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Haynes’ Multiple Choice Memos

Back in May, I wrote a post observing that when David Addington testified before the House Judiciary Committee, he seemed to be carefully choosing which August 1, 2002 Bybee Memo he answered questions about. For example, when Debbie Wasserman Schultz asks Addington whether he discussed torture methods described in the memo the Committee had been discussing (by context, the Bybee One memo), he response that that memo didn’t discuss torture methods.

Ms. WASSERMAN SCHULTZ. On any of the trips, did you discuss interrogation methods that were directly referenced in the memo that we have been discussing here for this hearing?

Mr. ADDINGTON. I am not sure I remember this memo having methods discussed in it, frankly. [my emphasis]

So he never answers a much more interesting question–whether he shared the Bybee Two memo–which did list torture methods–with those at Gitmo.

Curiously, Jim Haynes seems to be doing the same in the Questions for the Record following up on his testimony before the Senate Armed Services Committee.

36. Senator CLINTON. Mr. Haynes, do you recall when you received the August 1, 2002, OLC memorandum from Jay Bybee to Attorney General Gonzales regarding the legality of interrogation methods?

Mr. HAYNES. I do not recall precisely when I received a copy of the August 1, 2002 opinion interpreting 18 U.S.C. §§ 2340–2340A. Too much time has passed and I have now seen the memo in so many contexts that I can no longer be certain when I saw it for the first time. I cannot even recall whether I simply read the opinion al some point or whether I received a copy of the opinion and, if so, who transmitted the copy. I did, eventually, get a copy of that opinion, but I do not remember when I first got it.

From the context, Hillary may have referred to the Bybee One memo (the one equating torture with organ failure) using a description more apt for the Bybee Two memo (since the latter discussed the legality of interrogation methods).

But regardless of what Hillary meant to ask, Haynes crafts his answer to answer the question he wants to answer. She asks about the memo describing interrogation methods (which would be Bybee Two); he responds about the memo interpreting the statute (which would by Bybee One). 

Someone really ought to ask these thugs these same questions about the Bybee Two memo.

Helgerson’s Hints

JasonLeopold linked to two interviews with John Helgerson, who as the CIA’s former Inspector General, oversaw its investigation into torture. (Fox, Spiegel)

Helgerson and Cheney

The Fox one, perhaps predictably, focuses on Helgerson’s reported interactions with Cheney, providing a counterpoint to Jane Mayer’s portrayal of discussions between the two men as heated.

"The VP (whom I had long known reasonably well, as, in a non-IG capacity, I used to brief the House Intelligence Committee on a weekly basis when he was an active Member) received me graciously and asked a number of good and appropriate questions. Despite what you may have read elsewhere, he did not attempt in any way whatsoever to intimidate me or influence what we were finding, concluding and recommending," Helgerson wrote in an e-mail to FOX News. 

Of course, if Helgerson was briefing the committee regularly during this period, it is likely he was interacting with Addington, then a Counsel on the committee. Also at that time, one of CIA’s young lawyers, John Rizzo, was "the Agency’s focal point in dealing with the joint congressional committee investigating the Iran-Contra Affair." So, curiously, Cheney, Addington, Rizzo, and Helgerson were probably all involved with the House Intelligence Committee during the Iran-Contra issues.

Given the description he gives of his relationship with Cheney, I’m particularly interested in Helgerson’s description of how and why Cheney got a briefing.

"Only infrequently do IG reports take on such significance that they need to be briefed to the VP, and when this is the case, normally White House or NSC Counsel, or the VP’s own staff, receive the material first and then inform the VP as they see fit," he wrote.

Helgerson said that at the time the review had been completed, he and others in the spy agency briefed a number of key parties about the program and the IG’s findings. They included members of the White House, the National Security Council, Congress and the Department of Justice.

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Addington’s Direct Involvement in the Torture Memos

As I noted yesterday, I’ve been reading old HJC hearings–including the hearing at which Daniel Levin testified about the torture memos. Levin basically testified that he was asked to resign while he was drafting what became the 2005 Bradbury memos.

