this document made notes in response to the following claims (in addition to whatever appears in the long redacted section on PDF 113):

  • [AZ] was heavily involved in al Qa’ida’s operational planning, and had previously been an external liaison and logistics coordinator.
  • Abu Zubaydah was provided adequate and appropriate medical care.
  • Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa’ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington DC, or New York City.

The first and third of these claims, of course, are somewhat dubious (though the first is more restrained than the CIA was publicly making at the time). So the reader may have been questioning these claims. And the notation next to the claim about AZ’s “adequate” medical care reminds me of the Ron Suskind report that George Bush got enraged when he learned AZ had been given pain killers. In any case, these notations suggest the reader of this document may have had a very high level of information on AZ.

The Contents

Here are notable contents, by section:

Abu Zubaydah: Terrorist Activities

As I said above, the claims made in this section are more restrained than the CIA was making publicly in January 2003. Rather than call AZ the number 3 guy in al Qaeda, it calls him a lieutenant of Osama bin Laden (a claim that is still incorrect, however). The description of AZ as “an external liaison and logistics coordinator,” however, is a much more accurate description of AZ’s true role than CIA has traditionally given.

Injuries at Time of Capture

The report describes two bullet wounds: one, in his leg. The description of the second is redacted (but I believe this was a gut wound, though it might refer to him losing a testicle, which AZ described in his CSRT). There is a separate bullet point describing another physical issue; I wonder whether this is a description of the lingering effects of his 1992 head wound?

Highlights from Reporting by Abu Zubaydah

There are seven bullet points of information here. Perhaps most telling is the admission that “Over time, he had become more willing to cooperate on many issues.” You’d think someone might have questioned whether AZ’s cooperation increased as he got further from his torture?

First redacted section

This section would be the logical sequitur between AZ’s past interrogation and the techniques used to interrogate him. I wonder whether they discussed either inaccuracies in his information, or described the things he had not yet revealed (such as the location of Osama bin Laden) that they thought he knew? Alternately, it might describe what they had planned for his interrogation going forward.

Interrogation Techniques Used on Abu Zubaydah

By far the most interesting detail in this section is the redaction in the section on which torture techniques they’ve used on Abu Zubaydah:

The Agency sought and received Department of Justice approval for the following [redacted] enhanced techniques. [Four and a half lines redacted] the waterboard.

What should lie behind those redactions are the word “ten” and the names of the techniques approved in the Bybee Two memo. The fact that the passage is redacted must mean that that’s not what this passage says–which suggests that this document claimed DOJ had approved techniques they had not actually approved (or, that DOJ approved techniques verbally that were not ultimately approved in the Bybee Two memo). Given that we know this document is one John Durham considered important to his investigation, it may support the notion that some things shown on the videos–perhaps things like mock burial–were one of the things CIA was trying to hide by destroying them.

Also, as I noted earlier, this passage suggests how AZ’s sleep deprivation got out of control in the early days. But it doesn’t admit how long they did use sleep deprivation with him.

This section makes the ludicrous claim that AZ “is the author of a seminal al Qaida manual on resistance to interrogation methods,” presumably referring to the Manchester Manual. (Though AZ would describe “the Encyclopedia” in interrogations in June 2003.)

I find this description of James Mitchell and Bruce Jessen laughable:

Agency employees engaged in the interrogation are complemented by expert personnel who possess extensive experience, gained within the Department of Defense, on the psychological and physical methods of interrogation (SERE) and the resistance techniques employed as countermeasures to such interrogation. These expert medical personnel were present throughout the interrogations.

I find it curious that this passage makes no mention that Mitchell and Jessen developed the torture program, nor that they were contractors. And I’m amused that they are described as “medical” personnel, as if they had any concerns for AZ’s medical condition.

I find it really telling that this passage boasts of having done medical examinations before and during the torture, but not psychological evaluations before and after.

Medical evaluations were conducted on Abu Zubaydah before and during the interrogations. In addition, a psychological profile was conducted on him before the interrogation began.

