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

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

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

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

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

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

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

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

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

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

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

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

Ordered, by the President.

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

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Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

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In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.

What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.

I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.

Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.

If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.

Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.

Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues  to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).

But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.

Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.

Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)

Then FP turns to DOJ’s potential role in this dispute.

The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.

Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.

There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.

Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.

Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.

I meant that very, very literally.

Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.

Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.

I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.

Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.

I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.

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Eric Holder Rewards the Teams that Gave Torturers and Mortgage Fraudsters Immunity

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As TPM’s Ryan Reilly noted yesterday, among the awards Attorney General Eric Holder gave out at yesterday’s Attorney General’s Award Ceremony was a Distinguished Service Award to John Durham’s investigative team that chose not to prosecute Jose Rodriguez or the torturers who killed their victims.

The 13th Distinguished Service Award is presented to team members for their involvement in two sensitive investigations ordered by two different Attorneys General. In January 2007, Attorney General Michael Mukasey asked Assistant U.S. Attorney John Durham to lead a team that would investigate the destruction of interrogation videotapes by the CIA. Assistant U.S. Attorney Durham assembled the team and began the investigation. Then, in August 2009, Attorney General Holder expanded Assistant U.S. Attorney Durham’s mandate to include a preliminary review of the treatment of detainees held at overseas locations. This second request resulted in the review of 101 detainee matters that led to two full criminal investigations. In order to conduct the investigations, the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.

The timing on this award–coming even as DOJ aggressively prosecutes John Kiriakou for talking about this torture–is particularly cynical.

Holder also presented a Distinguished Service Award to the team that crafted a $25 billion settlement effectively immunizing the banksters for engaging in systemic mortgage fraud.

The third Distinguished Service Award is presented to the individuals involved in procuring a $25 billion mortgage servicing settlement between the United States, 49 state attorneys general and the five largest mortgage servicers, representing the largest federal-state settlement in history.   The settlement includes comprehensive new mortgage loan servicing standards, $5 billion to state and federal treasuries and borrowers who lost their homes to foreclosure, $20 billion in consumer relief and a $1 billion resolution of False Claims Act recoveries by the Eastern District of New York.

As DDay has documented relentlessly, the settlement is little more than kabuki, with most of the “consumer relief” consisting of actions the banks were already taking.

To get an idea of how outrageous it is to give an award to the torture non-prosecution team and the kabuki settlement team, compare what those teams did with the rest of the Distinguished Service recipients.

  1. The team that successfully prosecuted United States v. AU Optronics et al.,an international cartel that fixed the price of liquid crystal display (LCD) panels sold in the United States and around the world
  2. The team that implemented national standards aimed at eliminating sexual abuse in our nation’s confinement facilities
  3. The kabuki mortgage settlement team
  4. The team that investigated and dismantled the Coreflood Botnet, also known as Operation Adeona [this was a controversial expansion of Federal power to combat hacking, though since the team worked with a court order, better at least than what the government did to WikiLeaks]
  5. The team that investigated and convicted 37 members of the La Mara Salvatrucha (MS-13) gang in the San Francisco area
  6. The Tribal Trust Negotiation Team, which negotiated settlements with more than 40 Tribes in complex and long-running Tribal Trust cases [I’m not sure, but I believe this is the Cobell settlement, which is in many ways another kabuki settlement, but at least the tribes finally get some compensation]
  7. The Raj Rajaratnam investigation and prosecution team
  8. “The team whose extraordinary service led to the prosecution of Ahmed Warsame” [I quoted this because Warsame has not been convicted yet; the second-to-last item in his docket was a sealed January 5, 2012 document following a continuance, suggesting he may be cooperating in some way; this award should be considered recognition for the further twisting of our legal system to allow for novel war on terror uses]
  9. The Rod Blagojevich investigation and prosecution team
  10. INTERPOL Senior Inspector Joseph J. DeLuca for his outstanding leadership and law enforcement coordination in the apprehension and extradition of international fugitives
  11. Assistant Inspector General Thomas F. McLaughlin for 22 years of service in OIG and certain initiatives he conducted while there, including prosecuting department employees
  12. The CrimeSolutions.gov Development Team for its leadership in creating and launching the premier online resource for information about evidence-based programs and practices in criminal justice, juvenile justice and crime victim services
  13. The torture non-prosecution team
  14. The Congressman William Jefferson investigation and prosecution team

Five of these are for successful prosecutions–AU Optronics, MS-13 gang members, Raj Rajaratnam, Rod Blagojevich, William Jefferson. Another two–the Coreflood Botnet and Warsame actions–neutralized a threat, albeit through novel and controversial means. And then there are the teams that worked to make the criminal justice system more humane.

