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Ten Years after 9/11, Inherent Authority Dies a Small Legal Death

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Al-Haramain has submitted its brief for the appellate review on a number of issues related to the government’s illegal wiretapping of the charity. The questions at issue are:

1. Does FISA waive federal sovereign immunity?
2. Does FISA preempt the state secrets privilege?
3. Was plaintiffs’ non-classified evidence sufficient to prove their warrantless electronic surveillance?
4. Did the district court properly award counsel’s full attorney’s fees?
5. Did the district court err in dismissing defendant Mueller in his individual capacity?

Most of the brief will be familiar to those who have followed this case. But this passage–because it comes at the appellate level–is new.

Finally, we note that defendants do not challenge the district court’s ruling that the President lacks inherent power to disregard FISA’s preemption of the state secrets privilege. See 564 F. Supp. 2d at 1121 [ER 108]; supra at 16. Thus, for purposes of this appeal, defendants have forfeited any claim of inherent power to disregard FISA. See, e.g., Independent Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). More broadly, defendants have abandoned any defense of the TSP’s purported theoretical underpinning that the President may disregard an Act of Congress in the name of national security.

This forfeiture should come as no surprise. Top officials in the Obama administration had conspicuously repudiated the inherent power theory before taking office. See Donald Verrilli (now Solicitor General) et al., Brief for Amici Curiae Center for National Security Studies and the Constitution Project, American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, at *2 & *15 (inherent power theory is “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans”); Neal Kumar Katyal (now Principal Deputy Solicitor General), Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 117 (2006) (“overblown assertions” of inherent power “risk lawlessness in the name of national security”); Eric Holder (now Attorney General), Address to American Const. Society (June 13, 2008), http://www.youtube.com/watch?v=6CKycFGJOUs&feature=relmfu (videotape at 3:41–3:52) (“We must utilize and enhance our intelligence collection capabilities to identify and root out terrorists, but we must also comply with the law. We must also comply with FISA.”). [my emphasis]

The passage is not central to the argument except insofar as it notes the government has procedurally given up the theory that they used to initially rationalize the illegal wiretap program. It is, as I said, just a small legal death, limited to this one case, rather than a wholesale repudiation.

Nevertheless, I thought the timing–not just coinciding with the anniversary of 9/11 but also the release of Dick Cheney’s autobiographical novel–rather apt.

And the rhetorical value in citing three of DOJ’s top lawyers dismissing the theory–which the brief repeats by citing Holder’s even more damning call for “a reckoning” in that same ACS speech at the very start of the brief does have value.

“[S]teps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . . These steps were wrong when they were initiated and they are wrong today. We owe the American people a reckoning.” Eric Holder, June 13, 2008

Verilli’s and Katyal’s and Holder’s criticism of inherent power may have just been the rhetorical blatherings of political lawyers then in the political and legal opposition, blatherings not entirely consistent with steps they have taken since they’ve been in positions of authority.

But for the purposes of this legal brief, who better to kill the theory of inherent authority than the Attorney General?

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Turns Out Cheney Was Never Really Vice President After All

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I regret to inform you–and I do mean regret–that I’m going to have set aside a good deal of the next week “looking backward” at Dick Cheney’s career. His book is out next week and already he’s dropping some bombs, as only Dick can drop bombs.

Such as, for some period during his tenure as VP, there was a signed resignation letter in his man-sized safe (presumably right next to the Wilson op-ed on which Cheney hand-wrote an accusation that Plame sent her husband on a junket), known only to W and “a Cheney staffer.”

“I did it because I was concerned that — for a couple of reasons,” Cheney tells Jamie Gangel. “One was my own health situation. The possibility that I might have a heart attack or a stroke that would be incapacitating. And, there is no mechanism for getting rid of a vice president who can’t function.”

Cheney kept the signed letter locked in a safe, he reveals in the memoir “In My Time,” which comes out Tuesday. President George W. Bush and a Cheney staffer knew about the letter.

I presume that NBC and ABC will be sufficiently incompetent that they won’t ask Cheney what the other reasons were. Or who the staffer was.

So barring actually learning that information (until I go shell out an inordinate amount for a book I plan to throw a lot), here are my guesses.

In addition to signing the letter in case his heart gave out and turned him into a vegetable, Cheney also kept it in case he suddenly got into very big legal trouble. Over leaking a CIA officer’s identity, maybe, over knowingly authorizing torture (including in a few cases I expect we’ll learn more about), or misusing the military. Or whatever else.

