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Alexander Vindman Proves That Working Within System Works Even While Derek Harvey Works To Destroy It

Jim here.

Last night, two very remarkable stories were published that, taken together, illustrate an extreme chasm in our defense community that receives far too little attention. To set the stage, it is necessary to go back to the early 2000’s for a development that has mostly been erased from our collective memory but has had an indelible and particularly harmful and lingering effect. As the George W. Bush Administration executed its pivot from the war in Afghanistan to the invasion of Iraq, it became necessary for the Bush folks to craft a set of intelligence “facts” supporting and then sustaining the action in Iraq. A primary tool used in this effort was create a separate intelligence apparatus, since the existing intelligence agencies did not produce analyses supporting the invasion.

A huge impact of this illegal war was that it devastated morale within the military at all ranks. Sadly, many of our highest ranking–and most ethical–officers chose retirement rather than to serve while an illegal war was being waged. With the Defense Secretary, Vice President and President clearly leading the charge for the war, it seems obvious that these officers realized that their analyses showing that the invasion was not justified were falling on deaf ears and that they would never be able to inject a dose of reality into the artificial reality on which the whole war effort rested. The result, as they had to be able to foresee, was that the Iraqi people and our enlisted forces suffered unnecessary and devastating losses, with impact continuing into the present even after “end” of US action in Iraq.

By 2006, some of these retired officers even began to speak out, calling for the resignation of Donald Rumsfeld. In a normal world, where the system of checks and balances within the military and with legislative and executive oversight functions operating properly, these officers would not have needed to retire, but instead would have been key factors in rejecting the invasion as unnecessary and based only on a set of political objectives rather than an actual need for military action to stave off harm to the region. As a trained geneticist, my feeling was that this event served as a sort of genetic selection within the military, where the population of those remaining and advancing through the ranks was enriched for those who bought into distorted politics of the invasion and a willingness to shape “facts” around a desired outcome. Our only hope, I felt, was that at least some would desire to stay within the system anyway and continue to work for the ideals of their oath to the Constitution administered when they joined the military.

So, fast forward to last night. The New York Times article on Alexander Vindman illustrates that Vindman is indeed just that sort of person I hoped would continue to stay and work within the system. His work as the senior Ukraine analyst on the National Security Council put him into position to see the illegal plan that the Trump Administration was carrying out force Ukrainian President Volodymyr Zelensky to investigate Hunter Biden in return for the release of essential Ukraine aid that Trump had frozen. Vindman’s response was by the book: document the crime and then report it up the chain of command:

“I did not think it was proper to demand that a foreign government investigate a U.S. citizen, and I was worried about the implications for the U.S. government’s support of Ukraine,” Colonel Vindman said in his statement. “I realized that if Ukraine pursued an investigation into the Bidens and Burisma it would likely be interpreted as a partisan play which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained.”

/snip/

“This would all undermine U.S. national security,” Colonel Vindman added, referring to Mr. Trump’s comments in the call.

 

Vindman then went on to report his concerns:

“I did convey certain concerns internally to national security officials in accordance with my decades of experience and training, sense of duty, and obligation to operate within the chain of command,” he plans to say.

He will testify that he watched with alarm as “outside influencers” began pushing a “false narrative” about Ukraine that was counter to the consensus view of American national security officials, and harmful to United States interests. According to documents reviewed by The Times on the eve of his congressional testimony, Colonel Vindman was concerned as he discovered that Rudolph W. Giuliani, the president’s personal lawyer, was leading an effort to prod Kiev to investigate Mr. Biden’s son, and to discredit efforts to investigate Mr. Trump’s former campaign chairman, Paul Manafort, and his business dealings in Ukraine.

Vindman made not one, but two reports to the top lawyer in the NSC, John Eisenberg. Were it not for the whistleblower report and the impeachment inquiry stemming from it, the sad reality is that Vindman’s heroic actions might have ended with his reports to Eisenberg, as Eisenberg has been shown to have been working to quash the efforts to expose Trump’s illegal actions. But now that the House of Representatives has finally rediscovered the real duty of oversight (we already miss you, Elijah Cummings!), Vindman today has the opportunity provide a deposition to the three committees carrying out the impeachment investigation.  Vindman’s testimony seems likely to seal Trump’s fate, as it is nearly impossible to see how at least one article of impeachment won’t arise from the facts Vindman lays out. Whether Senate Republicans will also find their duty to truth rather than manufactured reality, of course, seems less likely, but at the very least it will be valuable to watch them squirm when the decision is laid squarely in their laps.

At almost the same time the Vindman article came out in the Times, Daily Beast detailed how a retired military officer, Derek Harvey, is working outside proper channels to disclose the identity of the whistleblower, endangering this individual and making future whistleblowers less likely to expose corruption. Harvey seems to be a poster child for exactly the type of officer who flourished after the mass exodus of those with a conscience. Here is how Daily Beast described his background:

Derek Harvey’s career has been extraordinary. As a Defense Intelligence Agency analyst, he played an important role in the 2007-8 troop surge in Iraq. David Petraeus kept Harvey aboard for an intelligence billet at U.S. Central Command. Harvey aligned with another member of the counterinsurgency coterie, DIA Director Mike Flynn, and followed Flynn onto Trump’s White NSC. From there, Harvey became a crucial aide to Nunes, a pivotal Flynn and Trump ally. There is no reasonable definition of Deep State that excludes Derek Harvey from elite membership.

