Just Making It Up on Classification

A number of you have pointed to smintheus’ excellent post on Bush’s new classification, Controlled Unclassified Information.

On Friday afternoon, with George Bush in Texas for his daughter’s wedding, the White House finally released its new Executive Branch rules for designating and disseminating what used to be known as "sensitive" information. The most common term in the past for such material has been "Sensitive But Unclassified" (SBU), though there was an alphabet soup of competing classifications in various agencies. In part, the new rules create a uniform standard across the Executive by replacing SBU etc. with a new classification, "Controlled Unclassified Information" (CUI).

The Friday memo states that its purpose "is to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information." The initial impetus for change came in a December 2005 memo in which Bush called for a new policy for information sharing between agencies. The alphabet soup of "sensitive" designations too often played into the hands of officials who sought to hoard information rather than to share it.


Though the material to be regulated is nominally "unclassified", this new system is in fact a much more sweeping program for keeping information secret than the ostensibly higher grades of secrecy for "classified" material. And at the same time, the system for designating "unclassified" information is in significant ways far less regulated than for "classified" information. This new memo represents the opposite of reform.

I agree with smintheus that this classification is simply an invitation for bureaucratic games that result in less information sharing rather than more.

But at the same time, with the increasing evidence that it doesn’t matter what Bush says the classification guidelines are, key players in his Administration will just do as they please anyway, I’m not sure the CUI is the worst of our worries.

Consider the example offered by Bill Leonard in his statement for Russ Feingold’s April 29 30 [thanks selise] hearing on Secret Law. Leonard focused most of his attention on the improper classification of the Yoo Torture Memo authorizing the military to torture; he offered quite a striking soundbite about the memo:

To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a "secret" Article to the Constitution that the American people do not even know about.

But I found the details of Leonard’s discussion even more interesting. Read more

Analogies for Yoo: The Merck Scandal

There’s been more discussion of the appropriate analogy to use to determine whether or not John Yoo should–or could–be fired from Berkeley. But I wonder whether the incipient Vioxx scandal won’t offer us the best analogy. As the NYT reports, Merck appears to have sent out drafts of reports to professors to have them submit them for publication under their own name.

Combing through the documents, Dr. Ross and his colleagues unearthed internal Merck e-mail messages and documents about 96 journal publications, which included review articles and reports of clinical studies. While the Ross team said it was not necessarily raising questions about all 96 articles, it said that in many cases there was scant evidence that the recruited authors made substantive contributions.

One paper involved a study of Vioxx as a possible deterrent to Alzheimer’s progression.

The draft of the paper, dated August 2003, identified the lead writer as “External author?” But when it was published in 2005 in the journal Neuropsychopharmacology, the lead author was listed as Dr. Leon J. Thal, a well-known Alzheimer’s researcher at the University of California, San Diego. Dr. Thal was killed in an airplane crash last year.

The second author listed on the published Alzheimer’s paper, whose name had not been on the draft, was Dr. Ferris, the New York University professor. Dr. Ferris, reached by telephone Tuesday, said he had played an active role in the research and he was substantially involved in helping shape the final draft.

“It’s simply false that we didn’t contribute to the final publication,” Dr. Ferris said.

A third author, also not named on the initial draft, was Dr. Louis Kirby, currently the medical director for the company Provista Life Sciences. In an e-mail message on Tuesday, Dr. Kirby said that as a clinical investigator for the study he had enrolled more patients, 109, than any of the other researchers. He also said he made revisions to the final document.

“The fact that the draft was written by a Merck employee for later discussion by all the authors does not in and of itself constitute ghostwriting,” Dr. Kirby’s e-mail message said.

This story is just breaking. But I suspect that there will be substantial scrutiny of the scientists involved, or at least those still at research universities. And I suspect we’ll start seeing longer lists of professors who rented their name out in support of drug companies.

Read more

January 23, 2006

Sorry. I’m afraid Waxman has me hooked on these damn email documents.

But I wanted to point out a curious bit of timing. I’m working on a mega-timeline, but note this mini-timeline:

January 20, 2006: McDevitt and friends determine that there are gaps where the missing emails should be.