And if just one staffer ever knew of the letter, my bet is David Addington knew.

But here’s the thing. Once Cheney signed that resignation letter, was he still VP? Or does that mean all the things he did, bootstrapping his own constitutional power onto the President’s explicit power, were illegal? We know Republicans claimed that he could insta-declassify things like NIEs and CIA officers identities. But if he did that after having signed a letter of resignation that the President knew about, doesn’t that mean he wasn’t VP anymore? And those things were triply illegal?

Whoo boy. Send beer. I can tell already it’s gonna be a long week.

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WSJ: Don’t Be Mean to Us Like Fitz Was to Judy

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Most sane people are outraged by the WSJ’s hacktalicious editorial calling for calm on the hack scandal.

As well they should: the editorial discredits WSJ as a paper.

But I was particularly interested in this bit.

In braying for politicians to take down Mr. Murdoch and News Corp., our media colleagues might also stop to ask about possible precedents. The political mob has been quick to call for a criminal probe into whether News Corp. executives violated the U.S. Foreign Corrupt Practices Act with payments to British security or government officials in return for information used in news stories. Attorney General Eric Holder quickly obliged last week, without so much as a fare-thee-well to the First Amendment.

The foreign-bribery law has historically been enforced against companies attempting to obtain or retain government business. But U.S. officials have been attempting to extend their enforcement to include any payments that have nothing to do with foreign government procurement. This includes a case against a company that paid Haitian customs officials to let its goods pass through its notoriously inefficient docks, and the drug company Schering-Plough for contributions to a charitable foundation in Poland.

Applying this standard to British tabloids could turn payments made as part of traditional news-gathering into criminal acts. The Wall Street Journal doesn’t pay sources for information, but the practice is common elsewhere in the press, including in the U.S.

The last time the liberal press demanded a media prosecutor, it was to probe the late conservative columnist Robert Novak in pursuit of White House aide Scooter Libby. But the effort soon engulfed a reporter for the New York Times, which had led the posse to hang Novak and his sources. Do our media brethren really want to invite Congress and prosecutors to regulate how journalists gather the news?

This is structured as an appeal to other media outlets, warning them that if they pile on, it might well hurt them too (this structure continues to the rest of the editorial).

This argument ends with the Scooter Libby argument–the claim that the NYT, because it purportedly “led the posse to hang [Bob] Novak and his sources” (including, among others, Dick Cheney and Scooter Libby), ended up getting embroiled in the Libby case (in spite of the fact that NYT discredited itself by protecting Libby for a year after they had published his name as Judy’s source).

Fair enough. The NYT–and especially Judy Miller–was exposed to be as hackish as Novak was (and, as another outlet who published bogus leaks in the Joe Wilson pushback, the WSJ) when its laundering of government leaks was made clear.

So the WSJ is rightly reminding other media outlets that they are as hackish as it is. Perhaps they have specific incidents of hackishness in mind?  Maybe the rest of the press should worry that a focus on how corrupt our press has gotten will reflect badly on them too. It appears, for example, that the WaPo is worried about just such a thing.

Then, oddly (working backwards from the Judy Miller issue), the WSJ warns that if other media outlets pile on, it’ll criminalize payments made in the course of news-gathering–with a claim that such a horror would only matter for British tabloids. Only, that’s not exactly true, is it? And that’s before you consider the number of “consultants” TV stations pay for their “expertise.”

Then, in the first part of this passage, the WSJ rails against what is probably one of its biggest worries–it’ll be held liable in the US for the fairly well-established bribery it engaged in in the UK (even assuming no such bribery were discovered here in the US). It suggests that a poor helpless media company would never bribe a government for something real–like a contract. Putting aside the appearance that Murdoch’s minions bribed the cops.

Except at the heart of this scandal is Murdoch’s attempt to get full control of BSkyB. Not to mention Murdoch’s fairly well-established pattern of trading political support for Tony Blair, Hillary Clinton, and David Cameron in exchange for political favors.

This is bribery every bit as much as Halliburton’s bribery to get Nigerian contracts was bribery. A satellite concession is every bit as tangible a goal as is a contract. But it attempts to couch decades of Murdoch’s ruthless business practices in First Amendment hand-wringing. It suggests that whatever meager journalism Murdoch’s minions do, it should excuse his illegal business practices.

This WSJ editorial is a damning exhibit in outright hackery.

