May 25, 2022 / by 


Why Can’t CIA Handle the Same Level of Oversight the Military Gets?

"We tortured Qahtani," the convening authority for military commissions, Susan Crawford, admitted to Bob Woodward earlier this year. "His treatment met the legal definition of torture."

Though I’m sure it happened, any criticism of Crawford for this admission was muted. I know of no one who claimed that Crawford was causing servicemen and women to be distracted from their core mission of protecting the country. No skies fell, and few claimed they had or would.

But it’s not just Crawford who confessed that the military tortured a Gitmo detainee. Congress, too, has chronicled the ways in which the military tortured detainees. The Senate Armed Services Committee spent eighteen months investigating the way in which the military adapted SERE techniques for use on al Qaeda, Afghan, and Iraqi detainees. Their report describes how techniques approved by Donald Rumsfeld for some circumstances–sleep deprivation and stress positions contributed to homicides in Afghanistan.

In December 2002, two detainees were killed while detained by CITF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were direct contributing factors in the two homicides.

It describes how, a month before those homicides, the Special Forces wrote a memo noting their risk in participating in such interrogations.

"we are at risk as we get more ‘creative’ and stray from standard interrogation techniques and procedures taught at DoD and DA schools and detailed in official interrogation manuals."

It describes the CIA’s General Counsel warning DOD that certain units in Iraq were using methods that not even the CIA would use on the same detainees (suggesting the military interrogators were violating the Geneva Conventions in a legal war zone).

CIA General Counsel Scott Muller had called Jim Haynes and told him that the techniques used by military interrogators at the SMU TF facility in Iraq were "more aggressive" than techniques used by CIA to interrogate the same detainees.

It describes the actions those who tortured, those who planned the torture, and those who authorized it.

It describes interrogators stripping detainees, beating them, making them stand for 12 hours, interrogating them for 20 hours, threatening death and the detention of detainee family members, female interrogators touching them inappropriately. It describes the documents that authorized some version of those actions.

It describes James Mitchell and Bruce Jessen developing interrogation plans based on SERE and Colonel Randy Moulton pitching those techniques throughout the military and intelligence services. It describes Major General Dunlavy asking to use harsher interrogation methods in Gitmo and Captain Carolyn Wood adopting the methods from Afghanistan in Iraq. It describes Jim Haynes recommending methods amounting to torture in a mere one page memo and Rummy approving that memo even as he added a snarky comment asking why detainees didn’t have to stand more. It describes David Addington and Alberto Gonzales helping to craft the legal cover for these activities. It describes the multiple warnings, internally, that this program constituted torture.

In short, SASC produced a report that showed how torture was systematically introduced into the military, with the participation of figures from the White House on down to unit commanders. SASC produced that report and–with a reasonable amount of redaction–released it to the public.

And while some Republicans (notably, the Senate Intelligence Committee’s ranking member, Kit Bond) tried to claim the report had been a partisan hit job, none of the Republicans on the Committee dissented in its release: not John McCain, not Jeff Sessions, not even James Inhofe.

Secretary of Defense Robert Gates did not write op-eds wailing that such oversight would distract servicemen and women and impede their ability to defend the country. While some people who had personally been involved in setting up Gitmo–most notably Kirk Lippold–have personally attacked Obama for ending torture and moving to close Gitmo, even Lippold’s complaints were not directed against oversight itself.

There were, for a few weeks, claims that Congress’ oversight of the military’s role in torture would make the sky fall, but the sky didn’t fall. Admittedly, there were many more claims that the release of new detainee abuse pictures might make the sky fall, but even there, those cries were directed against ACLU, and not oversight in general.

In this day and age, those Special Forces personnel involved in interrogation are every bit as exposed as the CIA. They did everything the CIA did except perhaps for waterboarding (and some may have even participated in the abusive interrogations of top al Qaeda figures). So the military is just as exposed because of its involvement in torture as the CIA. 

Yet the military withstood oversight and exposure of its role in torture.

Compare that to the CIA’s response, as the Senate Intelligence Committee conducts what appears to be a thorough investigation and as the House Intelligence Committee begins a broader investigation into CIA’s role in covert ops. Such oversight will doom the morale of the men and women at CIA! In doing so, it will distract these professionals and prevent them from doing their jobs! 

And, most recently, the Director of the CIA issued a veiled threat, suggesting CIA shouldn’t use intelligence on Congress (and vice versa).  Imagine the response if, in response to Congressional oversight, the Secretary of Defense were to raise using DOD’s weapons on Congress (which is not to say NSA hasn’t collected some Congressional communications over the years).

I know it’s a perennial game in DC to wail that the intelligence community will simply melt if Congress exercises oversight over it. But really. In the face of DOD withstanding precisely the same kind of oversight Congress is discussing for the CIA, isn’t it time to simply laugh at the cries that the sky is falling?

Rummy: It’s Jim Haynes’ Fault

Justin Elliott at TPMM takes a close look at Donald Rumsfeld, scrambling for excuses, for his involvement in trashing the Geneva Convention. As Elliott points out, Rummy’s excuse of "process" is pretty lame.

But I’m also interested in the way Rummy blames Jim Haynes, DOD’s General Counsel. Elliott quotes from Rummy biographer Bradley Graham:   

With the passage of time, Rumsfeld has come to recognize that he made a mistake, although he sees the error as one of process, not basic judgment. He faults himself for taking too legalistic an approach initially, saying it would have been better if senior Pentagon officials responsible for policy and management matters had been brought in earlier to play more of a role and provide a broader perspective. As he explained in an interview in late 2008, policies were developing so fast in the weeks after the September 11 attacks that he did not follow his own normal procedures. "All of a sudden, it was just all happening, and the general counsel’s office in the Pentagon had the lead," he said. "It never registered in my mind in this particular instance–it did in almost every other case–that these issues ought to be in a policy development or management posture. Looking back at it now, I have a feeling that was a mistake. In retrospect, it would have been better to take all of those issues and put them in the hands of policy or management." 

Granted, this is a version of the same argument Jack Goldsmith (who came into DOD’s OGC in spring 2002) makes–things got out of hand because everything was so legalistic.

The excuse is credible given what we know of Rummy’s December 2002 approval of harsh interrogation methods. Jim Haynes’ office served as a gatekeeper, ensuring that none of the services–the policy people–could weigh in on the stupidity of torturing detainees. And then, with almost no review, Rummy signed off on a one page memo authorizing the use of the techniques.

At the same time, I’m most interested in the timing. "In the weeks after the September 11 attacks … the general counsel’s office in the Pentagon had the lead." This puts Haynes in the mix much earlier than–for example–the Senate Armed Services Committee Report on torture does. The SASC Report first records Haynes’ office soliciting JPRA for interrogation techniques in December 2001–early, certainly, but not exactly the "weeks after the September 11 attacks."

In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee "exploitation" from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions. 

What I suspect Rummy’s really saying, though, is that the War Council–run by Haynes’ mentor David Addington–was really in charge, and that Addington worked the bureaucracies he knew well (he had worked at both DOD and CIA) to trash the Geneva Convention in a decentralized but effective way.

If I’m right about what this really means, though, then for some reason Rummy still doesn’t want to go there.

Cheney Lies, Obstruction Of Justice & Torture Tape Destruction

Marcy earlier noted the article in today’s Washington Post by Peter Finn and Joby Warrick detailing the story surrounding abu-Zubaydah’s capture and torture. I want to pick up with Marcy’s last line:

Yet more reason they destroyed the torture tapes showing Abu Zubaydah’s interrogation.

Well, yes, because it was crystal clear at the outset the explanation initially given by the Bush/Cheney Administration – that they had researched the matter completely and the tapes had no evidentiary value in any possible proceeding whatsoever and they were concerned about privacy of hard working investigators – was totally bogus.

