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CNN Helps Mike Hayden Uncork A Fine Whine

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Michael Hayden is at it again. This time it is CNN that has donated the bandwidth to his continued petty whining about the release of the OLC Torture Memos. After acknowledging that the matter is over and now simply a matter of history, Hayden, in a “Special to CNN Comment” bearing today’s date, says:

I know that the story has moved on, that the outline of the journalistic narrative has been set, and that the “first draft” of history has been just about finalized. Before the ink dries though, I would like to offer at least a footnote.

And this footnote has to do with President Obama’s decision in April to release opinions drafted by the Department of Justice that detailed the CIA’s interrogation program for high-value al Qaeda detainees.
…
Make no mistake. The decision to release those memos in April was a political one, not a legal one — a question of choice rather than necessity.

This was a deliberate decision and, if it is to be defended, history (and journalism) should demand that it be defended on those grounds and not on some hapless “the judge was going to make me do it” argument.

As I said, this is all now a footnote, and Hellerstein’s September decision was barely remarked in the public discourse.

But the good people of CIA follow this more closely than most and, like the good operators and analysts that they are, they know what they see and they know what it means.

“Make no mistake”, just as the decision to release the torture Memos is old news, so is Hayden’s objection. He made it abundantly clear, on many records, before, during and after the Memos’ release. Why did CNN decide that giving Hayden a prime “special” opportunity to continue the same relentless petulance was a good idea? Where is the CNN “Special Comment” on the decision of the British High Court that heroically proclaimed:

It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ’secret’ or as ‘intelligence’…

Where was the CNN “Special Comment” on US Federal Judge Jeffrey White who trumpeted the public’s “right to know” what their government has done in their name in a very similar FOIA case?

Why is it that CNN has special space available for Michael Hayden, a man centrally involved in the alleged Bush war criminal misconduct, to rehash his same old self serving petty whining from months ago, but not for the current news that actually supports the rule of law in a democracy?

Brit High Court Slaps Down US And British Torture Coverup

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In a stunning and refreshing decision, the British High Court has overruled the British government’s attempt to suppress torture evidence on the US and British treatment of Binyam Mohamed. From The Guardian:

David Miliband, the foreign secretary, acted in a way that was harmful to the rule of law by suppressing evidence about what the government knew of the illegal treatment of Binyam Mohamed, a British resident who was held in a secret prison in Pakistan, the high court has ruled.

In a devastating judgment, two senior judges roundly dismissed the foreign secretary’s claims that disclosing the evidence would harm national security and threaten the UK’s vital intelligence-sharing arrangements with the US.

In what they described as an “unprecedented” and “exceptional” case, to which the Guardian is a party, they ordered the release of a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born Mohamed before he was secretly interrogated by an MI5 officer in 2002.

“The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law,” Lord Justice Thomas and Mr Justice Lloyd Jones ruled. “Championing the rule of law, not subordinating it, is the cornerstone of democracy.” (emphasis added)

That, ladies and gentlemen, is how it is done. Make no mistake, this is as big of a slap at the United States government as it is the British and Milibrand. The pure fiction that the security relationship between the two countries rested in the lurch has never been anything short of a craven coverup of unconscionable and criminal conduct.

The Brit High Court was not done though:

“In our view, as a court in the United Kingdom, a vital public interest requires, for reasons of democratic accountability and the rule of law in the United Kingdom, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the United Kingdom.”

The judges sharply criticised the way Miliband and his lawyers tried to persuade the Obama administration to back the suppression of the CIA material. Lawyers acting for Mohamed, the Guardian and other media organisations pointed out that Obama had himself set up an inquiry into CIA practices and published details of their interrogation techniques.

In the end, Miliband had to rely for help on a CIA letter to MI6 claiming that disclosure of the document would harm the security of the US and UK.

The judges made it clear they did not believe the claim was credible. “The public interest in making the paragraphs public is overwhelming,” they said.

Production of the evidence will be stayed pending a right to seek appeal, but this is an outstanding decision and opinion. A nice and uplifting piece of news to round out the week.

UPDATE: Per MadDog, here is the AP Report on the High Court’s decision, and a tasty quote:

“It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ’secret’ or as ‘intelligence’…”

CIA Fraud In State Secrets Assertions

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There is a new case causing a stir on the state secrets front today. The case is Horn v. Huddle et. al, is filed in the DC District, and has been quietly going on behind the scenes since 1994. From Del Wilber at the Washington Post:

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Judge Royce C. Lamberth wrote that he was also considering sanctions against five current and former agency lawyers and officials, including former director George Tenet, for withholding key information about the operative’s covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history."

Here is the ruling issued by Judge Royce Lamberth today that set off the firestorm.