But I suspect its audience–other hackish media outlets–finds it a persuasive read.

Update: With this editorial in mind, I wanted to point to a few paragraphs of Alan Rusbridger’s description of how the Guardian broke this story. A key part of it, he describes, was in partnering with the NYT to break the omertà among British papers.

Big story? Not at all. Not a single paper other than The Guardian noted [a $1 million settlement against News of the World for bullying] in their news pages the next day. There seemed to be some omertà principle at work that meant that not a single other national newspaper thought this could possibly be worth an inch of newsprint.

Life was getting a bit lonely at The Guardian. Nick Davies had been alerted that Brooks had told colleagues that the story was going to end with “Alan Rusbridger on his knees, begging for mercy.” “They would have destroyed us,” Davies said on a Guardian podcast last week. “If they could have done, they would have shut down The Guardian.”

If the majority of Fleet Street was going to turn a blind eye, I thought I’d better try elsewhere to stop the story from dying on its feet, except in the incremental stories that Nick was still remorselessly producing for our own pages. I called Bill Keller at The New York Times. Within a few days, three Times reporters were sitting in a rather charmless Guardian meeting room as Davies did his best to coach them in the basics of the story that had taken him years to tease out of numerous reporters, lawyers, and police officers.

The Times reporters took their time—months of exceptional and painstaking work that established the truth of everything Nick had written—and broke new territory of their own. They coaxed one or two sources to go on the record. The story led to another halfhearted police inquiry that went nowhere. But the fact and solidity of the Times investigation gave courage to others. Broadcasters began dipping their toes in the story. One of the two victims began lawsuits. Vanity Fair weighed in. The Financial Times and The Independent chipped away in the background. A wider group of people began to believe that maybe, just maybe, there was something in this after all. [my emphasis]

News Corp would have destroyed the Guardian, Rusbridger and Nick Davies say, if they had had the dirt to do so. Such threats are presumably how News Corp enforced the omertà on the story.

Now look at the editorial. It appears, first of all, to be an appeal to precedent–a similar kind of appeal often made when pointing out that an espionage prosecution of Julian Assange will criminalize newsgathering.

It argues that a prosecution of News Corp under the FCPA would be a bad precedent, equating contracts with–well, I”m not sure what News Corp is admitting to here, as its media interests do amount to a contract. It then suggests–the logic is faulty–that such a prosecution would also criminalize the news gathering of those who pay for stories. This seems to be an implicit threat directed at those who do pay for stories (note that this editorial doesn’t say News Corp, including Fox TV, doesn’t pay for stories, just WSJ), perhaps an attempt to silence TV news.

But then, after having already impugned newspapers that, like the Guardian and NYT, gave “their moral imprimatur” to WikiLeaks, the editorial levels a threat clearly directed at the NYT, noting how the the newspaper’s purported efforts to go after Novak’s sources ended up backfiring on the NYT.

Not long after Rusbridger described the omertà that helped News Corp forestall consequences in the UK, Murdoch’s mouthpiece here in the US issued a veiled threat against the NYT.

I’m betting that Murdoch thinks the NYT will be easier to destroy than the Guardian.

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NSA Twice Chose to Forgo Privacy Protections in Domestic Data Mining Programs

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While Jane Mayer’s profile on NSA whistleblower Thomas Drake has generated a lot of attention for the way Obama’s DOJ is senselessly prosecuting him, there has been less focus on the key revelation that Drake and others went on the record to reveal in Mayer’s story: that the NSA chose not to integrate the privacy protections from a program called ThinThread into its illegal domestic surveillance program.

Pilot tests of ThinThread proved almost too successful, according to a former intelligence expert who analyzed it. “It was nearly perfect,” the official says. “But it processed such a large amount of data that it picked up more Americans than the other systems.” Though ThinThread was intended to intercept foreign communications, it continued documenting signals when a trail crossed into the U.S. This was a big problem: federal law forbade the monitoring of domestic communications without a court warrant. And a warrant couldn’t be issued without probable cause and a known suspect. In order to comply with the law, [Bill Binney, a crypto-mathmetician who headed Signals Intelligence Automation Research Center (SARC) that developed ThinThread] installed privacy controls and added an “anonymizing feature,” so that all American communications would be encrypted until a warrant was issued. The system would indicate when a pattern looked suspicious enough to justify a warrant.