It has been my belief from the outset that the reason the "torture tapes" were destroyed was not simply because they depicted the brutal torture of detainee subjects but, just as importantly, if not more so, they demonstrated there was no credible/usable information produced as a result of that torture. Warrick and Finn confirm this. Even worse, they confirm what little good information the Bushies did extract from abu-Zubaydah was obtained through traditional interrogation prior to the onset of the torture program:

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda’s chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed.

Abu Zubaida was not even an official member of al-Qaeda, according to a portrait of the man that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources.

And there you have it. The Bushies made the conscious and criminal decision to go full tilt torture having direct reason to know both that abu-Zubaydah was cooperating through traditional interrogation and he was of very marginal use as an information source to start with.

Frustrated, the Bush administration ratcheted up the pressure — for the first time approving the use of increasingly harsh interrogations, including waterboarding.

The application of techniques such as waterboarding — a form of simulated drowning that U.S. officials had previously deemed a crime — prompted a sudden torrent of names and facts. Abu Zubaida began unspooling the details of various al-Qaeda plots, including plans to unleash weapons of mass destruction.

Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms….Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

"We spent millions of dollars chasing false alarms," one former intelligence official said.

Such is the clincher as to why the torture tapes had to be destroyed. It wasn’t just that Bush/Cheney et. al wanted to keep evidence of their torture program secret, there was never any complete way to do that. But there was only one thing that could prove they tortured for nothing and got nothing – the tapes. Cheney and his coterie of fellow Torquemadas were fiends proud of their handiwork; if they had evidence that it worked, they would have kept it. They burn spies for fun, crow on television about their willingness to torture and what they have accomplished, do you really think for one second they wouldn’t retain proof if they had it?

And let us not forget just who we are talking about here – it is the White House Principals group:

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies.

Cheney, Rice, Rumsfeld, Powell, Tenet and Ashcroft. Means, motive and opportunity. Who could have imagined?

This certainly explains why it was top White House lawyers including Gonzales, Addington, Bellinger and Miers, with "vigorous sentiment", assisted the CIA in the decision and process to destroy the torture tapes of abu-Zubaydah and others. There are definable offenses in their conduct: obstruction of justice, contempt of court, conspiracy, false statement/perjury, mishandling of classified material, and willful destruction of material evidence in federal investigations.

There exist patently clear crimes; where is the criminal justice system? We should not have to be humiliated by having to rely on other first world countries such as Spain, or international committees such as the Red Cross, to show us functioning justice and the rule of law.

I don’t want the Obama Administration to be partisan and spiteful, I want them to do their damn job. Is that too much to ask?

John Yoo’s Wrestling Match with the First Amendment

Among his other specious attempts at self defense in this column, John Yoo claims,

The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment’s requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right." The Court continued: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

Our memo had nothing to do with the First Amendment.

Pot, Kettle

Understand, one of Yoo’s central strategies in this memo is to strip the 2001 AUMF out of the context in which Congress specifically refused to authorize the use of "appropriate force" in the United States. Stripped from that context, Yoo claims in the memo that the AUMF explicitly allows for the "domestic use of force."

Section 2 [of the AUMF] authorizes the use of "all necessary and appropriate force" against the designated nations, organizations or person. Further, Congress declares that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." … This broad statement reinforces the War Powers Resolution’s acknowledgment of the President’s constitutional powers in a state of national emergency. Like the War Powers Resolution, [the AUMF] does not limit its authorization and recognition of executive power to the use of force abroad. Indeed, [the AUMF] contemplates that the domestic use of force may well be necessary and appropriate. For example, [the AUMF’s] findings state that the September 11 attacks "render it both necessary and appropriate that the United States … protect United States citizens both at home and abroad." (emphasis Yoo’s).

By focusing on a "single out-of-context sentence," Yoo claims Congress authorized something it specifically refused to do–authorize "all necessary and appropriate force in the United States and against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" 9/11.

And, as Mary explains, even Yoo’s use of Near v. Minnesota is an example of Yoo stripping legal language out of context.

From a legal standpoint, the best he can pitch is Near v. Minnesota. It is at this point that some first year law student should tutor Yoo on the difference between dicta and holdings. When courts ramble on like me about how they might hold on things that might be or could be, but aren’t the case in front of them, so they aren’t really making a ruling on them, that’s “dicta”

Near v. Minnesota is what is called a “prior restraints” case. It was about a statute that made certain kinds of things illegal to publish – operating to foreclose the conversation before it starts.

The Supreme Court actually struck DOWN the Minnesota statute (and the case was used as precedent for the Sup Ct refusing to engage in prior restraint for the publication of the Pentagon papers). That was the actual “holding” in Near – that state government could not, by statute, engage in prior restraint of speech.

With that context, which Yoo doesn’t provide in his piece, he then wrings his hands over the fact that the quote from his memo, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully”

He is indignant (and really bad at being insulting) because quoting from his memo MISREPRESENTS the memo.

Yoo then shows the kind of understanding of case law and differentiation between dicta and holdings that would be deemed less than acceptable at any B grad law school. He is being misrepresented, he says, bc his statement is a *summary* of the Sup Ct holding in Near.

“The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota

he says, and goes on to then quote the “holding” that he is summarizing:

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right.” The Court continued: “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”

Except, of course, that as mentioned, the actual case in front of the Near court, the actual matter on which they held, involved a State’s prior restraints statute that was struck down. So Yoo first converts dicta to a holding, then mis-summarizes it in his memo, then can’t understand why anyone would roll their eyes.

John Yoo, having stripped this passage out of the context in which it appears in Near v. Minnesota to make the opinion say something it didn’t, then complains that it has been stripped of context in the press. 

So before we even get into whether this memo is about the First Amendment or not, appreciate the irony of John Yoo, master of flipping the meaning of existing law by ripping it out of context, bitching that he has been taken out of context.

Waging War on the First Amendment

Now before we look at Yoo’s use of the First Amendment in this memo, note how he envisions the military might be used domestically.

Military actions might ecompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects.

On its face, these actions appear to be prohibited by the Fourth Amendment, not the First–though Yoo’s long digression into discussions of Court interpretations of whether or not destruction of property amounts to a "taking" under the Fifth Amendment (a move he also references in his column) suggests he has thought about that Amendment, too, presumably in the context of whether or not the government can freeze the assets of those claimed to be supporters of terrorism. 

But in the age of the Internet–in which web pages are the published form of many documents–"seizing documents" may well entail asking an ISP to shut down a website or even seizing a server. In other words, the 21st Century equivalent to seizing documents may get you to the explicit issue at question in Near–whether the government could prevent someone from publishing something ahead of time.

The same is true of "intercepting electronic or wireless communication." As part of its efforts to intercept electronic communications, the government mined data to identify targets, thereby using how we speak (if not what we say, which may have been mined as well) to accomplish this goal.

So even just taking the way in which the government went about implementing the purposes Yoo envisions in this memo–including but not limited to seizing documents and intercepting communications–these actions "subordinate" the First Amendment to military operations in the United States.

And then look at two more mentions that Yoo introduces in a First Amendment case. As Mary mentioned, Yoo also mentioned this passage from Near:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

Think about how, in the addled minds of John Yoo or Donald Rumsfeld, such language might justify CIFA–the domestic spying operation operated through DOD that put together databases of those who, because they had exercised First Amendment rights to protest the war, were considered a potential threat to military operations. This kind of passage, taken "out-of-context" by the Bush Administration, gets you quickly to databases targeting peaceful Quakers.

And consider another Yoo reference to abridgment of the First Amendment.