So Harvey accelerated his military career, and career after retiring but staying within military intelligence, by joining forces with the Petraeus effort to craft “facts” around the Iraq surge–a cataclysmic failure that Petraeus always claimed as a stunning success–and then eventually joined Mike Flynn both in DIA and the NSC. One stop in Harvey’s career not on that list is detailed in Bob Woodward’s “Obama’s Wars” [quoted here]:

Based on what Harvey reported to General Petraeus, according to Woodward’s book, Petraeus “decided to create his own intelligence agency inside CentCom” (pg. 78, “Obama’s War”) to offset the shortcomings of the DNI, CIA, NSA, DIA and other US intelligence gathering agencies in gathering information about the Afghanistan-Pakistan region. He asked Harvey to draft plans for an agency modeled on Harvey’s approach. Reports Woodward, “Soon, Harvey was appointed director of the new Afghanistan-Pakistan Center of Excellence based at CentCom headquarters in Tampa, Florida.”

According to Woodward, Petraeus moved over $100 million into this project with Congress unaware of that move for several months. Harvey’s analysis that he gave to Petraeus: “the war could be won, but the U.S. government would have to make monumental long-term commitments for years that might be unpalatable with voters” (p. 79).

So Harvey clearly is essentially a ratfucker for hire, being willing to craft an intelligence set of “facts” to serve whatever master is paying him to do so. Although Woodward paints a rather admiring picture of Harvey’s diligence in approaching his intelligence gathering, comparing it to that of a homicide detective, historical context tells us that Petraeus simply didn’t like what he was getting from the existing agencies and needed his own “intelligence” to continue on his chosen path.

But, as you see above, Harvey is now working for Devin Nunes (R-Cow) and that is an especially devious team. From Daily Beast:

Derek Harvey, who works for Nunes, the ranking Republican on the House intelligence committee, has provided notes for House Republicans identifying the whistleblower’s name ahead of the high-profile depositions of Trump administration appointees and civil servants in the impeachment inquiry. The purpose of the notes, one source said, is to get the whistleblower’s name into the record of the proceedings, which committee chairman Adam Schiff has pledged to eventually release. In other words: it’s an attempt to out the anonymous official who helped trigger the impeachment inquiry.

Mark Zaid explained to Daily Beast the horrible implications of what Harvey is doing:

“Exposing the identity of the whistleblower and attacking our client would do nothing to undercut the validity of the complaint’s allegations,” said Mark Zaid, one of the whistleblower’s attorneys. “What it would do, however, is put that individual and their family at risk of harm. Perhaps more important, it would deter future whistleblowers from coming forward in subsequent administrations, Democratic or Republican.”

It’s hard to imagine two more polar opposites than Alexander Vindman and Derek Harvey. Vindman is a patriot committed to the security of the US and working within the system while Harvey is willing to sell out US security to whatever wingnut is willing to pay him and to bypass every safeguard built into the system.

What We Don’t Know about What Rummy Didn’t Know

Screen Shot 2016-01-28 at 10.45.31 AMEarlier this week, Politico did a story on a report done for Donald Rumsfeld in summer 2002 about what the Joint Chiefs of Staff’s Intelligence team knew about Saddam’s WMD program.

There are two specifics of significant note the Politico report doesn’t get into. First, it notes that the report itself was dated September 5 and Rumsfeld passed it on to Richard Myers, saying, “It is big” on September 9. But it neglects one significant detail about the date.

The report said “we think a centrifuge enrichment program is under development but not yet operational.” Someone — presumably either Rummy or Myers — marked that passage in the Powerpoint. That same person also marked an earlier slide that said “Our assessments rely heavily on analytic assumptions and judgment rather than hard evidence,” though that person did not mark the following line that read, “The evidentiary base is particularly sparse for Iraqi nuclear programs.”

Those dates are significant, however, because between the time the report was finished on September 5 and Rummy passed it on on September 9, both he and Myers did the Sunday shows as part of the aluminum tube bonanza, which itself was premised on the claim that Iraq had tried to obtain those tubes because they “were intended as components of centrifuges to enrich uranium.” (On Saturday, at least Rummy and possibly Myers spent the day at Camp David with other top Bush officials and Tony Blair planning to get their war on.)

To be fair to them both, they didn’t say anything that greatly varied from this report (in any case, both may not have read it yet) or even directly address the centrifuge story.

The secretary also asserted that Iraq is on the list of the world’s terrorist states, and under Saddam Iraq continues to possess chemical and biological weapons, and seeks to acquire nuclear arms, as well. As such, he said, Iraq represents a clear and present danger to America — and to the world.

Show host Bob Schieffer asked Rumsfeld if the United States was close to going to war against Iraq. The secretary said President Bush has decided that a regime change in Iraq is necessary, but hasn’t yet decided how it would be accomplished. The nation’s leader is slated to go before the United Nations to “make what he believes to be is a recommendation to the international community and to the world” about what to do about Saddam and Iraq, Rumsfeld said.

Iraq, Rumsfeld said, has invaded its neighbors, persists in violating U.N. resolutions it had agreed to, and continues to amass weapons of mass destruction, creating a significant problem for the international community.

The world can approach the problem of Saddam in a number of ways, Rumsfeld remarked. However, he emphasized that he agrees with the president in that doing nothing is not an option.

People seeking a “smoking gun” — absolute, conclusive evidence that Saddam has nuclear weapons — Rumsfeld noted, is like developing a case in a court of law by proving a person’s guilt without a reasonable doubt.

“The way one gains absolute certainty as to whether a dictator like Saddam Hussein has a nuclear weapon is if he uses it. And that’s a little late,” Rumsfeld emphasized.

