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10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

 

2011

DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

I’v written a lot about the David Passaro case — the only one associated with the CIA (he was a contractor training Afghans) to be prosecuted for abuse. This post summarizes a lot of the problems with his case and its use to claim that the US ever held itself responsible for torture.

One Year After Collateral Murder Release, DOD’s Networks Are Still Glaring Security Problem

I’ve done a ton of posts on how the government complains about leaks even while it fails to close gaping security holes in its networks. This was one of the first. A day later I noted that DOD wasn’t aspiring to fix these problems until 2013; as it would turn out, Edward Snowden managed to download NSA’s crown jewels before they would fix them.

The Drone War on Westphalia

For Independence Day in 2011, I wrote a post arguing that the damage the use of drones will do to sovereignty will pose a real problem, particularly with regard to the consent of the governed. In a follow-up I argued against invoking “national security” to defend policies that weaken the nation.

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

In the first of a bunch of posts on Adnan Farhan abd al Latif, I showed that the intelligence report on which his detention relied — which Judge Henry Kennedy had originally deemed unreliable — probably was used to detain a bunch of people turned over with bounties.

49% of Michigan’s African Americans to Lose Their Right to Self-Governance

As the country started focusing on MI’s disastrous policy of  emergency managers, I was the first to note the moment when half of Michigan’s African Americans lost their right to local self-governance.

2012

Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

As part of an effort to justify drone-killing Anwar al-Awlaki, the government publicly blamed him for all of Umar Farouk Abdulmutallab’s attack on the US, blame which should have been shared with others in AQAP. This was the first post where I made that clear.

“The Gloves Come Off” Memorandum of Notification

I discovered that language the government was trying to keep classified in the ACLU torture FOIA was not (as ACLU mistakenly believed) a description about waterboarding, but instead an admission that torture was authorized by the September 17, 2001 Memorandum of Notification that authorized a bunch of other programs. This was a key post in a series of posts on the MON.

US Climate Inaction: Blame Dick Cheney

I believe the US invaded Iraq as part of a Cheney-backed decision to double down on our petroleum-based hegemonic position in the world, in the apparent belief that we can clean up the damage from climate change at some later time. Even our shift to fracking is more about power than the environment. Given how catastrophic the Iraq war was, and given everything that has occurred since — not least our singular abstention from the Paris Accord — I think it a particularly ironic choice.

Lanny Breuer Covers Up Material Support for Terrorism

I wrote a ton about Obama’s failure to prosecute the banks that blew up the world’s economy. One of the most important ones was the post where I laid out Lanny Breuer’s efforts to hide the fact that HSBC had materially supported al Qaeda. Of course, it got no more than a hand slap even as Pete Seda was in prison for closely related actions (Seda’s case ultimately blew up).

Other Key Post Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

Trump FBI Nominee Christopher Wray Gave Inappropriate Briefings to John Ashcroft During Plame Investigation

Donald Trump has tweeted that he will nominate Christopher Wray, who worked in Bush’s DOJ, to head the FBI.

While most people are noting that Wray is Chris Christie’s personal lawyer in Bridgegate, I’m at least as interested in some of the things he did while at DOJ, as Assistant Attorney General for the Criminal Division.

Wray was on the border of a lot of torture decisions in 2004 — the ACLU database of torture documents is full of entirely redacted documents involving him.

Wray was involved in one of the noted field trips to Gitmo to watch torture.

And he also charged David Passaro, the only CIA person (Passaro was a contractor training Afghans to be paramilitaries) ever charged for torture. DOJ seized a bunch of documents Passaro had which would have shown that CIA’s chain of command had approved torture. Whatever you think of Passaro, I strongly believe he was denied due process in a number of ways.

To Wray’s credit, he was the first to review Stellar Wind data for information that might need to be disclosed as discovery to defendants.