State and federal court reviewing the deployment of military force domestically by State Governors to quell civil disorder and to protect the public form violent attack have repeatedly noted that the constitutional protections of the Bill of Rights do not apply to military operations the same way that they apply to peacetime law enforcement activities.


"[Whatever force is requisite for the defense of the community or of individuals is also lawful. The principle runs through civil life, and has a twofold application at war–externally against the enemy, and internally as a justification for acts that are necessary for the common defense, however subversive they may be of rights which in the ordinary course of events are inviolable." Hatfield, 81 S.E. at 537 … (upholding the Governor’s seizure of a newspaper printing press during a time of domestic insurrection).

Again, Yoo resorts to an example implicating the First Amendment to make his argument. 

Now, Yoo claims that those criticizing this memo haven’t read the whole thing.

In releasing these memos, the Obama administration may be attempting to appease its antiwar base — which won’t bother to read the memos in full — or trying to look good for the chattering classes.

What he doesn’t admit, of course, is that those of us who have read the whole thing will only be more and more convinced that Yoo aimed directly at a number of Amendments with this memo.

How nice that Yoo availed himself of the First Amendment he was targeting to claim that he wasn’t targeting it.

The WSJ's Curious Picture of Congress and Torture

I was overly optimistic about the head cold fog I’m in today. But a couple of details from the WSJ editorial Christy linked to yesterday are stuck in my craw.

The editorial is an attempt to warn Congressional Democrats against pushing for a (as the WSJ calls it) "Truth Commission" to investigate the Bush Administration’s torture policies.

In particular, at [Panetta’s and Bair’s] nomination hearings they’re likely to be asked to support a "truth commission" on the Bush Administration’s terrorist interrogation policies. We hope they have the good sense to resist. And if they need any reason to push back, they could start by noting the Members of Congress who would be on the witness list to raise their right hands.

It then lists the Democrats it believes would serve as witnesses in such an investigation: it names Pelosi specifically, it deals with Jane Harman’s public objections to torture, and also invokes Intelligence Committee leadership and–after 2006–membership more generally.

Now, I’ll come back to this individualized focus in a second. But here’s the paragraph that has really got me thinking.

The real — the only — point of this "truth" exercise is to smear Bush Administration officials and coax foreign prosecutors into indicting them if Mr. Obama’s Justice Department refuses. The House and Senate Intelligence Committees already possess the relevant facts, and Senator Carl Levin and his staff have spent two-and-a-half years looking at mountains of documents — with nothing to show for it.

Carl Levin, the editorial claims, spent two-and-a-half years looking at documents, with nothing to show for it.

What a remarkable claim, given that the Executive Summary of that not-quite-two-year investigation (since Levin took over as SASC Chair in 2007–the WSJ can’t even get its dates right) lists this as its first conclusion:

On February 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody.

And this as unlucky conclusion 13:

Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in GTMO’s October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.

According to the WSJ, proving that Bush and Rummy’s actions led directly to torture equates to "nothing to show for it."

But I’m even more amused by the WSJ’s claims given Levin’s statements to Rachel Maddow on December 17 (linked above).

LEVIN: What I think is our role to do is to bring out the facts which we have to state our conclusions, which we have, which is where the origin of these techniques began. And then to turn over to the Justice Department of the next administration – because clearly this Justice Department is not willing to take an objective look – to turn over to the next Justice Department all the facts that we can, and we have put together, and get our report, the rest of it declassified.

But then it seems to me it is appropriate that there be an outside commission appointed to take this out of politics, that it would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA.

We looked at the role of the Department of Defense, but the role of the CIA has not yet been looked at, and let an outside commission reach the kind of conclusions which then may or may not lead to indictments or to civil action. But it is not our role, it’s not appropriate for us to make those kinds of – reach those kinds of conclusions. [my emphasis]

Shortly after releasing the conclusions of the "nothing to show for it" investigation, Levin said three things: that Obama’s DOJ should take the conclusions of the report and consider them objectively, that SASC should declassify the balance of its report (meaning that some of the "nothing to show for it" claim can be attributed to BushCo’s unwillingness to declassify embarrassing information), and that "an outside commission" should "get to the parts of this which are not yet clear, and that is the role of the CIA." And those actions, Levin notes, "may or may not lead to indictments or to civil action."

Sure doesn’t sound like a "nothing to show for it" report to me.

But Levin’s statement is significant for a few more reasons. After all, he emphasizes that CIA’s role in this has not been looked at. 

As a reminder, in 2006 when Bush admitted to the torture program, Carl Levin was a senior member of the Senate Intelligence Committee. Now, as the Chair of SASC, he’s an Ex Officio member. Levin was at those briefings that the WSJ reports all SSCI members started getting in 2006. But he says the CIA’s role in this has not been looked at. 

So the WSJ looks at an investigation that–by design–looked solely at torture emanating out of DOD’s chain of command, and says that it found nothing to show for it. The guy in charge of that investigation says the report specifically leaves out CIA’s role. And, since that same guy attended the briefing for the entire SSCI membership in 2006, he either said that knowing what was included in that confidential briefings–or having reason to believe that briefing was incomplete. And, finally, Levin advocates "an outside commission"–precisely the kind the WSJ opposes–to get to those parts which have not been revealed.

Boy, invoking Levin’s investigation sure doesn’t help the WSJ’s case.

Now, back to the WSJ’s invocation of specific Democrats. The WSJ names Bob Graham and Jello Jay (Jello Jay took over from Graham at SSCI in 2003; the WSJ does not mention Reyes, who took over HPSCI in 2007) as having been briefed between 2003 and 2006. But, as I said, it focuses primarily on Pelosi and Harman.

There’s a weird detail about this to begin with. Since BushCo routinely broke the law and only briefed Intelligence Committee leadership (and not Congressional leadership) on these things, Pelosi was only getting briefings through 2002, when she was Ranking Member on HPSCI. The WSJ does date the briefings back to 2002.

According to our sources and media reports we’ve corroborated, the classified briefings began in the spring of 2002 and dealt with the interrogation of Abu Zubaydah, a high-value al Qaeda operative captured in Pakistan.

But then, the timing of the briefings starts to get fuzzy.

In succeeding months and years, more than 30 Congressional sessions were specifically devoted to the interrogation program and its methods, including waterboarding and other aggressive techniques designed to squeeze intelligence out of hardened detainees like Zubaydah.

Followed by a clear timeline again, but this time one that excludes Pelosi.

The briefings were first available to the Chairmen and ranking Members of the Intelligence Committees. From 2003 through 2006, that gang of four included Democrats Bob Graham and John D. Rockefeller in the Senate and Jane Harman in the House, as well as Republicans Porter Goss, Peter Hoekstra, Richard Shelby and Pat Roberts.

In other words, the WSJ curiously includes–and then promptly excludes–Pelosi from participation in the substantive briefings (Graham should be excluded as well, since Jello Jay took over in 2003). That seems to be an admission, on the WSJ’s part, that Pelosi didn’t get the same detailed briefing about methods her successors got–a view reinforced by Pelosi’s own description of the one briefing she got.

On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.

Given the WSJ’s fuzzy sentence–the one that suggests "in succeeding months" Congress was briefed on techniques "including waterboarding," I’d say even the WSJ is not claiming that Pelosi was in the more substantive briefings in which torture was discussed.

Which brings us to Harman’s objection, which the WSJ calls "equivocal."

Ms. Harman did send a one-page classified letter in February 2003 listing her equivocal objections to the interrogation program. She made her letter public in January 2008 after the CIA revealed that it had destroyed some interrogation videotapes. After lauding the CIA’s efforts "in the current threat environment," she noted that "what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions." Ms. Harman also vaguely wondered whether "these practices are consistent with the principles and policies of the United States," but she did not condemn them as either torture or illegal.