Mr. DAVIS. Mr. Levin, let me begin with you and Mr. Wilkerson, and put frankly everything I have heard today in some context. And I want to pull out two particular events. The first one is the circumstances of your not being at the Department. I know that you were very careful in your answers to Chairman Nadler earlier. But let me make sure I understand you.

You didn’t voluntarily leave the Department; is that correct?

Mr. LEVIN. I would have preferred to have stayed. I mean, when I was told I wasn’t going to stay, I voluntarily left.

Mr. DAVIS. That tends to be what happens; when people who are over you tell you to go, you go. That is what in the real world is called being fired.

But he also revealed something else about what happened when he was drafting the replacements for John Yoo’s crappy memos: he had no direct contact with David Addington during the process–or anyone else in OVP.

Mr. ELLISON. Whom did you talk to in the redrafting?

Mr. LEVIN. I talked to a lot of people. As I mentioned in my opening remarks, I think one of the problems with the earlier memo was, it was not the subject of sufficiently broad collaboration and discussion.

I talked, in addition to everybody in the Office of Legal Counsel virtually, people at the Criminal Division, various other people in the Department, people at the State Department.

Mr. ELLISON. Did you talk to anybody in the Vice President’s Office?

Mr. LEVIN. I don’t believe I did talk to anybody in the Vice President’s Office. I did submit drafts to the White House Counsel’s Office, and whom they circulated it to in the White House, I don’t know.

Mr. ELLISON. Okay. Do you know if—did Mr. Addington have any input into your redraft?

Mr. LEVIN. Not directly to me. Whether he did so indirectly, I am not sure. He may have provided comments to White House Counsel that were then communicated to me as their comments. I was not ever told anything that were his comments, and he never spoke to me about it directly.

Now, that’s remarkable. Read more

Dick Cheney: I’m Proud I Tortured to Protect Our Country But Not Our Allies

One key to Dick Cheney’s defense today is the proud boast that his torture policy worked.

I guess the other thing that offends the hell out of me, frankly, Chris, is we had a track record now of eight years of defending the nation against any further mass casualty attacks from Al Qaeda.

[snip]

I’m very proud of what we did in terms of defending the nation for the last eight years successfully.

[snip]

Chris, my sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks against the United States, and giving us the intelligence we needed to go find Al Qaeda, to find their camps, to find out how they were being financed. Those interrogations were involved in the arrest of nearly all the Al Qaeda members that we were able to bring to justice. I think they were directly responsible for the fact that for eight years, we had no further mass casualty attacks against the United States. 

It was good policy. It was properly carried out. It worked very, very well.

[snip]

The thing I keep coming back to time and time again, Chris, is the fact that we’ve gone for eight years without another attack. Now, how do you explain that? 

The critics don’t have any solution for that. They can criticize our policies, our way of doing business, but the results speak for themselves.

I wonder how Jose Maria Aznar feels about Dick Cheney’s proud defense of torture? Spain’s former Prime Minister who staked much on supporting Cheney’s unpopular war in Iraq had that support rewarded with a vicious attack on Madrid’s subway. The attack happened a year after we started torturing Khalid Sheikh Mohammed. But somehow, all the torture of al Qaeda’s mastermind somehow failed to prevent the Madrid attack.

I wonder what the families of those who died in the Madrid attack think, hearing Cheney defend his torture program by boasting of eight years with no attack?

Or what do the Indonesians think to hear of Cheney’s boast? Several months after we tortured Abu Zubaydah in 2002, Indonesia suffered from its worst terrorist attack, in Bali. Yet somehow waterboarding Abu Zubaydah did little to prevent those more than 200 deaths.

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The Continuity of Addington’s Man-Sized Safe

The CIA IG Report provides this narrative of the CIA’s past involvement with interrogation techniques.

