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The Incredible Disappearing PFIAB

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Smintheus provides a good background on Bush’s Executive Order to gut PFIAB (h/t scribe).

On Friday afternoon the White House posted without fanfare a new Executive Order that revamps an important though little known intelligence board. There are a few minor changes, but the most radical revision appears to be that the board has now been stripped of nearly all its powers to investigate and check illegal intelligence activities. It’s difficult to see what legitimate reasons there could have been for gutting the oversight activities of the board in this way, and the WH has not explained the changes.

[snip]

The newly revised IOB is much more passive. Gone is the duty to review agency guidelines regarding illegal intelligence activities. Gone is the duty to hold accountable the intelligence watchdog offices, such as inspectors general, who are supposed to serve as a bulwark against illegal activities.

Gone is the duty ("shall…forward") to take illegal activities directly to the Attorney General.

I wanted to add just a few details of context.

First, recall that the referrals by IOB–and the absence of any response to such referrals–got Alberto Gonzales in trouble.

In 2005, Gonzales had assured Congress there were no violations of privacy associated with the PATRIOT Act. But last year it became clear that Gonzales received reports of at least six violations.

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

When cornered on his lie, Gonzales invented some mumbo jumbo about how violations that get reported to the IOB aren’t really violations.

Read more →

Don’t Worry, Isikoff Says, DC Is Not Corrupt and Dishonest

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When the Village needs to plant a story to counter a growing narrative, they know who to call: Michael Isikoff. And true to form, Isikoff writes a review of Philip Shenon’s book on the 9/11 Commission that–while it presents abundant evidence that agrees with Max Holland’s post on the book–still tries to refute Holland’s post.

Holland makes two main points in his post. First (as covered in this post), that Zelikow and Rove carried on back-channel communication after the Commission heads told him to stop. And, more generally, Holland argues that Zelikow used his position to,

… exploit[] his central position to negate or neutralize criticism of the Bush administration so that the White House would not bear, in November 2004, the political burden of failing to prevent the attacks.

To which, Isikoff scolds,

In any case, the suggestion by conspiracy theorists—who have seized on the evidence in Shenon’s book—that Zelikow was serving as a secret White House "mole" is hard to sustain.

Nosiree, Zelikow wasn’t the secret White House mole! While Isikoff includes a quote from Lee Hamilton, a Democrat with a long history of excusing Republican shortcomings, in which Hamilton vouches for Zelikow’s interest in exposing all the facts, Isikoff also presents the following evidence that supports and expands on Holland’s post:

  • After Commission investigator Warren Bass found emails from Richard Clarke warning of "hundreds of Americans [lying] dead in several countries," Zelikow, "disparaged Clarke as an egomaniac and braggart who was unjustly slandering his friend Rice."
  • Isikoff numbers "at least four" calls between Rove and Zelikow; Isikoff repeats Zelikow’s excuse that these were related to Zelikow’s academic job, but he doesn’t include the allegation that Zelikow tried to have his Executive Secretary stop logging his calls.
  • He repeats Shenon’s claim that Rove specifically said that a report that blamed Bush for 9/11 could most easily sink his re-election bid.

So to make his argument that Zelikow wasn’t a White House mole trying to prevent a critical report from hurting Bush’s re-election chances, Isikoff provides the quote of someone not known for candid speech, lauding the report itself. But Isikoff doesn’t refute the claim that Rove and Zelikow were communicating, he doesn’t refute the claim that Rove thought a favorable report was important, and he even adds another witness describing Zelikow as "bullying" the Commision to protect the reputation of his gal Condi! Read more →

2004

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It seems the NYT was not the only one who knew that Addington, Gonzales, and Bellinger got a briefing on the terror tapes. It appears the whole SSCI knew that too.

CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be "cautious" about destroying the tapes, according to sources familiar with his classified testimony.

The three White House officials present at the briefing were David S. Addington, then Vice President Cheney’s chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden’s closed-door testimony before the Senate intelligence committee.