The secretary pointed out how some U.S. intelligence on Iraqi capabilities may not be revealed to the public for good reason. Putting certain intelligence out to the public could “put people’s lives at risk,” he noted. However, the secretary said more information about Iraq would likely become known in the days and months ahead.

Rumsfeld noted there is also “a category of things we don’t know.” After Operation Desert Storm, he noted, American officials discovered that Saddam was six months to a year away from developing a nuclear weapon. The best previous intelligence had estimated it would take two to six years for Saddam to obtain a nuclear bomb, Rumsfeld said. [my emphasis]

Indeed, while Rummy used a variant of the “smoking gun” line Condi Rice used, he presented it more as a legalistic phrase than the fearful line the National Security Advisor delivered it as. He stressed that US intelligence was withholding information. And he admitted that there was stuff “we don’t know,” though suggested that in the past the stuff we didn’t know ended up being that Saddam was closer to getting nukes than previously believed.

And Myers, too, emphasized Saddam’s quest to improve his nuke program.

Air Force Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, reiterated to ABC This Week host Sam Donaldson that Saddam Hussein has chemical and biological weapons.

Saddam, Myers added, also wants “to better his nuclear program.”

“He’s going to go to any means to do that, we think,” he said. “Our estimate is at this point he does not have nuclear weapons, but he wants one.”

Basically, though, it appears that after Rummy and Myers had just been put on the Sunday shows to reinforce the hysteria Condi and Cheney were sowing, Rummy read a report and learned that his own intelligence people were none too sure about what he and Myers had just said, at which point he sent it to Myers and said “it is big.”

Screen Shot 2016-01-28 at 11.28.13 AMAt that point, it was probably too late.

The other thing Politico didn’t note, however, is that the actual Powerpoint was not entirely declassified. Indeed, the entire last page was redacted under 1.4 a, b, and c exemptions.

1.4(a) military plans, systems, or operations;

1.4(b) foreign government information;

1.4(c) intelligence activities, sources or methods, or cryptology;

I find that interesting because the Iraq foreign government information in the presentation is no longer considered sensitive, so it presumably cites some other foreign government information.

I suspect the redacted information either cites the equally dubious British intelligence claiming Saddam had WMD or that it invokes Saddam’s ties to terrorism (which both Rummy and Myers did mention in their Sunday appearances). If it’s the latter, it would mean the government is still trying to hide — as it is with a letter Carl Levin tried but failed to get declassified before he retired — the utterly bogus claims about Saddam having ties to Al Qaeda that were partially used to justify the war.

All of which is to say, we know that Rummy probably learned a bit more about what his unknown unknowns immediately after going on a the Sunday shows making a claim about known unknowns. But there’s still something about what Rummy didn’t know that we don’t know.

Monday Morning: Get a Pick and Shovel

Mississippi John Hurt’s lyrics seem appropriate this morning — get a pick and shovel to dig your way out of all that snow and ice this Monday morning.

Getting a late start here because I stayed up watching the X-Files revival.

Apple iMessage users’ content at risk if backed up to iCloud
While iMessages themselves use end-to-end encryption, the same content when backed up to iCloud is encrypted by an Apple-controlled key. As many as 500 million users have data in iCloud services, at risk of exposure. You’d think after The Fappening, Apple users would be more leery about enabling iCloud backup.

Network problems affect NFL’s Microsoft Surface tablets, left New England Patriots in the dark
Wow, right down to the “last defensive possession” and *blip* — nothing on the Surface tablets for Pats’ coaches to show their players. Not the first time there’ve been problems with this technology, either. NFL’s network problems are blamed for the loss of play information, but Microsoft’s tablets are taking the brunt of it. Have to wonder why there wasn’t adequate redundancy to ensure network burps would not affect the game. Can’t fault the tablets or the network outage for the delay of X-Files on FOX, though, since the Patriots vs. Broncos were on CBS.

Donald Rumsfeld, video game designer
One of the last things I ever expected to see in my feed: Donald Rumsfeld, former Secretary of Defense under George W. Bush, designed a video game. It’s an obscure form of solitaire attributed to Winston Churchill. “…I’ve signed off on something they call ‘UX’,” Rumsfeld said. Heaven help us.

I’m deferring my date with a shovel for later today and crawling back into bed. Stay safe and warm, gang.

David Cole’s Shiny Objects

Screen Shot 2015-03-06 at 9.10.21 AMDavid Cole persists in reading some selected documents in isolation from a far more extensive record and patting himself on the back that he has discovered what many of us have been saying for years: that some in the White House were also responsible for torture. But along the way he entirely misses the point.

I will return to the documents that have so entranced Cole at a later time (several other issues are more pressing right now). But for now, here are some significant problems with his latest.

Cole once again presents the CIA Saved Lives site as some mysterious cache, in spite of the fairly clear genealogy and the WSJ op-ed signed by a bunch of people who managed torture introducing it.

The documents, which were uploaded to a mysterious website by the name of ciasavedlives.com, provide dramatic new details about the direct involvement of senior Bush administration officials in the CIA’s wrongs.

It’s as if Cole has never heard of PR and therefore absolves himself of presenting this as a fourth self-interested viewpoint, that of those who managed the torture — the other three being SSCI Dems plus McCain, SSCI Republicans, and official CIA — which doesn’t even encapsulate all the viewpoints that have been or should be represented in a complete understanding of the program.