But rather than holding criminals accountable–punishing those that degraded our nation and created new reasons for people to join terrorists, punishing those who crashed our economy and stole the wealth of millions of families–the Durham and Mortgage Settlement teams made us less safe. They immunized crime, rather than punishing it.

“No one is above the law,” Eric Holder has said on other occasions. Not surprisingly, he didn’t say that yesterday, because it’s clear that some people–the torturers and the banksters–are indeed above the law.

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The First Torture Cover-Up Was Covered Up By The First Torture Cover-Up Lawyer

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Document Exploitation blog has read Jose Rodriguez’ book so I don’t have to!

Seriously, I will eventually get around to reading Rodriguez’ book, when I can get it cheaper than toilet paper. But until then, I’m glad a document wonk has done the work.

One of the more interesting observations from DocEx pertains to Judge Hellerstein’s apparent misreading of CIA’s promises to fix their contemptuous document responses. Click through for that. (Though now that I understand that Hellerstein was unsuccessfully trying to expose that the President had authorized all this torture, perhaps he believed he had achieved a just result.)

But the real “ah ha” for me was this–showing that the CIA lawyer that reviewed the already-damaged torture tapes and found evidence of that damage not noteworthy…

This report appears to show McPherson admitting that he saw some of the tapes were partially blank, or had snow on them.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

Though he claims not to have noticed that two of the tapes were broken (though perhaps they were broken later). When asked why he had not reported the blank tapes in his report, McPherson said he didn’t find that “noteworthy.”

… Was also the lawyer who provided the original, contemptuous FOIA response.

Rodriguez’s account also sheds new light on a crucial lynchpin in the ACLU FOIA case by identifing the CIA attorney from the Office of General Counsel (OGC) who viewed the videotapes in Nov. 2002 as “one of the assistant general counsels” whom Rodriguez calls “a very senior Agency officer.”  The attorney was later interviewed by the CIA Office of Inspector General (OIG) about that review. Rodriguez’s small, but important details corroborate earlier reporting by the AP and WashPo that the OGC attorney was John L. McPherson, who based on unrelated court filings, was an Assistant General Counsel as of 2001 and later became an Associate General Counsel.

Why is this significant? Hellerstein found the tapes subject to FOIA because they were “identified and produced to” the CIA’s OIG “as part of its investigation into allegations” of unauthorized interrogations and human rights violations. Yet Hellerstein stopped short of finding the CIA in contempt in part because “the individuals responsible for processing and responding to plaintiffs’ FOIA requests may not have been aware of the videotapes’ existence before they were destroyed.”

Remarkably, however, the crucial FOIA response from the CIA regarding the records of the OIG in April 2005 (ergo, 7 months prior to the destruction of the tapes) was written by none other than John L. McPherson. Read more →

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Eric Holder: Torture Inquiries, Ted Stevens Prosecutorial Misconduct Investigations Almost Finished

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Eric Holder is testifying before the Senate Judiciary Committee right now. [watch here]

In response to two questions from Orrin Hatch, Eric Holder revealed that the John Durham investigation into torture and the Office of Public Responsibility investigation into the prosecutorial misconduct in the Ted Stevens case are both nearing their end.

While none of the Senators asked for Holder to make the results in the torture investigation public, Hatch, Pat Leahy, and DiFi all asked for the Stevens report to be made public.

Let me predict for them what that report will say: While problematic, the behavior of DOJ’s own does not merit punishment. Love, David Margolis.

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John Rizzo: We Should Have Been Prouder of Our Cover-Up

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John Rizzo’s second regret is that after the CIA destroyed torture tapes in 2005, they should have briefed Congress and the Courts on their attempt to cover-up their own torture.

Mind you, that’s not exactly what he says. Here’s his version:

We should have made damn sure that the intelligence committees’ leadership—if not the full committees—were told about the destruction as soon as it happened. To take whatever lumps we deserved (and we clearly deserved some) then and there. We should have done the same thing with judges presiding over then-pending court cases potentially implicating the tapes, even if we weren’t obligated to do so as a technical legal matter. In short, we should have told everyone in all three branches in the Government who had even an arguable need to know.

To some degree this looks like a statement designed for John Durham’s benefit: a performance of real regret for doing something bone-headed (though why bother now that Durham has already let the statute of limitations expire on the case?). Though Rizzo probably overstates the outcome of Durham’s investigation here, as there is a difference between “no evidence of a cover-up” and “insufficient evidence to charge when your President is demanding you look forward.”

Ultimately, the various investigations would find no evidence of a cover-up, but rather that the whole thing was one monumental screw-up.