While Assistant Attorney General for the Criminal Division, Wray was involved in negotiations with lawyers for Chiquita (including Eric Holder) that resulted in Chiquita’s executives avoiding all penalties for materially supporting Colombian terrorists.

Finally and probably most importantly, also while AAG DOJ in the early days of the Plame investigation, Wray provided inappropriate briefings to John Ashcroft about what Ashcroft’s buddies had said during FBI interviews.

Among other things, the sources said, Ashcroft was provided extensive details of an FBI interview of Karl Rove, President George W. Bush’s chief political advisor. The two men have enjoyed a close relationship ever since Rove advised the Attorney General during the course of three of Ashcroft’s political campaigns.

The briefings for Ashcroft were conducted by Christopher Wray, a political appointee in charge of the Justice Department’s criminal division, and John Dion, a 30-year career prosecutor who was in charge of the investigation at the time. Neither Wray nor Dion returned phone calls seeking comment for this story.

The briefings raise questions about the appropriateness of Ashcroft’s involvement in the investigation, especially given his longstanding ties to Rove. Senior federal law-enforcement officials have expressed serious concerns among themselves that Ashcroft spent months overseeing the probe and receiving regular briefings regarding a criminal investigation in which the stakes were so high for the Attorney General’s personal friends, political allies, and political party. One told me, “Attorneys General and U.S. Attorneys in the past traditionally recused for far less than this.”

This is what led to Ashcroft’s recusal and the appointment, by Deputy Attorney General Jim Comey, of Patrick Fitzgerald as special counsel.

In short, it seems Wray is likely to ensure that highers up never see any consequences for their actions. And he sure seems likely to keep Trump in the loop on the investigation of Trump.

Update: Jack Goldsmith, who of course worked closely with Wray while at DOJ, thinks he is a “a good choice, a much better choice than any name I previously saw floated, and a much better choice than I expected Trump to make,” though notes there will be a “probing confirmation process” ahead.

Update: Here’s a hearing in which Wray got questioned about inappropriate briefings. h/t NW

Update: LOLOL. DOJ released a list of endorsements for Wray, about which I’ll have more to say. But they included an endorsement from the guy who made Wray give him inappropriate briefings.

“Chris Wray is a man of integrity with a deep commitment to the rule of law. His substantial experience, particularly in serving on our Justice Department team fighting terrorism after 9/11, uniquely qualifies him to protect America as FBI Director.”
–Former Attorney General John Ashcroft

CIA Lied about Leaking to Screw David Passaro and Protect Bush and Tenet

In the SSCI Torture Report, it has two references to how press people were leaking details of the the torture program to the press even while lawyers were claiming that the program was top secret. In this document, someone notes “our Glomar fig leaf is getting pretty thin.” In this one, a lawyer admits the declaration he had just written “about the secrecy of the interrogation program” was “a work of fiction.”

This document explains why the CIA was playing such games: to screw over David Passaro, a CIA contractor who was being tried for assaulting a detainee.

I know there is an urgency about the 7th Floor to attempt to defend the CIA program in the public domain. However, we need to have the 7th Floor confront the inconsistency in filing a CIPA declaration in Passaro about how critical it is to keep this information secret and at the same time planning to reveal the darn near the [sic] entire program. These goals are not obviously compatible.

I’ve written about Passaro at length before. Here’s a summary of what happened, which is basically that an insurgent suspect was brought into a remote base and — after being interrogated by 4 different people — died. Passaro was indicted just as the (and probably because) the Abu Ghraib scandal was breaking. Before he was indicted, he had a period working at Fort Bragg, during which he put together a bunch of documents to defend himself, which was then confiscated. But he clearly intended to expose details about the torture program and the Gloves Come Off Memorandum of Notification (Passaro was working under a separate program authorized by the MON, the Counterterrorism Pursuit Teams). Of particular note, he asked for documents pertaining to CIA torture that would have clearly implicated George Tenet and George Bush (because, effectively, Passaro’s activities were directly authorized by that same MON).