In the early 1980s, a resurgence of interest in teaching interrogation techniques developed as one of several methods to foster foreign liaison relationships. Because of political sensitivities the then-Deputy Director of Central Intelligence (DDCI) forbade Agency officers from using the word "interrogation." The Agency then. developed the Human Resource Exploitation (HRE) training program designed to train foreign liaison services on interrogation techniques.

In 1984, OIG investigated allegations of misconduct on the part of two Agency officers who were involved in interrogations and the death of one individual [redacted] Following that investigation, the Agency took steps to ensure Agency personnel understood its policy on interrogations, debriefings, and human rights issues. Headquarters sent officers to brief Stations and Bases and provided cable guidance to the field.

In 1986, the Agency ended the HRE training program because of allegations of human rights abuses in Latin America.

From that point, the IG Report lays out the Directorate of Operations policy on interrogations developed in response to the HRE scandal (it is redacted in our copy), and suggests that’s where the narrative leaves off, with the CIA completely out of the business of torture since 1986.

Of course, that history didn’t quite end there. In 1991, we know, the Defense Department "discovered" that seven counterintelligence and interrogation manuals used for training in Latin American–including the one on Interrogation–still contained material that violated human rights and was derived from lesson plans developed in 1982 and used at the School of the Americas. After a nine-month investigation, DOD cited management problems for the inclusion of the inappropriate material in manuals, called for a damage assessment, and ordered that all the manuals be collected and destroyed. All the manuals, that is, except for one master copy:

For record purposes, the DoD General Counsel should retain one copy of each of the seven manuals along with a copy of this report. All other copies of the manuals and associated instructional materials, including computer disks, lesson plans, and "Project X" documents, should be destroyed.

The cover sheet showing the initialed approval of that recommendation by then-Defense Secretary Dick Cheney bears his then Special Assistant (and soon-to be DOD General Counsel) David Addington’s recommendation: "I concur."

While the CIA IG Report underplays the degree to which this knowledge remained at DOD between 1992 and 2001, that’s where we know it remained during the Clinton Administration.

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Condi’s Okay Came After OLC Approval

Here’s an interesting data point.

On July 13, 2002, representatives of CIA’s Office of General Counsel (probably John Rizzo) met with John Bellinger, John Yoo, Michael Chertoff, Daniel Levin, and Alberto Gonzales for overview of interrogation plan. That very same day, Yoo wrote Rizzo, generally laying out the logic he would use in the later memos approving the program. He wrote:

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental pain or suffering, he would not have acted with the specific intent necessary to establish torture.

Four days later, Condi told George Tenet the "CIA could proceed with its proposed interrogation of Abu Zubaydah … subject to a determination of legality by OLC."

In other words, OLC had already given CIA a pretty broad okay before Condi gave Tenet the policy okay.

One more detail of interest. Note the redacted name on the second page of the letter–perhaps as long as 16 characters long. That’s too long to be Jay Bybee or Pat Philbin (though it could be Patrick Philbin). Though it’s probably long enough to be either Robert Delahunty (who had partnered with Yoo on some other crazy opinions by that point) or David Addington. Or, heck, even Alberto Gonzales. Whose role in the torture approval process is DOJ trying to hide?

Update: One more detail of interest. On June 22, 2004, the same day Goldsmith, Comey, and Philbin withdrew the Bybee Memo, John Rizzo sent this earlier approval to Philbin. That seems to suggest that Philbin did not know about it and may even suggest that it wasn’t in OLC’s records (though Philbin, by that point, worked under Comey at DAG. 

The Scope of the (Hypothetical) Torture Investigation

It was just last night that Newsweek floated the notion of a torture investigation, and we’re already into a hot debate about the scope of any (thus far still hypothetical) investigation. Here are the posts you should read:

  • Tim F @BalloonJuice arguing that an investigation of just the torturers who exceeded guidelines would be worse than no investigation
  • [email protected] arguing that focusing on the CIA–rather than the decision-makers–would be wrong
  • [email protected] cataloging the different stories about scope–and arguing that if the investigation focuses on CIA it’ll be Abu Ghraib redux

Glenn and Spencer both point to Scott Horton–reporting that there is unlikely to be such a limit on scope–in an article I’ll look at in some detail below.