[snip]

When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of ThinThread: a bastardized version, stripped of privacy controls. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”

[snip]

[Former HPSCI staffer Diane Roark] asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not. [my emphasis]

Mayer’s actually not the first to report on the decision not to implement the privacy protections of ThinThread. It was the subject of one of Siobhan Gorman’s articles during the period when Drake, according to the indictment, served as a source for her. The article appeared on May 18, 2006, the morning of Michael Hayden’s confirmation hearing to be CIA Director. (Unlike most of Gorman’s articles from the period, this appears to be available only behind the Sun’s firewall. Update: I’ve found a link to the article at CommonDreams.) It describes that since Bush’s authorization for the program required no privacy protections, the NSA just didn’t bother to implement that part of ThinThread.

Once President Bush gave the go-ahead for the NSA to secretly gather and analyze domestic phone records – an authorization that carried no stipulations about identity protection – agency officials regarded the encryption as an unnecessary step and rejected it, according to two intelligence officials knowledgeable about ThinThread and the warrantless surveillance programs.”They basically just disabled the [privacy] safeguards,” said one intelligence official.

A former top intelligence official said that without a privacy requirement, “there was no reason to go back to something that was perhaps more difficult to implement.”

However two officials familiar with the program said the encryption feature would have been simple to implement. One said the time required would have involved minutes, not hours. [my emphasis; bracket original]

In other words, ThinThread came equipped with a measure–encryption–to achieve the same thing as minimization, but before the fact. But in implementing Dick Cheney’s illegal wiretapping, NSA took that protection out of the program. And when asked why he had done that, Michael Hayden explained they didn’t need the protection, not with the Presidential authorization they used to justify the program.

October 2001, as Michael Hayden was implementing Cheney’s illegal program, was not the only time the government chose not to include privacy protections on a data mining program focused on Americans.

As Shane Harris reported in 2006 and in more detail in his book, The Watchers, when the government dismantled John Poindexter’s Total Information Awareness program in August 2003 after Congress defunded it, they didn’t actual dismantle most of it–they just moved it into the NSA. In his book, Harris described Poindexter’s regret that the government had not salvaged the privacy protection research.

But he regretted that the privacy research had been tossed into the dustbin. He’d never felt that the idea got traction, and what little research there’d been would wither without funding. It was a fateful decision, since the agency inheriting TIA would so on enough find itself accused of a massive and illegal incursion into Americans’ private lives.

So in October 2001, NSA affirmatively chose to disable privacy protections in ThinThread, and then again in August to December 2003, the government chose to salvage the data mining aspects of Total Information Awareness, but not the privacy research.

In other words, the government, on at least two occasions, chose not to incorporate existing technology into its data mining program to protect the privacy of Americans. Sort of makes it clear that the Bush Administration wanted to make sure Americans’ privacy wasn’t protected, huh?

 

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As the Arab Spring Gives Way to the Sunni Summer

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The AP has a interesting–and interestingly timed–story on the help we’re giving Saudi Arabia to build a “facilities security force” to protect, among other things, its oil fields and planned civilian nuclear sites. The story is based, in part, on this WikiLeaks cable.

Note the date of the cable: October 29, 2008, less than a week before–everyone already knew at the time–Barack Obama would be elected President.

That makes the actual content of the cable all the more interesting. It describes a meeting between US Department of Energy representatives and Mohammed bin Naif, the Assistant Minister of Interior and the son of the long-time Minister of Interior, Naif bin Abdul-Aziz, as well as other representatives from Saudi Arabia’s Ministry of Interior. Basically, the DOE folks gave a presentation about the vulnerabilities in the Abqaiq oil processing plant, after which bin Naif agreed to a broad security program, including the FSF.

Remember, DOE was giving a presentation about an oil facility that had already been attacked by al Qaeda as part of plan to get Saudi Arabia to agree to this 35,000 person force in Saudi Arabia.

At the meeting at which this cooperation was agreed to, CENTCOM handed bin Naif a document describing the exact language Saudi Arabia should use request CENTCOM’s help establishing the FSF. The plan was that Saudi Arabia would then present that request (the one the US wrote) to General Petraeus when he came to Saudi Arabia on November 8 (which would be after Obama’s expected election, but not by much).