In response, Passaro got bullshit discovery, some document that had been superseded by the ones that would have implicated the two Georges, rather than the one that would have made it clear techniques he was accused of using against the detainee had been approved, indirectly in that MON, by the President.

There are, in my opinion, several other reasons (witnesses and other information withheld) why Passaro did not get a fair trial. So I don’t actually know whether we know what happened and who should have been found guilty for it.

But one thing is now clear.

Even while CIA was leaking information to the press in an effort to spin their torture program, they were at the same time submitting sworn declarations in Passaro’s case designed to ensure he wouldn’t get the documents proving that George Tenet and George Bush had ordered precisely the kinds of things he was being tried for doing. The CIA was lying to protect the muckety-mucks, to include the President, while fucking the scapegoat, the one guy the government still points to to pretend they can prosecute torture.

CIA Finally Declassifies “Gloves Come Off” Memorandum of Notification Reference

Screen Shot 2016-06-14 at 3.22.25 PM

Back in 2012, I wrote a series of posts on the Obama Administration’s extraordinary efforts to censor this title. (post 1, post 2, post 3, post 4, post 5, post 6post 7, post 8)

The title was part of some smart CYA on the part of George Tenet. When things started to go south with the torture program in 2003, he wrote this document, ostensibly putting order to the torture program, but also making it clear the whole thing operated on Presidential authority. (The document, which should have been released to David Passaro in his criminal trial for torturing a detainee who subsequently died, was withheld, which prevented him from pointing out anything he did, he did with Presidential approval, so Tenet’s CYA didn’t help him at all.)

The judge in ACLU’s lawsuit to liberate torture documents, Alvin Hellerstein, decided the language should not be censored, and ordered the government release it. Then National Security Advisor Jim Jones wrote a secret declaration stating that it could not be disclosed. All the while, ACLU thought they were fighting to release a description of waterboarding, when in fact Hellerstein was trying to force the Administration to release the single detail that torture had been done on the President’s order.

But the Second Circuit overruled Hellerstein, declaring these 8 words a source and method (for the record, I guessed exactly what was behind the redaction so their secret was only useful for legal challenges).

That the torture program operated pursuant to a Finding (that is, as a covert op) had long been known thanks to blabby CIA types like John Rizzo. But it was formally declassified as part of the Torture Report. It got released today as part of a Jason Leopold lawsuit.

So there you have it. “Presidential Memorandum of Notification of 17 September 2001.” A secret Obama fought to the circuit court, now public for all the world to see.

It doesn’t feel so momentous, does it?

Some Torture Facts

At the request of some on Twitter, I’m bringing together a Twitter rant of some facts on torture here.

1) Contrary to popular belief, torture was not authorized primarily by the OLC memos John Yoo wrote. It was first authorized by the September 17, 2001 Memorandum of Notification (that is, a Presidential Finding) crafted by Cofer Black. See details on the structure and intent of that Finding here. While the Intelligence Committees were briefed on that Finding, even Gang of Four members were not told that the Finding authorized torture or that the torture had been authorized by that Finding until 2004.

2) That means torture was authorized by the same Finding that authorized drone killing, heavily subsidizing the intelligence services of countries like Jordan and Egypt, cooperating with Syria and Libya, and the training of Afghan special forces (the last detail is part of why David Passaro wanted the Finding for his defense against abuse charges — because he had been directly authorized to kill terror suspects by the President as part of his role in training Afghan special forces).

3) Torture started by proxy (though with Americans present) at least as early as February 2002 and first-hand by April 2002, months before the August 2002 memos. During this period, the torturers were operating with close White House involvement.

4) Something happened — probably Ali Soufan’s concerns about seeing a coffin to be used with Abu Zubaydah — that led CIA to ask for more formal legal protection, which is why they got the OLC memos. CIA asked for, but never got approved, the mock burial that may have elicited their concern.