But now compare their cherry-picked quotations from Harman’s letter with the full text of that letter.

Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment.  I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions.  At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry.  I would urge the Agency to reconsider that plan.  Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future.  The fact of destruction would reflect badly on the Agency.

I look forward to your response.

Obviously, there’s a reason why Harman didn’t focus on the legal issues: because Scott Muller had done so in his presentation, and had emphasized that DOJ, NSC, and CIA lawyers had all bought off on the techniques. Inexcusable or not, now look at what the WSJ specifically excludes: the questions Harman had posed regarding high level approval by the White House–up to and including George Bush.

Here’s Muller’s non-answer to that question.

As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch. 

That is, he dodged her question entirely, emphasizing again the legal review that had taken place, but not George Bush’s personal policy review. 

And Harman’s question is precisely the issue before us now, the one that would be investigated by an independent commission (note, even the WSJ uses the word "policy" in describing the commission).

In other words, to make its case that Congress is implicated in torture, the WSJ mischaracterizes the SASC report (and Levin’s response to being briefed at SSCI) and hides Levin’s call for precisely the independent investigation WSJ opposes; it implicates Pelosi when its own timeline doesn’t implicate her; and it cherry-picks Harman’s letter to hide the fact that she was asking–in 2002–precisely the questions that remain to be answered.

Which leaves Bob Graham, who is no longer in Congress and who presumably got the same fuzzy Fall 2002 briefing Pelosi got.

And, finally, (it had to come to this) Jello Jay. Who, not incidentally, may be the only Democrat mentioned in the editorial who actually gets to ask Bair and Panetta questions at their confirmation hearings (I’m double checking on whether Levin gets to ask questions or not; I’m assuming, given his squawking the other day about Panetta, that Jello Jay will remain on SSCI even while moving to Appropriations and ceding the Chair at SSCI). 

The WSJ didn’t waste this entire editorial solely to threaten Jello Jay not to ask Leon Panetta for a Truth Commission, did it? Because this swiss cheese of an editorial surely won’t dissuade someone like Russ Feingold from asking such questions. In fact, why direct these questions to members of SSCI–those who will ask Bair and Panetta questions–in the first place? Last I heard, a Truth Commission was more likely to come out of HJC. And frankly, most of the members of HJC don’t give a rat’s ass about the threats WSJ makes about Jello Jay (though they may well have Pelosi to contend with over the nature of their investigation).

Don’t get me wrong. I have no doubt that Jello Jay, especially, and Harman and Pelosi, to a much lesser degree, are implicated in approving the torture program. But even the WSJ poses this as a policy question that–though they hide the proof that exists–we know was a question Harman asked directly. But what the WSJ is doing here is mischaracterizing all but Jello Jay’s implication in those policies (as far as we know). The whole thing smacks of flailing desperation once you unpack the false claims included in the editorial.l

We Have Met The WMD Terrorists, And They Are US

Well, here comes a new entry in the Captain Renault "I am shocked, shocked to hear of this" file. It turns out that Jose Rodriquez and the CIA are not the only ones that Cheney and Bush have ordered to destroy critical material evidence the subject of investigations into international terror cases. Nope; of course not. They have put their grubby little thumbs to the screws on the Swiss as well. From the startling new reporting in today’s New York Times:

The president of Switzerland stepped to a podium in Bern last May and read a statement confirming rumors that had swirled through the capital for months. The government, he acknowledged, had indeed destroyed a huge trove of computer files and other material documenting the business dealings of a family of Swiss engineers suspected of helping smuggle nuclear technology to Libya and Iran.

The files were of particular interest not only to Swiss prosecutors but to international atomic inspectors working to unwind the activities of Abdul Qadeer Khan, the Pakistani bomb pioneer-turned-nuclear black marketeer. The Swiss engineers, Friedrich Tinner and his two sons, were accused of having deep associations with Dr. Khan, acting as middlemen in his dealings with rogue nations seeking nuclear equipment and expertise.

The United States had urged that the files be destroyed, according to interviews with five current and former Bush administration officials. The purpose, the officials said, was less to thwart terrorists than to hide evidence of a clandestine relationship between the Tinners and the C.I.A.

Yet even as American officials describe the relationship as a major intelligence coup, compromises were made. Officials say the C.I.A. feared that a trial would not just reveal the Tinners’ relationship with the United States — and perhaps raise questions about American dealings with atomic smugglers — but would also imperil efforts to recruit new spies at a time of grave concern over Iran’s nuclear program.

So the prosecution and trial of the Tinner group, and related avenues into the depths of the spiderweb of influence and dealings of AQ Khan is lost. Good thing that our good allies against terror, the Pakistanis, have their thumbs on AQ Khan and are getting to the bottom of how Khan’s "rogue" network was able to operate. Eh, not so much. Now, we know that in the Bush Administration, all policy and interaction with Pakistan begins and ends with Dick Cheney. Kind of makes you wonder whether the Cheney Administration is behind the curious deal to let AQ Khan run free in life without even so much as having ever been debriefed as to what all he and his network had done to proliferate nuclear weapons and technology.

Go figure; the US and the long dark arm of Cheney looks to be leveraging the spring of AQ Khan too. From Gareth Porter via CommonDreams:

But the Bush administration chose to help Musharraf cover up that inconvenient fact. According to CIA Director George Tenet’s memoirs, in September 2003, he confronted Musharraf with the evidence the CIA had gathered on Khan’s operation and made it clear he was expected to end its operations and arrest Khan.

The following January and early February, Khan’s house arrest, public confession of guilt and pardon by Musharraf was accompanied by an extraordinary series of statements by high-ranking Bush administration officials exonerating Musharraf and the military of any involvement in Khan’s activities.

That whole scenario had been “carefully orchestrated with Musharraf”, Larry Wilkerson, then a State Department official but later Colin Powell’s chief of staff, told IPS in an interview last year. The deal that had been made did not require Musharraf to allow U.S. officials to interrogate Khan.

But the Bush administration apparently conveyed to the Pakistani military after that episode that it now expected the Musharraf regime to deliver high-ranking al Qaeda officials — and to do so at a particularly advantageous moment for the administration. The New Republic magazine reported Jul. 15, 2004 that a White House aide had told the visiting head of ISI, Ehsan ul-Haq, that “it would be best if the arrest or killing of any HVT [high value target] were announced on 26, 27 or 28 July.” Those were the last three days of the Democratic National Convention.

The military source added, “If we don’t find these guys by the election, they are going to stick the whole nuclear mess up our a**hole.”

Just hours before Democratic candidate John Kerry’s acceptance speech, Pakistan announced the capture of an alleged al Qaeda leader.

Wow. Yet another Captain Renault moment presents itself. Jeebus, is there any significant terror plot or network in the world that we are not either some type of clandestine part of or, alternatively, haven’t botched the prosecution of through torture, rendition and other immoral/illegal behavior? It is a rhetorical question. Donald Rumsfeld once famously mused about whether we even have the metrics to know whether we are preempting more than is being created when it comes to terrorism. I don’t know what kind of metrics and optics Rummy views through, but it is damn hard to contemplate any set that would yield a positive answer.

The masterminds behind 9/11 and al Qaida, bin Laden and Zawahiri, run free, the purveyors of nukes to Iran, Libya, North Korea, possibly Syria and who knows what other states and/or entities, AQ Khan and the Tinners, run free. You have to question whether the US, through the Cheney/Bush Administration, really wants to curtail these modalities of terror as opposed to merely reaping the giant whirlwind of profit from the constant chase. The Europeans have some questions too. Again, from the NYT article:

But in Europe, there is much consternation. Analysts studying Dr. Khan’s network worry that by destroying the files to prevent their spread, the Swiss government may have obscured the investigative trail. It is unclear who among Dr. Khan’s customers — a list that is known to include Iran, Libya and North Korea but that may extend further — got the illicit material, much of it contained in easily transmitted electronic designs.

The West’s most important questions about the Khan network have been consistently deflected by President Pervez Musharraf of Pakistan, who resigned last Monday. He refused to account for the bomb designs that got away or to let American investigators question Dr. Khan, perhaps the only man to know who else received the atomic blueprints. President Bush, eager for Pakistan’s aid against terrorism, never pressed Mr. Musharraf for answers.

“Maybe that labyrinth held clues to another client or another rogue state,” said a European official angered at the destruction.

The Swiss judge in charge of the Tinner case, Andreas Müller, is not terribly happy either. He said he had no warning of the planned destruction and is now trying to determine what, if anything, remains of the case against Friedrich Tinner and his sons, Urs and Marco.

Oh, wait, there is one more little part of this sordid story that is relevant to the denizens of this blog, and the expertise of the headmistress. So, what exactly were the Tinner clan doing in relation to the CIA? Well, one of the things involved the clandestine counterproliferation of nuclear weapons:

In 2000, American officials said, Urs Tinner was recruited by the C.I.A., and American officials were elated.

After the Tinners were arrested, Swiss and other European authorities began to scrutinize their confiscated files and to conduct wide inquiries. European investigators discovered not only that the Tinners had spied for Washington, but that the men and their insider information had helped the C.I.A. sabotage atomic gear bound for Libya and Iran. A former American official confirmed the disruptions, saying the technical architect of the operation was “a mad-scientist type” who took pleasure in devising dirty tricks.

An American intelligence official, while refusing to discuss specifics of the sabotage operation or the Tinners’ relationship with the C.I.A., said efforts to cripple equipment headed to rogue nuclear states “buy us some time and space.” With Iran presumably racing for the capability to build a bomb, he added, “that may be the best we can hope for.”

Well, that sounds suspiciously like "Operation Merlin" doesn’t it? In case you don’t recall Operation Merlin, Marcy wrote a wonderful piece about it and a fellow with a curious history known as Jerry Doe. The full background on Merlin is described in James Risen’s book "State of War", excerpted at length here in the Guardian.

One last parting shot, because I know you are already honing in on this question. Yep, it sure is amazing, isn’t it, that the Cheney/Bush Administration is willing to go to such extreme lengths to protect covert CIA assets that they will scuttle the Swiss, European and IAEA investigation of the biggest nuclear proliferation ring in the world, yet they blithely, and with no remorse whatsoever, out Valerie Plame and burn Brewster-Jennings and it’s assets and contacts? Shocking. But true. I’ll hazard a guess that Marcy will be stopping by to ante in on this story. Oh, and make sure you click the links and read both the NYT and CommonDreams pieces in full, they are worthy of a full read.

The Strange Case of Hiwa Abdul Rahman Rashul (Part 1)

[Today Emptywheel has a special treat in the form of a guest post from one of our very longtime commenters, William Ockham. Marcy alluded to this right before she left. WO really drilled deep into this story and has produced a great article. As the title suggests, there will also be a Part II that will delve into the implications. Give WO some love and participation in comments, and in light of the special nature of this post, please stay on topic for this one; if there are other issues, please feel free to use the previous post on the Bates Contempt Decision for those. Thank you. – bmaz]

In June 2004, Hiwa Abdul Rahman Rashul had his 15 minutes of fame when Secretary of Defense Donald Rumsfeld answered questions at a press conference about the detainee known to American soldiers only as Triple X, the first ghost detainee transferred from CIA custody to the U.S. military. Rashul was suspected of being a member of Ansar al-Islam, a violent Kurdish Sunni Islamist movement opposed to the dominant Kurdish groups of northeastern Iraq. The real story of Hiwa Abdul Rahman Rashul wasn’t his terrorist past or his time as a ghost detainee of the DOD, but his treatment by the CIA in between.

Part 1: Did the DOJ cover up what its own OLC ruled was a war crime committed by the CIA?

The Office of Legal Counsel in the Bush Administration’s Department of Justice has had a notoriously broad view of the Executive Branch’s ability to define our obligations under the Geneva Conventions. But if the OLC under Goldsmith and Bradbury decided that the CIA had engaged in a grave breach of the Geneva Conventions (and even John Yoo agreed), and the CIA OIG had made a criminal referral to the DOJ, wouldn’t you expect a prosecution? Recently released CIA documents suggest that such a referral was made, but no prosecution occurred. Perhaps the very public complicity of Donald Rumsfeld, Alberto Gonzales, and George Tenet played a role in the decision not to prosecute. But I’m getting ahead of myself. First, I want to make it clear that I’m using the term ‘war crime’ in the very narrow sense of a violation of U.S.C. § 2441.

The Crime

Return with me now to those thrilling days of yester-year, that is, the summer of 2003. Dana Priest (in a story from October 2004) and Jane Mayer (The Dark Side) are our narrators. Mayer’s account (in bold) appears to derive directly from Jack Goldsmith:

Hiwa Abdul Rahman Rashul, a suspected member of the Iraqi Al-Ansar [sic] terrorist group, was captured by Kurdish soldiers in June or July of 2003 and turned over to the CIA, which whisked him to Afghanistan for interrogation.

As he [Jack Goldsmith] awaited Senate confirmation in the summer of 2003, he received an urgent phone call from Patrick Philbin… Senior officials had to know right away if it was legal to move Iraqi terror suspects outside the country for interrogation… He was obliged to say he really wasn’t sure what the answer was.

In October, White House counsel Alberto R. Gonzales asked the Office of Legal Counsel to write an opinion on "protected persons" in Iraq and rule on the status of Rashul, according to another U.S. government official involved in the deliberations. [Mayer reports that the call from Gonzales came within the first two hours of Goldsmith’s first day on the job and that he was given until the end of the week to answer the question.]

Goldsmith, then head of the office, ruled that Rashul was a "protected person" under the Fourth Geneva Convention and therefore had to be brought back to Iraq, several intelligence and defense officials said.

The CIA was not happy with the decision, according to two intelligence officials. It promptly brought Rashul back and suspended any other transfers out of the country.

Therein lies the tale. The U.S., as the Occupying Power of Iraq, was forbidden from transferring "protected persons" to locations outside of Iraq by Article 49 of GC-IV. Article 147 declares violations of Article 49 as ‘grave breaches’. Any grave breach of the GC-IV committed by a U.S. national is a violation of the 1996 War Crimes Act (U.S.C 2441). These violations, unlike violations of Common Article 3, were not affected by the limitations and retroactive immunity provisions of the Military Commissions Act and the Detainee Treatment Act.

The Cover-up

What happened when Rashul was returned to Iraq only made things worse for the U.S. When the existence of ‘ghost detainees’ in Iraq came to light in the aftermath of Abu Ghraib, Rashul’s story came out and the U. S. government chose to respond publicly. In the words of Donald Rumsfeld, speaking publicly on June 16, 2004:

I was requested by the Director of Central Intelligence to take custody of an Iraqi national who was believed to be a high-ranking member of Ansar al-Islam. And we did so. We were asked to not immediately register the individual. And we did that… And we’re in the process of registering him with the ICRC at the present time.

Rumsfeld was being a little disingenuous about the process. Let’s pick up Rashul’s story as told by Edward T. Pound, writing for U.S. News and World Report:

Rashul was returned to Iraq on October 29 [2003]. On November 18, Lt. Gen. Ricardo Sanchez, the top U.S. commander in Iraq, issued a classified order directing guards with the 800th Military Police Brigade to hide Rashul. The order was coded "Flash Red," meaning, says one military source, that it was "hot." It says that Sanchez’s command "accepts custody and detains Hiwa Abdul Rahman Rashul, a high-ranking Ansar al-Islam member." The order required extraordinary secrecy. Rashul’s name could not be disclosed to the Red Cross or to a foreign government. It prohibited the Army from entering Rashul’s name in any electronic prisoner database.

Other requirements of the order include:

Rashul will "remain segregated and isolated from the remainder of the detainee population. Under no circumstances will his presence be made known to the detainee population . . . "

"Only military personnel and debriefers will have access to the detainee. . . . Knowledge of the presence of this detainee will be strictly limited on a need-to-know basis."

"Any reports from interrogations or debriefings will contain only the minimum amount of source information . . . . No source reference will be made to identify [Rashul’s] status, membership in Ansar al-Islam, or other terrorist group."

Despite all this secrecy, Rashul has been interrogated only once–and then only briefly, a Pentagon official says.

Despite claims from administration officials that the CIA and DOD ‘dropped the ball’ by failing to register Rashul, it seems more likely that there was never any plan to register Rashul with ICRC and expose the fact that a grave breach of the Geneva Convention had occurred. Rumsfeld’s statements (and those of his lackey Daniel Dell’Orto) implicate Rumsfeld and Tenet in a conspiracy to cover up this war crime. Unfortunately, Rashul’s story seems to drop off the radar after June 2004 just as quickly as it burst on the scene the day before Rumsfeld’s news conference. Even Dana Priest’s story from October 2004 and Mayer’s recent book don’t deal with any fallout from this episode after June 2004.

The Consequences (or lack thereof)

We’ve been left wondering what, if anything, happened. Until now. Thanks to the FOIA efforts of the ACLU, the Center for Constitutional Justice, Amnesty International, and Washington Square Legal Services, the CIA has been forced to release over 100 documents, most of them heavily redacted, about its ghost detention system. In addition, the CIA has released a Vaughn index of 250 representative documents (out of 7000) that they are withholding. Even with just this tip of the information iceberg, it is possible to trace the course of an internal investigation into the CIA’s ghost detention activities in Iraq and, more importantly, the OIG’s actions in the Rashul case.

The first document I want to highlight is an email from an OIG employee to John Helgerson, the CIA’s Inspector General (and a huge, redacted, CC list). [Side note: The CIA uses Lotus Notes, but when I quote from the emails I’ll use a standard format rather than trying to reproduce the idiosyncratic Notes interface. Also, the sender’s department is generally not redacted, even when the name is.]

Sent: 08/30/04 03:45 PM

From: [redacted] OIG

To: John L. Helgerson [other recipients redacted]

Cc: [Many recipients redacted]

Subject: Geneva Convention – Summary of relevant provisions

John, et al. – attached is a collection of provisions drawn from the Geneva Convention that governs treatment of civilians in occupied territories that I thought most relevant based upon my limited understanding of the INV [Investigation] Staff’s current work. I have included text from each of the selected provisions and explanations I thought useful drawn largely from a commentary published by the International Committee of the Red Cross a few years after the Convention was developed. I have tried to keep the summary short, but it is still imposing, and it is intended to be a starting point for understanding, discussion, and further research on the meaning and reach of the various provisions. [redacted] has been involved in researching the Convention and the two of us shall continue to develop background material for the investigations. Please let me know if you have specific questions that require further insight.


[Attachment – MS Word Icon]

Geneva Convention IV Summary.doc

The attachment is exactly what it says. It is a thirteen-page document formatted as a table in landscape orientation. Both the email and attachment came from paper copies (i.e. they have handwritten markings). The attachment has only one marking. On the next to the last page, in the entry for Article 147, Grave Breaches, in the phrase "Unlawful deportation or transfer or unlawful confinement of a Protected Person", the second occurrence of the word "unlawful" is circled.


The next email I want to point out is also addressed to John Helgerson and sent 2 months later. It is probably by the same person as the first email, although the name is redacted on both.

Sent: 10/29/04 04:08 PM

From: [redacted] OIG

To: John L. Helgerson

Cc: [Many recipients redacted]

Subject: Geneva Convention Summary

John – At long last, I am sending you the attached memo in response to your request for a working summary relating the geneva convention to the matter of the ghost detainees. This may not look like much, but I have tried to keep it to bare minimum and avoid obscure Latin phrases, legal citations, etc. It may not stand up to scrutiny as more facts are developed, understanding increases, and the positions of OGC and the rest of the US Government become more clear. I am sure that [redaction of approximately ½ of a line] will be able to expand on and correct it, and to answer any follow-on questions you may have as a result. With that, and the soon-to-be-completed draft of an employee review policy, I will become a ghost employee.

[Attachment – MS Word Icon]                              [Attachment – MS Word Icon]

Geneva Convention Summary.doc                       Geneva Convention IV Matrix.doc

The Geneva Convention IV Matrix.doc is virtually identical to the file that was attached to the August email and is numbered with the same document tracking number as this email. Initially, I thought that the one page summary described in the email was missing, but it was included a few pages later in the document dump. All the issues raised by Rashul’s treatment are covered and, as you can see in this image, the words ‘individual’ and ‘mass transfers’ are underlined in the sentence describing Article 49.


These two emails sent directly to Helgerson clearly indicate that the CIA IG is conducting a serious and consequential investigation. The synopsis of the Conventions is specific to the facts of Rashul’s case.

The final piece of the puzzle is delivered by a CIA redactor’s error. Two weeks after the second email to Helgerson, there was a heavily redacted email exchange between the CIA’s Office of General Counsel (OGC), and lawyers in the Counter-Terrorism Center (CTC/LGL) and the Near East Division (NE/LGL). The exchange turns up a couple of different times within the document dump. The whole exchange would have been incomprehensible except for the fact that the subject of the email appears eight times and it is only redacted seven times. The subject was ‘Hiwa Crimes Referral’. Hiwa is an unusual name so there is no doubt that this email exchange refers to Hiwa Abdul Rahman Rashul. Here’s the exchange, in chronological order:

11/10/04 05:28pm

From: [redacted] OGC

To: [redacted]

CC: [redacted]

Subject: Hiwa Crimes Referral

I have told the DCI and subsequently the DDO. I told them you would tell the CTC and NE management. I know that you will do it in a way that will be frank, realistic but not overly alarmist.

11/10/04 06:27pm (responding to the above)

From: [redacted] CTC/LGL

To: [redacted]

CC: [redacted]

[redacted] and I informed the D/CTC and DD/CTC.

11/11/04 10:49am (responding to initial email)

From: [redacted] NE/LGL

To: [redacted]

CC: [redacted]

Just want to sure that I have your okay to inform [redacted] of the matter. I think he is entitled to know, even though he is currently detailed outside the building.

11/12/04 08:07am (responding the request above)

From: [redacted] OGC

To: [redacted]

CC: [redacted]


There’s no evidence that the DOJ ever took action on this referral even thought it was important enough the CIA’s legal staff felt the need to personally notify, in a frank but not overly alarmist way, the new DCI (Porter Goss had just started less than 3 weeks before the referral), the DDO (head of the CIA covert operations directorate), the management of the Counter-Terrorism Center, and the head of the Near East division (the unit responsible for Iraq, Afghanistan, etc.). There’s also no declination of prosecution for this case, although the document dump includes one for another referral from the CIA OIG.

This leaves us with one very important question: On what basis did the DOJ refuse prosecution? This is as clear-cut a case of a war crime as you can possibly get. Rashul was an Iraqi national taken into the custody the ‘Occupying Power’ in Iraq. That makes him a ‘protected person’. There are no exceptions. Even spies and saboteurs have to be treated as ‘protected persons’ until they receive an administrative hearing. ‘Protected Persons’ can not be transferred to another country. To do so is a ‘grave breach’ and therefore a war crime under U.S. law. Under the Geneva Conventions, we have a positive duty to prosecute this crime.

Next up in Part 2, we’ll look at why this matters.

Who First Spread the Iraqi Anthrax Claim?

Glenn’s asking some important questions about the anthrax story–mostly about who started the rumor in October 2001 that the anthrax might be from Iraq?

During the last week of October, 2001, ABC News, led by Brian Ross, continuously trumpeted the claim as their top news story that government tests conducted on the anthrax — tests conducted at Ft. Detrick — revealed that the anthrax sent to Daschele contained the chemical additive known as bentonite.

As Glenn points out, those early ABC stories seem to point back to a Ft. Detrick source–which is where Bruce Ivins worked. In other words, Glenn suggests, the report that Iraq was responsible was probably sourced back to government researchers in the same lab where–news reports allege–the chief suspect for the anthrax terrorism worked. This raises the specter of researchers carrying out the attack to lay the ground-work for the Iraq War.

But the ABC News story Glenn cites was not, apparently, the first allegation that the anthrax came from Iraq. RawStory reports that the story first appeared in the Guardian, followed quickly by a story in the WSJ editorial page, then in a Richard Butler comment on CNN.

RAW STORY has found that, although there had been active online speculation about an Iraqi source for the anthrax by the first week of October, the first suggestion that official investigations were focusing on that nation appears to have come in an article published in the Guardian on October 14.


The next day, the Wall Street Journal picked up the story, but without the Guardian’s skepticism, suggesting that the most likely suspect was al Qaeda using supplies obtained from Iraq.


On the same day, CNN quoted former UN weapons inspector Richard Butler as saying, "What we’ve got to be certain about above all is whether it came from a country supporting these terrorists as a matter of policy, such as Iraq, which we know has made this stuff. And there’s a credible report, not fully verified, that they may indeed have given anthrax to exactly the group that did the World Trade Center. … It’s possible that many months ago anthrax, a small quantity of it, was handed over in Prague to Mohamed Atta … and the person who handed it over in Prague was an Iraqi."

I am utterly struck by both the content and one of the two authors of the Guardian report. David Rose has done some good and some really crappy reporting over the years, but he is best (worst) known for an article he wrote for Vanity Fair that relied on one of INC’s defectors, Major Harith, who was one of the two or three people who "corroborated" Curveball’s stories about Iraq having mobile bioweapons labs; the NIE actually laundered its reference to Harith through Rose’s article (Harith was anonymous in the article), thereby getting around the fabricator notice placed on Harith several months before the NIE was written. Rose has long had good sources among the Neocons and was definitely getting stories from other INC members in addition to Harith. With that in mind, check out the degree to which his Guardian article reads like a smattering of INC/Neocon lies spewed to foment war with Iraq. First, there’s the Iraq with anthrax claim:

American investigators probing anthrax outbreaks in Florida and New York believe they have all the hallmarks of a terrorist attack – and have named Iraq as prime suspect as the source of the deadly spores. Their inquiries are adding to what US hawks say is a growing mass of evidence that Saddam Hussein was involved, possibly indirectly, with the 11 September hijackers.


Leading US intelligence sources, involved with both the CIA and the Defence Department, told The Observer that the ‘giveaway’ which suggests a state sponsor for the anthrax cases is that the victims in Florida were afflicted with the airborne form of the disease.


According to sources in the Bush administration, investigators are talking to Egyptian authorities who say members of the al-Qaida network, detained and interrogated in Cairo, had obtained phials of anthrax in the Czech Republic.

From the anthrax claim that is the core of the article, it then goes onto the alleged Atta-in-Prague meeting (note–David Rose realized that story was bunk and pushed back against the NYT’s continued adherence to it in December 2002).

Last autumn Mohamed Atta is said by US intelligence officials to have met in Prague an agent from Iraqi intelligence called Ahmed Samir al-Ahani, a former consul later expelled by the Czechs for activities not compatible with his diplomatic mission.

The Czechs are also examining the possibility that Atta met a former director of Saddam’s external secret services, Farouk Hijazi, at a second meeting in the spring. Hijazi is known to have met Bin Laden.

Then, finally, the article reports on James Woolsey’s trip to London to get the INC to drum up evidence against Iraq.

Contact has already been made with an Iraqi opposition group based in London with a view to installing its members as a future government in Baghdad.


It was confirmed yesterday that Jim Woolsey, CIA director from 1993 to 1996, recently visited London on behalf of the hawkish Defence Department to ‘firm up’ other evidence of Iraqi involvement in 11 September.

In other words, though the article drips with skepticism about whether these stories are an attempt to drum up a way against Iraq, it is filled with–and clearly reliant upon as sources–INC and Neocon propaganda. It even names the hawks (and includes a quote from one):

The hawks winning the ear of President Bush is assembled around Defence Secretary Donald Rumsfeld, his deputy Paul Wolfowitz, and a think tank, the Defence Policy Advisory Board, dubbed the ‘Wolfowitz cabal’.

So, Rummy, Wolfowitz, Richard Perle (then head of the Defense Policy Board), and James Woolsey, who in turn brokered a lot of stories with the INC, including that of Major Harith. There must be further sources for this story, since Wolfowitz is too senior to be called a Defense intelligence source, and Woolsey would no longer be considered a CIA source. Nevertheless, this article clearly had the hallmarks of Neocon-INC propaganda that Rose later got stung by.

Which is why I find the second outlet for this story to be so interesting: The WSJ editorial page. Neither the location nor the utter lack of skepticism is any surprise. But I am struck by the fact that when–in July 2003, OVP wanted to defend their case for war, they used Paul Wolfowitz to leak classified documents to the WSJ editorial page.

From there, the story goes to Richard Butler, who was alleged to have collaborated improperly with US intelligence as a weapons inspector in the 1990s. He was, at this point in 2001, one of the hawks about Saddam’s WMD, though to some degree that’s understandable since he had to deal with Saddam directly.

And only then, about ten days later, to Brian Ross, with the "scoop" about the bentonite in the anthrax (as Glenn points out, the Weekly Standard then magnifies ABC’s own reporting on the bentonite). In the interim period, the anthrax attack got much worse on account of the second batch of letters–those with more lethal anthrax–being sent. The highly lethal anthrax sent to Daschle was opened on October 15, the Senate was closed on October 16, and by October 22, 2,200 workers (many of them postal workers) were tested. So the first reports on Iraq and anthrax take place after both batches of letters have been sent, but only the first, less lethal letters have been found; the second reports on Iraq and anthrax take place after things got really bad at the Senate. And just for those keeping track at home, Neocon favorite Judy Miller opened her fake anthrax letter on October 12. Per Jane Mayer, there was a nerve attack scare in the White House situation room on October 18 and on October 22 the Secret Service reported anthrax traces on a letter opening device at the White House. As she writes,

By then [October 22], Cheney had convinced the President to support a $1.6 billion bioterrorism-preparedness program. Cheney argued that every citizen in the country should be vaccinated against smallpox. (4)

Ross’ "scoop" seems to be tracked to four different, more low-level people.

Ross is another interesting recipient of this leak. His greatest hits include receiving the allegation that the FBI was tapping reporters, eventually breaking the Mark Foley story after sitting on it for a very long time, and sitting on the most scandalous names in the DC Madam’s databases. In other words, someone who is very wired in–but also someone who avoids rocking the boat if he can help it (as he seems to be doing here). In 2001, Ross was doing a ton of stories more generally about 9/11–so he presumably had sources within FBI from those earlier stories.

Now, to be sure, these stories may well be unrelated–the first allegations, clearly spread by Neocons, suggesting both an Iraq-Al Qaeda link and pinning the anthrax on Iraq, followed by second allegations ultimately sourced to Ft. Detrick. In other words, the Neocons could have circulated propaganda–because that’s what they do–after which Ivins or whomever used that earlier Neocon propaganda to shift attention away from Ft. Detrick. There’s nothing, yet, that indicates the Neocons were tied to folks at Ft. Detrick.

But it sure does raise some questions, doesn’t it?

The Missing Emails and the OVP Coverup


The only email introduced at the Scooter Libby trial that was among those that had been lost in the White House email purge loss was an email from Jenny Mayfield (Libby’s Assistant) to Cathie Martin highlighting the part of the October 1 gaggle where Scottie McC refused to exonerate Libby. (You can tell it was reconstructed because it was printed out on February 2, 2006, just days before Fitzgerald received the batch of reconstructed emails; also note it was printed out from David Addington’s account, not Mayfield or Martin’s–both were gone at that point.)

Fitzgerald introduced the email at the trial to prove that Libby had reason to lie in his FBI interviews and, later, his grand jury appearances. Fitzgerald argued that the gaggle transcript, along with other pieces of evidence introduced, showed that Libby was panicking about being a suspect in the Plame leak. Fitzgerald also introduced the October 12, 2003 version of the 1X2X6 article on which someone (presumably Libby) had underlined key passages, including a denial similar to one that had appeared in the Isikoff and Thomas article published on October 6 (though dated October 13). Fitzgerald also entered an October 4, 2003 Pincus and Allen article into evidence, one that had no underlines and–unlike three other Allen articles from that period, no mention of Libby. But it did note that, "FBI agents yesterday began attempts to interview journalists who may have had conversations with government sources about Plame and Wilson."

The defense introduced some of the articles from this period too: An October 27 NRO column, with notations (it’s not clear how this was printed out, but shows as pages 35 and 36 of a packet); an October 1 WSJ editorial, with markings (note, it’s not clear when this was printed out or where); and an October 1 email from Laura Mylroie to Jenny Mayfield sharing Clifford May’s October 1 column, with no markings (printed out October 1, which is presumably why it wasn’t lost).

ovp-missing-emails-coverup.jpgNot included among the articles introduced at trial and discussing OVP in regards to Plame are:

  • An October 1 Hotline mention of Libby’s and Cheney’s visits to the CIA
  • The October 1 Daily News article reporting Democrats in Congress would like Libby and Rove to testify
  • Fox, MSNBC, and CNBC transcripts from October 1 reporting McClellan’s refusal to exonerate Libby, with MSNBC also featuring Larry Johnson nodding in Libby’s direction
  • An October 2 White House Bulletin piece noting that Allen appears to know who the "2" leakers were–and that he named Libby in another article
  • An October 2 Paula Zahn transcript with this exchange:

ZAHN: I found it interesting your phraseology just now. You said people in the White House.

There are a number of reports this evening saying that there is one person being looked as the potential leaker. And that’s Vice President Cheney’s chief of staff, Scooter Libby? Can you confirm that?

[JOE] KLEIN: Right.

Well, yes, Libby is one of the names that you hear most prominently around town. Libby and Karl Rove have been the names that have been out there. And I don’t know if they are or not. But here’s why people put it together with Libby. Libby is to Dick Cheney as Paul Wolfowitz is to Donald Rumsfeld. He is a very prominent neoconservative, who has — I’ve heard and everybody knows — been very upset with the CIA’s performance leading up to Iraq.

In other words, a long list of articles and transcripts insinuating Libby was the leaker were not introduced into evidence at the trial. Significantly, this would have the been the media coverage that precipitated Cheney’s urgent call to Bush on either October 3 or at the crack of dawn (Cheney’s time) on October 4 to get Libby exonerated. And remember–at least on Friday October 3 and Saturday October 4, Libby and Cheney were together in Jackson Hole, devising a story to tell the FBI (which may be why Libby didn’t annotate the October 4 article).

Now, perhaps Libby didn’t read any of those articles. Or perhaps he didn’t collect them in his little "Get Wilson" file. Or perhaps they were turned over as evidence but they were just less interesting to Fitzgerald than the Mike Allen WaPo articles he did introduce (though of course, this list does include one Allen WaPo article). But if you look at the spreadsheet (20MB PDF) of days in which the White House–or offices within it–were missing emails, you see one other possible explanation.

Those were also the days when all of OVP’s emails disappeared.

Now, we already knew that the OVP emails had disappeared for precisely the same days as when Libby and Cheney were devising their cover story (Libby claimed to have "found" the note indicating Cheney had told him of Plame’s status on October 3, though why he found it in Jackson is beyond me). But now we know that the emails are gone from the period leading up to Cheney’s urgent call to have Libby exonerated.

Back to the Question of ABC’s Sources

Remember that series of stories from ABC about Bush’s top advisors choreographing torture techniques with Bush’s explicit approval? I know it’s hard to remember those stories what with your rabid obsession with flag pins and whatnot.

As a reminder, I had wondered who from the Principals Committee might have served as a source for ABC. Well, the Guardian just published this (h/t Ellie).

The US’s most senior general was "hoodwinked" by top Bush administration officials determined to push through aggressive interrogation techniques for terror suspects held at Guantánamo Bay, the Guardian can reveal.


• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of the vice president, Dick Cheney, and Donald Rumsfeld’s defence department.

• Myers wrongly believed interrogation techniques had been taken from the army’s field manual.

The lawyers who pushed through the interrogation techniques – all of them political appointees – were Alberto Gonzales, David Addingon and William Haynes.

Others involved were Doug Feith, Rumsfeld’s undersecretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals.


The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo and the Abu Ghraib prison, in Baghdad, by blaming junior officials.

Sands establishes that pressure for the aggressive and cruel treatment of detainees came from the very top and was sanctioned by the most senior lawyers.

Myers, the most senior military officer of the most powerful country in the world, was one top official who did not understand the implications of what was being done.

Sands, who spent three hours with the former general, describes him as being "confused" about the decisions that were taken.


"As we worked through the list of techniques, Myers became increasingly hesitant and troubled," Sands writes. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process, so he was not given sufficient opportunity to object to measures he now says he strongly disapproved of.

He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture.

"We never authorised torture, we just didn’t, not what we would do," Myers said.

This piece certainly makes it clear that Myers would like to blame others for the torture regime in the US.

At the same time, the content of this article suggests it is unlikely for the following lines in the ABC story:

“It kept coming up. CIA wanted us to sign off on each one every time,” said one high-ranking official who asked not to be identified. “They’d say, ‘We’ve got so and so. This is the plan.’”


“These discussions weren’t adding value,” a source said. “Once you make a policy decision to go beyond what you used to do and conclude it’s legal, (you should) just tell them to implement it.”

This source seems to admit that the techniques rehearsed in the Principals Committee amounted to torture. And certainly, the techniques he seems to refer to must include some of the techniques that Sands reviewed with the General. So either Myers played dumb with Sands and not with ABC, or there’s another source from the Principals Committee.

Finally, Myers seems aware of the lawyers-level machinations around torture, but he does not admit to being aware of the Principals’ level machinations (except, perhaps, for that of Cheney and Rummy). That would make him a more likely source for the earlier WaPo story than for the ABC stories.

bmaz has shared his typically sardonic impression of Myers offline–I’ll let him repeat it in the comments. But unfortunately, this portrayal of Myers getting "hoodwinked" doesn’t say much about the fact that Myers believes Dougie Feith is the fucking stupidest guy in the world. A reader reminds me that Tommy Franks, not Myers, is the one who thinks Dougie Feith is the stupidest fucking guy in the world. Presumably, then, Franks thinks the hoodwinked Myers is not quite so bad.

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