January 23, 2006: Fitzgerald informs Libby’s lawyers "via Telefax and regular mail" that:

In an abundance of caution, we advise you that we have learned that not all email of the Office of Vice President and the Executive Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.

January 23, 2006, 11:18 AM: McDevitt writes Susan Crippen,

Someone needs to fill in some of the blanks.

January 23, 2006, 1:19 PM: Crippen responds,

SIS has "filled in" the blanks.

January 24, 2006: Someone in the White House writes a document claiming to have found the missing emails.

According to a document dated just four days later that was shown to Committee staff, but not provided to them, the White House team recovercd 17,956 e-mails from these individual mailboxes on the backup tape and used these as their basis to search for e-mails responsive to the Special Counsel’s request.

January 31, 2006: Fitzgerald’s letter entered into PACER, alerting the press and DFH bloggers to the missing emails.

February 2, 2006: Addington prints off email for discovery.

February 6, 2006: Fitzgerald receives "missing" emails.

February 11, 2006: Dick shoots an old man in the face.

Okay, okay, I just included Dick’s lawyer-hunting for fun (though I have long believed the revelation of Cheney’s NIE cover story and the missing emails contributed to his carelessness that day).

But does anyone else find it odd that the WH "found" the missing emails the day after Libby’s lawyers learned that news of them would imminently become public?

Plame Investigation and Missing Emails: Analysis on Emails

This is the post I promised, in which I’ll analyze what the timeline of the missing dates shows. As I said in that post, this exercise makes several assumptions, some of which clearly are not true:

  • It assumes all the missing emails have some tie to the Plame leak; we know this is not true because of the volume of email missing from offices uninvolved in the leak, and there is at least one period when no archive of OVP email exists for which I can think of no Plame leak correlation.
  • It assumes we’re seeing all the missing emails; we’re not. There’s a bunch of dates on which there is a very small amount of email archived, and if we were to do this analysis properly, we’d need to know those dates, too.
  • It assumes the email archives were destroyed deliberately to hide legally dubious acts. While that might be a fair assumption with this administration, we don’t know for sure that is true, so by trying to find correlations between missing emails and known events, we may end up imagining motivations on the part of the White House that didn’t exist.

So understand that this is as much a thought experiment as useful analysis. It basically tries to answer the question, "Assuming most of the WH and OVP email gaps during this period relate to the Plame investigation, why might the WH have been deleting archives? What were they trying to hide?"

Also, consider some limits about the content of the email. We’re assuming the email was dangerous enough to make it worthwhile to delete. Yet, given that Fitzgerald got at least 250 pages of the missing OVP emails (and presumably a similar amount of missing WH emails), one of the following must be true:

  • The emails were not damaging enough to support an indictment for anyone beyond Libby. Only one of these emails was ever even introduced at Libby’s trial–and it was nowhere near the most incriminating piece of evidence. So the emails Fitzgerald received, at least, either contain no smoking gun or he chose not to pursue the smoking gun. Read more

Missing Emails: Addington’s Search Terms

Among the documents introduced at the trial was a draft version of the search that David Addington requested Keith Roberts of the Office of Administration to do on the emails on the OVP server. This is not a final version–it is what Addington sent to Deputy Special Counsel Roos to get his approval before he submitted it to Roberts to do his search. So hopefully Roos fixed some of the glaring holes in the email search–I don’t know.

In any case, here are the searches Addington requested in order to elicit emails on or to journalists from June 1 to October 31, 2003 and Joe and Valerie Wilson from October 1, 2003 until January 23, 2004 (I’m having a few technical issues, so this isn’t an image; make sure you click through to see the PDF):

First Search

Search for email messages created between June 1, 2003 and October 31, 2003, inclusive through use of the following search terms:


Second Search

Search for e-mail messages created between October 1, 2003 and January 23, 2004, inclusive, through use of the following search terms:

"Joseph_C._Wilson" or "Joseph_wilson" or "Joe_wilson" or "Ambassador_wilson" or "Amb._Wilson" or "Amb_Wilson" or "Plame_" or "Niger_"