5) According to the OPR report, when CIA wrote up its own internal guidance, it did not rely on the August 1, 2002 techniques memo, but rather a July 13, 2002 fax that John Yoo had written that was more vague, which also happened to be written on the day Michael Chertoff refused to give advance declination on torture prosecutions.

6) Even after CIA got the August 1, 2002 memo, they did not adhere to it. When they got into trouble — such as when they froze Gul Rahman to death after hosing him down — they went to John Yoo and had him freelance another document, the Legal Principles, which pretend-authorized these techniques. Jack Goldsmith would later deem those Principles not an OLC product.

7) During both the August 1, 2002 and May 2005 OLC memo writing processes, CIA lied to DOJ (or provided false documentation) about what they had done and when they had done it. This was done, in part, to authorize the things Yoo had pretend-authorized in the Legal Principles.

8) In late 2002, then SSCI Chair Bob Graham made initial efforts to conduct oversight over torture (asking, for example, to send a staffer to observe interrogations). CIA got Pat Roberts, who became Chair in 2003, to quash these efforts, though even he claims CIA lied about how he did so.

9) CIA also lied, for years, to Congress. Here are some details of the lies told before 2004. Even after CIA briefed Congress in 2006, they kept lying. Here is Michael Hayden lying to Congress in 2007

10) We do know that some people in the White House were not fully briefed (and probably provided misleading information, particularly as to what CIA got from torture). But we also know that CIA withheld and/or stole back documents implicating the White House. So while it is true that CIA lied to the White House, it is also true that SSCI will not present the full extent of White House (read, David Addington’s) personal, sometimes daily, involvement in the torture.

11) The torturers are absolutely right to be pissed that these documents were withheld, basically hanging them out to dry while protecting Bush, Cheney, and Addington (and people like Tim Flanigan).

12) Obama’s role in covering up the Bush White House’s role in torture has received far too little attention. But Obama’s White House actually successfully intervened to reverse Judge Alvin Hellerstein’s attempt to release to ACLU a short phrase making it clear torture was done pursuant to a Presidential Finding. So while Obama was happy to have CIA’s role in torture exposed, he went to great lengths, both with that FOIA, with criminal discovery, and with the Torture Report, to hide how deeply implicated the Office of the President was in torture.

Bonus 13) John Brennan has admitted to using information from the torture program in declarations he wrote for the FISA Court. This means that information derived from torture was used to scare Colleen Kollar-Kotelly into approving the Internet dragnet in 2004.

Unsaid at the UN: “Because the President Ordered It”

I caught a bit of the grilling that UN experts put the US panel of witnesses through, asking about the various areas where the US does not abide by our treaty obligations on torture and cruel treatment. The spin was thick, as US officials tried to pretend things like the Durham investigation were legitimate exercises. Here’s Kevin Gosztola’s take:

One of the many critical issues raised was the fact that Attorney General Eric Holder had appointed Assistant US Attorney John Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” But, in June 2011, Durham decided that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations.”

By August 30, 2012, the criminal investigations into the deaths of those individuals were closed. The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

David Bitkower, who is the Deputy Assistant Attorney General for the Justice Department’s Criminal Division, attempted to satisfy the concerns of the Committee:

…Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.

After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…

However, there were no specific incidents, which Durham may have examined, mentioned by Bitkower.

“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared. “Overall, however, the investigations involved interviews of approximately 96 witnesses and the examination of physical and documentary evidence. In short, Mr. Durham had access to and reviewed a broad array of information relating to allegations of mistreatment.”

The easy explanation these officials should have offered is that Durham let the Statutes of Limitation on torture expire on the torture and wrongful death cases he investigated.

But there’s another, one mirrored in US claims that David Passaro represents its commitment to prosecute abuse. Passaro, I’ve pointed out, was specifically denied documents that would have shown his alleged conduct (there were other problems with his trial) fell squarely in the Interrogation Guidelines in place at the time. Passaro was also denied access to the Presidential finding, which not only authorized his function in training Afghan paramilitaries, but authorized what was ultimately the torture program. (See my review of these issues from the last time the government used Passaro’s case as an exemplar.)