There is a lot of great background on the case, and events behind it, in an old post from Bill Conroy at Narco News in 2004:

Former DEA agent Richard Horn has been fighting the U.S. government for the past 10 years trying to prove the CIA illegally spied on him as part of an effort to thwart his mission in the Southeast Asian country of Burma.

After being removed from his post in Burma, Horn filed litigation in federal court in Washington, D.C., in 1994 accusing top officials for the CIA and State Department in Burma of violating his Fourth Amendment rights.

After languishing in the federal court system for some 10 years, Horn’s case was dismissed in late July of this year [2004] after crucial evidence in the case was suppressed on national security grounds.

…

What really happened in the Horn case, though, is not supposed to come out, if the government has its way. From the start, Horn’s litigation was sealed and critical evidence that could have supported his claims censored by the court.

Specifically, the evidence – two federal Inspector General (IG) reports that centered on Horn’s accusations – was determined by the court to be protected from disclosure based on something called state secrets privilege. The privilege, which was established as part of a 1953 Supreme Court ruling known as the Reynolds case, allows the government to deep-six information if it is deemed a threat to national security.

“Having determined that state secrets privilege bars disclosure of the IG Reports and certain attachments … the case cannot continue and Read more →

What the Scope of the IG Report on Warrantless Wiretapping Tells Us

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Remember how when Congress passed the FISA Amendment Act last year, they required that the Inspectors General of the various agencies involved in the warrantless wiretapping produce a report on the program? They did an interim report–basically describing the scope of the report–last September (and produced in unclassified form last November). It took Secrecy News pulling teeth to get this released (six months after the fact), but here is the interim report.

General Scope

I’m going to show you the whole scope-related section, then unpack it line by line.

The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months. In accord with its normal procedures and consistent with classification requirements, the DoJ IG will release its report when completed. The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders. The review will also include a description of NSA’s oversight of the Program. To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.

The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.

The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program. Read more →

“The Waterboard”

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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. Read more →

The CIA OIG Made Five Criminal Referrals During Its Investigation of CIA Interrogation Techniques

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In January 2003, the CIA’s Inspector General started an investigation into the Agency’s interrogation techniques. It wasn’t–they claim–in response to any specific allegation of torture.

In January 2003, OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing. [my emphasis]

The CIA OIG finalized their report on the investigation in May 2004. Over the course of the investigation, CIA’s OIG referred five cases to the Criminal Division of DOJ.

[Alice Fisher] said she recalled there was an investigation based on a CIA referral that may have related to detainee treatment or interrogation techniques, and that she became aware of some facts relating to CIA interrogations. She did not say when DOJ received the CIA referral, though she noted that it was sometime “later." [Later than the late 2002-early 2003 time frame of a debate about al-Qahtani.] Documents reflect a total of five referrals by the CIA OIG to DOJ. These referrals were made between February 6, 2003 and March 30, 2004.

Here is the CIA’s description of why they refer cases to DOJ pursuant to a CIA OIG investigation.

If OIG has a reasonable basis to believe a federal crime may have been committed, the IG reports the information to the Attorney General.

In other words, over the course of its investigation into the CIA’s detainee treatment and interrogation methods, the CIA Office of Inspector General developed reasonable basis to believe that five incidents relating to detainee treatment and interrogation they had reviewed constituted a federal crime.

This is important, among other reasons, because in the same month CIA’s OIG submitted its report, the CIA discussed with the White House destroying tapes–reviewed over the course of the OIG investigation–of Abu Zubaydah and al-Nashiri being water-boarded. Even before the CIA water-boarded Abu Zubaydah, an FBI interrogator reported, he witnessed activities he believed constituted "borderline torture." A year later, after the CIA OIG submitted a report that presumably described five events the CIA OIG believed to constitute a federal crime, the CIA ultimately destroyed the tapes of those Abu Zubaydah interrogations.

Foggo’s New Charges

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Note: see the update below for issues relating to the accuracy of this post as originally posted. I’ve retained what seems to be supported by other data: mostly that the CIA is trying to spin Foggo’s additional charges as proof of the Agency’s own ability to investigate itself, spin that the timing involved seems to belie.

A number of you have pointed out that Dusty Foggo got some charges slapped onto his existing indictment.

A federal grand jury has accused a former top CIA official of pulling strings to get a high-level CIA job for his mistress, as part of a new indictment against the official in an existing corruption case.

The new indictment against Kyle "Dusty" Foggo, a former No. 3 official at the spy agency and a onetime senior CIA ethics officer, alleges that he pressured CIA managers into hiring the woman after she was turned down for a position in the CIA’s general counsel office. He also allegedly made false statements about her qualifications, the indictment states.