My take–one derived from some weeds–is that if Holder approves an investigation, it’ll be unlikely to just take on low-level CIA interrogators.

First, consider who we’re talking about. We’re not, actually, talking about low level CIA interrogators. We’re talking about contractors. James Mitchell, to be exact. And if James Mitchell is not the psychologist/interrogator who acknowledged he had exceeded the limits set by John Yoo’s Bybee Memo, but justified it by saying he had exceeded those limits (by using way more water, for longer time, and pressing on the detainee’s gut) because those things make the simulated drowning technique "for real–and … more poignant and convincing," then it’s almost certainly someone who works for James Mitchell and probably used to work for the DOD entity that administers SERE.

I, frankly, have no problem with prosecuting Mr. Poignant the sadist torturer and, given his acknowledgment that he exceeded Yoo’s guidelines, that’s probably where an investigation would start.

Now, as I said, Mr. Poignant is either James Mitchell or someone associated with him–the "psychologist/interrogator" strongly suggests this person is a contractor, not a CIA employee.

That means that going after Mr. Poignant gets you, in either one step or two, to the contractors who worked from the start to profit off torture.

And that gets you, almost immediately, to the process that the torture architects used to authorize their torture. That’s because there is a paper trail showing that the torture architects knew and intended the torture to exceed even Yoo’s memo. This is a document that both Jim Haynes and John Rizzo had and–between the two of them–gave to John Yoo during the drafting process for the Bybee Memo as the basis for his description of waterboarding.

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When and To What Degree Was John Ashcroft Read Into the Illegal Surveillance Program?

We have long known that John Ashcroft was not properly read into the illegal domestic surveillance program. Senator Whitehouse suggested as much when Attorney General Gonzales testified in July 2007. And both Gonzales and Robert Mueller revealed that John Ashcroft–from his ICU bed–complained that his advisors had not been able to get read into the program and as a result he was ill-informed about the program.

But here’s an interesting detail about the hospital visit:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

[snip]

Well, here’s the relevant detail from Mueller’s notes:

The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

But the IG Report raises new and different questions about when–and to what degree–John Ashcroft was read into Cheney’s illegal domestic surveillance program. It includes the same details as Gonzales and Mueller have already revealed (though it looks like Gonzales was rather more cautious when speaking with the IG than before, and the IG appears not to have asked Mueller for his version of the story).

Former Attorney General Gonzales and former OLC Assistant Attorney General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP.

[snip]

Gonzales told the DOJ OIG that the Yoo opinions represented the legal opinion of DOJ, and that it was Ashcroft’s decision as to how to satisfy his obligations as Attorney General. Gonzales told the DOJ OIG that Ashcroft complained to the White House that it was "inconvenient" not to have the Deputy Attorney General or Ashcroft’s Chief of Staff read into the PSP, but Gonzales also stated that he never got the sense from Ashcroft that this affected the quality of the legal advice about the program that DOJ provided to the White House. As noted, Ashcroft declined the DOJ OIG’s request for an interview. The DOJ OIG therefore was unable to determine from Ashcroft whether he sought additional DOJ read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional read-ins, or whether he believed he was receiving adequate legal advice about the program from Yoo alone during this early phase of the PSP.

But there’s one big–huge–tell about whether or not Ashcroft conducted sufficient analysis of this program to approve its legality: 

Attorney General John Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day he was read into the program.

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John Rizzo Pre-Empts the OPR Report

As we speak, the CIA–including, by all appearances, John Rizzo–is reviewing the Office of Professional Responsibility’s report on OLC’s torture memos.

As if on cue, the LAT has a story profiling him. (Also, as if on cue, I take up Spencer’s bait.)

Given its scope, the OPR report must focus on two different periods: the months leading up to the August 2002 OLC memos, and the months leading up to the May 2005 OLC memos (as well as, probably, the time leading up to the March 2003 OLC memo, but that was a DOD memo, not a CIA one).