And so Cole accepts that the narrative presented here is a transparent portrayal of the truth of the torture program rather than — just like the SSCI report, the CIA response, the CIA IG Report, the SASC Report, and the OPR Report — one narrative reflecting a viewpoint.

As a result, some of the conclusions Cole draws are just silly.

Back when his new CIA-friendly opinion was in its early stages at the NYT, Cole accepted as a fair critique (as do I) that Abu Zubaydah’s torture started well before the SSCI report considered, in April with his extreme sleep deprivation and not August when the waterboarding program started (if we can believe CIA records).

The committee contended that the most useful information from Mr. Zubaydah actually came while the F.B.I. was questioning him, using noncoercive tactics before he was waterboarded. But the C.I.A. points out that Mr. Zubaydah had been subjected to five days of sleep deprivation, a highly coercive and painful tactic, when the F.B.I. interrogated him.

I’d actually say — and Cole should, given that elsewhere in his NYT piece he admits we should also look at the torture done in foreign custody — that the timeline needs to come back still further, to Ibn Sheikh al-Libi’s torture in January and February 2002, using the very same techniques that would be used with Abu Zubaydah, in Egyptian custody but with CIA officers present (and, importantly, authorized by the same Presidential finding). But once you do that, Cole’s depiction of the original approval process for the program becomes nonsensical.

Even though the program had been approved at its outset by National Security Adviser Condoleezza Rice in July 2002 and by Attorney General John Ashcroft in August 2002,

Of course, all that points back to a place that Cole so studiously avoids it’s hard to imagine it’s not willful, to the September 17, 2001 Memorandum of Notification that CIA and SSCI both agree (though the CIAsavedlives leaves out) authorized this program. (President Obama also went to some length to hide it from 2009 to 2012, when he was busy using it to kill Anwar al-Awlaki.)

Condi didn’t give primary approval for this (and the record is not as clear as Cole claims in any case). President Bush did, months earlier, well before the February 7, 2002 date where CIAsavedlives starts its narrative. And that’s the detail from which the momentum endorsing torture builds (and the one that a Constitutional law professor like Cole might have far more productive input on than details that he appears to be unfamiliar with).

I’m not trying to protect Condi here — I believe I once lost a position I very much wanted because I hammered her role in torture when others didn’t. But I care about the facts, and there is no evidence I know (and plenty of evidence to the contrary) to believe that torture started with Condi (there is plenty of reason to believe CIA would like to implicate Condi, however).

Cole goes onto rehearse the three times CIA got White House officials to reauthorize torture, two of which were reported years and years ago (including some limited document releases) but which he seems to have newly discovered. In doing so, he simply takes these documents from the CIA — which has been shown to have manipulated documents about briefings in just about every case — on faith.

Dan Froomkin pointed out some of the problems with the documents — something which Cole has already thrown up his hands in helplessness to adjudicate.

The new documents don’t actually refute any of the Senate report’s conclusions — in fact, they include some whopper-filled slides that CIA officials showed at the White House. 

[snip]

But the slides also contained precisely the kind of statements that the Senate report showed were inaccurate:

While it doesn’t excuse White House actions, the CIA demonstrably lied about the efficacy of the program. It’s not that the White House was being told they were approving a torture program that had proven counterproductive. They were told, falsely, they were approving a program that was the one thing that could prevent another attack and that it had already saved lives. That is, the people approving the torture were weighing American lives against respecting Khalid Sheikh Mohammed’s human rights, based on inaccurate information. And note — as the image above shows — the torture managers aren’t revealing what implicit threats they made if Bush’s aides didn’t reapprove torture (though elsewhere they make it clear they said ending torture might cause “extensive” loss of life), which is significant given that the next year they claimed they had to torture to prevent election year plotting that turned out to be based partly on a fabrication.

Those aren’t the only known lies in the documents. Take the record of the July 29, 2003 briefing and accompanying slides. Among the whoppers — even according to CIA’s own documents! — that appear are:

  • The deaths by torture did not include approved torture. They only make that claim by fudging what happened with Gul Rahman. (The silence about Rahman is of particular import for the CIAsavedlives crowd given the reports that Stephen Kappes left the CIA amid allegations he coached field officers to cover up Rahman’s death.)
  • The senior leadership of the Intelligence Committees had been briefed. Jay Rockefeller had not been briefed (one of his staffers was, which the slides admits, though I have new reason to doubt some of CIA’s claims about which staffers have been briefed). In addition, according to CIA documents, no one was briefed on torture in Spring 2002, as CIA would have had to do to comply with the National Security Act. Furthermore, there is now serious question whether the CIA ever did the new briefing after the break, as CIA said it would do in the memo.
  • Safeguards. Many of the safeguards described were imposed in early 2003, after a number of abuses.
  • Islam permits confession under torture. The claim that Abu Zubaydah tied confessing under torture to Islam is apparently something Alfreda Bikowsky got from a walk in.
  • Amount of torture. The summary of the Ammar al-Baluchi torture doesn’t describe his simulated drowning. And the number of waterboards is wrong.

The fact that the CIA misrepresented how many times both Abu Zubaydah and Khalid Sheikh Mohammed had been waterboarded is significant, because that’s also related to the dispute about whether Muller’s account of the meeting was accurate. According to John Ashcroft, Muller misrepresented his comments to mean that CIA could waterboard more than had been approved in the Techniques memo, whereas what he really said is that CIA could use the techniques approved in that memo with other detainees. This does not mean — contrary to Cole’s absurd insinuation — that “Ashcroft is my hero.” It means there is a public dispute on this issue. Cole has gone from refusing to adjudicate disputes to simply taking CIA’s word on faith, in spite of the well-documented problems — even based entirely on CIA’s own documents — with their own accounts of briefings they gave.

