Dick Cheney

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Did Authorizing Torture Make the National Security Council an Agency Subject to FOIA?


Almost 3 years ago, I discovered that the judge in the ACLU torture FOIA, Alvin Hellerstein (who recently ordered the Administration to release images from torture), was trying to force the Administration to declassify a phrase making it clear torture had been authorized by the September 17, 2001 “Gloves Come Off” Memorandum of Notification. The phrase appeared on a January 28, 2003 Guidelines on Interrogation document signed by George Tenet (this post describes what great CYA including the phrase was).

In my reporting on it, I noted that National Security Advisor James Jones had secretly written a declaration in the suit arguing the phrase couldn’t be released. And I also noted that CIA’s own declarations conflicted about who had made torture a Special Access Program, CIA or the National Security Council.

Ultimately, however, the 2nd Circuit — in an opinion written by Judge Richard Wesley — reversed Hellerstein and permitted the Administration to keep that short phrase secret (though the Administration permitted that detail to be declassified for the Torture Report).

These issues have resurfaced in a related FOIA suit being reviewed by the 2nd Circuit (including Wesley and Judges Reena Raggi and Gerard Lynch).

Back in late 2012, Main Street Legal Services FOIAed the NSC for records on drone killing (including minutes of NSC meetings in 2011). The government refused to respond, arguing NSC is not an Agency subject to FOIA. So Main Street asked for discovery that might help it show that NSC is an Agency. It lost that argument with District Judge Eric Vitaliano, and this Appeal focuses on the issue of whether NSC is an Agency for purposes of FOIA or not.

In addition to pointing to statutory and historical reasons why NSC is an Agency, the appeal also points to things — including torture, but also including things like cybersecurity, crafting Benghazi talking points, and drone-killing — that were run out of NSC. The government, in response, argued that the President was very closely involved in NSC and presided over the Principals Committee, meaning NSC was too proximate to the President to be subject to FOIA. The response also keeps insisting that NSC is an advisory body, not anything that can make decisions without the President.

That back and forth took place in the first half of 2014.

Then, the Torture Report Summary got released, showing that CIA records indicate President Bush was not briefed on torture until 2006 but that NSC figures — Alberto Gonzales and Condi Rice, among others — told CIA torture was authorized. Main Street wrote a letter in February pointing to the evidence that the President was not in the loop and that NSC authorized torture.

The SSCI Report found that NSC committees, on which the President does not sit, debated, authorized, and directed CIA to apply specific interrogation techniques to specific detainees. In 2004, for example, CIA “sought special approval from the National Security Council Principals Committee” to use “enhanced interrogation techniques” on detainee Janat Gul. Thereafter, NSC principals met and “agreed that ‘[g]iven the current threat and risk of delay, CIA was authorized and directed to utilize” the techniques on Mr. Gul.

The question of who authorized torture thus became a central issue at the oral argument in this suit on March 2 (this discussion starts after 34:00). After Raggi raised this issue, Wesley went on with some urgency about the possibility that someone started torturing without the input of the President.

Judge Wesley: Are you saying then that anything the CIA did in terms of enhanced interrogation techniques clearly, was clearly a Presidential directive?

NSC Counsel Jaynie Lilley:  No, your honor —

Wesley: Well then, well if that’s not the case, its a very curious position for you to take because some of these bear heavy burdens. Some of these assertions that you’re making that the President is at the end of all these decision chains bear heavy burdens and I don’t quite understand it. Congress said sole duty is to advise and assist the President. If someone else decides to use enhanced interrogation techniques and we decide that this is done by the group, solely by the advisor, assistant to the President, then it’s the President’s decision is it not? Did the decision flow through the NSC?

Lilley: Your Honor, many decisions–

Wesley: Would it, structurally, I’ll it easier, would it structurally have flowed through the NSC as it’s currently structure pursuant to presidential order and an act of Congress, would a decision to conduct enhanced interrogation techniques have flowed through the NSC up to the President. Pursuant to the way it’s structured now.

Lilley: Your Honor, let me be sure I’m answering the question that your asking. There are decisions that are made on matters of national security policy that come through the various–

Wesley: Pursuant to law and the structure of the NSC who had the authority?  Did only one person have the authority to order enhanced interrogations techniques?

Lilley: Your Honor, –

Wesley [voice is rising]: Yes or no?!

Lilley: I cannot speak to individual decisions –

Wesley: Well, if you can’t tell me, then you’re telling me that then the President perhaps didn’t make that decision. And then you’re telling me that someone else did. And if someone else did, then I begin to have a problem. Because I have a hard time understanding how their sole function is to advise or assist the President if suddenly they decide, independent of any Presidential approval, that they can torture someone!

Lilley: Your Honor–

Wesley: It’s very simple Counselor, and I’ve been troubled by the government’s position on this throughout. I’ve been troubled — for twenty years the Office of Legal Counsel said that this was an Agency. And then suddenly in a letter, in 1994, for some reason the Agency flips. We have in the legislative record, we have the committee notes from the two committees, and what is one of the entities that’s listed when they decided to include the Executive office, what is one of the Agencies that Congress lists, one of the groups that Congress lists as an Agency? The NSC. Who created the NSC? The President didn’t. An act of Congress did. An Act of Congress creates two of the Subcommittees. A very curious advisor forced on the President — it sounds like a Separation of Powers issue to me. But, tell me. And then I won’t ask again. And if you don’t want to answer my question don’t answer.