Those are, not surprisingly, the two years, at least, that appear in this story. We are told–with no sourcing–that Rizzo never dealt with legal questions about torture before the capture of Abu Zubaydah.

Rizzo had never dealt with legal questions about interrogation until officials from the agency’s Counterterrorism Center approached him in 2002 with a list of techniques they wanted to employ to get a suspected Al Qaeda captive, Abu Zubaydah, to talk. Among them was waterboarding, in which a prisoner is strapped to a plank and doused to make him feel he is drowning.

This would suggest the War Council–David Addington, Jim Haynes, John Yoo, and Rizzo–weren’t already talking about torture in December 2001, when Mitchell and Jessen first started developing their torture program. It would also suggest that Rizzo never weighed in on the treatment of Ibn Sheikh al-Libi and others rendered to torture. It would repeat the same myth the Cheney apologists like to tell–that these ideas bubbled up from CTC, rather than were imposed from the top.

It’s an interesting story. If true, then I wonder why it’s taking CIA so long to review that OPR report?

And then there are the 2005 dates. As Spencer describes, at some point in 2005 Rizzo personally observed the Salt Pit.

Rizzo kept close watch on the interrogation program. Once, during a 2005 trip by senior CIA executives to Kabul, Afghanistan, Rizzo disappeared from the crowd after dinner with Afghan intelligence officials.

It wasn’t until the next day, one participant remembered, that Rizzo revealed he had arranged a midnight trip to the Salt Pit, a secret CIA prison on the outskirts of the city, to see detention operations up close.

A CIA detainee had died at the site in 2002. But Rizzo came away newly assured that the operation was well-run, former officials said.

The story would have you believe that Rizzo thought, in 2005, that the torture we were conducting at the Salt Pit was all hunky dory. Read more

Hassan Ghul, Mystery Detainee 2, and the Three Bradbury Memos

Update, March 12, 2015: We know from the Senate Torture Report that the Techniques memo was about Janat Gul, not Hassan Ghul. 

Since the Comey emails have come out, I’ve been trying to puzzle through why the Bush Administration issued three memos in May 2005–Techniques, Combined, and CAT–rather than just one or two. I guess I sort of understand doing a separate memo on whether the torture program complies with the Convention Against Torture, since that was largely written to placate Congress and ought to have (but did not) involve a more sensitive analysis. But since all the techniques are used in combination, why not join the analysis of Techniques and Combined?

This is to an extent a wildarsed guess. But I think they did three memos to hide the analysis and authorization of a particular detainee’s treatment. And I think that detainee was waterboarded.

Two Detainees

It has long been established that Hassan Ghul is discussed in these memos. Dafna Linzer reported on it the day the memos came out (and someone here MadDog also noted it about the same time–gold star to MadDog!!).

But the May 30 CAT memo actually mentions two detainees.

We understand that two individuals, [redacted across two pages] are representative of the high value detainees on whom enhanced techniques have been, or might be, used.

I’ll come back to this passage, but for the moment, understand that by the end of May 2005, Bradbury was ready to at least name two detainees in his memo.

The “Techniques” Memo Is about Ghul

I’m not 100% certain, but I believe that the May 10 Techniques memo is–at least ostensibly–exclusively about Ghul. The title of the memo uses the singular–Detainee. And the memo describes the detainee by name (the name is redacted, but it appears to be an appropriate length to spell “Hassan Gul”–CIA spelled “Ghul” without an “h”).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted]. You informed us that the [redacted] and information about al Qaeda’s plans to launch an attack within the United Staes. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments [redacted] were completed by a CIA physician and psychologist, and that based on this examination, the physician concluded “[redacted] medical stable and has not medical contraindications to interrogation, including the use of interrogation techniques” addressed in this memorandum.

So by all appearances, the Techniques memo uses the interrogation of Ghul to reapprove all the techniques used by the CIA, thereby replacing Bybee Two.

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