The draft [Letter of Request] for OPM-FSF prepared by CENTCOM was presented to MBN. This draft explicitly lays out on one page the exact wording for the SAG’s formal request to the USG to establish OPM-FSF. MBN directed his staff to prepare such a letter for his signature. Once we receive this letter, CENTCOM will then respond with a Letter of Acceptance (LOA) which will allow CENTCOM to begin building up OPM-FSF’s personnel and equipment structure. MOI indicated they plan to present the formal Saudi LOR to GEN Petraeus when he visits the Kingdom, currently scheduled for Nov. 8.

In addition, the cable describes bin Naif’s urgent desire–expressed privately to the US Charge d’Affaires–to solidify this partnership quickly, also mentioning his plan to travel to the US on November 5-7 (that is, the days after Obama’s expected election).

In a private meeting between MBN and the Charge’, MBN conveyed the SAG’s, and his personal, sense of urgency to move forward as quickly as possible to enhance the protection of Saudi Arabia’s critical infrastructure with the priority being its energy production sites. MBN related how his grandfather, King Abdulaziz, had the vision of forming a lasting strategic partnership with the United States. MBN stressed he shared this vision, and wants the USG’s help to protect Saudi critical infrastructure. He commented that neither the Kingdom nor the U.S. would be comfortable with the “French or Russians” involved in protecting Saudi oil facilities. “We built ARAMCO together, we must protect it together.” MBN also confirmed his travel dates to Washington will be Nov. 5 to 7.

In other words, the whole thing seems like something formalized quickly just as Obama was being elected President.

One more interesting detail about the cable? Note who appears at the top of the distribution list: Dick Cheney.

WHITE HOUSE FOR OVP

Okay, so that’s the cable. Using the fear that al Qaeda would attack Saudi Arabia’s oil fields in a repeat of the 2006 attack on Abqaiq, the US (presumably largely directed by Cheney) pushed through the agreement for this 35,000 person elite force just as Obama was being elected President.

So let’s return to the AP article. The article provides some key context for the FSF–notably that it seems to have been a quid pro quo tied to our agreement to give Saudi Arabia civilian nukes.

The new arrangement is based on a May 2008 deal signed by then-Secretary of State Condoleezza Rice and Saudi Interior Minister Prince Nayef. That same month the U.S. and Saudi Arabia also signed an understanding on civil nuclear energy cooperation in which Washington agreed to help the Saudis develop nuclear energy for use in medicine, industry and power generation.

So we give Saudi Arabia nukes that it wants (in part) because Iran is working hard to get them, and it lets us “train” a 35,000 person elite force to guard its critical infrastructure in the name of counter-terrorism. Are you having an Erik Prince moment, yet?

The rest of the article–that part not reliant on the WikiLeaks cable, that is–only partly focuses on the FSF itself–at least on the troops tasked with defending oil infrastructure. In addition, it focuses on missile defense and other arms targeted at Iran.

The U.S. also is in discussions with Saudi Arabia to create an air and missile defense system with far greater capability against the regional rival the Saudis fear most, Iran. And it is with Iran mainly in mind that the Saudis are pressing ahead with a historic $60 billion arms deal that will provide dozens of new U.S.-built F-15 combat aircraft likely to ensure Saudi air superiority over Iran for years.

Read more →

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Hillary Picks Cheney Aide to Replace PJ Crowley

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It’s bad enough that Obama didn’t clear out the Cheney folks burrowed into the permanent bureaucracy. Now the Obama Administration will appoint former Cheney aide Victoria Nuland to replace PJ Crowley as State Department spokesperson.

Victoria “Toria” Nuland, the current U.S. special envoy for conventional forces in Europe and a former U.S. ambassador to NATO, will be named the new spokesperson for the State Department this week, officials and foreign policy hands told the Envoy.The State Department did not provide comment in response to queries. Nuland did not respond to  a query.

The appointment is expected to be announced by Secretary of State Hillary Clinton as early as Monday, sources told the Envoy.

Nuland, a career foreign service officer, has previously served as U.S. Ambassador and deputy ambassador to NATO, former principal deputy national security adviser to then Vice President Dick Cheney, and as chief of staff to Clinton-era Deputy Secretary of State Strobe Talbott, now President of the Brookings Institution.

Well, I guess one way to make sure someone doesn’t go off the reservation like PJ Crowley did is to appoint a former Cheney aide.

Though I do hope Hillary recalls how Cheney sabotaged Colin Powell’s efforts at State Department with his agents there (people like John Bolton).

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The Confusion about When Hassan Ghul’s Torture Started

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In this post, I noted that John McCain seemed to be talking about Hassan Ghul when he spoke of a detainee who gave up key information on Osama bin Laden’s courier without being tortured.