I’m particularly amused, however, by this statement.

In 2002, CIA videotaped the interrogation of the first captured Al Qaeda terrorist to be water-boarded. It was lawfully conducted, but the tapes were graphic and hard to watch. Almost immediately, those in CIA who made the tapes wanted to destroy them, fearing the faces of the interrogators on the tapes would put them in danger if and when they were ever made public.

We know the “hard to watch” and “fearing the faces of the interrogators” lines at most describe one, the smallest one, problem with the tapes. There were at least two other problems with them. First, they proved the torturers had exceeded DOJ guidelines.

As CIA’s Inspector General made clear, the waterboarding that was depicted on the tapes in 2003 did not fall within the limits of the Bybee Two memo, both because the torturers used far more water, forced it down Abu Zubaydah’s throat, and used it with far more repetition than allowed by the memo. Furthermore, the torturers exceeded even the guidelines the Counterterrorism Center set on sleep deprivation–though Yoo may (or may not have) have set the limit in the Bybee Two memo high enough to cover what had already been done to Abu Zubaydah. Folks in the IG’s office had about seven more pages of concerns about what was depicted on the torture tapes (PDF 86-93)–but that all remains redacted. So the tapes did not, in fact, match the written guidelines DOJ gave them.

In addition, the tapes show that the torturers had already altered the tapes to hide something on them.

The other, potentially bigger problem for those depicted in the torture tapes has to do with what once appeared on the 15 tapes that the torturers altered before November 30, 2002, when CIA lawyer John McPherson reviewed them. Before that point, the torturers had altered 21 hours of the torture tapes, which covered at least two of the harshest torture sessions. Had someone done forensics on the tapes before they were destroyed, we might have learned what happened during those 21 hours. But by destroying the tapes completely, the CIA prevented that from happening.

One potential problem would be if the interrogators used a coffin–as they had planned to–after John Yoo judged that mock burials would be illegal. Or maybe they just broke the law in other ways.

But given that Rizzo’s explanation for why the tapes were destroyed is so obviously a fiction, I’m guessing he knows well that the interrogation of Abu Zubaydah was not “lawfully conducted.”

I’m most interested, though, in this BS from Rizzo:

While we had informed the intelligence committee leadership in early 2003 of the tapes’ existence, we did not tell them on a timely basis about their unauthorized destruction. It was not our intent to hide that fact; it was simply a communications breakdown inside CIA in which then-Director Porter Goss neglected to inform the leadership as we agreed he would do the day he and I learned about the destruction. To this day I am convinced it was an unintentional oversight on his part, and I blame myself for not following up to make sure he had informed the Hill. The whole thing had just fallen through the cracks, something I saw happen far too often in my long Agency career.

Oh, my. Poor Porter Goss forgot to tell Congress that Jose Rodriguez had covered up illegal torture.

Or did he?

How is it that Crazy Pete Hoekstra got his very own briefing on torture on the very day the torture tapes were destroyed?

What went on at Crazy Pete’s briefing–a briefing for Crazy Pete alone, without his counterpart Jane Harman, who had long expressed opposition to destroying the torture tapes, or his own staff–on the very day CIA destroyed the torture tapes?

That’s right. As I have noted in the past, Crazy Pete Hoekstra (and Duncan Hunter, in a separate briefing) got a “complete brief” on the torture program on November 8, 2005, the day the torture tapes were destroyed.

An MFR lacking real detail (see PDF 32) at least reveals that Office of Congressional Affairs head Joe Wippl and C/CTC/LGL (who I believe would still be Jonathan Fredman) gave the briefing. A number of chronologies on Member Briefings included in this FOIA set note that no staffers attended these two briefings (see, for example, page 100 of this PDF), and those appear to be the only briefings for which CIA noted that no staffers attended. And note, minimal as the MFR on this is, it is one of just five or six briefings in the years before the torture tapes were destroyed for which CIA actually did do an MFR (one of the others is the briefing at which Pat Roberts okayed the destruction of the torture tapes).

In other words, this was one of the few torture briefings CIA’s Office of Congressional Affairs saw fit to memorialize. They don’t say what was briefed, really, but they’ve got proof that two men from the CIA briefed Crazy Pete and just Crazy Pete on something related to the torture program the day CIA destroyed the torture tapes.

It’s not definitive they were talking about the torture tapes, mind you; after all, the torture apologists were in full court press trying to prevent McCain’s Detainee Treatment Act from taking away all the torture toys.

