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Jim Comey’s Learned Helplessness about the Torture Report

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Dianne Feinstein used the Federal Law Enforcement Appropriations hearing as an opportunity to implore Jim Comey to read the Torture Report.

I’m surprised neither by her request nor by her plaintive manner, given how most Federal Agencies have simply blown off the Report. But I am interested in the content of the exchange (my transcription).

Feinstein: One of my disappointments was to learn that the six year report of the Senate Intelligence Committee on Detention and Interrogation Program sat in a locker and no one looked at it. And let me tell you why I’m disappointed. The report — the 6,000 pages and the 38,000 footnotes — which has been compiled contains numerous examples of a learning experience, of cases, of interrogation, of where the Department could learn — perhaps — some new things from past mistakes. And the fact that it hasn’t been opened — at least that’s what’s been reported to me — is really a great disservice. It’s classified. It’s meant for the appropriate Department. You’re certainly one of them. I’d like to ask if you open that report and designate certain people to read it and maybe even have a discussion, how things might be improved by suggestions in the report.

Comey: And I will do that Senator. As you know, I have read the [makes a finger gesture showing how thick it was] Executive Summary. You asked me to do it during my confirmation hearing, I kept that promise and read it. There’s a small number of people at the FBI — as I understand it — who have read the entire thing. But what we have not done — and I think it’s a very good question, is have we thought about whether there are lessons learned for us? There’s a tendency for me to think “we don’t engage in interrogation like that, so what’s there to learn?”

Feinstein: You did. And Bob Mueller pulled your people out, which is a great tribute to him.

Comey: Yeah. So the answer is yes, I will think about it better and I will think about where we are in terms of looking at the entire thing. I don’t know enough about where the document sits at this point in time and you mentioned a lock box, I don’t know that well enough to comment on it at this point.

Feinstein and Comey appear to have differing understandings of whether anyone at FBI has actually read the report, with Comey believing someone has read it — and professing ignorance about a “lockbox” — and Feinstein referring to a report that no one has read it, a belief that may come in part from the responses the government is making to FOIA requests. Is FBI lying about whether anyone has opened this in its FOIA responses?

But I’m also interested both that Comey hasn’t read further and that he hasn’t considered whether FBI might have anything to learn from it.

Tellingly, Comey suggests FBI would have nothing to learn because “we don’t engage in interrogation like that, so what’s there to learn.” But as Feinstein corrects, FBI did engage in “interrogation like that,” but then Bob Mueller withdrew his interrogators. Remember that Ali Soufan was present at the Thai black site for Abu Zubaydah’s first extreme sleep deprivation and long enough to see the torturers bring out a coffin-like box. His partner, Steve Gaudin, stayed even longer. That stuff doesn’t appear in the summary (the report’s silence on this earlier phase of Abu Zubaydah’s torture is one of CIA’s legitimate complaints). Moreover, there are moments later in the torture program when one or another FBI Agent (including Soufan) were present for other detainees’ interrogation, particularly for isolation. Comey wanted to suggest FBI was never involved in torture, but Feinstein reminded him they were.

Still, Feinstein seems to believe that Mueller withdrew Agents out of some kind of squeamishness. I think the record (especially from FBI Agents in Iraq who declined to write certain things down) suggests, instead, that Mueller withdrew his Agents to ensure that the FBI would never be witness to crimes committed against detainees which might force them to investigate those crimes. Indeed, it seems that in summer 2002 — at a time when US Attorney Jim Comey was relying on Abu Zubaydah’s statements to detain Jose Padilla — DOJ found a way to bracket the treatment that had already occurred and remain mostly ignorant of that which would occur over the next several years. Feinstein should know that but seems not to; Comey almost certainly does.

Which makes Comey’s explanation all the more nonsensical. There’s stuff like the anal rape, even in the Executive Summary, that probably wasn’t investigated (though the statute of limitations probably has expired on it). There’s probably far, far more evidence of crimes that have never been investigated in the full report. And yet … the premier law enforcement agency may or may not have taken the report out of storage in a lock box?

Consider me unconvinced.

Besides, Comey’s claim that “we don’t engage in interrogation like that” ignores that FBI is supposed to be the lead agency in the High Value Interrogation Group, about which there have been numerous hints that things like food and sleep deprivation have been used. His explanation that “we don’t engage in interrogation like that,” is all the more curious given FBI’s announcement earlier this week that the guy in charge of one HIG section just got assigned to lead the Dallas Division.

Director James B. Comey has named Thomas M. Class, Sr. special agent in charge of the FBI’s Dallas Division. Mr. Class most recently served as section chief of the High Value Detainee Interrogation Group in the National Security Branch (NSB) at FBI Headquarters (FBIHQ). In this position, he led an FBI-lead interagency group that deploys worldwide the nation’s best interrogation resources against significant counterterrorism targets in custody.

Who’s in charge of HIG, then? And is it engaging in isolation?

Finally, I am specifically intrigued by Comey’s apparent lack of curiosity about the full report because of his actions in 2005.

As these posts lay out (one, two), Comey was involved in the drafting of 2 new OLC memos in May 2005 (though he may have been ignorant about the third). The lies CIA told OLC in 2004 and then told OLC again in 2005 covering the same torture were among the worst, according to Mark Udall. Comey even tried to hold up the memo long enough to do fact gathering that would allow them to tie the Combined memo more closely to the detainee whose treatment the memo was apparently supposed to retroactively reauthorize. But Alberto Gonzales’ Chief of Staff Ted Ullyot told him that would not be possible.

Pat [Philbin] explained to me (as he had to [Steven Bradbury and Ted Ullyot]) that we couldn’t make the change I thought necessary by Friday [April 29]. I told him to go back to them and reiterate that fact and the fact that I would oppose any opinion that was not significantly reshaped (which would involve fact gathering that we could not complete by Friday).

[snip]

[Ullyot] mentioned at one point that OLC didn’t feel like it would accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

At the end, he said that he just wanted me to know that it appeared the second opinion would go [Friday] and that he wanted to make sure I knew that and wanted to confirm that I felt I had been heard.

Presuming that memo really was meant to codify the oral authorization DOJ had given CIA (which might pertain to Hassan Ghul or another detainee tortured in 2004), then further details of the detainee’s torture would be available in the full report. Wouldn’t Comey be interested in those details now?

But then, so would details of Janat Gul’s torture, whose torture was retroactively authorized in an OLC memo Comey himself bought off on. Maybe Comey has good reason not to want to know what else is in the report.

Why Was CIA Assessing Whether They Could Drone-Kill Anwar al-Awlaki?

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For years, defenders of the drone killing of Anwar al-Awlaki have always pointed to the second confession Umar Farouk Abdulmutallab made, implicating Awlaki in each and every part of his plot.

There were always problems with that. Several pieces of evidence indicate the drone attack on December 24, 2009 that missed Awalaki had specifically targeted him; at that point, the government did not consider Awlaki operational. Abdulmutallab made 3 confessions, and only the one made to the High Value Interrogation Group (HIG) after a month of isolation and in the context of a (I’ve heard second-hand, unbelievably generous) plea deal that was never finalized implicated Awlaki in planning his attack. Claims Awlaki helped Abdulmutallab make his martyrdom video don’t explain why AQAP’s best English language propagandist would make a video with a man schooled in English in Arabic. Subsequent evidence suggests actions attributed to Awlaki in that confession were probably taken by Fahd al-Quso and Nasir al-Wuhayshi.

In other words, there are a lot of holes in the confession always used to justify Awlaki’s drone killing. Abdulmutallab’s second confession should be treated the same as his first and third ones: a narrative crafted by someone who has a big incentive to shade the truth, and therefore of dubious reliability.

The release of yesterday’s ridiculously cursory OLC memo authorizing the drone killing of Anwar al-Awlaki introduces one more reason to doubt the narrative that claims Abdulmutallab’s second confession provided justification for Awlaki’s killing.

CIA Assesses

 

The memo relies not on what FBI has told OLC. It relies on CIA’s assessment that Awlaki is “a senior leader of al-Qa’ida in the Arabian Peninsula” based on “factual predicates as represented by the CIA and in the materials provided to use from the Intelligence Community.”Abdulmutallab’s second confession might be included in those materials provided from the IC. Even though the confession was obtained as part of a criminal investigation, the FBI is part of the IC, so broadly speaking that second confession would qualify, I guess.

But the assessment came not from FBI, which had the lead investigating the Undiebomb attack, but from the CIA. Which ought to give you pause, given that just months before this memo was written, the intelligence community’s partners had convinced the US that they hadn’t killed a Bedouin clan in the al-Majala strike. Indeed, the intelligence relating to Awlaki seemed to be consistently stinky until such time as the CIA set up its own drone base in Saudi Arabia in mid-2011.

Besides, what are we executing American citizens based on the CIA’s assessment for anyway?

At least according to David Barron, the case against Awlaki came not from FBI, but from CIA. That doesn’t mean CIA didn’t have evidence supporting its claims (and remember, CIA has a role in HIG, as does JSOC). But it does suggest Abdulmutallab’s second confession may not have the role the defenders of Awlaki’s execution like to cling to.

How to Evaluate the HIG? Exploitation? Dead Bodies?

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Carrie Johnson uses the arraignment of Abu Anas al-Libi as an opportunity to consider the success of the High Value Interrogation Group. She weighs the following details:

  • There haven’t been that many cases
  • Some governments refuse access to HIG
  • The group lacks leadership
  • The clean team model has problems

But I think we need to take a step back.

First, while Johnson gives a list of some of the interrogations conducted by HIG, it’s not comprehensive (for example, it doesn’t include Umar Farouk Abdulmutallab, with whom HIG was used in an ad lib capacity — it had just started; and it doesn’t include Manssor Arbabsiar). And it’s not clear we would know every time HIG gets used. For example, there were unnamed officials present at Ibragim Todashev’s death; given that we know HIG was used from the start with Dzhokhar Tsarnaev, it’s fair to at least ask whether any HIG members were present, and whether they remained in the room when Todashev was killed.

That expanded list of HIG interrogees quickly gets you to the question of consequences for HIG interrogees. Just from this possible list, you get questions such as,

  • If HIG was present at Todashev’s interrogation did they have a role in his killing?
  • Al-Libi was brought to New York because of health problems attributed to his choice to stop eating and drinking; did HIG use any food manipulation before this?
  • While I expect him to lose, Abdulmutallab’s appeal on competency grounds remains active; did HIG-induced solitary tip Abdulmutallab over the edge, as his appeal claims (he was reportedly not-altogether there when first detained)?

And these issues, plus the refusal of lawyers for Dzhokhar all could endanger convictions — and certainly, death penalties (which has already been taken off the table in al-Libi’s case) — in these cases.

Then there’s the question of what we’re after: the truth, or exploitation?

I’ve written about exploitation and HIG here, and Jason Leopold and Jeff Kaye showed how that — not necessarily truthful intelligence — was the goal of the torture program.

Exploitation is the use of interrogations not just to get intelligence, but also to support propaganda and/or generate informants. If exploitation is HIG’s goal, we might raise questions about whether both Abdulmutallab and Tsarnaev really implicated Anwar al-Awlaki of their own accord. In the former case, both non-HIG confessions did not implicate Awlaki as anything but an inspiration. In the latter, we know Tamerlan was also influenced by right wing propaganda. If exploitation is the goal, should we really believe the government story about the Scary Iran Plot, particularly given that most details of the “plot” — such as the restaurant targeted in Georgetown — came from our informant in the first place?

I don’t know the answer to these questions. But they seem to be ones we need to answer whether HIG works or not — to say nothing of whether a Democratic society should embrace HIG or not.

Five Additional Questions for Jim Comey

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Colleen Rowley has a great list of questions Jim Comey should be asked today in his confirmation hearing (I’ll be live-tweeting it, so follow the twitter feed over there. >>>>>>

Here are five questions I would add:

  1. The May 10, 2005 torture authorization you signed off (as well as the Combined of the same date one you objected to) on was retrospective. What were the circumstances of the treatment of this detainee? Was that detainee water-boarded, in spite of CIA claims only Abu Zubaydah, Ibn Rahim al-Nashiri, and Khalid Sheikh Mohammed were?
  2. Do you believe the High Value Interrogation Group (HIG) should be authorized to use “separation,” including modified sleep deprivation, to coerce confessions?
  3. Do you believe it legal or advisable to delay presentment for detainees interrogated by HIG so as to set up up to two weeks of unsupervised interrogation?
  4. FBI has used the Section 215 authorization — the same law used to collect every American’s phone data — to collect lists of common products that on very rare occasions have been used as precursors to explosives. They could and may well have used the same authority with pressure cookers. Is collecting such a broad sweep of innocent activity in pursuit of terrorists the best way to identify them? What do you believe the appropriate use of Section 215 authority is?
  5. Through the entire financial crisis, it appears the FBI did not use all the investigative tools available, including (with two or three notable exceptions) wiretaps and phone and Internet tracking, when investigating large financial institutions. This appears to be true even when, as with your former employer HSBC, the institution had clear ties to terrorists and Transnational Criminal Organizations. What tools do you believe appropriate to investigate large financial institutions and do you plan to change the approach to investigating financial crime?

In Guilty Plea, Abdulmutallab Named Awlaki as Inspiration, Not as Co-Conspirator

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In Eric Holder’s letter on drone killing today, he used Umar Farouk Abdulmutallab’s UndieBomb attack as the most extensive evidence justifying the assassination of Anwar al-Awlaki.

For example, when Umar Farouk Abdulmutallab — the individual who attempted to blow up an airplane bound for Detroit on Christmas Day 2009 — went to Yemen in 2009, al-Aulaqi arranged an introduction via text message. Abdulmutallab told U.S. officials that he stayed at al-Aulaqi’s house for three days, and then spent two weeks at an AQAP training camp. Al-Aulaqi planned a suicide operation for Abdulmutallab, helped Abdulmutallab draft a statement for a martyrdom video to be shown after the attack, and directed him to take down a U.S. airline. Al-Aulaqi’s last instructions were to blow up the airplane when it was over American soil. [Emphasis original]

That version of what Abdulmutallab said about his attack draws on Abdulmutallab’s confession to the High Value Interrogation Group at Milan Correctional Facility, last presented in a narrative submitted at Abdulmutallab’s sentencing. I commented on some oddities in that narrative here and will likely return to it.

Contrast that with how Abdulmutallab pled guilty to conspiracy to commit terrorism in court in October 2011.

In the name of Allah, the most merciful, if I were to say I the father did not do it, but my son did it and he conspired with the holy spirit to do it, or if I said I did it but the American people are guilty of the sin, and Obama should pay for the crime, the Court wouldn’t accept that from me or anyone else.

In late 2009, in fulfillment of a religious obligation, I decided to participate in jihad against the United States. The Koran obliges every able Muslim to participate in jihad and fight in the way of Allah, those who fight you, and kill them wherever you find them, some parts of the Koran say, an eye for an eye, a tooth for a tooth.

I had an agreement with at least one person to attack the United States in retaliation for U.S. support of Israel and in retaliation of the killing of innocent and civilian Muslim populations in Palestine, especially in the blockade of Gaza, and in retaliation for the killing of innocent and civilian Muslim populations in Yemen, Iraq, Somalia, Afghanistan and beyond, most of them women, children, and noncombatants.

As a result, I traveled to Yemen and eventually to the United States, and I agreed with at least one person to carry an explosive device onto an aircraft and attempt to kill those onboard and wreck the aircraft as an act of jihad against the United States for the U.S. killing of my Muslim brothers and sisters around the world.

I was greatly inspired to participate in jihad by the lectures of the great and rightly guided mujahideen who is alive, Sheikh Anwar al-Awlaki, may Allah preserve him and his family and give them victory, Amin, and Allah knows best. [my emphasis]

He pleads to a conspiracy (the first crime he was charged with), but he doesn’t name the person or people with whom he conspired.

Then, immediately after not naming his co-conspirators, he says he was inspired to conduct this act by Anwar al-Awlaki. But even there, he doesn’t attribute Awlaki’s influence to conversations he had with Awlaki in Yemen — even Awlaki acknowledged to having contact with Abdulmutallab, though he maintained he did not order the attack. Rather, Abdulmutallab points to speeches Awlaki published, speeches which, according to other court documents, he listened to as early as 2005.

Thus, at a moment when Abdulmutallab controlled his own speech, when there was no question of coercion (though his current lawyer now challenges his competence at the time), in a speech in which he boasted of Awlaki’s role in inspiring his terror attack, he did not name Awlaki as his co-conspirator.

You could argue, I suppose, that Abdulmutallab did so out of some belief the government or news had lied about Awlaki’s death almost two weeks before (as he makes clear, he refused to believe Awlaki was dead), in an attempt to get him to implicate Awlaki, and that his tribute to Awlaki’s influence but not co-conspiracy was an attempt to push back. The FBI appears to have badgered Abdulmutallab about the likelihood Awlaki would be killed after he got put on a kill list, so it is possible he worried that if he implicated Awlaki he might lead to his death (which had already happened).

Whatever the explanation, these two narratives present two of the three confessions Abdulmutallab gave (the other being the one he gave just after he had been captured, as presented by AUSA Jonathan Tukel at trial, in which Abdulmutallab did not name Awlaki at all). And as the Administration’s newfound transparency rolls out tomorrow, it’s worth keeping in mind that the confession that implicates Awlaki is just one of three Abdulmutallab made, and not even the most recent known one.

Did Solitary Confinement Make UndieBomber 1.0 Incompetent to Represent Himself?

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But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

— John Brennan, describing the way the FBI gets suspects to talk after Mirandizing them

Here’s something you may not know: Umar Farouk Abdulmutallab, the first UndieBomber, is appealing his conviction and sentence.