It’s the other detail I find even more interesting: that info on Abu Ahmed’s real role and his real relationship with OBL came using “standard, noncoercive means.” This break in intelligence has fairly consistently been attributed to Hassan Ghul in tick tocks of the hunt for OBL. And while McCain doesn’t confirm that Ghul provided the intelligence, if he did, then consider what it probably means.

I have noted that a detainee who appears to be Ghul was held for six months–from January to August 2004–before the CIA started getting approval for his CIA-led interrogation. If the detainee who provided the key information on Abu Ahmed was Ghul and did so through noncoercive means, it means that Ghul’s interrogation before CIA got him–presumably, Ghul’s interrogation by military interrogators not using torture–yielded the key piece of information that would eventually lead to OBL. And (such a scenario would further imply) CIA insisted on taking custody and torturing him, even after he yielded information that would lead to OBL. Which might explain the legal sensitivities around Ghul’s torture, because if they got key info without torture the claims they based torture on would all be demonstrably false.

Reuters has a piece on Ghul that may accord with my earlier speculation. (h/t MadDog) They describe DiFi confirming that key information came form Ghul, but before his torture started.

Earlier this week, [Dianne] Feinstein told Reuters about a CIA detainee who “did provide useful and accurate intelligence.” But she added: “This was acquired before the CIA used their enhanced interrogation techniques against the detainee.” Three U.S. officials said Feinstein was referring to Ghul.

Reuters relies heavily on declassified CIA documents to understand Ghul’s treatment–which I assume means they’ve confirmed that the May 2005 mention of Ghul was to Hassan Ghul, and not a second Janat Ghul that may have been held in CIA custody.

But if that’s true, they seem to be missing the key documents–the August 2004 documents cited in the May 2005 documents that ask for and get approval for four more torture techniques–dietary manipulation, nudity, water dousing and abdominal slap. From those documents, we can at least presume that Ghul was being subjected to his first round of CIA interrogations between August 2 and August 25, 2004, when CIA asked for the four additional techniques (though there are other possibilities I laid out here).

Just as interesting is the paper trail discussing the CIA getting custody of a detainee–and the Principals Committee discussing the treatment of a detainee named “Ghul”–on July 2 (Jay Bybee has said that detainee was Janat Gul, but unless there’s a CIA detainee named Janat distinct from the Janat who was in Gitmo, that seems unlikely). At the Principals Committee meeting, they appear to have approved certain treatment of this Ghul, notably after the torture skeptics left the meeting.

In other words, if FOIAed documents do pertain to Hassan Ghul (and Reuters appears to suggest they do), then Ghul was likely not in CIA custody until July 2004. That is, it appears Ghul was not turned over to exclusive CIA custody until six months after he was captured. His initial torture approval came on August 2, and his second torture approval came on August 26.

So when DiFi says the key information from Ghul “was acquired before the CIA used their enhanced interrogation techniques against the detainee,” that probably also means that information was acquired before Ghul was transferred to CIA custody. That doesn’t mean CIA didn’t have access to him earlier than that, or that DOD didn’t use some kind of torture on him before then (again, see this post for some of the possibilities).

All of which has two really big possible implications.

First, that the Principals Committee–without input from key DOJ officials–approved the torture of Hassan Ghul after he had already given up vital information leading to Osama bin Laden’s location. And given that the torture approvals were always premised on the claim that a detainee wouldn’t give up information without torture, this would mean a key claim made to justify torturing Ghul appears to have been false. This would tie an illegal torture authorization directly to people like Dick Cheney, having effectively bypassed the normal DOJ approval process.

Also, this could mean that obfuscation happening here serves to hide the possibility that what we now call a CIA detainee gave up his most important information while still in DOD custody.

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The MSM’s Gift to Moms? The Mushroom Cloud Brigade

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I noted this already, but it so exceeds even the abysmal standards of the Sunday show bookers, I’m going to repeat it.

To celebrate Mothers Day, the Sunday shows have brought you the Mushroom Cloud Brigade–Condi Rice, Rummy, and Dick Cheney–the three people who, on September 8, 2002 used the Sunday shows to trumpet the intelligence they had laundered through Judy Miller to lie us into war against Iraq.