Note, too, that whether the Abu Zubaydah memo could be used with other detainees was being discussed in 2003, when even by CIA’s count it had already subjected 13 more detainees to torture, is itself telling.

Finally, the Legal Principles are worth special note. They were, per the CIA IG Report, the OPR Report, and declassified documents, one key tension behind this July 29, 2003 briefing. As the record shows, DOJ permitted CIA’s IG to develop the agency’s own fact set about the violations that had occurred by January 2003 to determine whether doing things like mock execution with Abd al Rahim al-Nashiri and killing Gul Rahman were crimes. So CIA set about writing up its own summary of Legal Principles DOJ had given it — it claimed to John Helgerson — with the help of John Yoo and Jennifer Koester (but not, at least according to Jack Goldsmith, the involvement of Jay Bybee or the review of other OLC lawyers, which would be consistent with other facts we know as well as Bybee’s sworn testimony to Congress). That is, CIA was basically writing its own law on torture via back channel to OLC. The record shows that on several occasions, CIA delivered those documents as a fait accompli, only to have DOJ lawyers object to either some provisions or the documents as a whole. The record also shows that CIA used the memos to expand on authorized techniques (something the DOD torture memo process in 2003 also did) to include some of the ones they had used but hadn’t been formally approved by DOJ. That is, one tension underlying this meeting that Cole doesn’t discuss is that some in DOJ were already trying to limit CIA’s own claims to authorization, which devolved in part to a debate over whether bureaucratic manipulation counts as approval.

I raise all this because it gets at the underlying tension, one which, I suspect, created a kind of momentum that doesn’t excuse those involved but probably explains it. Very early after 9/11, certain people at CIA and in the White House decided to affirmatively torture. Torture started — and the Iraq War was justified — early, long before Cole presents. But at each step, that momentum — that need to, at a minimum, protect not only those who had acted on the President’s orders but also the President himself — kept it going such that by 2004, CIA had an incentive to torture Janat Gul just for the sake of having an excuse to torture again (and having an excuse to get Jay Rockefeller to buy off on torture for what appears to have been the first time).

It’s that very same momentum — the need to protect those who tortured pursuant to a President’s order, as well as the office of the presidency itself — that prevents us from holding anyone accountable for torture now. Because ultimately it all comes down to the mutual embrace of complicity between the President and the CIA. That’s why we can’t move beyond torture and also why we can’t prevent it from happening again.

Cole and I agree that there are no heroes in the main part of the narrative (though there were people who deserve credit for slowing the momentum, and outside this main part of the narrative, there were, indeed, heroes, people who refused to participate in the torture who almost always paid a price). What he is absolutely incorrect about, given the public record he is apparently only now discovering, is that CIA did manipulate some in the White House and DOJ and Congress, to cover their ass. I don’t blame them, They had been ordered to torture by the President, and had good reason not to want to be left holding the bag, and as a result they engaged in serial fraud and by the end, crimes, to cover their collective asses. But the evidence is, contrary to Cole’s newly learned helplessness to investigate these issues, that CIA lied, not only lied but kept torturing to protect their earlier torture.

All that said, Cole’s intervention now is not only laughably credulous to the CIA. But it also is not the best use to which he could put his soapbox if his goal is to stop torture rather than do CIA’s bidding.

First, we actually have no idea what went on at the White House because on President Obama’s request though not formal order, CIA withheld the documents that would tell us that from SSCI. Why not spend his time calling for the release of those documents rather than parroting CIA propaganda credulously? I suspect Obama would take Professor Cole’s calls to release the documents CIA protected at the behest of the White House more seriously than he has taken mine. Let’s see what really happened in discussions between CIA and the White House, in those documents the White House has worked hard to suppress.

Just as importantly, though Cole has not mentioned it in any of his recent interventions here, what appears to have set the momentum on torture rolling (as well as the execution of an American citizen with no due process) is the abuse of covert operation authority. This is something that a prestigious Constitutional law professor might try to solve or at least raise the profile of. Can we, as a democracy, limit the Article II authority of the President to order people to break the law such that we can prevent torture?

Because if not, it doesn’t matter who we blame because we are helpless to prevent it from happening again.

Saddam’s WMD: Technology Made In USA, Delivered by Rumsfeld

In a blockbuster story published last night by the New York Times, C.J. Shivers lays out chapter and verse on the despicable way the US military covered up the discovery of chemical weapons in Iraq after the 2003 invasion. Even worse is the cover-up of injuries sustained by US troops from those weapons, their denial of treatment and denial of recognition or their injuries sustained on the battlefront.

Why was this covered up, you might ask? After all, if George W. Bush would joke at the White House Correspondents’ Dinner about looking under White House furniture for Saddam’s WMD’s, why didn’t the US blast out the news of the WMD’s that had supposedly prompted the US invasion?

The answer is simple. The chemical weapons that were found did not date to the time frame when the US was accusing Saddam of “illegally” producing them. Instead, they were old chemical weapons that dated from the time Saddam was our friend. They come from the time when the US sent Donald Rumsfeld to shake Saddam’s hand and to grease the skids for Iraq to get chemical weapons to use in their war against Iran.

Chivers give us the details:

From 2004 to 2011, American and American-trained Iraqi troops repeatedly encountered, and on at least six occasions were wounded by, chemical weapons remaining from years earlier in Saddam Hussein’s rule.