Pursuant to the way the it is currently structured if in your view the NSC is solely an advisory authority, who had the authority to order enhanced interrogation techniques? Who?

Lilley: In any matter of national security policy, there are two places where decisions can be made. One by the President and one by that Agency with the statutory authority to take the act.

Wesley: So you’re telling me that the CIA had the authority to do that?

[snip]

Wesley: The Director of the CIA could have done this independent of the President’s directive?

Lilley: Your Honor, I cannot speak to that.

Wesley: But for purposes of this discussion you’re saying ‘not someone in the NSC’?

Lilley: The NSC could not — does not direct any individual Agency to take individual actions.

Wesley went onto to describe the plight of the CIA that might not want to do something (torture) it has been ordered to do by the NSC, “it’s on him, legally, not on the NSC.” “Yes, your Honor,” Lilley agreed.

While Wesley didn’t say so, that is, precisely, what Tenet argued when he noted Torture was done pursuant to Presidential order on his 2003 Interrogation document, dodging responsibility for torture. But if Lilley’s claim is correct, then CIA bears all the legal responsibility for torture.

At the end of the hearing, Wesley asked Lilley whether they intend to respond to Main Street’s letter. When Lilley said no, Wesley and Raggi specifically instructed Lilley to respond, noting actual page numbers.

In its response on March 16, the government — some members of which have been arguing for months that the NSC approved torture at every step of the process — newly asserted (ignoring the references that show Bush was never briefed until 2006) that George Tenet was only getting NSC’s advice; he was not being ordered or authorized by them.

Another cites a CIA official’s notes indicating that the Principals Committee “agreed” that CIA was “authorized and directed” to engage in certain activity, confirming the CIA had such authority, and that the then-Attorney General approved the resulting action. See id. at 345. These references confirm that the NSC functions in accordance with the advice and assistance role assigned to it by statute and by the President (currently in Presidential Policy Directive-1) as an interagency forum for coordination and exercises no independent decisional authority. The authority for the underlying decisions rested with the relevant heads of departments and agencies or the President himself.

Remember, DOJ has been claiming it never opened this document. Has it now done so?

But the SSCI evidence that Bush was never briefed is a point Main Street made in a letter last night.

Defendant still fails to explain who authorized the torture if not NSC, as CIA’s own records describe, especially given that CIA did not brief the President until years later.

A great deal of documentation shows that “NSC” (or rather, Dick Cheney and David Addington) authorized torture. But the NSC is trying to sustain the unsustainable position that a Memorandum of Notification not listing torture authorized torture, that Bush never got briefed on torture, and that all those meetings at which NSC members (and Dick Cheney) authorized torture didn’t amount to authorizing torture.

Because if it admitted the truth — that NSC or the Vice President authorized torture without any review by the President — then it would make all these documents, the 9000 documents President Obama got CIA to successfully hide, subject to FOIA.

And then we’d really start having some fun.

Update: I’ve added some to my transcription from the hearing and some additional analysis.

David Petraeus’ Defense Attorney Argues Mistress-Biographers Have More Legal Privilege than Defense Attorneys

In a letter to the NYT complaining that the paper compared his client, David Petraeus, with Stephen Kim and John Kiriakou, defense attorney David Kendall implicitly makes the argument that mistress-biographers have a better recognized privilege to access classified information than defense attorneys. (h/t Steven Aftergood via Josh Gerstein)

Now, far be it for me to criticize Kendall’s lawyering ability. After all, his firm, Williams & Connolly, has developed quite the expertise for getting well-connected Republicans off for leaking covert officers’ identities, having done so for Ari Fleischer, Dick Cheney, and now David Petraeus.

But his letter is ridiculous on both the facts and his rebuttal of the comparison, at least as it pertains to John Kiriakou.

First, Kendall omits key facts in his depiction of Petraeus’ crimes.

General Petraeus’s case is about the unlawful removal and improper storage of classified materials, not the dissemination of such materials to the public. Indeed, a statement of facts filed with the plea agreement and signed by both General Petraeus and the Justice Department makes clear that “no classified information” from his “black books” (personal notebooks) that were given to his biographer, Paula Broadwell, appeared in the biography.

He notes the plea deal “makes clear that ‘no classified information’ from his ‘black books’ … appeared in the biography.” That’s a very different thing than claiming that no classified information Petraeus shared with Broadwell appeared in her fawning biography of his client — and the record seems to suggest that it does.

Kendall also neglects to mention that this case is also about his client, just days after applauding Kiriakou’s plea, lying to the FBI. While, through the good grace of Kendall’s lawyering, Petraeus has gotten off scot free for a crime that others do years of prison time for, Petraeus nevertheless admitted that he committed that crime.

Indeed, as Abbe Lowell has made clear, that’s what prevented Kim from getting precisely the sweet deal that Petraeus has gotten, his alleged lies to the FBI.

But I’m even more disgusted by Kendall’s cynical treatment of Kiriakou’s crime.

By contrast, Stephen J. Kim arranged for the publication of highly sensitive classified information from an intelligence report on North Korea’s military capabilities, and John C. Kiriakou revealed the identities of covert C.I.A. agents, a betrayal of colleagues “whose secrecy is their only safety,” in the words of a government attorney.

[snip]

Reporters, like biographers, are frequently given access to sensitive information on the understanding that they will not publicize it, and it is hypocritical for The Times to argue for leniency for Mr. Kim and Mr. Kiriakou and harshness for General Petraeus.

Note how Kendall doesn’t describe to whom Kiriakou “revealed the identities of covert C.I.A. agents” [a factual error — Kiriakou was only accused of leaking one covert officer’s identity]? The answer is he revealed the identity of a torturer to a journalist who was working for defense attorneys defending people that torturer had tortured.

Now, clearly, Kendall does defend the right of journalists to receive such classified information if they don’t publicly disclose it. That’s what he argues Petraeus’ mistress has done (the evidence notwithstanding). So according to Kendall’s lawyering, providing that covert officer’s identity to a reporter who didn’t disclose it publicly — which is what happened in Kiriakou’s case —  should have gotten Kiriakou probation.

Ultimately though, Kendall doesn’t even deal with the fact that, whatever scant privilege journalists and mistress-biographers have been granted in this country, defense attorneys have generally been granted more, for good reason. Thus, by all measures, Kiriakou made no worse, and arguably a much more legally defensible disclosure of a CIA officer’s identity than the multiple covert officers’ identities Petraeus exposed to his mistress and anyone else who decided to peruse his unlocked desk drawer.

I mean, I never really expect people in Petraeus’ vicinity to do anything but fluff his reputation; Petraeus has an infallible ability in eliciting that from people he permits to get close (or closer, in the case of Broadwell).

But I am rather surprised that a defense attorney is arguing he should have fewer privileges than a mistress-biographer.

Dick Cheney’s Foggy Memory on Bush’s Plausible Deniability for Torture

One of just three issues this Playboy interview [marginally SFW] with Dick Cheney pressed him on (the other two being whether Bush misjudged Putin and whether Cheney’s father loved him) was whether President Bush had been briefed on the torture program.

James Rosen starts by asking whether Bush was briefed on the actual methods.

You have become publicly identified with the so-called enhanced interrogation techniques that CIA officers used when questioning suspected terrorists. Your critics call those techniques torture. To your knowledge, was President Bush briefed about the actual methods that were to be employed?
I believe he was.

It would have been useful had Rosen actually read the SSCI Torture Report, because even that explains that Bush was briefed — in 2006. “[T]he president expressed concern,” the report noted, “about the ‘image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself.”

Rosen then presents the disagreement between John Rizzo and George Tenet, who have said Bush wasn’t briefed, and the President himself. Cheney responds by describing a specific, undated briefing in Condi’s office.

We ask because in Decision Points, the former president’s 2010 memoir, he recalls having been briefed on the EITs. Yet former CIA general counsel John Rizzo, in his 2014 memoir, Company Man, disputes that and says that he contacted former CIA director George Tenet about it, after reading the president’s book, and that Tenet backs him up in the belief that Bush was not briefed.
No, I’m certain Bush was briefed. I also recall a session where the entire National Security Council was briefed. The meeting took place in Condi Rice’s office—I don’t think Colin Powell was there, but I think he was briefed separately—where we went down through the specific techniques that were being authorized.

Rather than pointing out that Cheney doesn’t even say Bush was at that briefing in Condi’s office (or asking for a date, which I suspect is the real secret both Bush and the CIA are trying to keep), Rosen simply asks why Cheney is certain. He then raises James Risen’s account of Bush being given plausible deniability, which Cheney quickly turns into an assessment of whether Risen has credibility rather than providing more details on when and how Bush was briefed.

Why do you say you’re certain Bush was briefed?
Well, partly because he said he was. I don’t have any doubt about that. I mean, he was included in the process. I mean, that’s not the kind of thing that we would have done without his approval.

To that point, New York Times reporter James Risen wrote in State of War: The Secret History of the CIA and the Bush Administration, published in 2006, “Cheney made certain to protect the president from personal involvement in the internal debates on the handling of prisoners. It is not clear whether Tenet was told by Cheney or other White House officials not to brief Bush or whether he made that decision on his own. Cheney and senior White House officials knew that Bush was purposely not being briefed. It appears that there was a secret agreement among very senior administration officials to insulate Bush and to give him deniability.”
I don’t have much confidence in Risen.

That’s not the question. Is what he alleges here true or false?
That we tried to have deniability for the president?

Yes.
I can’t think of a time when we ever operated that way. We just didn’t. The president needed to know what we were doing and sign off on the thing. It’s like the terrorist surveillance program. You know, one of the main things I did there was to take Tenet and National Security Agency director Michael Hayden in hand and get the president’s approval for what we were doing, and there’s a classic example why I don’t believe something like this. The president wanted personal knowledge of what was going on, and he wanted to personally sign off on the program every 30 to 45 days. To suggest that somehow we ran a system that protected the president from knowledge about the enhanced interrogation techniques, I just—I don’t think it’s true. I don’t believe it.

I find Cheney’s invocation of the dragnet really, really interesting. After all, even according to Bush’s memoir, he didn’t know key details about the dragnet. Cheney told him it was going to expire on March 10 that day. Moreover, when Jim Comey briefed him the following day, he learned of problems that Cheney and others had kept from Bush.

Thus, Cheney’s invocation of the dragnet is actually a documented example of Bush not being adequately briefed.

Plus, it’s interesting given the timing. If I had to guess at this point, I would say that Bush was likely briefed on details of torture in 2004, in the wake of the Abu Ghraib scandal, not 2006. Indeed, that may explain the 7 week delay between the time Tenet asked for reaffirmation of torture approval and when it actually got fully approved — not to mention Tenet’s still inadequately explained resignation (in Tenet’s memoir, he says it was because of the “Slam Dunk” comment attributed to him in Bob Woodward’s book many weeks earlier).

Which brings us back to Cheney invoking a vaguely remembered briefing, this one in the Oval Office.

But can you say as a fact “I know that’s not true,” rather than having to surmise?
I can remember sitting in the Oval Office with deputy national security advisor Stephen Hadley and others—I think others were in there—where we talked about the techniques. And one of the things that was emphasized was the fact that the techniques were drawn from that set of practices we used in training our own people. I mean, we were not trying to hide it from the president. With all due respect, I just don’t give any credence to what Risen says there.

Cheney’s got nothing — or at least nothing he’s willing to share. And certainly nothing to document Bush being briefed before torture started.

Which is, again, what I suspect to be the issue: Bush was briefed, maybe even before the 2006 briefing the Torture Report documents. But not before the bulk of the torture happened.

Dick Cheney on the Dangers of Internet Spying

There are several notable things about this interview [Playboy link: mostly SFW] with Dick Cheney (in addition to the detail that Cheney has his “slender, mustachioed housekeeper named Gus” provide a never-ending stream of lattes, prepared at the house, but served in paper Starbucks cups). One of the most striking, however, is how he responds to interviewer James Rosen’s suggestion that the Internet is democratizing.

Do you regard the internet as an intrinsically democratizing force?
[Chuckles, pauses] Oh boy, you know, we’re blue-skyin’ it now. I think it clearly has had a significant impact. “A democratizing force.” Um. [pauses]

In the sense that whenever you have a freer flow of information, that’s going to redound to the forces of good.
Yeah, but on the other hand, I suppose you could argue that it provides ways in which the government, an authoritarian government, can exert control over and monitor and keep track of what everybody is up to and what they are doing. It’s not a one-way street. It’s not necessarily—I need to think about that before I comment further.

The man who implemented an illegal dragnet admits that governments (only authoritarian ones, he suggests? or does the use of such methods make a government authoritarian?) might exert control via the Internet.

If it weren’t for Cheney’s long history implementing just that type of monitoring (certainly on the rest of the world, and to an extent on Americans), I might think he’d been hanging around with Edward Snowden!

Iran Sends Missiles to Iraq: US Finally Shows Concern for Sectarianism, Civilian Casualties

From the very beginning, when George W. Bush and his co-defendants wanted to invade Iraq over the 9/11 attacks, the US war in Iraq has been promoted, waged and defended with a complete lack of self-awareness of the illegal nature of the war and the devastation that can be laid directly at the feet of the US. Today we have a new chapter in that stunning absence of conscience, as the US engages in hand-wringing over the discovery of Iranian missiles in Iraq:

Iran has deployed advanced rockets and missiles to Iraq to help fight the Islamic State in Tikrit, a significant escalation of firepower and another sign of Iran’s growing influence in Iraq.

United States intelligence agencies detected the deployments in the past few weeks as Iraq was marshaling a force of 30,000 troops — two-thirds of them Shiite militias largely trained and equipped by Iran, according to three American officials. The officials spoke on condition of anonymity to discuss sensitive intelligence reports on Iran.

So, why is the US so concerned about this development? Read on:

Iran has not yet launched any of the weapons, but American officials fear the rockets and missiles could further inflame sectarian tensions and cause civilian casualties because they are not precision guided.

That is just effing unbelievable. Iranian missiles might “further inflame sectarian tensions and cause civilian casualties”? Really?

How about those sectarian tensions that are already in Iraq? Where did they get their biggest push? Recall that when we invaded, Saddam ruled through the Baath Party. The Baath Party was secular. The very first act (pdf) by the US military after overthrowing Saddam’s government was to disband the Baath Party. With its one secular ruling political party disbanded at the point of a gun, Iraq turned to organizing around the sectarian faiths that encompassed both mosques and militias. Much of the remaining time the US military spent on active combat duty in Iraq involved pitting Shias against Sunnis while paying lip-service to the need for “reconciliation”.

And then there are the civilian casualties. Although Iraq Body Count puts the number at a more conservative 100,000 or so, a more encompassing study documents that half a million civilians have died in Iraq as a direct result of the US invasion. And don’t get me started on the effects of the depleted uranium used in Fallujah.

The hubris involved in the US suggesting that Iran’s missiles could inflame sectarianism or cause civilian casualties is nothing short of staggering. But none of the idiots engaging in this hand-wringing will ever be forced to account for the real source of sectarian tensions and civilian casualties in Iraq.

The Standards for CIA Crimes

In the interest of describing why CIA’s efforts to invent a reason to torture Janat Gul are so important, I wanted to do a very quick summary of what I understand CIA’s legal means of avoiding criminal prosecution was.

Torture began — certainly at surrogates overseas — long before anyone even thought of having OLC write memos for it. At that point, the legal cover for the torture would have been only the Presidential Finding signed September 17, 2001 (which said nothing explicit about torture; but then, it probably also said nothing about killing US citizens with drones though it did cover the use of killing high value Al Qaeda figures with drones).

I believe Ali Soufan’s complaints about the methods used at the Thai black site created a problem with that arrangement. When he — an FBI Agent — came away saying what they were doing was “borderline torture,” it created legal problems for the CIA, because an FBI Agent had witnesses a crime. I think Soufan’s reaction to the coffin-like box they intended to use with Abu Zubaydah caused particular problems.

All that came to a head in July 2002, when lawyers responding to “an issue that had come up” asked for a pre-declination memo from Chertoff, even while they were trying, among other things, to get approval to use “mock burial.” I don’t know that Criminal Chief Michael Chertoff was all that squeamish about torture, except with Soufan’s complaint about the coffin, it made mock burial (and with it, I suspect, mock execution) unsupportable by DOJ.

On July 13, 2002, three things happened. John Rizzo presented the torture techniques to people at DOJ. Having had that presentation, Chertoff refused to pre-decline to prosecute. So John Yoo wrote a fax that CTC would ultimately use in crafting the legal direction to torturers (and in recommending against prosecution in the future).

Three days later, David Addington appears to have told Yoo to include presidential immunity language in more public OLC memos. All the important work was being negotiated via back channels (remember, Jay Bybee was busy protecting Cheneys’ Energy Task Force from any oversight); the front channels involving Condi Rice were in a large part show.

But that led to the position where CIA was working off a two page fax that Yoo had freelanced to produce which provided absolutely no description of or limitation on techniques. But DOJ held CIA it to the August 1, 2002 memo.

Within short order, CIA was using techniques that had never been approved. Importantly, they hosed down Gul Rahman before he froze to death, not waterboarding, per se, but an additional technique not approved by DOJ.

When Inspector General John Helgerson started investigating in early 2003, DOJ told him he could develop the fact pattern to determine if any crimes had been committed. So CTC worked with Jennifer Koester and John Yoo to develop their own legal guidelines that not only would include some more of the torture techniques they had used but not approved, but also include a “shock the conscience” analysis. That’s what the IG used to assess whether any crimes had been committed, which is important, because he found that torture as executed did humiliate detainees (and therefore violated the Constitution), but could point to (invalid) legal analysis pre-approving this. (Remember, Dick Cheney got an early review of all this.)

The problem was, DOJ’s OLC refused to accept that document. In June 2003, Patrick Philbin refused. And in May 2004, Jack Goldsmith did again.

So it was not just that Goldsmith withdrew the Bybee Memos (though said CIA could use all the torture techniques except waterboarding while he worked on a replacement). It’s that DOJ refused to accept CIA’s own legal analysis as DOJ’s official opinion. CIA was more anxious about getting some document judging the torture didn’t violate the Constitution. That’s what (as I’ll show) CIA was demanding when they raised the case of Janat Gul to get the Principals to reauthorize the use of torture in July 2004.

Just on the case of Janat Gul — who was detained based off a fabricated claim of election year plotting — CIA got OLC’s Daniel Levin to authorize all the old techniques (including waterboarding) as well as the 4 that CIA had used but not approved. Significantly, that included water dousing, the “technique” that had contributed to Gul Rahman’s death.

But that left two other concerns: the constitutional problem, and the use of techniques in combination, which (among other things) had led to severe hallucinations in 2004. That’s what the 2005 memos were meant to do: use the torture Hassan Ghul and Janat Gul had survived in 2004 to provide a rubber stamp on both the combination issue and the Constitutional one, and provide it roughly in time to be able to use to torture Abu Faraj al-Libi (though the third 2005 memo actually got signed after al-Libi’s torture began).

Neither Hassan Ghul (who was very cooperative before torture) nor Janat Gul should have been tortured. The latter probably was largely just to have one tortured body, any body, on which to hang new OLC memos.

David Cole Turns in His Torture Homework Late, Gets a C

I was going to simply ignore David Cole’s annoying NYT op-ed, asking if the CIA got a bad rap with the SSCI Torture Report, until I saw the claims he made in his JustSecurity post on it.

Like many others, I commented on and wrote about the Torture Report when it was initially released in December, but the demands of the 24-hour news cycle meant that I – and I’m certain, everyone else who commented in that first week – did so without having had time to read the report and its responses in full.  The SSCI Report’s executive summary is 525 pages, and the responses by the CIA and the Republican minority members of the SSCI total 303 pages.  No one could possibly have read it all in those first few days.  And of course, by the time one could read it all, the news cycle had moved on.

David Cole (he now admits 2 months later) blathered without first reading what he was blathering about, and so he insists everyone else must have too, thereby discrediting the views of those of us who actually had done their homework.

This, in spite of the fact that some of us torture critics (not to mention plenty of torture apologists) were making the very same critiques he has finally come around to in the days after the report was released: significantly, the Torture Report did not include the early renditions and Abu Zubaydah’s earliest torture. And so, Cole argues, because it’s never easy to definitively show where a particular piece of intelligence comes from, we shouldn’t make an argument about what a disaster CIA’s torture program was and instead should just repeat that it’s illegal.

Let’s look at the steps Cole takes to get there, before we turn to the conclusions he ignores.

First, Cole throws up his hands helplessly in trying to adjudicate the dispute between CIA and SSCI over their intelligence.

Without the underlying documents, it’s not possible to resolve the competing claims, but many of the C.I.A.’s responses appear plausible on their face. At a minimum it is possible that the C.I.A.’s tactics did help it capture some very dangerous people planning future attacks.

In some cases, I’ll grant that you can’t determine where CIA (which is not always the same as US government, which is another problem with the scope of this report) learned a detail, though in others, CIA’s rebuttal is fairly transparently weak. But along the way we learn enough new about how helpless the CIA was in the face of even the claims that get shared in the unclassified summary — the most telling of which, for me, is that after being waterboarded, Khalid Sheikh Mohammed got the CIA to believe for 3 months that he had sent Dhiren Barot to Montana to recruit black Muslims in Montana (yes, really!) to start forest fires — to point to the problems of using torture as a means to address CIA’s intelligence gaps on al Qaeda. What an unbelievable waste of effort, all arising because torture was presented as something magic that might make KSM tell the truth.

Even more importantly, there’s the way that torturing Janat Gul delayed the discovery that the intelligence implicating him in election year plots was a fabrication, but not before Gul and the underlying fabrication served as the justification to resume torture and, in part, to roll out a dragnet treating all Americans as relevant to torture investigations. Both while he was being tortured and the following year, Gul also served as an excuse for the CIA to offer more lies to DOJ about what it was doing and why. Whether deliberately or not, torture served a very important function here, and it was about legal infrastructure, not intelligence. Exploitation.

Having declared himself helpless in the face of some competing claims but much evidence torture diverted the CIA from hunting down the worst terrorists, Cole then says SSCI has not proven its “other main finding,” which is that CIA lied about efficacy.

That conclusion in turn casts doubt on the committee’s other main finding — namely, that the C.I.A. repeatedly lied about the program’s efficacy.

[snip]

So why did the committee focus on efficacy and misrepresentation, rather than on the program’s fundamental illegality?

Let me interject. Here, Cole misrepresents the conclusion of the Torture Report, which leads him to a conclusion of limited value. It is not just that CIA lied about whether torture worked. CIA also lied about what they were doing and how brutal it was. It lied to Congress, to DOJ’s lawyers, and to (this is where I have another scope problem with the report, because it is demonstrably just some in) the White House and other cabinet members. That’s all definitely well documented in the Torture Report — but then, it was well-documented by documents released in 2009 and 2010, at least for those who were doing their homework.

Bracket that misrepresentation from Cole, for the moment, and see where he takes it.

Possibly because that meant it could cast the C.I.A. as solely responsible, a rogue agency. A focus on legality would have rightly held C.I.A. officials responsible for failing to say no — but it also would have implicated many more officials who were just as guilty, if not more so. Lawyers at the Justice Department wrote a series of highly implausible legal memos from 2002 to 2007, opining that waterboarding, sleep deprivation, confinement in coffinlike boxes, painful stress positions and slamming people into walls were not torture; were not cruel, inhuman or degrading; and did not violate the Geneva Conventions.

The same can be said for President George W. Bush, Vice President Dick Cheney and all the cabinet-level officials responsible for national security, each of whom signed off on a program that was patently illegal. The reality is, no one in a position of authority said no.

This may well explain the committee’s focus on the C.I.A. and its alleged misrepresentations. The inquiry began as a bipartisan effort, and there is no way that the Republican members would have agreed to an investigation that might have found fault with the entire leadership of the Bush administration.

But while the committee’s framing may be understandable as a political matter, it was a mistake as a matter of historical accuracy and of moral principle. The report is, to date, the closest thing to official accountability that we have. But by focusing on whether the program worked and whether the C.I.A. lied, the report was critically misleading. Responsibility for the program lies not with the C.I.A. alone, but also with everyone else, up to the highest levels of the White House, who said yes when law and morality plainly required them to say no.

Now, I’m very sympathetic with the argument that there are others, in addition to CIA, who need to be held responsible for torture — as I’ve noted repeatedly, apparently without even reading the entire set of reports, according to Cole. I think Cole brushes with too broad a brush; we have plenty of detail about individuals who are more culpable than others, both within DOJ and the White House, and we shouldn’t just throw up our hands on this issue, as Cole did with efficacy arguments, and claim to be unable to distinguish.

But Cole keeps coming back to the issue of legality, as if the people who went out of their way to put CIA back in the business of torturing give a flying fuck that torture is illegal.

And this is why it’s important to emphasize that the Torture Report shows CIA lied both about efficacy and about what they were doing and when: because until we understand how everyone from Dick Cheney on down affirmatively and purposely implemented a torture program in spite of an oversight structure and won impunity for it, it will happen again, perhaps with torture, perhaps with some other Executive abuse.

Let me point to one of the key new revelations from the Torture Report that goes precisely to Cole’s concern to explain why.

As I pointed out four and a half years ago, CIA decided to destroy the torture tapes right after giving their first torture briefing to Congress, to Porter Goss and Nancy Pelosi. Along with deciding to destroy the torture tapes, they also altered their own record of that briefing. In ACLU’s FOIA that had liberated that information, CIA managed to hide what it was they took out of the contemporaneous record of that briefing.

The Torture Report revealed what it was.

In early September 2002, the CIA briefed the House Permanent Select Committee on Intelligence (HPSCI) leadership about the CIA’s enhanced interrogation techniques. Two days after, the CIA’s [redacted]CTC Legal [redacted], excised from a draft memorandum memorializing the briefing indications that the HPSCI leadership questioned the legality of the program by deleting the sentence: “HPSCI attendees also questioned the legality of these techniques if other countries would use them.”2454 After [redacted] blind-copied Jose Rodriguez on the email in which he transmitted the changes to the memorandum, Rodriguez responded to email with: “short and sweet.”

According to the CIA’s own records, in the very first briefing to Congress — which was already 5 months late and only told Congress about using torture prospectively — someone raised questions about the legality of the techniques (at least if done by other countries).

More than 12 years ago, someone — precisely the people our intelligence oversight system entrusts to do this — was raising questions about legality. And CIA’s response to that was to alter records, destroy evidence (remember, the torture tapes were altered sometime in 2002 before they were destroyed in 2005), and lie about precisely what they were doing for the next 7 years.

Finally, Cole remains silent about a very important confirmation from the Torture Report — one which President Obama had previously gone to some lengths to suppress — one which gets at why the CIA managed to get away with breaking the law. While SSCI may not have pursued all the documents implicating presidential equities aggressively enough, it did make it very clear that torture was authorized not primarily by a series of OLC memos, but by the September 17, 2001 Presidential Finding, and that neither CIA nor the White House told Congress that’s what had happened until 2004.

Torture was authorized in the gray legal zone that permits the President to authorize illegal actions. The rest follows from there. The remaining question, the question you need to answer if you want to stop the Executive when it claims the authority to break the law — and this is elucidated in part by the Torture Report — is how, bureaucratically, the rest of government serves to insulate or fails to stop such illegal activity. Of course, these bureaucratic questions can get awfully inconvenient awfully quickly, even for people like David Cole.

Did the CIA get a bum rap in the Torture Report? In part, sure, they were just doing what they were ordered, and the CIA routinely gets ordered to do illegal things. But if you want to prevent torture — and other Executive abuses — you need to understand the bureaucratic means by which intended oversight fails, sometimes by design, and sometimes by the deceit of the Executive. Some of that — not enough, but some key new details — appear in the Torture Report.

Reminder: Bybee Was Too Busy Protecting Big Oil to Oversee Torture

Jay Bybee just gave a speech at University of Utah on the Constitution at which he tried to claim the torture memos that bear his name included constraints that no one else has been able to find.

One middle-aged man stood to the side of the classroom with a sign reading “Torture Is a War Crime.” A woman of a similar age next to him tried to ask Bybee about executive branch power and “the secret torture of Muslims.” The moderator from the Federalist Society cut her off before she finished the question.

“That question is way beyond my ability to predict,” Bybee then replied.

[snip]

After the question-and-answer period, Irvine approached Bybee and tried to ask more about the memos.

Bybee pointed to a section in one memo telling the CIA that if the facts change, to notify the Justice Department for an updated opinion. Bybee also invited Irvine to his offices in Las Vegas to discuss the issue further.

Irvine said he would visit Bybee the next time he is in Las Vegas.

Irvine said moments later that the speech didn’t make him feel better about the memos, though he found it interesting when Bybee described the constrictions on presidential power.

“That is not what I read in that [2002] memo,” Irvine said.

It’s worth remembering, however, that Bybee claims — and the record supports his claim — that he wasn’t all that involved in writing the torture memos that bear his name. According to his own attorney, Maureen Mahoney, he swooped into the memo-writing process just weeks before they were finalized.

The reason she gave for why Bybee was so uninvolved in the nitty gritty of rubber stamping torture is worth noting. Jay Bybee was too busy protecting the secrecy of Cheney’s sweetheart Energy Task Force to oversee his nominal subordinate John Yoo on torture.

I wanted to draw attention to a footnote she includes to–apparently–explain that Jay Bybee was a very busy man at the time when he was supposed to be overseeing John Yoo’s attempts to legalize torture in the summer of 2002. (This is on PDF page 19)

Judge Bybee’s role in reviewing the memo began in earnest around mid-July, roughly two weeks before he signed them.5

5 During the summer of 2002, in addition to his work on national security issues, Judge Bybee, as head of OLC, was also heavily involved in a number of other difficult and pressing legal matters. Of particular note, Judge Bybee was engaged in the district court litigation in Walker v. Cheney, No. 02-340 (DD.C.). The attorneys in that case were working closely with the Department’s Civil Division and the Solicitor General’s Office. The legal issues involved in the case were peculiarly within Judge Bybee’s expertise because his scholarly research had been cited as authority by both sides. See Jay S. Bybee, Advising the President: Separation a/Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 (1994).

Walker v. Cheney, of course, is the suit the GAO took against Cheney’s office to try to force it to turn over documents relating to his Energy Task Force. After District Court Judge John Bates ruled against GAO in December 2002, it ended one of the more important efforts to subject Cheney’s office to Congressional oversight. Furthermore, this effort must be regarded as Cheney’s first attempt to assert that his was a Fourth Branch, exempt from oversight but also executive regulation.

How interesting, then, that Mahoney highlighted Bybee’s role in helping Cheney succeed in winning this suit to argue that Jay Bybee was doing what he should have been doing in summer 2002.

All one OLC office’s work of expanding Executive Authority to coddle corporations and torture prisoners.

 

Lanny Breuer’s Conflicts

NYT has a story based off a CREW FOIA for details of FBI’s investigations into John Ensign’s efforts to buy off his mistress’ husband. While the details show Ensign was even more sleazy than we knew, I’m at least as interested in this passage:

The Justice Department’s decision not to charge Mr. Ensign was widely seen as a sign of its skittishness about prosecuting and potentially losing public corruption cases in the wake of stinging courtroom defeats against former Senators Ted Stevens of Alaska and John Edwards of North Carolina. The documents confirm that speculation: In an internal email in 2011 assessing the chances of prosecuting Mr. Ensign, a top prosecutor wrote that “the legal theory is possible with the right facts” but that the “mere response” of helping a former Senate employee to find work “is not enough.” Another prosecutor wrote that “this is a really tough case to win.”

The documents show that the investigation was also complicated by a legal conflict; Lanny A. Breuer, head of the Justice Department’s criminal division at the time, had worked with a defense lawyer in the Ensign camp at Mr. Breuer’s prior law firm, Covington & Burling. Mr. Breuer was temporarily recused from the Ensign investigation as a result of the conflict, the records show, but later got a waiver that allowed him to oversee it with certain restrictions, officials said.

In 2012, Mr. Breuer and the Justice Department decided not to bring criminal charges against Mr. Ensign.

Even the Senate (!) was willing to discipline Ensign. But DOJ chose not to. And at the center of that decision was Lanny Breuer, whose once and future firm, Covington & Burling, represented Ensign. And yet Breuer found a way to un-recuse himself from the case.

It is not at all a surprise that Breuer didn’t manage his conflicts well. I argued that he didn’t back in 2009, when he made the decision to bury Dick Cheney’s CIA leak investigation interview (and make no mention of his quasi-grand jury appearance), even though he had represented John Kiriakou in the CIA leak case (and in helping him avoid grand jury testimony, hide that Cheney and Libby knew Plame was CIA earlier than they said they did).

Ironically, that was also for a CREW FOIA.

Maybe CREW should just skip the interim step and FOIA all the times Breuer ignored the conflicts he had on issues he presided over?

Meet the Press: 12 Years of Unchallenged Cheney Claims about Iraq and Al Qaeda

Chuck Todd figured the best way to engage in journalism after the release of the Torture Report was not to invite one of the many interrogators who objected to torture or, having performed it, learned that it damaged them as much as the detainee (Kudos to ABC and CNN for having done so), but instead to invite Dick Cheney on to defend anal rape (which Todd did not call anal rape).

And while Todd had a Tim Russert style gotcha — Dick Cheney predicting 20 years ago that overthrowing Saddam would lead to the disintegration of Iraq and untold chaos — when Dick Cheney explained that 9/11 changed that earlier analysis, Todd offered the most impotent rebuttal, noting that the report undermines that claim, without doing any of several things:

  • Rather than engaging in “report says he says” two side false equivalency, point out that the evidence — the facts — refute that
  • Pointing out the new evidence, offered by Carl Levin this week, that Cheney had knowingly and repeatedly lied on Meet the Press about this topic
  • Reminding Cheney that CIA and DOD set off to find a way to “exploit,” not just “interrogate” detainees, and on the measure of producing false confessions to be used propaganda, the torture was a key part of starting an illegal war that led to the death of 4,000 Americans and untold Iraqis

Todd, of course, did none of those things.

I guess Meet the Press believes they’ll return to the glory of the Tim Russert era if they do the same thing Tim Russert did in his last years, offer Cheney a platform to lie and lie and lie.

For 12 years now, Meet the Press has been willing platform for unchallenged Dick Cheney lies.

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Emptywheel Twitterverse
JimWhiteGNV Note to the incoming search hit at our blog: no, the Disneyland measles outbreak was NOT a Merck scheme.
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emptywheel @DonteStallworth You look very short. Good thing you don't have to defend him.
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JimWhiteGNV Finally found the Black Eyed Susans I had wanted to finish off this bed. http://t.co/vB9Y7l4v3U
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emptywheel Oh. I guess this partly answers my q abt discovery obligations when Feds are stealing Bitcoin fr criminal target. https://t.co/nPhck821IZ
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emptywheel What are Brady obligations to a defendant when DEA and USSS Agents are stealing his Bitcoin? Is that why Force/Bridges indicted elsewhere?
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emptywheel Re: New "shell" to hide phone dragnet under, remember there's an active OLC opinion saying they don't need any law. https://t.co/lOhAlV2bqW
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emptywheel @lukedones I'll take it.
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emptywheel My dog suffered from low thyroid and he stopped wagging tail much. Now he's back wagging tail, but only when he farts.
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emptywheel NSA had to "shut down" auto alert in 2009 bc it was illegal. Presumably continued for 12333 data. Never ever got auto alert running again.
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emptywheel Good reason to suspect they're "ending" phone dragnet to move it to authority where they can do auto alert. https://t.co/tMA9gqbJh2
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emptywheel As I noted, AP claim that Internet dragnet went "cold turkey" is laughable. Went to more permissive authorities. https://t.co/l8JOj3U9DG
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emptywheel RT @Mediaite: Former NSA Director: Phone Data Collection Will Probably End Soon http://t.co/ztrmjDMgr4 (AUDIO) http://t.co/VCtnE4Ff2L
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