At a panel on secrecy yesterday, Bob Litt proclaimed that the NYT “disgraced itself” for publishing names, some of which were widely known, of the people who were conducting our equally widely known secret war on drones.
Did the NYT “disgrace itself” for publishing a column by Maureen Dowd that covers over some of the more unsavory female CIA officers — notably, Alfreda Bikowsky — who have nevertheless been celebrated by the Agency?
I’d submit that, yes, the latter was a far more disgraceful act, regardless of the credit some of the more sane female CIA officers deserve, because it was propaganda delivered on demand, and delivered for an agency that would squawk Espionage Act had the NYT published the same details in other circumstances.
Keep that in mind as you read this post from Jack Goldsmith, claiming — without offering real evidence — that this reflects a new “erosion of norms” against publishing classified information.
I mean, sure, I agree the NYT decision was notable. But it’s only notable because comes after a long series of equally notable events — events upping the tension underlying the secrecy system — that Goldsmith doesn’t mention.
There’s the norm — broken by some of the same people the NYT names, as well as Jose Rodriguez before them — that when you take on the most senior roles at CIA, you drop your cover. By all appearances, as CIA has engaged in more controversial and troubled programs, it has increasingly protected the architects of those programs by claiming they’re still undercover, when that cover extends only to the public, and not to other countries, even adversarial ones. That is, CIA has broken the old norm to avoid any accountability for its failures and crimes.
Then there’s the broken norm — exhibited most spectacularly in the Torture Report — of classifying previously unclassified details, such as the names of all the lawyers who were involved in the torture program.
There’s the increasing amounts of official leaking — up to and including CIA cooperating with Zero Dark Thirty to celebrate the work of Michael D’Andrea — all while still pretending that D’Andrea was still under cover.
Can we at least agree that if CIA has decided a Hollywood propagandistic version of D’Andrea’s is not classified, then newspapers can treat his actual career as such? Can we at least agree that as soon as CIA has invited Hollywood into Langley to lionize people, the purportedly classified identities of those people — and the actual facts of their career — will no longer be granted deference?
And then, finally, there’s CIA’s (and the Intelligence Community generally) serial lying. When Bob Litt’s boss makes egregious lies to Congress to cover up for the even more egregious lies Keith Alexander offered up when he played dress-up hacker at DefCon, and when Bob Litt continues to insist that James Clapper was not lying when everyone knows he was lying, then Litt’s judgement about who “disgraced” themselves or not loses sway.
All the so-called norms Goldsmith nostalgically presents without examination rest on a kind of legitimacy that must be earned. The Executive has squandered that legitimacy, and with it any trust for its claims about the necessity of the secrets it keeps.
Goldsmith and Litt are asking people to participate with them in a kind of propagandistic dance, sustaining assertions as “true” when they aren’t. That’s the habit of a corrupt regime. They’d do well to reflect on what kind of sickness they’re actually asking people to embrace before they start accusing others of disgraceful behavior.
Over four years ago, I wrote a post noting how, in the two days after Jose Rodriguez and one of his Counterterrorism Lawyers briefed Nancy Pelosi and Porter Goss in September 2002 they might use torture prospectively, they 1) moved closer to deciding to destroy the torture tapes and 2) altered their initial record of the briefing to take out one sentence.
As I pointed out in the comments to this thread, someone (I’ll show in my new weedy post why it might be then-Counterterrorism Center Legal Counsel Jonathan Fredman) changed the initial description of the briefing that Jose Rodriguez and two others (I believe Fredman was one of the two) gave to Porter Goss and Nancy Pelosi on September 4, 2002. To see the documents showing discussing the alteration (but not the content of it), see PDF 84 of this set and PDF 11-12 of this set.
That’s suspicious enough. But as the email discussions of destroying the torture tape show (see PDF 3), the briefing and the alteration to the briefing record happened the day before and the day after–respectively–the day “HQS elements” started talking seriously about destroying the torture tapes.
On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.
Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]
So here’s what this looks like in timeline form:
September 4, 2002: Jose Rodriguez, C/CTC/LGL (probably Fredman) and a CTC Records officer brief Porter Goss and Nancy Pelosi on Abu Zubaydah’s treatment. According to both Goss and Pelosi, CIA briefs them on torture techniques, but implies they are hypothetical techniques that might be used in the future, not the past.
September 5, 2002: Unnamed people at CIA HQ discuss destroying the torture tapes, ostensibly because of danger to CIA officers conducting the torture.
September 6, 2002: Someone (possibly Jonathan Fredman or someone else in CTC’s Legal department) alters the initial description of the Goss-Pelosi briefing, eliminating one sentence of it. “Short and sweet” Rodriguez responded to the proposed change.
September 9, 2002: CIA records show a scheduled briefing for Bob Graham and Richard Shelby to cover the same materials as briefed in the Goss-Pelosi briefing. The September 9 briefing never happened; Graham and Shelby were eventually briefed on September 27, 2002 (though not by Rodriguez personally).
September 10, 2002: The altered description of the briefing is sent internally for CTC records. This briefing is never finalized by Office of Congressional Affairs head Stan Moskowitz into a formal Memorandum for the Record.
Or, to put it more plainly, they briefed Pelosi, decided they wanted to destroy the torture tapes (there’s no record Pelosi was told about the tapes), and then tweaked the record about what they had said to Pelosi.
The Torture Report backs my analysis (though doesn’t include the details about the torture tapes or that both Pelosi and Goss said they had been briefed the torture would be used prospectively; see here for backing of the claim this was a prospective briefing). But it adds one more detail.
The sentence Jose Rodriguez and his lawyer eliminated — the day after folks at CIA discussed destroying the torture tapes showing they had already used this torture — recorded that one or both of Pelosi and Goss noted that these techniques would be illegal in another country.
In early September 2002, the CIA briefed the House Permanent Select Committee on Intelligence (HPSCI) leadership about the CIA’s enhanced interrogation techniques. Two days after, the CIA’s [redacted]CTC Legal [redacted], excised from a draft memorandum memorializing the briefing indications that the HPSCI leadership questioned the legality of the program by deleting the sentence: “HPSCI attendees also questioned the legality of these techniques if other countries would use them.”2454 After [redacted] blind-copied Jose Rodriguez on the email in which he transmitted the changes to the memorandum, Rodriguez responded to email with: “short and sweet.”
At least one of these members of Congress (or their staffers) got briefed on torture and said the torture would be illegal if other countries used it, according to CIA’s own records. So CTC’s lawyer eliminated that comment from the CIA’s record, with Jose Rodriguez’ gleeful approval.
And yet he says Congress approved of these techniques from the start.
At the request of some on Twitter, I’m bringing together a Twitter rant of some facts on torture here.
1) Contrary to popular belief, torture was not authorized primarily by the OLC memos John Yoo wrote. It was first authorized by the September 17, 2001 Memorandum of Notification (that is, a Presidential Finding) crafted by Cofer Black. See details on the structure and intent of that Finding here. While the Intelligence Committees were briefed on that Finding, even Gang of Four members were not told that the Finding authorized torture or that the torture had been authorized by that Finding until 2004.
2) That means torture was authorized by the same Finding that authorized drone killing, heavily subsidizing the intelligence services of countries like Jordan and Egypt, cooperating with Syria and Libya, and the training of Afghan special forces (the last detail is part of why David Passaro wanted the Finding for his defense against abuse charges — because he had been directly authorized to kill terror suspects by the President as part of his role in training Afghan special forces).
3) Torture started by proxy (though with Americans present) at least as early as February 2002 and first-hand by April 2002, months before the August 2002 memos. During this period, the torturers were operating with close White House involvement.
4) Something happened — probably Ali Soufan’s concerns about seeing a coffin to be used with Abu Zubaydah — that led CIA to ask for more formal legal protection, which is why they got the OLC memos. CIA asked for, but never got approved, the mock burial that may have elicited their concern.
5) According to the OPR report, when CIA wrote up its own internal guidance, it did not rely on the August 1, 2002 techniques memo, but rather a July 13, 2002 fax that John Yoo had written that was more vague, which also happened to be written on the day Michael Chertoff refused to give advance declination on torture prosecutions.
6) Even after CIA got the August 1, 2002 memo, they did not adhere to it. When they got into trouble — such as when they froze Gul Rahman to death after hosing him down — they went to John Yoo and had him freelance another document, the Legal Principles, which pretend-authorized these techniques. Jack Goldsmith would later deem those Principles not an OLC product.
7) During both the August 1, 2002 and May 2005 OLC memo writing processes, CIA lied to DOJ (or provided false documentation) about what they had done and when they had done it. This was done, in part, to authorize the things Yoo had pretend-authorized in the Legal Principles.
8) In late 2002, then SSCI Chair Bob Graham made initial efforts to conduct oversight over torture (asking, for example, to send a staffer to observe interrogations). CIA got Pat Roberts, who became Chair in 2003, to quash these efforts, though even he claims CIA lied about how he did so.
9) CIA also lied, for years, to Congress. Here are some details of the lies told before 2004. Even after CIA briefed Congress in 2006, they kept lying. Here is Michael Hayden lying to Congress in 2007
10) We do know that some people in the White House were not fully briefed (and probably provided misleading information, particularly as to what CIA got from torture). But we also know that CIA withheld and/or stole back documents implicating the White House. So while it is true that CIA lied to the White House, it is also true that SSCI will not present the full extent of White House (read, David Addington’s) personal, sometimes daily, involvement in the torture.
11) The torturers are absolutely right to be pissed that these documents were withheld, basically hanging them out to dry while protecting Bush, Cheney, and Addington (and people like Tim Flanigan).
12) Obama’s role in covering up the Bush White House’s role in torture has received far too little attention. But Obama’s White House actually successfully intervened to reverse Judge Alvin Hellerstein’s attempt to release to ACLU a short phrase making it clear torture was done pursuant to a Presidential Finding. So while Obama was happy to have CIA’s role in torture exposed, he went to great lengths, both with that FOIA, with criminal discovery, and with the Torture Report, to hide how deeply implicated the Office of the President was in torture.
Bonus 13) John Brennan has admitted to using information from the torture program in declarations he wrote for the FISA Court. This means that information derived from torture was used to scare Colleen Kollar-Kotelly into approving the Internet dragnet in 2004.
In a piece that gets at some of the points of leverage between the White House and CIA over torture, Mark Mazzetti describes George Tenet’s effort to “challenge” the torture report.
It suggests Brennan’s close ties to Tenet — Brennan was once Tenet’s Chief of Staff — led the CIA Director to reach out to Tenet to lead pushback. It describes how Brennan’s close ties to Obama Chief of Staff Denis McDonough from when he served as White House Counterterrorism Czar led McDonough to intervene when Dianne Feinstein tried to require any CIA review to take place in Senate Intelligence Committee space.
All that’s beside the real source of CIA’s power over the White House — the fact that torture operated as a Presidentially-authorized covert op for years, as has the drone program, which means CIA has the ability to implicate both George Bush personally (and Obama, in illegal drone strikes), as well as the Office of the President more generally.
My favorite detail, however, is that Cofer Black has also been involved in this pushback campaign.
Just after the Senate Intelligence Committee voted in April to declassify hundreds of pages of a withering report on the Central Intelligence Agency’s detention and interrogation program, C.I.A. Director John O. Brennan convened a meeting of the men who had played a role overseeing the program in its seven-year history.
The spies, past and present, faced each other around the long wooden conference table on the seventh floor of the C.I.A.’s headquarters in Northern Virginia: J. Cofer Black, head of the agency’s counterterrorism center at the time of the Sept. 11 attacks; the undercover officer who now holds that job; and a number of other former officials from the C.I.A.’s clandestine service. Over the speakerphone came the distinctive, Queens-accented voice of George J. Tenet.
Over the past several months, Mr. Tenet has quietly engineered a counterattack against the Senate committee’s voluminous report, which could become public next month. [my emphasis]
According to Ken Dilianian’s version of the same story, Black will not be allowed to preview the report — he’s probably among the dozen people who thought they could review it but recently learned they would not be able to.
About a dozen officials were called in recent days and told they could read the executive summary at a secure room at the Office of Director of National Intelligence, as long as they agreed not to discuss it, four former officials said.
Then, on Friday, CIA officials called them and told them that due to a miscommunication, only former CIA directors and deputy directors would be given that privilege. Former directors Michael Hayden, Porter Goss and George Tenet have been invited to read it, as have former acting directors John McLaughlin and Michael Morell.
Black’s involvement, of course, should be a story unto itself.
According to the CIA’s official version of torture, it got authorized under the September 17, 2001 Finding by language authorizing the capture and detention of top Al Qaeda officials. But they didn’t start considering torture until they picked up Abu Zubaydah at the end of March in 2002. They didn’t start torturing, the official story goes, until DOJ gave them the green light in August 1, 2002.
Why, then, would Black need to be involved in the torture pushback?
He left the Counterterrorism Director spot in May 2002, well before the torture started — at least according to the CIA version, but not the personal experience of Ibn Sheikh al-Libi and Binyam Mohamed, both of whom got tortured before Black’s departure. In his book Jose Rodriguez claims, falsely, the torture program started in June, and he led it. If this official CIA chronology is correct, Black should have had no role — and no personal interest — in the torture program.
And yet there he is with the other torturers, leading pushback.
Even in their pushback effort, then, the CIA proves that they’ve been lying for years.
With even the New York Times editorial page chiming in on Thursday (just after the Abramson firing on Wednesday, so this is clearly a big deal to them), Judge Gladys Kessler ruled on Friday that the military must stop its forced feedings of a Syrian prisoner at Guantanamo and preserve videos of him being forcibly extracted from his cell and being fed. We’ve seen this movie before. Recall that Kessler was one of at least two judges ordering the CIA to preserve video evidence of waterboarding before Robert Eatinger and Jose Rodriguez decided to go ahead with destruction of the videotapes. Considering how out of control John Bogdan, head of the Joint Task Force Guantanamo Detention Group, already has been, it would not surprise me at all for these videos to meet the same fate. Heck, given Eatinger’s current behavior in trying to use intimidation to stop further revelations on the torture front, it wouldn’t even surprise me for him to decide, through some sort of OCA role, that it is the CIA’s job to take possession of and to destroy the tapes in question.
Here is Carol Rosenberg reporting on Kessler’s ruling:
A federal judge waded deep into the Pentagon’s handling of the Guantánamo hunger strike on Friday, ordering the military to temporarily suspend forced-feedings of a Syrian prisoner at the detention center until a hearing Wednesday.
U.S. District Court Judge Gladys Kessler in Washington, D.C., also ordered the military to preserve any video recordings guards might have made hauling Syrian Mohammed Abu Wa’el Dhiab, 42, from his cell and giving him nasogastric feedings in a restraint chair. He has also been identified as Jihad Dhiab in court papers and news reports.
The order appears to be the deepest intrusion into prison camp operations by the federal court during the long-running hunger strike, which at one point last year encompassed more than 100 of Guantánamo’s 154 detainees.
The military has since December refused to disclose how many detainees are force-fed as hunger strikers each day, and it was not possible to know if Navy doctors at the base considered Dhiab at risk by perhaps missing four or five days of tube feedings.
Rosenberg goes on to inform us that it only recently was learned that the videos exist. She also realizes that whether Bodgan and his crew will honor the order is an open question:
Military spokesmen from Guantánamo and the U.S. