The ACLU has a bunch of new documents on water-boarding posted–including a very heavily redacted draft of the 2004 CIA OIG report on the CIA’s interrogation methods. The report is interesting for three reasons:

• The way they refer to water-boarding
• The timing
• The rationale

The Waterboard

One of the very few things they’ve left unredacted (in all these heavily redacted documents) are the references to water-boarding. But they don’t use it as a verb, "to water-board." Rather, they almost always refer to it as "the waterboard."

The water board technique

interrogators administered [redacted] the waterboard to Al-Nashiri

interrogators used the waterboard on Khalid Sheykh Mohammad

Cables indicate that interrogators [redacted] applied the waterboard technique to Khalid Sheykh Mohammad

waterboard session of Abu Zubaydah

waterboard on Abu Zubaydah

The waterboard has been used on three detainees: Aby Zubaydah, Al-Nashiri, and Khalid Sheykh Mohammad

I don’t know why this bugs me so much, but it does. It really emphasizes the clinical and bureaucratic nature of this practices, and pretends that human beings are not the ones inflicting it.

The Timing

The ACLU refers to this as a "draft document," though there is nothing on what is visible on the cover page to suggest this wasn’t a final draft–so we can’t be sure whether the date on the report is the date when it was finally released.

Still, I find the date worthy of note: May 7, 2004. Here’s how that date works into the torture timeline:

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story.

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story.

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy).

April 28, 2004: Hamdi and Padilla argued before SCOTUS. Paul Clement assures the Court that we don’t torture. 60 Minutes breaks Abu Ghraib story and proves he’s wrong.

May 2004 (within days after Abu Ghraib becomes public): CIA briefing for Addington, Bellinger, and Gonzales on torture tapes.

May 6, 2004: Taguba meets with Rummy, Wolfowitz, Cambone, Myers, and others

In the meeting, the officials professed ignorance about Abu Ghraib. "Could you tell us what happened?" Wolfowitz asked.

[snip]

“Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.”

May 7, 2004: Rummy testifies before Congress on Abu Ghraib.

May 7, 2004: CIA OIG draft report on interrogation techniques. Though this document is heavily redacted, reports say the investigation found interrogation techniques constitute cruel and inhuman treatment.

May 10 2004: Sy Hersh’s Abu Ghraib story.

In other words, this draft of the report, at least, bears the same date as Rummy had to testify before Congress. And the report came out right in the middle of the panic over Abu Ghraib and probably early enough to be included in the May briefing of Addington, Bellinger, and Gonzales on the torture tapes.

They would have freaked out about this report in any case. But the timing of it surely exacerbated their panic.

The Rationale

As Doug Jehl reported at almost the same time as the torture tapes were destroyed, the report concluded that some of the interrogation methods might constitute cruel and inhuman treatment, and as such, violate the Convention against Torture.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

The previously undisclosed findings from the report, which was completed in the spring of 2004, reflected deep unease within the C.I.A. about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terror suspects included one known as waterboarding, and went well beyond those authorized by the military for use on prisoners of war.

The convention, which was drafted by the United Nations, bans torture, which is defined as the infliction of "severe" physical or mental pain or suffering, and prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

While the CIA isn’t showing us that part of the conclusion, it does show enough of the discussion on the legal issues surrounding the interrogation methods to show how they got to that conclusion. I find two parts of that discussion noteworthy.

First, after reviewing how the US interpreted Article 16 of the Convention–which prevents cruel, inhuman, or degrading treatment or punishment which do not amount to torture–to be limited to that "cruel, unusual, and inhumane treatment or punishment prohibited by the 5th, 8th, and/or 14th Amendments to the Constitution," it notes that:

Although the Torture Convention expressly provides that no exception circumstances whatsoever, including war or any other public emergency, and no order from a superior officer, justifies torture, no similar provision was included regarding acts of "cruel, inhuman or degrading treatment or punishment."

This suggests that one thing the OIG considered was whether this no exception provision would apply to the cruel and inhuman clause. After all, if it did, it would present trouble for all the Yoo Memos that invoke exceptional circumstances and Commander in Chief authority.

The report also notes that Yoo’s August 2002 did not consider whether any law–aside from the torture statute–relevant to the detention and interrogation of detainees outside of the US, suggesting that Yoo didn’t address these concerns about the Convention.

Then there’s the part I really like. The report uses the State Department’s own reporting to show that the techniques used by the US are considered offensive to the US:

Annual U.S. State Department Country Reports on Human Rights Practices have repeatedly condemned harsh interrogation techniques used by foreign governments.

[snip]

[from the 2002 Report issued in March 2003] In a world marching toward democracy and respect for human rights, the United States is a leader, a partner and a contributor. We have taken this responsibility with a deep and abiding belief that human rights are universal. They are not grounded exclusively in American or western values. But their protection worldwide serves a core U.S. national interest.

The State Department Report identified objectionable practices in a variety of countries including, for example, patterns of abuse of prisoners in Saudi Arabia by such means as "suspension from bars by handcuffs, ad threats against family members … [being] forced constantly to lie on hard floors [and] deprived of sleep …." Other reports have criticized hooding and stripping prisoners naked.

In other words, the report uses our country’s own principled statements against torture techniques–precisely some of the ones we have used on detainees since 2001–to show that the US considers these practices to be objectionable.

Now, in spite of the fact that they’ve shown how the OIG arrived at its conclusion that these interrogation methods violated the Convention, they’ve still invoked some kind of secrecy rule in order to redact that bit.

I guess that’s the "we don’t want to admit we broke the law" FOIA exception.

Mukasey’s defense of John Yoo in his commencement address at Boston College Law School has drawn a lot of attention.

Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.

But few people have examined Mukasey’s rationale for defending Yoo.

Essentially, Mukasey is making an argument that everyone concluded after 9/11 that timid lawyering had contributed to 9/11, and so if we criticize Yoo (and Addington and Gonzales and–I would argue, John Rizzo, Acting Counsel for CIA when the torture tapes were destroyed) for their decisions made under pressure to make lawyering less timid, our nation will be less secure as a result.

To make this argument, Mukasey relies on Jack Goldsmith’s discussion of risk aversion in his book Terror Presidency. But Mukasey grossly misrepresents what Goldsmith describes as the primary root of risk aversion. Repeatedly, Goldsmith compares the difference between the legal means Roosevelt used in World War II with those the Bush Administration uses, and goes on to suggest that the rise of human rights in the intervening years had constrained presidential action. Goldsmith mentions, among other things, prohibitions on torture (most of them international) and assassination. Significantly, of the many legal developments he cites specifically as creating new limits on presidential action, only one–FISA–was a law passed in the US in response to intelligence operations gone legally awry (Goldsmith also mentions EO 12333, which is an order signed by Saint Ronnie, not a law passed by Congress or an international body, and he mentions "an aggressive post-Watergate Congress … crafting many of the laws that so infuriatingly tied the President’s hands in the post-9/11 world").

That’s important because, rather than attributing this legal timidity to Goldsmith’s more general trend of human rights over the last 60 years, Mukasey picks a few historical events as the source of risk aversion.

Intelligence excesses of the 1960s led to the Church committee reproaches and reforms of the 1970s, which led to complaints that the community had become too risk averse, which led to the aggressive behavior under William Casey in the 1980s that resulted in the Iran-Contra and related scandals, which led to another round of intelligence purges and restrictions in the 1990s that deepened the culture of risk aversion and once again led (both before and after 9/11) to complaints about excessive timidity.

Now before I rip apart the historical logic of this passage, here’s how Goldsmith discusses the effect of those same historical events.

The main problem was the effect that the legalization of warfare and intelligence had on lower-level officials in the Defense Department, the CIA, and the National Security Agency. The White House couldn’t execute its plans to check al Qaeda without the cooperation of the military and intelligence bureaucracy. But these bureaucracies — especially in the intelligence community — had in the 1980s and 1990s become institutionally disinclined to take risks. The Church and Pike investigations of the 1970s and the Iran-Contra scandal in the 1980s taught the intelligence community to worry about what a 1996 Council on Foreign Relations study decried as "retroactive discipline" — the idea that no matter how much political and legal support and intelligence operative gets before engaging in aggressive actions, he will be punished after the fact by a different set of rules created in a different political environment.

Note the difference: Goldsmith describes how several historical investigations, taken together, have created concerns within the intelligence community that, however much legal and political support intelligence communities may have when a program is instituted, there’s always risk the individuals implementing the programs will be held legally liable after the fact. Goldsmith is not describing a cyclical process–aggressive program, reform, risk aversion, aggressive program, reform, risk aversion. He’s simply saying those several investigations, together, have taught the intelligence community to insist their activities get bright legal sanction before they do them. This is consistent with the larger argument in his book: because lawyers at CIA and NSA wanted specific legal authorization before they engaged in programs deemed legally risky, the Administration (and John Yoo especially) wrote opinions that were legally suspect but nonetheless functioned as "get-out-of-jail-free cards."

But for Mukasey, there is a causal relation between these events: aggressive programs (COINTELPRO and Iran-Contra) led to an intrusive investigation and subsequent reforms (Church and Iran-Contra investigations), which led to risk aversion, which led to criticism of the intelligence community for its excess timidity, which led to other aggressive programs. This causal relation is utterly central to Mukasey’s defense of Yoo.

No doubt, there is some sense in which this cycle, or something like it, is healthy. The sometimes competing imperatives to protect the nation and to safeguard our civil liberties are undoubtedly worthy of public debate and discussion. And oversight and review of our intelligence activities—by the Congress, within the executive branch, and, where possible, by the public—is important, vitally so.

But it is also important—and equally so—that such scrutiny be conducted responsibly, with appreciation of its institutional implications. In evaluating the work of national security lawyers, political leaders and the public must not forget what was asked of those lawyers six-and-a-half years ago. We cannot afford to invite another “cycle of timidity” in the intelligence community; the stakes are simply too high.

Mukasey accepts (he says) that there may be some value to debating the balance between civil liberties and national security and reviewing events of the past. But if such discussions are conducted irresponsibly, Mukasey argues, it will lead to another "cycle of timidity" and–the suggestion is–potentially another attack.

The implications of this view are disturbing. Mukasey is arguing that, if John Yoo is held responsible for the shitty opinions he wrote, then in the future some OLC hack writing get-out-of-jail-free cards won’t be so rambunctious in his opinions. Me, I consider that a good thing. But Mukasey implies it will lead to another terrorist attack.

The implications of Mukasey’s view get still more disturbing when you assess it as historical fact. I certainly agree that the Church and Pike investigations drastically changed the scope of CIA ops. But that didn’t prevent Jimmy Carter from initiating two of the most important programs behind our winning the Cold War: funding Eastern European and Russian dissident groups, and funding the mujahadeen in Afghanistan. Furthermore, it was not a reaction to the reforms of the 1970s that led to the failures of the 1980s. Rather, it was partly the work of Team B type analysis that distorted intelligence on Russia and the Middle East. It was partly the inability of the CIA and FBI to find the spies (Ames and Hanssen) who were devastating the country’s intelligence ranks. It is historically inaccurate to attribute the William Casey-led ops to general complaints that the intelligence community had become too risk averse. How could it be?!? Casey’s actions were instead an attempt to evade the oversight and limitation of those–you know, like Congress–who wanted the CIA to continue to uphold the standards imposed after Watergate scandals. I have no doubt that some within the Reagan Administration thought those rules were too restrictive and led to timidity, I have no doubt that people within and outside of the Reagan Administration questioned the CIA’s competence. But that does not equate to the kind of generalized consensus–like that of post-9/11 analysis–that the CIA was incompetent because it was too timid.

Moreover, the pre-9/11 timidity was not a response, per se, to Iran-Contra (except in the narrow sense Goldsmith describes of CIA officers realizing they could be held legally liable for operations conceived of and authorized by the President). Rather, the things the intelligence community did not do that might have prevented 9/11 (specifically, to take out bin Laden in the late 1990s and to trace the calls between 9/11 hijackers and a known safe house in Yemen) were reactions to post-Watergate reforms, EO 12333 and FISA, respectively, not post-Iran-Contra reforms.

Mukasey has basically turned Goldsmith’s argument–that Iran-Contra made intelligence officials worried about the legal repercussions of their activities–into an event in which investigators conducted irresponsible oversight which, somehow, contributed to 9/11.

Think about the implications of that for a moment.

Mukasey’s insinuation that the investigation into Iran-Contra was irresponsible has two very dangerous implications. First, it suggests it is improper for Congress to conduct an inquiry into the executive branch after the executive branch ignores a very clear law passed by Congress. Of course, a couple of guys made that argument back in 1987, in the Minority Report on Iran-Contra. Dick Cheney and David Addington argued that the Boland Amendment and the investigation into Iran-Contra were just attempts by Congress to improperly usurp the executive branch’s powers to conduct foreign policy. Mukasey’s inclusion of Iran-Contra in his historical description of the causes behind legal timidity must be read as an endorsement of Cheney and Addington’s famous ideological expansion of the unitary executive (because it’s the only way it makes any historical sense). And with it, Mukasey suggests he believes a Congressional investigation into Bush’s clear violation of both FISA and the Convention against Torture might be irresponsible.

But that wasn’t the only investigation into Iran-Contra, after all. There was also Lawrence Walsh’s investigation, as Independent Prosecutor, into the events. I certainly understand that the unitary executive ideologues believe Independent Prosecutors to be unconstitutional. And at that level, the inclusion of Iran-Contra in Mukasey’s historical description may explain why he has had John Durham–with no independence whatsoever–investigate the torture tape destruction rather than appoint an Independent Prosecutor. But the suggestion that the Walsh investigation was irresponsible is troubling for another reason: the big fall-out at the CIA, after all, was that Duane Clarridge and Clair George were indicted (and then pardoned) for lying to Congress; Clarridge was fired by William Webster and a slew of agents left with him. Is Mukasey suggesting it would be improper to hold John Rizzo or Alberto Gonzales responsible for lying to Congress, which both have been alleged to have done? Does an expectation that Administration officials tell the truth to Congress lead to risk aversion in intelligence operations?

Now, I’m not sure whether Muaksey’s inclusion of Iran-Contra in his description of the causes of risk aversion implies all of these things, up to and including a disinclination to prosecute officials for lying to Congress. But it certainly makes the John Durham investigation–in which Mukasey directly oversees Durham’s investigation into events that may well include lying to the 9/11 Commission and Courts–all the more dubious.

I find Mukasey’s public (though implicit) defense of Yoo to be unfortunate. But I find the logic on which he based that defense to be downright dangerous.

I have long pointed out the close connection between the CIA’s OIG report on torture and the tapes of Abu Zubaydah’s interrogation. The key dates are:

January 2003: CIA IG begins investigation into detainee interrogation.

February 10, 2003: Jane Harman writes a letter recording CIA Counsel Scott Muller drawing a connection between the torture tapes and the CIA IG investigation.

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

May 2003: CIA IG reviews the torture tapes at black site.

May 2004: CIA IG completes investigation, finding that CIA interrogation techniques are "cruel and inhumane."

May 2004: CIA and White House discuss destroying the tapes of Abu Zubaydah’s interrogation.

November 9, 2005: Most complete report of IG investigation appears, revealing the "cruel and inhumane" conclusion.

Mid-November 2005: Torture tapes destroyed.

While there are surely other reasons why the CIA destroyed the torture tape, one thing the destruction of the tapes did was to eliminate one key piece of evidence that led the CIA’s own IG to conclude that the CIA’s interrogation methods were cruel and inhumane.

Well, over the course of the DOJ’s IG investigation into interrogation techniques, the CIA once again prevented investigators from accessing information–this time in the form of an interview of Abu Zubaydah–that would contribute to a conclusion that interrogation treatment was cruel and inhumane. In a footnote, DOJ’s IG report reveals that it interviewed High-Value Detainees at Gitmo, but that CIA refused to let DOJ’s IG to interview Abu Zubaydah.

When the OIG investigative team was preparing for its trip to GTMO in early 2007, we asked the DOD for permission to interview several detainees, including Zubaydah. The DOD agreed, stating that our interviews would not interfere with their attempts to obtain any intelligence from the detainees, including Zubaydah. However, the CIA Acting General Counsel [John Rizzo] objected to our interviewing Zubaydah. [three lines redacted]

In addition, the CIA Acting General Counsel asserted that the OIG had not persuaded him that the OIG had a "demonstrable and immediate need to interview Zubaydah at that time" given what the Acting General Counsel understood to be OIG’s "investigative mandate." In addition, the CIA Acting General Counsel asserted that Zubaydah could make false allegations against CIA employees. We believe that none of these reasons were persuasive or warranted denying us access to Zubaydah. First, neither the FBI nor the DOD objected to our access to Zubaydah at that time. In addition, neither the FBI nor the DOD stated that an OIG interview would interfere with their interviews of him. Second at GTMO we were given access to other high value detainees. Third, we did have a demonstrable and immediate need to interview Zubaydah at that time, as well as the other detainees who we were given access to, notwithstanding the CIA Acting General Counsel’s position that we had not persuaded him. Finally, the fact that Zubaydah could make false allegations against CIA employees–as could other detainees–was not in our view a legitimate reason to object to our access to him. In sum, we believe that the CIA’s reasons for objecting to OIG access to Zubaydah were unwarranted, and its lack of cooperation hampered our investigation.

For some reason–no doubt, because of what the CIA did to Abu Zubaydah–they remain intent on burying all evidence of the methods used in his interrogation.

The CIA has already admitted they waterboarded Abu Zubaydah. We have many reports that, since Zubaydah was already mentally disabled, those torture sessions netted nothing. So why are they still hiding the details of his torture so intently?

In their Questions for the Record submitted after he testified, HJC managed to ask Patrick Fitzgerald one obvious question they didn’t manage to ask when he testified at their hearing on Special Counsels (h/t MadDog). What would have happened–or would happen to John Durham, investigating the torture tapes destruction–if a Special Counsel got fired during the course of the investigation? Actually, in the QFRs Fitzgerald got asked about 5 different versions of the question, only one of which elicited a really useful answer (at least as it might reflect on John Durham’s investigation):

13. If you had been fired as a U.S. Attorney, what impact would that have had on the CIA leak investigation? What impact would that have had on your appointment as Special Counsel?

During my tenure, this question did not present itself. It is not clear to me what the legal implications would have been had I been relieved of command as United States Attorney while serving as Special Counsel. (This might be an issue that should be specifically addressed if there is a delegation of power to a sitting United States Attorney in the future as it is entirely possible that a United States Attorney could be asked to resign after a change in administration.) It would appear that unless the United States Attorney were specifically retained in some other capacit (such as a Special Assistant United States Attorney), he or she could no longer serve as a Special Counsel who was employed by the Department of Justice and whose authority had been delegated by the Attorney General. It would be possible that a new appointment could be made for such a former United States Attorney which would provide that he or she would serve as a Special Counsel from outside the Department of Justice pursuant to the appropriate regulations.

Had I been relieved of command as United States Attorney while conducting the CIA leak investigation, even if a legal basis were established for me to continue as Special Counsel or in some other proper capacity, I would nevertheless have had to determine whether it would be appropriate for me to continue representing the government under all of the circumstances. I would have had to consider whether my ability to be effective had been undercut and whether any decision I made to prosecute or not prosecute a case (or whether to further investigate any matter) might reasonably subject the investigative team to the criticism that I (or others on the team) might harbor a bias against the administration which had relieved the prosecutor of his Presidential appointment. This would be a determination heavily dependent on the particular factual circumstances which led to the termination of my appointment as United States Attorney.

That is, since Rove never managed to get him fired, Fitzgerald never had to think these things all the way through. But if he had been fired as USA, he would have had to be reappointed to some other position to continue the investigation in a constitutional manner. In any case, though, the threat of firing would present the difficulty that, even if he were appointed to some other position, his investigation might be tainted by the appearance that his prosecutorial decisions might be biased because he had been fired.

In other words, the threat of firing a prosecutor investigating top Administration officials does present a possible problem.

But that’s not the version of the "what if you got fired" question that I find most interesting. Rather, there’s a question that asks specifically if Fitzgerald became aware of efforts to fire him during the course of the CIA Leak investigation. Fizgerald refuses to answer … because of the ongoing Rezko case.

11. When one U.S. Attorney concurrently serves as a Special Counsel, is it appropriate for the Justice Department or the White House to consider firing all 93 U.S. Attorneys? Please explain.

National Public Radio has reported that, according to "someone who’s had conversations with White House officials, the plan to fire all 93 U.S. Attorneys originated with political adviser Karl Rove. It was seen as a way to get political cover for firing the small number of US Attorneys the White House actually wanted to get rid of." Ari Shapiro, Documents Show Justice Ranking US Attorneys, NPR, April 13,2007. Many have speculated that Mr. Rove’s goal in proposing the U.S. Attorney firings was to pressure and intimidate you. When Mr. Rove made the suggestion to fire the U.S. Attorneys, he had already been before the grand jury several times in the Scooter Libby case. To your knowledge, is this account correct? Please explain why or why not.

During the CIA leak investigation, were you aware of any conversations that you might be asked to resign? If so please describe all such conversations, including the substance of the conversations, when they occurred, and the names of those who participated.

I do not know if the referenced account of events is correct or not.

As to whether I was aware during the relevant time period of the investigation that I might be asked to resign, I will respectfully decline to discuss matters currently at issue in a trial ongoing in the Northern District of Illinois.

Fitzgerald is referring, of course, to the multiple times during the Rezko trial when a witness has testified that Rezko and Bob Kjellander talked about having Rove fire Fitzgerald to scuttle the investigation into Chicago corruption. But that’s not, of course, what HJC asked him–they asked him about the CIA Leak case, and they made a reference specifically to coverage of the USA Purge.

To understand why this is interesting, consider the timing. These QFRs almost certainly went out within a week of February 26, when Fitzgerald testified before HJC. While there had been speculation that Rezko and Kjellander might have tried to get Fitzgerald fired, that speculation wasn’t confirmed during the Rezko trial until April 23. Now, the date on Fitzgerald’s repsonse (which went through DOJ’s minder) is May 2–after, but not long after, the revelations in the Rezko trial. And here HJC has it, conveniently before the closing arguments finish in the Rezko trial, so Fitzgerald can’t legitimately answer when he learned–over the course of the Rezko investigation–that Kjellander was working with Rove to get him fired.

But unless Fitzgerald learned that fact "during the CIA leak investigation," the answer wouldn’t be on point at all. That is, as Fitzgerald suggests with his other answers, he didn’t learn he was on the USA Purge list until the media started asking DOJ about it last year:

I first learned about an evaluation of me by Mr. Sampson at the time of an inquiry by the media to the Department of Justice indicating that the media was aware of such evaluation. A colleague from the Department of Justice told me about the media inquiry and the substance of the document inquired about.

But, by his answer to this question, Fitzgerald suggests he did learn of efforts by Kjellander and Rove "during the CIA Leak investigation." Now, I’m not convinced that means Fitzgerald learned of Kjellander’s efforts before he gave Rove the all-clear in June 2006–but it sure suggests that’s a possibility.

Update: fixed basic grammar per watercarrier. 

Are you ready for some football? Hot damn, I am. And guess what, there really is football to talk about. And lots of other things too, but let’s start off with the gridiron. Hey, did you notice that the asterisk is still in the title? Of course it is, because Spygate is the gift that keeps on giving for the New England Patriots. Thank god that FISA stuff seems to be wrapping up, because the ole Scottish Haggis is gonna be needing the legislative time and resources to question Matt Walsh and get to the bottom of Belichick’s torture tapes.

Alright, lets get down to business. The 2008 NFL Entry Draft is beginning as this post is going up. Michigan offensive lineman Jake Long has already been signed by the Fish, and Howie Long’s spawn is reportedly set to be taken at number two by the Rams. Then the crapshoot begins. What needs does your team have, who do you like to fill them, and what else is up on the pigskin front? I understand the Patriots are torn between this guy and this guy.

Don’t tell Marcy, but there are actually sports other than football. In fact, I understand that, up in Canada, they play something called hockey; and not just any hockey understand you, they are currently in Playoff Hockey for the cherished Stanley Cup. The Cup has to be the coolest trophy in all of sports, every winning player gets his name etched onto it for eternity. And it goes fun places during the year as each player on the winning team gets to cart it around wherever he wants. I hear tell it goes to a lot of pubs, and a few cathouses too. I don’t know diddly squat about hockey, but in honor of our fine feathered friends in the Great White North, Ishmael, Skdadl, and all the others, I thought we ought to give a shout out to Stanley Cup Playoffs, thus the "What The Puck" part of the title to this post.

Due to the surprising response I got the last time, I will also trot out F1 for your consideration. This weekend is Round four of the circus, the Spanish GP from Circuit de Catalunya in Barcelona, Spain. Kimi Raikkonen is on pole, having beaten out Fernando Alonso in literally the last second of qualifying. Catalunya is a nice circuit, should make for an excellent race. Heh, you know America is one screwed up place when Max Mosely’s Nazi torture fantasy with hookers gets more press than, you know, the President of the United States actually torturing people. Go figure.

Last, but most certainly not least, I want to note yesterday’s announcement that there was a putative appearance of the Wackiest Ships in the Iranian Navy and Filipino Monkey. Of course, the US government already has twenty different takes on the incident. Pretty much the only time our bozos can keep a story straight is when they are ginning up propaganda for their Rent-A-Generals. The video attached to this post is in honor of my two favorite monkeys, The Filipino and The Boosh (technically a chimpanzee I guess). Do check out the video, it is pretty cool. Monkey Man by the one and only Rolling Stones.

Lastly, EW is going to be up with an important post on the Michigan Clusterfuck and her rational solution thereto. I think it is going to be double posted both here and at FDL. At any rate, there is going to be a full court press to get some publicity and national press on the post, so chip in, sign the petition and spread the word. However, because it is important to the cause, use this thread for any "Off Topic" discussions etc. so that she can keep that thread clean and on point.

Last week we learned that John Durham asked a computer forensics expert to contribute to a legal declaration pertaining to whether or not the CIA Inspector General had–or had ever had–evidence pertaining to the interrogations of two Gitmo detainees.

Today we learn that two of the people involved in the Torture Tape destruction are current high-raking Administration officials.

The [HPSCI] panel interviewed two “current, high-level government officials” in April, according to a congressional official, who declined to name the officials.

Both [Intelligence] panels have interviewed CIA Director Michael V. Hayden. 

It’s not clear whether this passage means that Hayden (who just resigned from the military) is one of the two "current, high-level government officials" or not–he’d certainly qualify.

But that leaves another "current, high-level government official." This is significant because several of the key players (like Jose Rodriguez, who remains under subpoena from HPSCI) are former officials. Two notable exceptions are John Rizzo, who works in CIA’s General Counsel office, and John Helgerson, CIA’s Inspector General. We also know that John Negroponte, currently at State, wrote a memo pertaining to the Torture Tapes when he was DNI. Finally, there’s always everyone’s favorite current high-level government official involved with the torture tapes, David Addington.

But I’m not holding my breath.

I’m just as intrigued by the news that Crazy Pete Hoekstra and Silvestre Reyes have gotten into a spat over this investigation.

The House investigation has been riven by partisan disputes. In January, Peter Hoekstra of Michigan, the panel’s ranking Republican, publicly took issue with Democrats over issuing a subpoena for Rodriguez, selecting witnesses and other aspects of the investigation. Democrats have maintained that they have been responsive to Republican input.

A spokesman for Hoekstra declined to comment Tuesday.

As I have said repeatedly, one of the people spinning hard to dissociate himself from the Torture Tape destruction is Porter Goss, who was head of the CIA when the Torture Tape was destroyed, and who received Negroponte’s warning not to destroy the Torture Tape. I’ve long worried that an HPSCI investigation, handled badly, would work the same way Lee Hamilton and Dick Cheney’s HPSCI investigation into Iran-Contra did–to immunize key players from prosecution. In particular, I’ve worried about Pete Hoekstra attempting to protect his former colleague, Porter Goss, from any incrimination.

So I consider it a good sign that Crazy Pete has his knickers in a twist about the investigation. 

As the NYT and AP have reported, the CIA says none of its records were responsive to the Court order in the Hani Abdullah case.

A records search by the Central Intelligence Agency has found no evidence that the agency violated a judge’s order when, in 2005, it destroyed videotapes that showed harsh interrogations, the C.I.A. said in a court declaration this week.

Since the CIA is still reviewing its records, though, that declaration may or may not be conclusive.

But the CIA’s declaration is far more interesting for what it says about John Durham’s Torture Tape investigation than what it says about Hani Abdullah’s civil suit against George Bush. Comparing the two declarations submitted in response to Abdullah’s suit with an earlier declaration the CIA submitted in response to the ACLU’s FOIA suggests that John Durham may have reason to suspect that some records pertaining to the torture tapes were destroyed in the Office of Inspector General.

First of all, consider who wrote the two declarations submitted Wednesday by the CIA. First, there’s Robert Dietz, who conducted a general search of the CIA’s operational files. Here’s how Dietz describes his expertise in this matter:

I am the senior councilor to the Director of the Central Intelligence Agency. I joined the CIA in Autumn of 2006. Although I am a lawyer by training, I am not serving in a legal capacity and I am not part of the Office of General Counsel. In my position, I report to the Director of the CIA and receive assignments from him. For example, I have chaired an Agency Accountability Board, and I have recently concluded a management review of the Office of the Inspector General. In December 2007, in connection with the public disclosure that the CIA had destroyed certain videotapes, the Director asked me to chair the so-called Tapes Coordination Group ("TCG"). This Group’s assignment is to respond to requests for information from Acting United States Attorney John Durham, specially appointed prosecutor investigating the destruction of the tapes, and similar requests by the House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence.

Dietz is not a lifetime CIA employee. Rather, he appears to have come in when Michael Hayden took over as Director. That means he had nothing to do with the destruction of the torture tapes. But it also likely means he’s a Hayden loyalist, there to protect Hayden.

Most interesting, Dietz reveals he was in charge of the "management review of the Office of the Inspector General." I find that interesting, not least, because the spat between OIG and Hayden (or rather, and the rest of the CIA) relates to OIG’s report finding CIA’s interrogation methods constituted cruel and inhuman treatment.

As the NYT broke the other day, General Michael Hayden is conducting an investigation of the CIA’s Inspector General, John Helgerson. Their first report on the story intimated the reason why Hayden was conducting such an unusual investigation.

A report by Mr. Helgerson’s office completed in the spring of 2004 warned that some C.I.A.-approved interrogation procedures appeared to constitute cruel, inhuman and degrading treatment, as defined by the international Convention Against Torture.

That investigation into OIG actually overlapped by several weeks with DOJ’s preliminary investigation of the torture tapes. The destruction of the tapes was revealed on December 6, and the conclusion of the investigation into OIG was reported on December 23. (Mukasey announced Durham’s criminal probe on January 2, 2008.) It’s unclear whether the TCG was formed at the end of December in anticipation of Durham’s appointment, or whether it was formed in response to the preliminary investigation earlier in December. In any case, though, Dietz appears to have been negotiating the establishment of a babysitter for CIA’s OIG at the same time as he was beginning to help DOJ investigate the destruction of the torture tapes.

Which is why this comment from Dietz is all the more interesting:

I understand that at the request of specially appointed prosecutor John Durham, part of the additional search undertaken by the CIA in regard to the Court’s February 14 order was conducted by the Office of Inspector General ("OIG"). And I am advised that the OIG is providing a declaration for the Court regarding the results of that search.

That is, John Durham–whose mandate is to investigate the CIA’s destruction of the torture tapes–intervened into the CIA’s response to a court’s order in a civil case, and made sure that CIA’s OIG, in addition to the CIA’s operational division, undertake a search of the relevant files. Now, that’s not that surprising. One of the things Durham has to do, presumably, it take all of the umpteen cases in which judges issued orders to retain evidence, to see if the destroyed torture tapes pertained to the order. In other words, Durham’s intervention here probably only represented a shift in the order in which he conducted the investigation, not an intervention in matters unrelated to his investigation. We can also presume that the CIA’s response to this Court order probably parallels the activities being undertaken by Durham’s investigation. That is, Durham is doing the same things to collect evidence in the Torture Tape investigation as he’s having CIA employees do in response to Court orders pertaining to potentially destroyed evidence.

That interpretation seems to be supported by this part of Dietz’ statement.

I must note that the TCG’s search has been complicated for several reasons, and thus I cannot at this time confirm that we have exhausted all places we might look for information that may be material to the Court’s February 14 order. The pendency of the investigation by specially-appointed prosecutor Durham, as well as its complexity, have affected our continued search for information relating to the Court’s order. As an initial matter, the assignment of my office to this search was necessitated by considerations related to Mr. Durham’s investigation, even though others in the CIA have far greater knowledge than do I or my staff in connection with this particular piece of litigation. For example, many of the individuals at CIA who would normally be involved in a search for any records evidencing destruction of spoilation are, as I understand it, potential witnesses in the matter under investigation by Mr. Durham. In addition, because of the sensitivity and complexity of the investigation, the TCG must coordinate much of our effort with Mr. Durham’s office, with the result that the search necessarily takes longer and is more difficult than it might otherwise be.

Partly, this passage suggests that Durham is being careful to ensure no one from CIA–not even Dietz, who showed up long after the destruction of the tapes–fiddles with potential evidence without Durham’s involvement. In addition, though, it seems to suggest that the librarians or archivists (you know, the torture tape librarian we’ve heard so much about), are considered potential witnesses in the investigation.

And speaking of archivists, here’s the bit that will get MadDog salivating–the expertise of the person submitting the declaration from OIG: Robert Moritsugu.

I am a special agent with the Central Intelligence Agency (CIA) Office of Inspector General (OIG). I have been in the OIG for 23 years. Over the course of my work in OIG, I have acquired consideratble familiarity with the case records of the OIG’s investigation staff. I am a seized computer evidence recovery specialist, responsible for computer forensics. For a number of years, I held responsibilities within the OIG for various technical tasks, maintaining OIG’s local area network, and working with the staffs that maintain the OIG’s restricted servers. [my emphasis]

Now, before I move on to the rest of Moritsugu’s declaration, let me point out that Moritsugu is not the person who submitted a declaration regarding OIG files in the ACLU’s FOIA suit. The person who submitted that declaration–on January 10, just after the Durham investigation got started–was Constance Rea, the Deputy Assistant Inspector General for Investigations, someone who was at least tangentially involved in the OIG investigation into interrogation methods and someone who apparently does not have the technical expertise of Moritsugu.

Here’s what Constance Rea said about the record-keeping practices of OIG in her declaration:

8. Depending on the nature of the audit, inspection, investigation, or special review, OIG often sends a notice to those CIA components that OIG deems likely to have relevant information. Such notices describe the subject of the review and the categories of information sought and provide instructions to make potentially relevant records available to OIG to review. The instructions regarding records vary from case to case, depending on the nature and scope of the review. Depending on the volume and sensitivity of the records and the nature of the OIG inquiry, OIG may instruct the components to produce all records to OIG, produce certain categories of records to OIG, maintain certain categories of records on-site for OIG inspection, maintain all records on-site for OIG inspection, await further instructions, or some combination of the above. In addition, OIG may independently collect records without the assistance of other CIA components.

9. After OIG reviews records, whether on-site or in OIG offices, it determines what records are relevant to its review and what copies of records to retain in OIG offices. OIG does not use “markers” in its case files to designate records maintained in operational files. When OIG chooses to retain a record, it retains that record, or in most cases a copy of the record, in OIG files. If OIG has a reasonable basis to believe a federal crime may have been committed, the IG reports the information to the Attorney General.

[snip]

During the course of the special review [of CIA interrogation methods], OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS to review the videotapes at the overseas location where they were stored.

OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified DOJ and other relevant oversight authorities of the review’s findings. At no time prior to the destruction of the tapes in 2005 did OIG initiate a separate investigation into the interrogations depicted on the videotapes.

Because OIG did not take custody or make copies of the videotapes, they were not among the materials that OIG provided to the CIA components responsible for processing Plaintiff’s Freedom of Information Act (FOIA) request–the Information Management Staff (IMS), the Office of General Counsel (OGC), and the NCS Information Review Officer. [my emphasis]

So in January, Rea noted that sometimes OIG got originals of materials, sometimes it got copies, and sometimes it did not retain (that is, it destroyed) copies of those materials. OIG would also have correspondence describing certain pieces of evidence (or at least identifying who it thought might have such evidence). And, in cases where OIG found potential legal issues, OIG would have correspondence with DOJ. Lots of stuff that might reveal where those torture tapes were and what happened to them.

So here’s what Moritsugu, the computer forensics expert, says:

Attendant to the work of the OIG in [regards to Durham’s investigation], I was assigned the task of searching the investigation staff’s records to determine whether they contained any indication that any information relating to petitioner Abdullah covered by this Court’s preservation order of July 18, 2005 was destroyed or otherwise spoilated. The investigation records constitute the operational files of the investigation staff. They exist both in hard copy and electronic form. The electronic version contains what exists in hard copy, but also a broader universe of investigative records.

3. To carry out that assignment, I searched the electronic records system of the OIG records to determine whether it appeared that those records have, or did at one time have, material relating to petitioner Abdullah. If the investigation staff had at one time any records related to Abdullah, I would expect to find some indication of the existence of such files in the electronic records system. In my search, I found no indication either that such records exist now or that such records ever existed in the past.

So let me review. The CIA gets an order from a judge to reveal whether it once had evidence pertaining to the interrogations of Hani Abdullah. Presumably because such an order requires work that overlaps with the work of John Durham’s own investigation, Durham plays a role in deciding how the CIA must respond. He has Robert Dietz conduct a general search of the CIA’s files, presumably searching the records of the groups that were involved with the interrogations. And he directs the OIG to provide a declaration in response too. But Durham doesn’t ask OIG to do what it did when it responded to the ACLU order in January–to just have someone involved in the OIG’s interrogation investigation review their files and submit a declaration based on that physical review. No. Durham requires OIG to conduct a forensic review of the OIG’s investigative files, to determine whether OIG has–or had–any responsive files.

The fact that Durham required a forensic review of OIG’s files–but not the CIA’s operational files–certainly suggests he has reason to believe that some of the files at OIG got destroyed.

Update: Okay, I got off my ass and looked up the actual preservation order in question to understand what Deitz’s and Moritsugu’s declarations would cover. The preservation order was requested by Rami bin Saad al-Oteibi and Hani Saleh Rashid Abdullah.

But because the government had already been put under a preservation order in two other cases, Judge Roberts treated such a request as moot for this request. So his order only coveres information specifically pertaining to the named petitioners. Here’s what his order states:

ORDERED that petitioners’ motions, insofar as they seek preservation orders governing evidence, documents, and information regarding the torture, mistreatment and/or abuse of detainees held at the Guantanamo Bay detention facility be, and hereby are, DENIED without prejudice as moot. It is further
ORDERED that petitioners’ motions otherwise be, and hereby are, GRANTED. Respondents shall preserve and maintain all evidence, documents and information, without limitation, now or ever in respondents’ possession, custody or control, regarding the individual detained petitioners in these cases.

So that suggests that neither al-Oteibi nor Abdullah came up in the OIG investigation, and that whatever record they had of the Abu Zubaydah and al-Nashiri interrogations did not mention either of these detainees.

Jane Harman explained her response to the warrantless wiretap program over at TPMCafe. I’m interested in it not so much to determine whether Eric Licthblau or she is right about whether she "switched her view" on the program (I think Harman is actually too sensitive to the charge; as she tells it, she did drastically change her view, but not because of the publicity of Lichtblau’s reporting, but because of the new information she learned from it; though after writing this post, I’m a little sympathetic to Lichtblau’s claim). Rather, I’m interested in the contrast Harman’s narrative presents with what we know of Jello Jay’s evolving views toward the illgeal wiretapping program. After all, Harman and Jello Jay apparently learned of the program in the same briefing (Harman had just replaced Pelosi as Ranking Member on HPSCI; Jello Jay had replaced Graham as the top Democrat on SSCI). But the two have apparently taken dramatically different trajectories in their positions on the program, and the comparison offers an instructive view on oversight.

The First Harman/Jello Jay Briefing: January 29, 2003

Harman provides this description of the January 29, 2003 she and Jello Jay received (along with Pat Roberts, then SSCI Chair, and Porter Goss, then HPSCI Chair):

When I became Ranking Member of the House Intelligence Committee in 2003, I was included for the first time in highly classified briefings on the operational details of an NSA effort to track al Qaeda communications using unique access points inside the US telecommunications infrastructure. The so-called “Gang of Eight” (selected on the basis of our committee or leadership positions) was told that if the terrorists found out about our capability, they would stop using those communications channels and valuable intelligence would dry up (which had happened before).

This program was so highly classified that I could discuss it with no one, not even my colleagues on the Intelligence Committee or the committee’s professional staff. (See p. 169 of the Lichtblau book.) And I was assured that it complied with the law and that the senior-most officials in the Justice Department conducted a full legal review every 45-60 days.

At that point, then, she and Jello Jay appear to have learned that:

• The US was tracking Al Qaeda communication via US-based access points
• The program was legal and was reviewed regularly by top Justice Department officials

If Harman’s description is accurate, it suggests the Administration gave a very distorted view of the program. Yes, they were accessing Al Qaeda communication via US access points. But to do so, they gained access to all of US telecom traffic. And, yes, they were accessing Al Qaeda communications. But the means by which they determined that these were Al Qaeda communications–and not just a bunch of people ordering falafels from the same place–was grossly inadequate.

Similarly, yes, the senior-most official at DOJ (John Ashcroft) signed off on the program every 45-60 days. And Robert Mueller was telling people that Bush–not Ashcroft–had signed off on the program. But the only real review of the program by that point had been a typically shoddy John Yoo rubber stamp. Ashcroft hadn’t even been able to share details of the program with his aides to obtain their legal opinion with which to conduct a meaningful legal review. As Lichtblau reports,

Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”

And the Administration wouldn’t even read Larry Thompson, then Deputy Attorney General, into the program. So the claim that senior-most officials (plural) had reviewed the program was an out-and-out lie.

One more note about this initial briefing (and all others up until the March 10, 2004 briefing). Harman claims the "Gang of Eight" was informed. At least according to the record provided by then-DNI John Negroponte, this is incorrect. Nancy Pelosi, while still Ranking Member of HPSCI, got briefed on the program. But the Administration did not brief the full Gang of Eight. And besides, as Mary points out, the Administration should have been briefing the full intelligence committees, not just the Gang of Eight.

So even though the Administration was deliberately misleading the Intelligence Committee leadership, there were still warning signs that the Administration was not complying with the law (though they pretty consistently briefed only Intelligence Committee leadership on their law-breaking).

The Second Harman/Jello Jay Briefing: July 17, 2003

We don’t, yet, have Jello Jay’s account of that first briefing, but we do know what he thought after receiving the second one he and Harman received, on July 17, 2003. The timing of that second briefing was rather important. As I’ve shown, the Senate was in the middle of a successful effort (save for Bush’s signing statement) to strip all funding from data mining programs targeting American citizens; the day after the briefing, the Senate voted unanimously to block TIA funding. So in addition to being troubled by some of the same things Harman expressed difficulty with–particularly the inability to consult with any aides on the program–Jello Jay noted that the program seemed to violate the intent of the law the Senate was in the process of passing. Here’s the letter Jello Jay wrote, after this second briefing, to memorialize his concerns.

July 17, 2003
Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

Without more information and the ability to draw on any independent legal or techical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication. [my emphasis]

While the wording is a little–shall we say–wobbly, the intent is still clear. Jello Jay was withholding his approval of the program, not just because he could not, fairly, approve it, but because it seemed disturbingly similar to the data mining program that Congress was in the process of making illegal.

Now, Harman records none of these concerns in her account–not even the concern, or the awareness, that the Administration was engaging in data mining. Which leads me to add one thing to the sound list of suggestions Marty Lederman offered to make Congressional intelligence oversight more meaningful–given the severe restrictions on information sharing the Administration imposed, don’t you think leaders of the Committees could at least talk to each other?!?!?! Jello Jay had some pretty clear concerns about the program at the time–concerns that rise to the level of defying the will of Congress. But Harman appears to have had (or at least claims to have had) none of that awareness.

The Third Harman/Jello Jay Briefing: March 10, 2004

As I’ve described before, the Administration then skipped a briefing that should have occurred given its regular pattern of brieing–even according to its own limited briefing approach, it should have briefed the Congressional leaders in January 2004, after the Administration had ignored Congress’ demands not to continue data mining. Instead, the next briefing did not occur until March 10, 2004, on the day of the famous hospital confrontation. The was the first time full Gang of Eight received a briefing, and they got one specifically because the Administration wanted legislative approval to continue the wiretap program in the absence of approval from John Ashcroft or Jim Comey; barring legislative approval, they wanted permission to go forward without it.

Mr. Gonzales, in an acrimonious hearing before the Senate Judiciary Committee, said that hours before the hospital confrontation, the White House had summoned Congressional leaders to an emergency meeting to discuss ways to head off a revolt at the Justice Department against the security agency program.

Mr. Gonzales said that he and Andrew H. Card Jr., then White House chief of staff, had tried to obtain Mr. Ashcroft’s approval as a last resort, after the lawmakers rejected emergency legislation but recommended that the program should continue despite the Justice Department’s opposition.

Now, the record on how Harman and Jello Jay responded to these requests is not entirely clear. Jello Jay accused Gonzales of lying about what happened in the meeting.

Senator John D. Rockefeller IV, who attended the 2004 meeting as the top Democrat on the Senate Intelligence Committee, called Mr. Gonzales’s account “untruthful.” Mr. Rockefeller said he believed Mr. Gonzales was deliberately misleading Congress about the showdown over the N.S.A. program inside the Bush administration.

And Pelosi made it clear that she did not support the program going forward over Comey’s objections.

Speaker Nancy Pelosi of California, who attended the 2004 White House meeting as House Democratic minority leader, said through a spokesman that she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting, said the spokesman, Brendan Daly.

If Pelosi agrees "a majority" of the eight people who attended the briefing approved its going forward, and Jello Jay claims he made his objections clear, it suggests that Harman approved of continuing the program, even though, by all appearances, she had learned of Comey’s objections. Now, I don’t know that for a fact–and unlike her colleagues, Harman has neither confirmed nor denied whether she approved that the program go ahead. But I am puzzled by her insistence that no one in the Gang of Eight was informed that the Administration was bypassing FISA.

The Gang of Eight was not told – nor did it occur to me – that the Administration was violating FISA, despite Congress’ clear legislative intent when FISA was passed that it was the “exclusive means” for monitoring the communications of Americans connected to foreign intelligence.

If, as Pelosi suggests, the March 10 briefing included some reference to Comey’s objections, wouldn’t you at least begin to wonder about whether the Administration was breaking the law?

The Fourth and Fifth Harman/Jello Jay Briefings: February 3, 2005 and September 14, 2005

There is no record of either of the fourth or fifth briefings Harman and Jello Jay attended, both of them in 2005. Though once again, I wonder whether they noticed that there was a break in the normal briefing pattern–there should have been a briefing in September or October 2004. This, of course, is right during the time when the Administration likely first learned that Risen and Lichtblau might write a story on the illegal wiretap program.

The Sixth Harman/Jello Jay Briefings: January 11 and January 20, 2006

Up until the program became public in December 2005, it appears that Jello Jay took a more active oversight role than Harman, objecting in writing on at least one occasion, and recognizing that the program probably violated the intent of Congress.