In all, American troops secretly reported finding roughly 5,000 chemical warheads, shells or aviation bombs, according to interviews with dozens of participants, Iraqi and American officials, and heavily redacted intelligence documents obtained under the Freedom of Information Act.

/snip/

The New York Times found 17 American service members and seven Iraqi police officers who were exposed to nerve or mustard agents after 2003. American officials said that the actual tally of exposed troops was slightly higher, but that the government’s official count was classified.

/snip/

Then, during the long occupation, American troops began encountering old chemical munitions in hidden caches and roadside bombs. Typically 155-millimeter artillery shells or 122-millimeter rockets, they were remnants of an arms program Iraq had rushed into production in the 1980s during the Iran-Iraq war.

All had been manufactured before 1991, participants said. Filthy, rusty or corroded, a large fraction of them could not be readily identified as chemical weapons at all. Some were empty, though many of them still contained potent mustard agent or residual sarin. Most could not have been used as designed, and when they ruptured dispersed the chemical agents over a limited area, according to those who collected the majority of them.

But here is the real kicker:

Participants in the chemical weapons discoveries said the United States suppressed knowledge of finds for multiple reasons, including that the government bristled at further acknowledgment it had been wrong. “They needed something to say that after Sept. 11 Saddam used chemical rounds,” Mr. Lampier said. “And all of this was from the pre-1991 era.”

Others pointed to another embarrassment. In five of six incidents in which troops were wounded by chemical agents, the munitions appeared to have been designed in the United States, manufactured in Europe and filled in chemical agent production lines built in Iraq by Western companies.

Good old USA technology, conveniently exported to European firms that we helped to build factories in Iraq to produce chemical weapons to be used against Iran. That is what caused injury to US servicemen who were routinely denied care and quickly sent back into battle because they weren’t missing limbs. Chivers talked to a number of those soldiers and their stories are so consistent they nearly blend together. Also consistent was the instant classification of the injuries, presumably because of the embarrassment to the Bush Administration they would cause should the press look into them too rigorously.

Sadly, though, the story is not yet over. The US left Iraq in 2011, knowing that chemical weapons were still stored in bunkers at Al Muthanna. At the end of Chivers’ report: Read more

Growing Signs of Intelligence from Intelligence Community, or Just Another Turf War?

On Saturday, I wrote about a remarkable about-face taken by AP’s George Jahn in his reporting on Iran’s nuclear technology. Instead of following his usual routine of parroting leaks from US and Israeli sources meant to put Iranian intentions on nuclear technology in the worst possible light, Jahn instead wrote about how dependent the UN’s IAEA is on US intelligence to develop its evaluation of what is happening in Iran. Further, Jahn highlighted how US credibility on WMD intelligence was forever harmed by the overstated evaluations of Iraqi WMD leading up the invasion of Iraq in 2003. My post was written from the point of view that somehow Jahn had realized how badly he has been played by the intelligence community over the years and has now decided to question the reliability of the information being fed to him.

In comments on the post, Marcy considered whether the reversal could be framed in a different way:

Not to get all 11-dimensional, but any chance his sources asked him to leak this? That is, more stenography, but to justify reversing course?

In what could be yet another framing of what is happening in the intelligence community, Lara Jakes of AP worte an article published Monday in which she described what may be a movement within the intelligence community to promote what appears to be a healthy move toward reasoned debate among the various agencies within the intelligence community. Couching the opening of the article within the uncertainty over whether Osama bin Laden really was at the compound in Abbottabad where he was eventually killed, Jakes describes what appears to be a new movement toward debate:

As the world now knows well, President Barack Obama ultimately decided to launch a May 2011 raid on the Abbottabad compound that killed bin Laden. But the level of widespread skepticism that Cardillo shared with other top-level officials — which nearly scuttled the raid — reflected a sea change within the U.S. spy community, one that embraces debate to avoid “slam-dunk” intelligence in tough national security decisions.

Wow. Here we have a second AP reporter making a reference to the failed Iraq intelligence in 2003 only two days after Jahn’s introspective that cited the same failure. But, when she finally revisits the “slam-dunk” reference many paragraphs later, Jakes elides the most important factor that led to the intelligence failure. Here is her description: Read more

With Bradbury’s Appendix M Opinion and 7th Circuit Vance Decision, the Government Can Torture Any of Us

Three years ago, I showed how Steven Bradbury wrote an OLC memo that approved in advance whatever techniques DOD wanted to put into the sometimes classified Appendix M of the Army Field Manual. At the time, DOJ implied to me that this memo was rescinded along with the rest of Bradbury and John Yoo’s torture memos.

In a really important post yesterday, Jeff Kaye explained that the memo, in fact, remains operative.

LTC Breasseale explained in an email response to my query last year:

Executive Order (EO) 13491 did not withdraw “‘All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.’” It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General…. [bold emphasis added]

One last point – you seem suggest below that EO 13491 somehow cancelled Steven Bradbury’s legal review of the FM. EO 13491 did not cancel Mr. Bradbury’s legal review of the FM.”

When I then asked the Department of Justice to confirm what Breasseale had said for a story on the Bradbury memo, spokesman Dean Boyd wrote to tell me, “We have no comment for your story.” The fact Boyd did not object to Breasseale’s statement seems to validate the DoD spokesman’s statement.