But one more thing suggests there may be a connection. On the evening of the same day Crazy Pete got this briefing, the same day CIA destroyed the torture tapes, someone sent an email with a list of all Congressional briefings related to the torture program (see page 90-92 of the second PDF). It says only, “Per your request please find attached List of Members who have been briefed and a couple of other categories.” The list is interesting for two reasons. First, because the email forwarded a list with some key errors, in that it listed Harman, not Pelosi, as having been briefed at the first torture briefing in September 2002 (with a handwritten note, “error, it is Pelosi per 145166″). It also includes an error that remained in the CIA’s own records until last year, showing Goss, not Crazy Pete, as the Chair in a meeting in March 2005 (it’s unclear the meeting with Harman happened; what appears to have happened instead is an extra briefing with Dick Cheney for Pat Roberts and Jay Rockefeller).

More interestingly, the Crazy Pete and Hunter briefings–which had taken place that very day–were already in the Excel spreadsheet showing all the briefings. It’s as if they briefed Crazy Pete and Hunter just so they could print this out as part of a CYA attempt to say that Congress had approved the torture tape destruction. And maybe Crazy Pete and Hunter did just that.

Goss’ so-called oversight seems a lot more suspicious given that one of Dick Cheney’s lackies, Joe Wippl, and one of the people involved in the tape cover-up from CTC was off briefing Hoekstra that same day.

Now, we’ll never know, because as with most key briefings, the CIA didn’t make a record of what went on the briefing (and why would you, if you had gone to the trouble of excluding even Hoekstra’s aides?).

But as with Rizzo’s first regret, this seems to be more about rehashing the fictions that got him out of legal trouble than any actual regret.

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Michael Mukasey’s Torture Apologies

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After the Osama bin Laden killing, Michael Mukasey rather shamelessly took the lead in claiming torture had some role in finding OBL.

I thought then that the sheer volume of the torture apologists’ wails suggested that John Durham’s torture investigation might actually move forward in some way.

But I was particularly struck by Mukasey’s prominence. Unlike most of the other torture apologists, Mukasey was not complicit with the torture itself, but merely with the cover-up.

With that in mind, I wanted to return to the discussion in Mukasey and Mark Filip’s letter on the OPR report, particularly their argument against the OPR report’s recommendation that DOJ review the prosecution declinations.It’s interesting, first of all, because Mukasey and Filip initially lump the recommendation for review in among the list of issues they claim OPR has made errors on.

Nonetheless, we are concerned that the current proposed findings of professional misconduct, recommendation for reconsideration of prosecutorial declinations, and request that the Department review certain memoranda signed by Steven Bradbury, are based on factual errors, legal analysis by commentators and scholars with unstated potential biases, unsupported speculation about the motives of Messrs. Bybee and Y00, and a misunderstanding of certain significant Department of Justice and Executive Branch interagency practices.

But in their section on the recommendation for review, Mukasey and Filip don’t describe any errors.

The Draft Report recommends that “the Department reexamine certain declinations of prosecution regarding incidents of detainee abuse referred to the Departmentby the CIA OIG.” [Id at 9.] As the Draft Report itself recognizes, the question whether to prosecute matters addressed in the CIA OIG report has been addressed independently by two sets of prosecutors, first in the Counterterrorism Section (then located in the Criminal Division) and later in the U.S. Attorney’s Office for the Eastern District of Virginia. In both cases, the declinations were based on a variety of prosecutorial considerations, many of which seemingly would be unaffected by any information in the Draft Report and most of which seemingly would have been known to prosecutors at the time of their decisions. 11 Indeed, prosecutors in the Eastern District of Virginia made their decision to decline prosecution in 2005, well after the 2002 Bybee Memo had been withdrawn by the Department. In addition, if and when OPR’s report is finalized (whether with or without any professional misconduct referrals), the prosecutors could be given access to it, and could re-evaluate their decisions as they saw fit. In light ofthese facts, we believe it is unnecessary for OPR to recommend reconsideration.

Mukasey and Filip do suggest the OPR report might be ignoring the “variety of prosecutorial considerations” that guided the original declination decision. Except they admit that OPR has discussed some of them in its report.

11 Some of these considerations arc discussed in classified portions of the Draft Report.

But aside from that, the opposition to the recommendation to revisit the declination decisions seems to lie in the risk that a different prosecutor–not one of the ones involved in the 2003 or 2005 declinations–would review the cases. Just make the report available, Mukasey and Filip suggest, and let one of the prosecutors who has already wrestled with it choose to read the review and determine whether a reconsideration is merited (never mind the fact that some of the key prosecutors–people like Paul McNulty–were no longer in government).

That by itself is notable.

All the more so considering what happened afterwards: Eric Holder had John Durham, the independent prosecutor that Mukasey himself selected to investigate the torture tape destruction, review the declinations.

All of which makes me wonder whether Mukasey is such a shrill torture apologist not just because he had to agree not to investigate torture to get his swank AG gig. But also because he bears responsibility for picking Durham in the first place.

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

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

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

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

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

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

Manadel al-Jamadi

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

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

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

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

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

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

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

Gul Rahman

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

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

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

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

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

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

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

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

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

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

But they hadn’t.

Which Bybee confirmed when he testified to HJC.

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

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

Nadler: So the answer is “no”?

Bybee: That’s right. (Page 104)

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

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

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

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Two Dead Detainees May Get Justice. The Other 99 Will Not.

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Eric Holder just released an announcement revealing that John Durham has recommended criminal investigation of two detainees tortured to death. But cases of the remaining 99 detainees whose treatment Durham investigated will be dismissed.

On January 2, 2008, Attorney General Michael Mukasey appointed Assistant United States Attorney John Durham of the District of Connecticut to conduct a criminal investigation into the destruction of interrogation videotapes by the Central Intelligence Agency. On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

In carrying out his mandate, Mr. Durham examined any possible CIA involvement with the interrogation of 101 detainees who were in United States custody subsequent to the terrorist attacks of September 11, 2001, a number of whom were determined by Mr. Durham to have never been in CIA custody. He identified the matters to include within his review by examining various sources including the Office of Professional Responsibility’s report regarding the Office of Legal Counsel memoranda related to enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced interrogations, additional matters investigated by the CIA Office of Inspector General, the February 2007 International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, and public source information.

Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that had never previously been examined by the Department. Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.

As I noted at the time I announced the expansion of Mr. Durham’s authority, the men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. However, I concluded based on information available to me then, and continue to believe now, that the Department needed to thoroughly examine the detainee treatment issue. I am confident that Mr. Durham’s thorough review has satisfied that need. [my emphasis]

We know one of these detainees is Manadel al-Jamadi. I haven’t heard the identity of the second; I’m betting it more likely to be Major-General Abed Hamed Mowhoush (though I’m trying to verify whose custody he was in when he died) than it is to be Gul Rahman. Update: Adam Goldman reports that the second detainee is Gul Rahman. That is rather surprising news, as it may implicate the chain of command.

But note the implication here?

Durham only considered investigating the death by torture of those killed in CIA custody. Which seems to suggest detainees killed while in military custody would not be investigated.

Oh well. I suppose as Americans we should be content that 2% of the people we torture to death might get justice.

Update: Thanks to Eric Jaffa for pointing out the murder/torture error in my last line.

Update: al-Jamadi’s name fixed.

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Durham Targeting More Contractors?

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Time reports that John Durham has sent out recent subpoenas for grand jury testimony pertaining to torture and war crimes, specifically as it relates to Manadel al-Jamadi, the dead Iraqi depicted in one of the most graphic Abu Ghraib photo.

It has been nearly a decade since an Iraqi prisoner known as “the Iceman” — for the bumbled attempt to cool his body and make him look less dead — perished in CIA custody at Abu Ghraib prison. But now there are rumbles in Washington that other alleged CIA abuses as well as the notorious case could be coming back to haunt the agency. TIME has learned that a prosecutor tasked with probing the CIA — John Durham, a respected Republican-appointed U.S. attorney from Connecticut — recently began calling witnesses before a secret federal grand jury in Alexandria, Va., looking into, among other things, the lurid Nov. 4, 2003, “homicide,” documented by the magazine in 2005.

TIME has obtained a copy of a subpoena signed by Durham that points to his grand jury’s broader mandate, which could involve the charging of additional CIA officers and contract employees in other cases. The subpoena says that “the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses.”

As Time points out, the likely target of any inquiry focusing on al-Jamadi’s death would be Mark Swanner, a contract CIA interrogator.

Perhaps most importantly, according to someone familiar with the investigation, Durham and FBI agents have said the probe’s focus involves “a specific civilian person.” Durham didn’t name names, but those close to the case believe that person is Mark Swanner, a non-covert CIA interrogator and polygraph expert who questioned Jamadi immediately before his death.

Don’t get me wrong, I would lose no sleep if someone–Swanner–actually paid a legal price for al-Jamadi’s death. But it does seem remarkable that the only criminal torturers our government can find are either low-level people like Lynndie England or contractors like David Passaro. The apparent immunity of everyone else involved in our torture system sure leads to cynicism, as if the only reason to go after a contractor whose role has been discussed for years was just to show a scalp to the international community.

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