The people Durham would have investigated would all have had much better access to those documents (though Passaro had a briefcase of documents that were seized from him). As soon as you got to the Jonathan Fredmans and the Stephen Kappes, you’d have people with good claims to have been ordered personally to implement a torture program.

Ordered, by the President.

That’s why the panel yesterday all gave such consistently awkward answers. They’re still trying to hide that this came right from the President.

Andy Card LOL: Bush Can’t Pardon Himself for Torture (But Obama Has)

As part of the discussion in his book explaining how the CIA shifted from torture to killing, Mark Mazzetti tells the story of how the CIA balked at engaging in further torture after the Detainee Treatment Act.

After President Bush signed the bill into law, then-CIA Director Porter Goss wrote the White House saying the CIA would refuse to torture unless and until they got a guarantee they wouldn’t be prosecuted for doing it. In response, the Bush Administration sent Andy Card to the CIA to try to calm them down.

Card drove out to Langley intending to soothe the fears at CIA headquarters, but his visit was a disaster. Inside a packed conference room, Card thanked the assembled CIA officers for their service and their hard work but refused to make any firm declarations that agency officers wouldn’t be criminally liable for participating in the detention-and-interrogation program.

The room became restless. Prodded by his chief of staff, Patrick Murray, Porter Goss interrupted Card.

“Can you assure these people that the politicians will not walk away from the people who carried out this program?” Goss asked. Card didn’t answer the question directly. Instead, he tried to crack a joke.

“Let me put it this way,” he said. “Every morning I knock on the door of the Oval Office, walk in, and say, ‘Pardon me, Mr. President.’ And of course, the only person the president can’t pardon is himself.”

Card giggled after he said this, but his joke landed with a thud. The White House chief of staff, when asked whether President Bush would protect CIA officers from legal scrutiny, had suggested that the most they might be abel to rely on is a presidential pardon after the indictments and convictions were handed down. (127-128)

Goss effectively repeated a request the CIA had made, unsuccessfully, as early as July 13, 2002 (when, it should be said, Goss was ostensibly in charge of overseeing the program at the House Intelligence Committee, though there’s no reason to believe he knew about the earlier request): for an Administration guarantee that everyone involved in the torture program would be shielded from criminal consequences for kidnapping and torturing.

And in response, Card implied to these CIA officers and executives two things:

  • President Bush would pardon anyone convicted of crimes related to torture
  • Bush, himself, was ultimately exposed to prosecution for those crimes as well (all the more so, since he couldn’t pardon his own crimes)

Now, Card wouldn’t have even tried such a joke unless he knew his audience knew that the torture program was based on a Presidential Finding — what we know to be the September 17, 2001 Gloves Come Off Memorandum of Notification.

There’s fairly clear evidence that CIA’s officers did know about it.

George Tenet had made that clear on every single page of his January 2003 Guidelines on Interrogations, which at least some CIA interrogators had to sign.  Read more

The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

Read more

Selective Prosecution from CIA’s US Attorney

In its response to John Kiriakou’s claim he is being selectively prosecuted, the government cites this passage from US v. Armstrong.

A selective prosecution claim asks a court to exercise judicial power over a special province of the Executive. The Attorney General and United States Attorneys retain broad discretion to enforce the Nation’s criminal laws . . . . As a result, [t]he presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. In the ordinary case, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. [my emphasis]

It then describes the standard for presumption of regularity by citing David Passaro’s unsuccessful appeal.

Kiriakou seeks to overturn the presumption of regularity by asserting that the decision to charge him must have arisen from some illegitimate prosecutorial motive, rather than the investigation having followed the facts where they led. However, the defendant fails to offer clear evidence to support his claim, and falls far short of satisfying the high burden required to overcome the presumption of regularity. See United States v. Passero, 577 F.3d 207, 219 (4th Cir. 2009) (“[u]nless a defendant provides ‘clear evidence’ to overcome the presumption that a government prosecutor has acted lawfully and without discrimination-a ‘particularly demanding’ standard-he cannot demonstrate a constitutional violation for selective prosecution.” (citation omitted)). [original spelling error for “Passaro” highlighted]

The entire filing is signed this way:

Compare that signature with this one, from before Kiriakou was indicted.

Or this signature, from the indictment itself.

Monday’s response to Kiriakou’s selective prosecution motion is the first submitted after Patrick Fitzgerald’s last day on Friday. If I’m not mistaken, it is the first filing submitted after the guy selected for his independence from the CIA’s witch hunt on torture departed government. It is, AFAIK, the first public hint at what the new investigative reporting structure and team looks like (which appears to have completely changed, even beyond Fitzgerald’s departure).

And the filing shows that, rather have the prosecution led by a US Attorney assigned as a Special Attorney reporting directly to the Attorney General, the prosecution now includes Neil MacBride, US Attorney for Eastern District of VA. And while the designation of AUSAs Schneider, Lan, and Fayhee as Special Attorneys suggests some kind of special reporting structure (Lan, at least, is in SDNY, not EDVA), the filing shows that the CIA’s US Attorney, the US Attorney’s office for EDVA, now has a role in the prosecution.

Which brings me to the problem with the government’s citations on selective prosecution.

Read more

Gul Rahman and Manadel al-Jamadi Investigations: The New Information

In his announcement that John Durham is investigating the deaths by torture of two CIA detainee, Eric Holder suggested that John Durham reviewed information that had not been reviewed by the prosecutors who had earlier declined to prosecute the cases.

That review included both information and matters that had never previously been examined by the Department.

He implied that one source of that new information might be some of the reports–among other things, the CIA IG Report and the OPR Report.

He identified the matters to include within his review by examining various sources including the Office of Professional Responsibility’s report regarding the Office of Legal Counsel memoranda related to enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced interrogations, additional matters investigated by the CIA Office of Inspector General, the February 2007 International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, and public source information.

I wanted to look at what that new information might be.

Manadel al-Jamadi

The AP advances the issue in the case of Manadel al-Jamadi by reporting on what Lynndie England and other Abu Ghraib testified about at their grand jury appearance earlier this month (England’s testimony was first reported by Jane). Of note, the prosecutor asked who put al-Jamadi in the stress position that ultimately ended up effectively crucifying him–and asked questions about a hood that “disappeared.”

Another person who testified told the AP that prosecutors asked about a hood placed over al-Jamadi’s head that later disappeared and who shackled al-Jamadi’s arms behind his back and bound them to a barred window. This witness requested anonymity to avoid being connected publicly with the case.

As a threshold matter, if this person offered some new insight into the people personally involved in al-Jamadi’s asphyxiation–perhaps something that had been reflected in the IG report–then it might constitute new information. There’s also the question of how al-Jamadi’s treatment exceeded the torture John Yoo authorized; both the type of stress position used and the hood might qualify (and the importance of it would be reflected in the 2007 ICRC Report). We know, for example, that on May 26, 2010, Jay Bybee told the House Judiciary Committee that the CIA had not asked about–and so the Bybee Memo had not addressed–whether shackling someone to the ceiling fit the memo’s definition of a stress position.

Jerrold Nadler: Does Bybee Memo 2 or any other legal advice you gave at OLC authorize shackling a detainee to a hook in the ceiling as was described in my earlier question?

Jay Bybee: I don’t recall that any place in Bybee Memo 2 that we have addressed the question of shackling. So I don’t think it was one of the assumptions on which the CIA requested our advice. (Page 85-86)

So one new piece of evidence is Bybee’s testimony that he–and therefore Yoo–did not approve the crucifixion-type stress position that contributed to al-Jamadi’s death.

But that disappearing hood is worth noting by itself–it reflects an intent to cover up the crime.

Gul Rahman

I’m more interested in the possibly new information about Gul Rahman, because some reporting I’ve done reflects why DOJ revisited some of this.

As I noted here, amidst a discussion about prosecution declinations on PDF 72 of the second draft of the OPR Report, the OPR recommended reopening a specific declination because of the changed legal landscape.

The EDVA Memorandum was issued after the Bybee Memo had been publicly withdrawn, but before the Supreme Court’s decision in Hamdan. Accordingly. the prosecutors may have relied upon OLC’s erroneous determination that the War Crimes Act did not apply to suspected terrorists held abroad. We found no indication, however, that the EDVA declination decisions were revisited after Hamdan. In reviewing the declination decisions, the Department will have to determine whether prior OLC opinions and executive orders bar prosecution of these matters.

Now, this reference might refer to the death threats used with Abd al Rahim al-Nashiri (which today’s announcement suggests have been dropped), because that’s what the discussion preceding the four redacted pages immediately preceding this discussion treats. But we know from a footnote in Jay Bybee’s Second Response to the report that page 92 of the IG Report–that is, at least part of the second page of redaction–refers to the CIA’s argument that Rahman’s death shouldn’t be prosecuted, so it may well be Rahman. In any case, what’s key is that the OPR Report notes the EDVA’s reliance on OLC’s claim that crimes committed overseas couldn’t be prosecuted to be false.

That’s not the only “new” jurisdictional issue addressing whether crimes against Rahman could be prosecuted.

As I have written at length, the Bullet Point document–which appears to have been drafted as part of CIA’s information collection process in response to the IG Report and used as part of the declination process–also directly addressed whether crimes committed in the process of torture could be prosecuted. And one of the things included in it was the claim that no ordinary crimes (like negligent homicide, which would be relevant to Rahman’s death) could be prosecuted.

And in August 10, 2009. the 4th Circuit made it clear in David Passaro’s case that the Asadabad Firebase counted as a military mission at which US law applied. That’s precisely the kind of jurisdictional issue prosecutors used to decline the case in the past.

CIA officials referred the Salt Pit case to the Justice Department five years ago. Prosecutors concluded at the time that the Afghan prison was outside the reach of U.S. law, even though the CIA funded it and vetted its home-country guards.

Given that EDVA is in the same circuit, and given that Asadabad was less established than the Salt Pit, the fairly broad reading of this jurisdictional issue in Passaro’s case may impact Gul Rahman’s.

But the Bullet Point document is interesting for another reason that may pertain to Rahman’s death: because Rahman was reportedly water doused. Particularly given Holder’s emphasis on Yoo’s approvals, it’s relevant that the CIA stuck water dousing into the Bullet Point documents, after Rahman’s death, to suggest OLC had approved it as a torture technique.

But they hadn’t.

Which Bybee confirmed when he testified to HJC.

Nadler: Did Bybee Memo 2 or any other legal advice you gave at OLC authorize dousing detainees with cold water to keep them awake?

Bybee: Dousing with cold water was not one of the techniques that we were asked about in Bybee 2.

Nadler: So the answer is “no”?

Bybee: That’s right. (Page 104)

A full understanding of the Bullet Point documents, if the prosecutors didn’t already have one, would be one new factor making it possible to charge for water dousing and the subsequent death. But Bybee’s testimony would confirm that water dousing was not included in the Bybee Memos.

There’s some more, which I’ll get to in a subsequent post or three.

But for now, it looks like Durham has a few new details, a changed legal framework (because of Hamdan and, in Rahman’s case, possibly because of Passaro), and Jay Bybee’s testimony making it clear that the stress position and the water dousing that led to these detainees’ deaths had not been approved by OLC.