Breasseale also described DoD’s view that both the current AFM and Appendix M were “not inconsistent with EO 13491,” which “expressly prohibits subjecting any individual in the custody of the U.S. Government to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the FM. In addition, the Detainee Treatment Act of 2005 expressly prohibits subjecting any individual in the custody of the U.S. Department of Defense to any treatment or technique of interrogation that is not authorized by and listed in the FM. In short, both the President and the Congress have determined that the interrogation techniques listed in the FM are lawful,” Breasseale said.

In his post, Kaye provides a lot of details for why the continued applicability of the memo, authorizing separation, is deeply troubling. I’d add that the particular structure of the memo, which of course allows the insertion of physical torture techniques previously abandoned under cover of classification, adds to the concern.

But there is a pending legal reason why it is important, too.

A few years ago, two contractors, Donald Vance and Nathan Ertel, sued Donald Rumsfeld and others for the torture they were subjected to at Camp Cropper after whistleblowing about Iraqi and US corruption.

The torture was, in large part, the “separation” permitted in Appendix M. As part of their case implicated Rummy personally, they described how, immediately after Congress passed the Detainee Treatment Act, Rummy invented Appendix M as a way to evade the law. Read more

Steven Bradbury’s Revenge

Since I noted in August 2011 that Mitt had named two torture architects to his legal advisory committee (Tim Flanigan and Steve Bradbury), I have had zero doubt that Mitt would embrace torture if he were President. So Charlie Savage’s story–reporting on a September 2011 memo confirming that fact–wasn’t surprising in the least to me. Here’s the key recommendation from the memo:

Governor Romney has consistently supported enhanced interrogation techniques. Governor Romney is also on record as stating that he does not believe it is wise for him, as a presidential candidate, to describe precisely which techniques he would use in interrogating detainees. The combination of these two positions, as well as the information presented above, leads to two principal options in this area for his campaign.

The first option is that Governor Romney could pledge that upon taking office, he will rescind and replace President Obama’ s Executive Order restricting government interrogators to the Army Field Manual. Consistent with the authority reserved for the President under the Military Commissions Act, he could commit his Administration to authorizing (classified) enhanced interrogation techniques against high-value detainees that are safe, legal, and effective in generating intelligence to save American lives. But because President Obama’s release of the OLC memos has reduced the number of available techniques that meet these criteria, Governor Romney should not commit in advance to a timetable for implementing this plan; it may well take time to identify potential techniques and analyze their effectiveness and legality.

[snip]

The Subcommittee recommends the first option. Governor Romney has recognized for years that the sounder policy outcome is the revival of the enhanced interrogation program. And a reluctance by the Governor to expressly endorse such an outcome during the campaign could become a self-fulfilling prophecy once he takes office by signaling to the bureaucracy that this is not a deeply-felt priority. [my emphasis]

Mitt is pro-torture. We knew that, and he hasn’t hidden that fact.

But there are a couple of details about this that are curious.

First, note the language here. The advisors worry that if Mitt doesn’t explicitly endorse getting back into the torture business during the election, he might not do so. They want to force his hand before he’s elected to make sure he’ll carry through.

That is not the language of advisors. It’s the language of puppet-masters (though I’m sure the equivalent memos from inside the Obama camp aren’t much different). That is, the legal advice here is designed not so much to provide the best advice (if it were, then the support used in the memo wouldn’t be such discredited propaganda). Rather, it is to force Mitt’s hand in the eventuality he becomes President.

The other interesting aspect of this are the people. Savage provides this list of the advisors, in addition to Steven Bradbury, in the loop on this memo (he notes that it’s unclear whether they have bought off on the advice).

The list also included Michael Chertoff, the former homeland security secretary; Cully Stimson, the Pentagon’s detainee policy chief; and many other Bush-era executive branch veterans: Bradford Berenson, Elliot S. Berke, Todd F. Braunstein, Gus P. Coldebella, Jimmy Gurule, Richard D. Klingler, Ramon Martinez, Brent J. McIntosh, John C. O’Quinn, John J. Sullivan, Michael Sullivan and Alex Wong. Three others — Lee A. Casey, Maureen E. Mahoney and David B. Rivkin Jr. — served in earlier Republican administrations.

First, note where Savage starts this list: Michael Chertoff, who as Criminal Division head in 2002 refused to give Bush’s torturers an advance declination on prosecution. That refusal ultimately led to the contorted form of the original Yoo memos authorizing torture. If Chertoff supports this policy (Savage’s caveat noted), then it’s a pretty clear indication that Chertoff was cautious in 2002 because people like Ali Soufan were running around saying mock burial was torture, and not because he had any qualms about torture himself. That’s not surprising in the least, but still worth noting.

Maureen Mahoney (who defended Jay Bybee in the OPR investigation) and David Rivkin (who defended Rumsfeld in civil suits for torture) have also backed their earlier legal representation with their own reputation (or lack thereof).

Finally, note who’s not on this list: Tim Flanigan, who with Alberto Gonzales, Dick Cheney, and David Addington, was one of the most central architects of torture and other illegal counterterrorism approaches.

It’s sort of odd that Mitt advisor Tim Flanigan, one of the original architects of torture, wasn’t the one leading this effort last year.

We Can’t Afford Another “Complicated and Quirky” Presidency

You’ve no doubt heard about the BoGlo piece that describes 9 different legal documents on which Mitt Romney was listed as CEO of Bain after the time–in 1999–when he now claims to have left the company.

Romney has said he left Bain in 1999 to lead the winter Olympics in Salt Lake City, ending his role in the company. But public Securities and Exchange Commission documents filed later by Bain Capital state he remained the firm’s “sole stockholder, chairman of the board, chief executive officer, and president.”