He’s doing so on several grounds, including that his confession made during public safety questioning while on fentanyl should not have been admissible at trial. But the most interesting issue — and the one that takes up the bulk of his appeal — argues Abdulmutallab was not competent to represent himself. (His appeal, as well as the government response and his reply only recently got unsealed by the Circuit Court.)

As the appeal notes, back in August 2011, after he had been in custody almost 20 months, his standby counsel Anthony Chambers submitted a motion requesting a competency hearing, one the judge rejected.

His standby counsel filed a motion requesting a competency hearing, noting that Abdulmutallab suffered “mental lapses,” engaged in “bizarre behaviors,” and sometimes seemed interested in presenting a defense while at other times he seemed indifferent to his defense. Abdulmutallab also demonstrated indifference toward his defense in front of the district court. The district court denied the motion for a competency examination based largely on Abdulmutallab’s own equivocal and rambling profession of competency. The failure to hold the competency examination cannot be cured after the fact and requires a new trial so that a “concurrent determination” of competency can be made. Abdulmutallab’s guilty plea did not waive the competency issue because a person whose competence is in doubt cannot knowingly, voluntarily, and intelligently waive a right or plead guilty.

The appeal cites consistent difficulties Abdulmutallab and attorneys tied to his case had with the Milan Correctional Facility, where he was being held in solitary confinement with communication restrictions. At almost every status hearing (save the one where he fired his court appointed lawyers), Abdulmutallab complained about the communication restrictions placed on him at Milan. (“Milan” is pronounced My-lin.)

At a status conference on April 13, 2010, his attorney’s reported that security restrictions at Federal Correctional Institute Milan (“Milan”) had severely limited their ability to meet with him to review discovery and other matters. He was held in solitary confinement under constant 24-hour manned observation.

Read more →

Group Behind Deadly Kabul Blast Upset by Negotiations on US Troops Remaining in Afghanistan

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There was a deadly blast in Kabul yesterday, shattering what had been several months of relative peace in the capitol. The suicide blast targeted a convoy of US vehicles. From the New York Times:

Hezb-i-Islami, a relatively small insurgent faction that often competes with the Taliban for influence, claimed responsibility for the attack, which also wounded more than three dozen Afghans. Haroon Zarghon, the group’s spokesman, reached by telephone in Pakistan, said the bombing was carried out by a 24-year-old man who had grown up south of Kabul.

More attacks against Americans will come soon, Mr. Zarghon added, saying that Hezb-i-Islami was dismayed by the current talks between Afghanistan and the United States about a long-term security deal under which thousands of American soldiers could be based in Afghanistan for years to come.

Hezb-i-Islami has a complex history and has been around Afghanistan for a long time. Even Kimberly Kagan’s Instutite for the Study of War admits that the CIA funneled significant support to this group in fighting the Soviets:

Hizb-i-Islami Gulbuddin (HIG), led by Gulbuddin Hekmatyar, is an insurgent group active in Afghanistan. It is a splinter group of one of the prominent , and the most radical of the seven mujahedeen factions fighting the Soviets in the 1980s. Hekmatyar , a favorite of the CIA and Pakistan’s Inter-Services Intelligence (ISI) Directorate, received the greatest portion of foreign assistance to the mujahedeen.  Hekmatyar trained Afghan and foreign guerilla fighters in the refugee camps of Shamshatoo and Jalozai in Pakistan’s Northwest Frontier Province (NWFP) and also ran numerous schools and hospitals in NWFP. His organization  also received funds from Saudi charity organizations, Muslim Brotherhood, al-Qaeda leader, Osama Bin Laden, and other wealthy Arabs.

The political side of the group, however, is active in the current government and is contemplating fielding a candidate for the upcoming Presidential elections:

The party’s deputy chief Ghairat Bahir said that a delegation of four senior party figures are in Kabul meeting local members to discuss the election and possible presidential candidates.

“We have sent a delegation to Kabul. The delegation is led by Mohammad Rassoul. Its purpose is to visit and discuses [sic] with Hezb-e-Islami members in Kabul, not to talk with [Afghan] government officials,” he told TOLOnews via telephone from Pakistan.

“The delegation has talked with the party members about the election and the party decided to introduce a candidate or support a competent candidate. We will soon make a final decision on this. I cannot name the candidate but our party’s nomination will be a prominent person in the country,” Bahir said.

The presence of US troops in Afghanistan is the primary concern for the group: Read more →