But all that appears to have changed after Risen and Lichtblau published their story on December 16, 2005. As Harman describes, she immediately started calling for more oversight–only to be stymied by Dick Cheney.

The New York Times story ran on December 16, 2005. The next day, President Bush publicly confirmed the program’s existence in his weekend radio address. That day, a Saturday, I did two things: I tried to get our full Committee briefed and I consulted experts on the law.

I tracked down NSA Director Michael Hayden, who was shopping for holiday presents in Annapolis, and asked him to brief the full Intelligence Committee later that day. He said yes, provided the White House signed off. Bush Chief of Staff Andy Card at first agreed, but called me back an hour later saying the briefing was off. (It was months before the White House briefed additional Members of the Intelligence Committees. I even spoke with Vice-President Cheney about the need for a full Committee briefing, but he turned me down flat. Finally, on the eve of Gen. Hayden’s confirmation hearing to be Deputy Director of National Intelligence, the Administration agreed to brief all committee Members.)

Additionally, as the President had disclosed the program, I was finally free to consult constitutional experts on the legal issues it raised. My call to a former CIA general counsel that Saturday provided the first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of “inherent” executive power. To this day, I have not been shown the memoranda produced by the Office of Legal Counsel to support the basis for the program! [my emphasis; incidentally, I wonder if that "former CIA general counsel" was Scott Muller, who would have known of the program, and who also opposed destroying the torture tapes]

Jello Jay has given no public account of his response to the revelation of the program. But where he once opposed the program as potentially violating Congressional intent, he has become a champion of the Administration’s cause, going so far recently as to publicly boast of "victory" in the Senate.

"I think we will prevail," Rockefeller said on Wednesday, adding that he hoped the Senate will finish the bill by next week. The FISA legislation expires in February, and both President Bush and GOP congressional leaders have demanded that new legislation be in place by that time.

"It’s a pretty bad idea to appear cocky," Rockefeller noted. "I am not pessimistic."

Which makes me all the more curious about the two briefings the Administration gave in January 2006, after the program (and the real urgency of the hospital confrontation) became public. The Administration held two sets of briefings after the program became public. One, including the Republican members of the Gang of Eight (then Denny Hastert, Bill Frist, Crazy Pete Hoekstra, and Pat Roberts) plus Jello Jay on January 11, 2006. And one, with the remaining three members of the Gang of Eight (then Pelosi, Reid, and Harman), along with Roberts again. Why have Roberts attend both briefings if the content of the two was the same? Is it possible that the Administration held two different briefings, one with those it found reliable (the Republicans and Jello Jay) and one with those it found unreliable (the Democrats, babysat by Pat Roberts)? Did Dick Cheney, miffed that the up to then reliably-complacent Harman was demanding committee-wide briefings, insist that she get the same briefing as those who had already objected to the program? Did the Administration continue to keep secrets from the Democrats who opposed the program?

Obviously, I don’t know, though Harman’s account of her 180 degree turn, once she realized the program was illegal, certainly raises interesting questions about those two briefings.

And curiously, at least through May 2006 (Harman would continue as Ranking Member of HPSCI for another seven months after Negroponte’s briefing list ends), Jane Harman and Jello Jay never received a briefing on the illegal wiretap program together again.

The NYT has a fascinating profile of Jose Rodriguez–the guy who ordered the destruction of the CIA torture tapes. This anecdote conveys the kind of guy we’re dealing with:

Not long after the tapes were destroyed, Mr. Goss held a management retreat for top agency officials meant in part to soothe tensions among the agency’s dueling branches. There the deputy director for intelligence — the head of analysis — complained openly about the arrogance of the clandestine branch and said undercover officers thought they could get away with anything.

That was too much for Mr. Rodriguez. He stood up in the room, according to one participant in the meeting, and shouted in coarse language that the analysis chief should “wake up and smell the coffee,” because undercover officers were at the “pointy end of the spear.”

The clandestine branch, Mr. Rodriguez was making it clear, would do what it wanted.

While the profile doesn’t offer much new in the story of the torture tapes (though it does provide a more compelling case that Goss couldn’t control Rodriguez than I’ve previously seen), I’m most interested that Rodriguez apparently prevented any accountability for those who conducted the pathetically incompetent kidnapping of Abu Omar.

It would become known inside the Central Intelligence Agency as “the Italian job,” a snide movie reference to the bungling performance of an agency team that snatched a radical Muslim cleric from the streets of Milan in 2003 and flew him to Egypt — a case that led to criminal charges in Italy against 26 Americans.

Porter J. Goss, the C.I.A. director in 2005 when embarrassing news reports about the operation broke, asked the agency’s independent inspector general to start a review of amateurish tradecraft in the case, like operatives staying in five-star hotels and using traceable credit cards and cellphones.

But Jose A. Rodriguez Jr., now the central figure in a controversy over destroyed C.I.A. interrogation tapes, fought back. A blunt-spoken Puerto Rico native and former head of the agency’s Latin America division, he had been selected by Mr. Goss months earlier to head the agency’s troubled clandestine branch. Mr. Rodriguez told his boss that no inspector general review would be necessary — his service would investigate itself.

The incident is significant, first of all, because of the likelihood that the IG report finding the interrogation methods used by the CIA constituted cruel and inhuman treatment–possibly illegal. This incident suggests Rodriguez refused to allow the IG to do its job–oversee and correct problems in the CIA. Which, in turn, increases the already large chance that the IG report is central to the reasons for the destruction of the torture tapes.

But the incident is interesting for another reason. By preventing any real evaluation of the Italian job, Rodriguez may have ensured that those responsible remain in significant positions within the CIA. You might be interested in this news, particularly if you’re in NY:

Milan Spy Boss on Rebound: CIA officer Jeff Castelli, mastermind of the botched February 2003 “extreme rendition” of an al Qaeda operative in Milan that ended in the indictment of 26 Americans, all but one CIA employees, might be on the rebound. According to a reliable intelligence source who demanded anonymity, Castelli was reprimanded by the CIA’s Accountability Board last year for the much-ridiculed caper and dispatched to the Air War College at Maxwell Air Force Base in Alabama. But Castelli is now a candidate to be the CIA’s next station chief in New York — an astounding comeback, especially considering that Italy is planning a trial in absentia of the CIA employees implicated in the kidnapping, perhaps as early as this spring. “Well, they can’t send him overseas,” said the source, “because of the Milan thing.” Italian warrants have been issued for Castelli and the others, who would risk arrest if they tried to enter any European Union country, or many other states.

Am I the only one who thinks it’s a bad idea for someone who oversaw legendarily bad tradecraft to be chief of a US station?

It’s not clear to what degree Rodriguez is responsible for Castelli still having a job–and in the US! (It sounds like Castelli was not sent to Alabama until 2006, after Michael Hayden took over the CIA.) But it’s certainly the kind of coddling of incompetence and abuse Rodriguez seems to have fostered.

The AP reported on Steven Bradbury’s tortured logic about water-boarding.

”The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.

”There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said.

That is, waterboarding is not legal today, but it could be tomorrow if Bradbury made it so at the bidding of David Addington.

That tortured logic is part of Bradbury’s prepared statements for an appearance before HJC’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties (click here to follow along).

Meanwhile, Chairman Conyers is appearing before the Rules Committee (on CSPAN1) supporting his contempt resolution, describing the importance of the contempt resolution to the balance of powers.

Some have said we risk more if we lose this fight. If we countenance a process where our subpoenas can be readily ignored, where a witness doesn’t even have to bother to show up or tell us that they’re not coming, then we’ve already lost. This is not a matter of vindicating the Judiciary Committee.

Republicans are playing nasty–interrupting the Lantos memorial for stupid parliamentary tricks. Lamar Smith thinks we shouldn’t pass this rule because we won’t also allow the government broad powers to wiretap us.

And Bradbury is assuring "the committee that every opinion I sign represents my best judgment regardless of political currents."

I’ll try to follow both hearings.