When told that some high-ranking CIA officials were demanding that the tapes be destroyed, the White House lawyers "consistently counseled caution," said one U.S. official familiar with Hayden’s testimony. Another source said that Harriet E. Miers followed up with a similar recommendation in 2005, making her the fourth White House lawyer "urging caution" on the action.

The ambiguity in the phrasing of Hayden’s account left unresolved key questions about the White House’s role. While his account suggests an ambivalent White House view toward the tapes, other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed.

Also unexplained is why the issue was discussed at the White House without apparent resolution for more than a year.

But note what’s funny about this story (and therefore, about Hayden’s testimony). Hayden says this briefing took place in 2004, not 2003, when we know the Gang of Four got a briefing.

Yesterday’s NYT story suggested the discussions started in 2003.

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

So which is it? Did the briefings start in 2003? And if so, did Hayden tell the SSCI about those briefings?

Sub-Heading: White House Panics

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As Scarecrow pointed out in the last thread, the White House has done something colossally stupid: they’ve objected to the sub-heading of the NYT’s story revealing the involvement of David Addington and Alberto Gonzales (among others) in the destruction of the terror tapes.

The White House on Wednesday took the rare step of publicly asking The New York Times to change the sub-headline of a story on the destruction of CIA tapes showing the interrogations of suspected terrorists.

At issue is the story’s sub-headline that stated: “White House Role Was Wider Than It Said.” The White House called this sub-headline inaccurate and demanded that it be corrected.

[snip]

The White House argues that the newspaper article implies that “there is an effort to mislead in this matter,” adding that such a conclusion is “pernicious and troubling.”

They appear to be making a fairly narrow objection. Since they have not publicly, officially, responded to the news that someone destroyed the terror tapes, they can’t be described to have "said" anything. Never mind that someone has been shopping the cover story that only Harriet Miers was involved in the deliberations on the tapes.

And, as we might expect from the Bill Keller- and Pinch Sulzberger-led NYT, they have obliged with the White House’s request and changed the entire title to: "Bush Lawyers Discussed Fate of C.I.A.Tapes." Given that the point of the sub-headline was that the story had been floated, by someone, that Harriet was the only one involved in the terror tape deliberations, I think the more appropriate response would have been to demand that the source for those original allegations either publicly retract them, or consider his source confidentiality sacrificed. Because, as it is, the NYT’s change of headlines coddles the people who have been pitching the cover story about Harriet.

But I’m also interested in the White House’s ham-handed response to this. Read more →

Lawyering the Torture Tapes

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I speculated, a week ago, that the Directorate of Operations lawyers who gave Jose Rodriguez the green light to destroy the torture tapes did not know of the outstanding court orders that would have covered the tapes.

Most importantly, it sounds like the Directorate of Operations lawyer who purportedly authorized the destruction of the tapes only said there was no legal reason not to do so.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

Which suggests this lawyer had no fucking clue that Judge Leonie Brinkema had asked the government about such tapes explicitly, within weeks of the time when the tapes were destroyed. I’m guessing that was by design–the only way they could figure out how to get a legal opinion defending the indefensible, the destruction of evidence.

Which is why I think the description in today’s NYT story on the torture tapes is so important.

The officials said that before [Jose Rodriguez] issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the C.I.A.’s top lawyer, John A. Rizzo, about the legal advice they had provided. But officials said Mr. Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the C.I.A. director, before he sent the cable to destroy the tapes.

“There was an expectation on the part of those providing legal guidance that additional bases would be touched,” said one government official with knowledge of the matter. “That didn’t happen.”

Look at the language of these two versions, taken together. Read more →

The Republican Notion of Oversight

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I feel like I’ve gone back through time. We’re back to talking about Plame. And nolo discovered another USA Purge document dump. There’s a potentially damning email in here–all redacted (I’ll return to that in a later post). But there’s also proof of something we’ve long suspected. Congressional Republicans were getting talking points from Gonzales’ DOJ to use in hearings on the USA purge.

Or let me be more exact: the White House (in this case  Christoper Frech) is making sure that the Office of Legislative Affairs at DOJ (in this case, Richard Hertling) is giving the Republicans in the House Judiciary Committee tips on strategy for the hearing with four fired USAs. Read more →