Foggo, the CIA’s executive director from 2004 to 2006, specifically told agency officials he had a "special interest" in seeing the woman hired, and he later berated them when they initially rejected her application. "When the ExDir has a special interest, you had better take notice," Foggo told the general counsel’s staff, according to an indictment filed late Tuesday by the U.S. attorney’s office in Alexandria.

[Update: RJ Hillhouse has deleted the post that I linked to substantively here and–at her request, I’m removing the citation of her blogpost. Her note on why she deleted her blogpost is here. The substance of the text–which Hillhouse does not stand by any longer–included some history on earlier events potentially related to these new charges.]

What’s so hilarious about this is that–in Joby Warrick’s article–the CIA is spinning that Foggo’s additional indictments prove how good CIA is at policing itself.

The initial filing of criminal charges against Foggo in 2006 prompted questions about internal security at the CIA, which is supposed to have an elaborate system of checks to limit the risk of malfeasance by agency insiders. But agency officials insisted yesterday that the system works and said that the CIA has played a key role in investigating Foggo.

"It demonstrates a willingness by the CIA to investigate itself," said an official who declined to be identified by name because the charges have not been tried in court.

[text deleted, see above]

But that was, presumably, over two years ago, back before Foggo had to resign from the CIA and back before–over a year ago–Foggo was indicted for bribery.

And it has taken up until now–[text deleted]–to get added to Foggo’s indictment? Read more →

A Peek into the Torture Tape Investigation

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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.

Read more →

Is This Why Rosenberg Recused?

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The AP reveals that prosecutors in the Alexandria US Attorney’s Office–including the lead prosecutor in the Moussaoui case–did know of the torture tapes in early 2006, before Moussaoui was sentenced.

The lead prosecutor in the terror case against Zacarias Moussaoui may have known the CIA destroyed tapes of its interrogations of an al-Qaida suspect more than a year before the government acknowledged it to the court, newly unsealed documents indicate.

The documents, which were declassified and released Wednesday by the 4th U.S. Circuit Court of Appeals, detail efforts by Moussaoui’s attorneys to send the case back to a lower federal court to find out whether the tapes should have been disclosed and whether they would have influenced his decision to plead guilty.

In a Dec. 18, 2007, letter to the appeals court’s chief judge, the Justice Department acknowledged that its lead prosecutor in the case had been informed about the CIA’s tapes of al-Qaida lieutenant Abu Zubaydah being interrogated.

The letter said the prosecutor, Robert A. Spencer, may have been told of the tapes’ destruction in late February or early March of 2006, just as the U.S. District Court in Alexandria, Va., was beginning its trial on whether Moussaoui would be eligible to face the death penalty.

Spencer, who was one of three prosecutors on the government’s team, "does not recall being told this information," U.S. Attorney Chuck Rosenberg wrote in the Dec. 18 letter to 4th U.S. Circuit Chief Judge Karen J. Williams.

Another prosecutor in Rosenberg’s office in Virginia’s eastern district who was not involved in the case "recalls telling (Spencer) on one occasion," the letter said.

That second, unnamed, prosecutor learned about the videotapes of Zubaydah "in connection with work he performed in a Department of Justice project unrelated to the Moussaoui case," the letter said.

It is unclear what that project was. [my emphasis]

Read more →

The Watchdog’s Watchdog

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Last month, just as CIA’s IG and Director learned of the DOJ investigation into the torture tape destruction, the CIA also announced that Helgerson and Hayden had agreed on some measures to make the IG process "more fair."

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

Right on schedule, yesterday the CIA announced those "procedural changes." The IG’s office will have an ombudsman to act as a watchdog on the watchdog.

The CIA’s inspector general has agreed to tighter controls over its investigative procedures, agency officials revealed yesterday, in what appeared to be an attempt to soften resentments among agency officials over the watchdog’s aggressive probes into the legality and effectiveness of the CIA’s counterterrorism efforts and detention programs.

The revisions, which include the appointment of a special ombudsman to oversee the IG’s work, were disclosed by CIA Director Michael V. Hayden in an e-mail sent to employees, announcing the end of an unusual inquiry into the performance of Inspector General John L. Helgerson, a 36-year CIA veteran and the man chiefly responsible for the spy agency’s internal oversight.

Most interesting–or troubling, depending on how you look at it–is the requirement that the IG’s office keep senior CIA officers informed of the status of investigations.

The changes include measures intended to speed up investigations and require the watchdog to keep CIA employees and managers informed about both the process and results of investigations.

Call me crazy, but I would imagine that if you tell the CIA Director that you’re about to report that the "enhanced interrogation techniques" the CIA has been doing probably violate international law, then you’re never going to be able to write a report to that effect. And certainly never going to be able to circulate to anyone who can do something about the violations of international law.