Nadler: Is waterboarding a violation of the Federal torture statute?

Bradbury: I think it was reasonable to say that it didn’t violate the Federal torture statute. Your description of the procedure is not accurate description of procedure used by CIA.

Nadler: My description is one given to us by former interrogators.

[Bradbury goes on to say we’re not doing what the Filipinos did.]

Nadler: AG said he is unable to share your OLC opinions on multiple techniques with us. You’re telling us the opinions we’re making about waterboarding are wrong because we don’t know what it is. So can you tell us precisely what the legal authority is for withholding the documents from the Committee other than the fact that they might be embarrassing.

Bradbury: I fully respect the oversight interest of this committee.

Nadler: We’ve seen no evidence of that.

[Bradbury keeps trying to filibuster]

Nadler: Will you give us the opinions?

Bradbury: We are giving that serious consideration. These are subject to extensive oversight of intelligence committees.

Nadler: Is there any legal basis for withholding those documents?

Bradbury: Protecting against disclosure.

Nadler: We all have top security clearance.

[Bradbury has almost as whiny a voice as Shorter Schlozman]

Nadler: What is the legal basis for your ability to have discretion to not turn over those opinions.

Bradbury: Not my place to make that decision.

Nadler: Are you head of OLC, isn’t it your job to give opinon on these issues? Have you advised AG that they have the legal right to withhold these opinions.

Bradbury: Executive Branch does have the right to withhold documents.

Nadler: You won’t commit to giving us those documents so your recognition of our interests is totally hollow. We’d like an explanation in writing for why we can’t see them (or the documents themselves).

Diaz-Boehlert is complaining that Democrats are using parliamentary tactics. Whaaa!

Artur Davis: Why did Mukasey say this was torture but you say it’s not?

Davis: McCain was subject to torture in Vietnam. In response to that torture, he signed a confession to a war crime. That was unaccurate–it was a response to the extreme distress he was undergoing, was it not? That’s the concern a number of us have. I strongly disagree with his point that we’re trying to pass laws that favor terrorists. You are absolutely correct that when people experiencing waterboarding are distressed which may lead them to lie. You state the enhanced interrogation has been used with about 1/3 of the detainees. How many is that, 30?

Bradbury: I’m not authorized.

Davis: Have any of those individuals lied in response to interrogation techniques? Is it conceivable that some of them may have lied?

Bradbury: I don’t know.

Davis: How many prosecutions have been brought based on what those individuals have said.

Bradbury: None.

Davis: That sounds like a completion rate that could be pretty low.

Bradbury: Purpose of program is not to obtain intelligence to be used in criminal prosecutions.

Davis: I assume you don’t mean to fashion a program or condone or sanction a program that doesn’t yield results. You cannot tell me whether all of these individuals have lied. I add that up and come to one simple conclusion. We can’t tell whether this program is working, you won’t tell us, we take that position not in the name of protecting terrorists. We take that position in order to get the real terrorists.

Bradbury: I can only rely on what Hayden has said. He has said it has produced thousands of reports that have been useful.

Davis: That’s an inherently subjective conclusion. Will he share that information with this committee? If Hayden has quantifiable information about the efficacy of this program, I ask that this be shared with us.

Chris Cannon and James Sensenbrenner are both opposed to contempt because what happens if it doesn’t work!?!?!?!?!

Cannon: We have no evidence that Miers and Bolten were involved, do we?

Conyers: We aren’t accusing them of anything, sir.

Cannon: We have no evidence.

John Yarmouth (D-KY) saying that the 2006 election was about giving Democrats control of Congress:

This is what I heard: "We want to return the government to the tenants of the Constitution. We want to return to the ideas that the founding fathers. We want to return to the premise that no one is above the rule of law."

This is about restoring the checks and balances.

If we don’t challenge the President on this issue, we will have

Ellison (torture hearing): If an OLC opinion, once written will prevent an investigation of an executive branch felony, the President can violate the law or his oath, and just point to OLC, and if victims try to suit, they will use State Secrets. Isn’t that a recipe for unchecked executive power.

Bradbury: No, I don’t believe it is. The opinions are reasonable and were appropriately relied upon.

Ellison: How do you know that they were relied upon as you set forth.

Bradbury: That’s my understanding.

Ellison: How do you know? Were you present for an instance of waterboarding? You indicated earlier that the waterboarding is nothing like what happened to American soldiers at the hand of the Japanese. Can you describe how this was applied? Have you seen videotapes? How do you know that the advice you’ve been giving have been relied upon properly.

Bradbury: I have reasons to believe.

Ellison: Are you basing this on statements? How do you know that the advice you’ve been giving haven’t been exceeded?

Bradbury: I believe that is the case.

Ellison: NO. I’m going to ask you to answer my questions that’s the way this hearing goes. [Now addressing the notion that torture used in training is torture or not.]

Bradbury: If something is torture in one circumstance, it is torture in another.

Ellison: So if a police officer sells drugs as part of a sting operation.

Bradbury: There are lines that address that.

Ellison: I’m sure you’ll provide the citations to the cases.

Bradbury: I’d be happy to.

Ellison: Go ahead. If I just said, Judge there’s a case, I’d expect you to cite the case.

Scott: Is there any precedent outside of this Administration that says waterboarding isn’t torture?

Bradbury: I’m not aware of any, that’s why this job is so hard.

Scott: Penalty for perjury a whole lot less than murder. Is the penalty for destroying the torture tapes a whole lot less than if the contents had been seen? Was your office involved in discussion of whether torture tapes should have been destroyed.

Bradbury: Our office wasn’t.

Scott: If we’re trying to find out who was involved in destruction of CIA torture tapes, who should we look to? Who would be involved in that discussion in your opinion.

Bradbury: I’d refer you to acting DAG’s office.

Scott: There has been no determination that waterboarding would be lawful under current law. Has there been a determination that it would be unlawful under current law?

Bradbury: No, bc there has been no time to do so under current law.

Scott: And we don’t have the tapes so we’d know what we’d be talking about. [Lists the prohibitions against torture.] Did the part of the EO forbidding violations of Convention against Torture, etc, did that change anything?

Bradbury [attempts to filibuster]: No, those statutes under their own terms do apply. One thing the EO does do … the program does have to comply with the law.

Scott: Should we be concerned by the term "grave"?

Bradbury: That’s used in the war crimes act [I may have the laws in question wrong].

Scott: So breaches of Convention that are not grave are not violations of the war crimes act?

Watt: You say that fewer than 100 have been detained. Those are the people at Gitmo.

Bradbury: The 14, maybe 15 detainees who were transferred there are among those. But the CIA has held others. That’s not the sum total of those who have been detained under this program. When the 14 were moved that emptied the overseas facilities.

[Is he implying we’re back to holding people overseas again?]

Watt: If I were trying to determine the disposition of one or more of those 350 who have been held. What is the maximum duration they have been held?

Bradbury: January February 2002.

Watt: Have they been formally charged.

Bradbury: Some of them. All of them have had Combatant Status Review.

Watt: If you said waterboarding was illegal, could the President ignore that under Article II. I’d like to know whether in your legal opinion whether the President has the authority to disregard your opinion.

Bradbury: I don’t think he’d do it.

Watt: I didn’t ask you that, would he have the authority under Article II.

Bradbury: Can I get to that in a second?

Watt: How about answering it now?

[Bradbury is filibustering] 

Bradbury: In all cases the President will look to OLC opinions. In theory, the President stands at the top of the executive branch, so every is under the authority of the President, including the AG. It is unsustainable to disregard an opinion of the AG.

Watt: Does the President have the authority to disregard the opinion under Article II.

Nadler: I believe your answer is yes.

Bradbury: You’re putting words in my mouth.

Nadler: Yes I am.

Watt: I would have loved to have gotten to my next question if you hadn’t rope-a-doped my next question.

Bradbury: General Hayden has said he will not allow his people to do anything that has not been approved by AG.

Watt: So if President has issued order, Hayden will listen to the AG?

Nadler: Will you commit to respond within 30 days.

Bradbury: I will do it as soon as possible and will try to do it within 30 days.

[HJC hearing over]