You’d think someone at CIA would order up a psychological evaluation after all this torture, huh? But what this passage seems designed to do, instead, is spin the medical monitoring that was part of the experimental side of AZ’s torture as good medical care (which is also what the description of Mitchell and Jessen as “medical personnel” seems designed to do).

Which may be what the following section is designed to do, too:

It is not and has never been the Agency’s intent to permit Abu Zubaydah to die in the course of interrogation and appropriately trained medical personnel have been on-site in the event an emergency medical situation arises.

Let’s unpack this. First, the denial that the Agency ever intended to let AZ die suggests perhaps the denial itself is untrue. I’m curious why this passage describes these personnel as “appropriately trained medical personnel” and not something like “doctor,” “nurse,” or “medic”? Is it a way to try to explain away the presence of people collecting medical research information, to suggest that they had to have that kind of training? And the reference to “an emergency medical situation,” when we know that they had real concerns about AZ’s injuries and were closely tracking whether torture caused severe pain, is just cynical. The whole passage is one of the creepiest in the entire document!

This section describes the terms of approval for torture from DOJ. But it never once mentions the Bybee memos (perhaps because it might lead someone to discover that the ten techniques in the Bybee Two memo don’t match the techniques listed in this section)?

Finally, look at how underwhelming this claim about the effectiveness of torture is:

The use of enhanced interrogation techniques proved productive; Abu Zubaydah provided additional useful information.

It’s telling, too, that they make this claim in an entirely different section from where they boast of all the good intelligence AZ provided. They chose not to tie the specific pieces of intelligence he gave to the techniques use.

Redacted title–probably on management controls on interrogation

As I said, the title of the section that includes the videotapes and training is redacted, along with three primary and two secondary bullet points (which span a page and a half) before the videotape section, and two more after the training section (which take up another half page). I’m wondering if this redacted section talks about the reporting from the Field to HQ?

The section on videotapes makes a claim that–from what we see of the McPherson interview report–appears to be false.

The attorney concluded that the cable traffic did in fact accurately describe the interrogation methods employed and that the methods conformed to the applicable legal and policy guidance.

At the time of his interview, it appears that McPherson said he’d have to review the guidance again before he could say whether the torture portrayed in the videotapes matched the guidance (which, the IG team concluded, it did not). And here’s how this document describes the state of the discussion on destroying the torture tapes.

After his review, the General Counsel advised the DCI that OGC had no objection to the destruction of the videotapes, but strongly recommended that the new leadership of the committees first be notified about the existence of the tapes and the reasons why the Agency has decided to destroy them.

Boy, I guess Jane Harman really screwed up their plans when she objected, in writing, to the destruction of the tapes? This passage is one of the things that makes me wonder whether this document wasn’t written to fill in Stan Moskowitz before he briefed Congress; though I’m inclined to think CIA wouldn’t give the Gang of Four this much information, even though it is very deceptive in parts.

The Summary

The Secret Summary section covers the following four areas:

  • AZ’s nationality
  • His role in AQ (again using the “external liaison and logistics coordinator” language)
  • The intelligence he gave
  • His physical condition

Of note, the intelligence section includes this language, which is either redacted or not present in the Top Secret description of the intelligence he gave.

[AZ] has provided information on Al Qa’ida’s CBRN program and on individuals associated with that program.

Also compare how the Top Secret report refers to AZ’s intelligence on Padilla and Binyam Mohamed…

Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa’ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington, DC, or New York City. Both have been captured.

…to how the Secret summary refers to it:

Information from AZ was instrumental in the capture near Chicago of Jose Padilla, a “dirty bomb” plotter, explosives expert, and terrorist trainer at Qandahar.

Other Details

I’m interested, then, in what this says about Durham’s investigation. Obviously, it provides a great snapshot of what CIA claimed it believed at the time it first planned to destroy the torture tapes. It may show CIA claiming it had approval for torture techniques it did not have approval for. Oddly, the document doesn’t appear to explain why the tapes were first made–it appears that the first mention of them comes in the description of McPherson’s review.

This document has three sets of Bates stamps on it: the five-number series, the six-number series, and the IG series from 2007. So it has been reviewed several times in a legal context.

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