Now, once again, I don’t know whether this search for emails used these precise search terms, but if it did, here are the gaping holes which the search wouldn’t cover:

Journalist Names

For the journalists with unusual last names, Addington requests a search of those last names, which would be the most expansive search. Such journalists include Russert, Sanger, and Kristof–all names that, by the time this thing was done (and certainly before for Paul Gigot and Timmeh Russert)–were probably self explanatory without the first name. Curiously, the list of last name searches includes Dickerson; that’s surprising because John Dickerson’s last name is neither so unique nor his role in this story so central (unless you’re trying to make Ari Fleischer the fall guy) that it should be self-standing.

But notice some of the journalists for whom Addington submits first and last name, in quotes, that would return just that string: Judith Miller, Matthew Cooper, and Andrea Mitchell. This search will probably return any email from or to these journalists, picking up email signatures with their full names. Read more

The Terror–Or Maybe Something Else–Presidency

I just finished Jack Goldsmith’s The Terror Presidency. As I’ve been reading, I’ve been focusing primarily on the insight it might offer onto the Terror Tape Destruction. I’ll come back to this, but the short version is that, from June 2004 to December 2004, the CIA had no legal cover for the water-boarding they had already done, which explains why they’d want to destroy the evidence they had been doing it; but that still doesn’t explain why they’d wait until November 2005 to destroy the tapes, which seems to be the really pressing question right now.

But I appreciated Goldsmith’s book, too, for the way that reading an intelligent and sincere conservative helps me to see my disagreements with conservatives more clearly.

While I was reading the book, I found myself repeatedly bugged by several of Goldsmith’s blind spots, not least for his explanation that the excesses of the Administration are attributable to the accountability a President has and the fear everyone had of another terrorist attack.

The main explanation is fear. When the original opinion [on torture] was written in the weeks before the first anniversary of 9/11, threat reports were pulsing as they hadn’t since 9/11. … "We were sure there would be bodies in the streets" on September 11, 2002, a high-level Justice Department official later told me. Counterterrorism officials were terrified by a possible follow-up attack on the 9/11 anniversary, and desperate to stop it.


I have been critical of my predecessors’ actions in writing the interrogation opinions. But I was not there when they made the hard calls during the frightening summer of 2002. Instead, I surveyed the scene from the politically changed and always-more-lucid after-the-fact perspective. When I made tough calls in crisis situations under pressure and uncertainty, I realized that my decisions too would not be judged from the perspective of threat and danger in which they were taken. … Recognizing this, I often found myself praying that I would predict the future correctly.

Now, much as I respect Goldsmith’s intelligence, I’m convinced he conjures this explanation as a way to understand how someone like David Addington could be shredding the Constitution, but be doing it in good faith. It’s all understandable and desirable, Goldsmith seems to be saying, in that it will keep us safe in the long run. And David Addington means well, really he does. Read more


MadDog is right. This AP article provides a slew of interesting details on the torture tapes, including a list of Administration lawyers who objected to the destruction of the tapes. The article adds Alberto Gonzales and John Bellinger to the list of White House lawyers who–along with Harriet Miers–objected to the destruction of the tapes.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?

But there are a few more details I’d like to focus on. First, the AP offers a list of who Reyes plans to invite to testify to HPSCI, and it includes the CIA lawyers who wrote the opinion used–however fraudulently–to justify the destruction of the tapes.

Reyes also wants the CIA to make available CIA attorneys Steve Hermes, Robert Eatinger, Elizabeth Vogt and John McPherson to testify before the committee. Former CIA directors Porter Goss and George Tenet, former deputy director of operations James L. Pavitt and former general counsel Scott Muller are also on the list.

No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

For now, though, I’d like to return to the issue of timing, because it looks like somebody is fudging the true nature of the discussion by playing with the dates of discussions on the destruction of the tapes. John Bellinger is out there saying that in 2003, at least, the White House "consensus" objected to the tapes’ destruction. Read more


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

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.


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

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