[snip]

Romney did not finalize a severance agreement with Bain until 2002, a 10-year deal with undisclosed terms that was retroactive to 1999. It expired in 2009.

[snip]

The Globe found nine SEC filings submitted by four different business entities after February 1999 that describe Romney as Bain Capital’s boss; some show him with managerial control over five Bain Capital entities that were formed in January 2002, according to records in Delaware, where they were incorporated.

I’m envisioning Mitt Romney, in 2017, claiming the treaty he signed with China in 2014 doesn’t really count because he wasn’t really acting as President when he signed it, in spite of his legal status as President.

But I’m most interested in the scant response the Mitt campaign gave.

A Romney campaign official, who requested anonymity to discuss the SEC filings, acknowledged that they “do not square with common sense.” But SEC regulations are complicated and quirky, the official argued, and Romney’s signature on some documents after his exit does not indicate active involvement in the firm.

“Complicated and quirky” says a guy (or gal) now spending his time trying to get Mitt elected to an even more complicated and quirky office, the Presidency.

Frankly, though, there’s precedent for a President claiming “complicated and quirky” absolves him of responsibility for things that occurred under his presidency. After all, while Bush signed the paperwork in the first 6 years of his presidency, it wasn’t until he fired Rummy that Bush actually took over responsibility for the big decisions from Dick Cheney.

And I can’t help but harp on the “complicated and quirky” document–the “Gloves Come Off” Memorandum of Notification, effectively written by now Romney advisor Cofer Black–that has undermined the accountability Presidency more generally. Effectively, that MON pre-authorized the CIA (at least) to do whatever they wanted within certain general areas of organization. It served as Presidential authorization, but insulated the President from any provable involvement in torture and assassination and partnering with lethal regimes. When proof that the President had authorized all this torture threatened to come out via legal means, the current President went to the mat to prevent that from happening.

All the rest–the debates about what Congress authorized the day after this complicated and quirky document, the OLC memos, the repeated investigations that always end up in immunity for all (or almost all)–are just the legal facade that hides the fact that in fact even our Constitution has become “complicated and quirky.” And while Obama at least admits his involvement in these issues–while still hiding them from legal liability–he has chosen to keep the structure in place and has relied on the plausible deniability it gives.

The thing is, as damning as this revelation may prove to be for Mitt, it is in fact quite unsurprising that a man can run for President on a resumé for which–his advisors say, behind the veil of anonymity–he can simultaneously claim credit but no responsibility.

That’s the way this country increasingly works. Even–perhaps especially–the Presidency.

DIA Failed to Protect Jose Padilla’s Welfare

On June 11, SCOTUS denied cert in Jose Padilla’s suit against Donald Rumsfeld, former DIA Director Lowell Jacoby, and others at DOD for his denial of habeas corpus and abusive detention. On June 28, DOD responded to a FOIA Jeff Kaye submitted on September 8, 2010.

There’s a lot in the IG Report Jeff received in response–on whether detainees at Gitmo or other non-SOCOM facilities were administered drugs as part of interrogation (the report concludes they were not)–of import that Jeff and Jason Leopold report on here.

In this post, though, I want to look at why DOD may have held off on responding to Jeff’s FOIA until after SCOTUS rejected Padilla’s suit.

As Jeff and Jason report, one of the more inflammatory things revealed in the unredacted parts of the report is that when “they” gave Padilla a flu shot on December 5, 2002 (the report doesn’t say who administered the shot), he asked (following up on earlier comments made by an interrogator) whether they had given him truth serum.

What happened next is redacted–one of just about 5 redacted paragraphs in the entire report. DOD cited exemptions 1 (properly classified), 3 (protected by statute, including any function of the DIA), 6 (personal privacy) and 7c (law enforcement personal privacy) in withholding this information.

The following paragraph reads,

(U/FOUO) We concluded from the interrogation recordings and interviews with the interrogator and brig personnel present on December 5, 2002, that [redacted–Padilla] was not administered a mind-altering drug during his confinement at the U.S. Naval Consolidated Brig, Charleston, South Carolina. We further concluded that the [3-letter redaction] failed to follow legal review procedures established by U.S. Joint Forces Command to ensure that [redacted–Jose Padilla’s] welfare was protected in accordance with guidance issued by the President. [my emphasis]

Then, the subsequent two paragraphs–which provide “Client Comment” and DOD IG’s response–are redacted.

We can be almost certain that DIA (headed at the time of Padilla’s detention by Jacoby) was the redacted rebuked entity because their response to this report is the only other section of the report that is substantially redacted and no other respondants to the report had any complaints about it, meaning the redacted response in the Padilla section must be a discussion of DIA’s response. The unredacted section of their response, however, makes it clear their own IG investigated the problem (albeit at the same time as DOD IG was doing so).

The DIA Inspector General (IG) investigated the information gap cited in Appendix II. The DIA IG report was provided on 12 August 2009. [my emphasis]

Still, we don’t know what DIA did that drew a rebuke from DOD’s Inspector General. It may be no more than misleading Padilla into believing he had gotten a truth serum, without prior approval for doing so by lawyers. (The paragraphs in question are only classified Secret, so they can’t be that significant.)

Or, it may be that the conclusion served to protect the President and Rummy.

Nevertheless, it is fairly clear that DOD’s IG found that DIA didn’t do what they needed to do to protect Padilla’s welfare. And it sure looks like DOD sat on that information until SCOTUS ensured that Padilla would never have legal recourse for the abuse done to him.