RICE: You will get different estimates about precisely how close he is. We do know that he is actively pursuing a nuclear weapon. We do know that there have been shipments going into Iran, for instance — into Iraq, for instance, of aluminum tubes that really are only suited to — high-quality aluminum tools that are only really suited for nuclear weapons programs, centrifuge programs.

We know that he has the infrastructure, nuclear scientists to make a nuclear weapon. And we know that when the inspectors assessed this after the Gulf War, he was far, far closer to a crude nuclear device than anybody thought, maybe six months from a crude nuclear device.

The problem here is that there will always be some uncertainty about how quickly he can acquire nuclear weapons. But we don’t what the smoking gun to be a mushroom cloud.

Of course, the Mushroom Cloud Brigade won’t be lying about Iraq today. They’ll be lying about torture. And they’ll be helped by a slew of other torture apologists: Michael Hayden, Michael Chertoff, Rudy “9/11” Giuliani, and Liz “BabyDick” Cheney. Update: My apologies for forgetting Univision, which also hosted a torture apologist (Alberto Gonzales), today.

As they spew their torture apology, remember this. The guy who ran their torture program, Jose Rodriguez, has said the best piece of intelligence we got from torture with respect to Osama bin Laden led him to conclude that OBL was no longer the tactical leader of al Qaeda.

Al-Libbi told interrogators that the courier would carry messages from bin Laden to the outside world only every two months or so. “I realized that bin Laden was not really running his organization. You can’t run an organization and have a courier who makes the rounds every two months,” Rodriguez says. “So I became convinced then that this was a person who was just a figurehead and was not calling the shots, the tactical shots, of the organization. So that was significant.”

That led the CIA to shut down its search for OBL precisely because they believed OBL no longer headed a hierarchical organization.

Only, at least according to a background briefing at the Pentagon yesterday (which could itself be more propaganda), that conclusion was wrong. The biggest lesson our intelligence agencies have gotten from analyzing the stash of materials at OBL’s compound is that OBL was not a figurehead, he remained not just the strategic, but also the tactical head of al Qaeda.

The following is a key point:  the materials reviewed over the past several days clearly show that bin Laden remained an active leader in al Qaeda, providing strategic, operational and tactical instructions to the group.  Though separated from many al Qaeda members who are located in more remote areas of the region, he was far from a figurehead.  He was an active player making the recent operation even more essential for our nation’s security.

According to torture apologist Jose Rodriguez, the most important information we got on OBL using torture was that he was a figurehead. According to those analyzing the materials from OBL’s compound, OBL “was far from a figurehead.”

Rodriguez’ torture-induced conclusion was completely wrong.

That’s what the torture apologists have to show for themselves: they gave up the hunt for OBL because they got bad information from torture.

So whereas on September 8, 2002, the Mushroom Cloud Brigade used the Sunday shows to sell a war that would distract us from fighting al Qaeda and getting OBL, today they’ll use the Sunday shows to claim torture helped find OBL. Yet another lie from the Mushroom Cloud Brigade on the Sunday shows.

Happy Mothers Day, moms! May the breakfast in bed your kids made for you help you avoid seeing the Mushroom Cloud Brigade and torture apologists on TV.

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The Osama bin Laden Trail Shows Waterboarding Didn’t Work

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The AP has confirmed that intelligence leading to the courier that in turn led to Osama bin Laden came from Khalid Sheikh Mohammed and–as I surmised earlier–Abu Faraj al-Libi while in CIA custody. But partly because of the language AP uses to describe this–and partly because the wingnuts love torture–many are drawing the wrong conclusion about it. Here’s what the AP says:

Current and former U.S. officials say that Khalid Sheikh Mohammed, the mastermind of the Sept. 11, 2001 terrorist attacks, provided the nom de guerre of one of bin Laden’s most trusted aides. The CIA got similar information from Mohammed’s successor, Abu Faraj al-Libi. Both were subjected to harsh interrogation tactics inside CIA prisons in Poland and Romania.

Note what AP says: KSM provided the courier’s nom de guerre. The CIA got similar information from al-Libi. And they were tortured. The AP does not say torture led to this information.

Here’s what a senior administration official said last night about when they got the intelligence on the courier.

Detainees gave us his nom de guerre or his nickname and identified him as both a protégé of Khalid Sheikh Mohammed, the mastermind of September 11th, and a trusted assistant of Abu Faraj al-Libbi, the former number three of al Qaeda who was captured in 2005.

Detainees also identified this man as one of the few al Qaeda couriers trusted by bin Laden. They indicated he might be living with and protecting bin Laden. But for years, we were unable to identify his true name or his location.

Four years ago, we uncovered his identity, and for operational reasons, I can’t go into details about his name or how we identified him, but about two years ago, after months of persistent effort, we identified areas in Pakistan where the courier and his brother operated. [my emphasis]

In other words, while the CIA may have learned the courier’s nickname earlier, they didn’t learn his true name until “four years ago”–so late 2006 at the earliest. And they didn’t learn where the courier operated until around 2009.

From these dates we can conclude that either KSM shielded the courier’s identity entirely until close to 2007, or he told his interrogators that there was a courier who might be protecting bin Laden early in his detention but they were never able to force him to give the courier’s true name or his location, at least not until three or four years after the waterboarding of KSM ended. That’s either a sign of the rank incompetence of KSM’s interrogators (that is, that they missed the significance of a courier protecting OBL), or a sign he was able to withstand whatever treatment they used with him.

With al-Libi, the connection between whatever torture he experienced and this intelligence is less clear (since he was first detained in 2005), but even with al-Libi, it appears clear he either never revealed the courier’s real name or only did so after he had been in custody for a year, and almost certainly until after he arrived in Gitmo.

Update: Putting the AP’s reporting here together with the DAB, it seems like al-Libi did give up the name, perhaps earlier than reported. But still not waterboarding.

Either these men didn’t know the true name of their protégé and assistant (which is highly unlikely), or they managed to withhold that information even under torture.

In fact, two people who normally would be crowing about the success of torture are not now doing it. Donald Rumsfeld suggests the discovery of OBL came from intelligence gained at Gitmo (therefore, not in Poland or Romania). And while Cheney assumes enhanced interrogation aka torture led to OBL, he admits he doesn’t know where the intelligence came from; given that he was ordering up propaganda reports along the way to justify his torture program, yet can’t claim definitively that the intelligence came from it, is a pretty good tell that he can’t say it did.

If KSM and al-Libi revealed details about the courier (and al-Libi’s Gitmo file suggests he did; KSM’s, which is dated two years earlier, does not), they shielded the most important information about him for years.

All of which sort of makes you wonder whether the FBI’s KSM expert could have gotten it out of KSM had he ever interrogated him.

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US Intelligence Operatives in Libya, Before a Finding, Sounds Like JSOC

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Mark Hosenball, who yesterday broke the news that Obama had issued a Finding authorizing the CIA to operate covertly in Libya in the last 2-3 weeks, today says “intelligence operatives” were on the ground before Obama signed that Finding.

U.S. intelligence operatives were on the ground in Libya before President Barack Obama signed a secret order authorizing covert support for anti-Gaddafi rebels, U.S. government sources told Reuters.The CIA personnel were sent in to contact opponents of Libyan leader Muammar Gaddafi and assess their capabilities, two U.S. officials said.

[snip]

The president — who said in a speech on Monday “that we would not put ground troops into Libya” — has legal authority to send U.S. intelligence personnel without having to sign a covert action order, current and former U.S. officials said.

Within the last two or three weeks, Obama did sign a secret “finding” authorizing the CIA to pursue a broad range of covert activities in support of the rebels.

Congressional intelligence committees would have been informed of the order, which the officials said came after some CIA personnel were already inside Libya.

Now, one explanation for this is simply that Obama sent JSOC–under the guise of preparing the battlefield–rather than CIA. It sounds like the practice–first exploited by Cheney–that the government has used frequently in the last decade of ever-expanding Presidential authority.

Indeed, House Intelligence Chair Mike Rogers’ claims he must authorize covert action, but hasn’t, sounds like the kind of complaint we’ve frequently gotten when the President bypassed the intelligence committees by claiming DOD was simply preparing the battlefield.

And Hosenball’s nuanced language about “boots,” that is, military, on the ground, may support that view.

Furthermore, we know there are a slew of British Special Forces on the ground in Libya. So why not Americans, too?

Hosenball is not saying this explicitly, yet. And he does refer to “CIA operatives” (who could be in Libya to simply collect information). But all the subtext of this article suggests that our special forces have been on the ground since before any Finding, which in turn suggests they may have been there longer than 2-3 weeks (the timeframe given for the Finding).

This is all a wildarsed overreading of Hosenball at this point. But if I’m right, then it would mean Obama would be using the shell game he adopted from Cheney to engage in war without Congressional oversight.

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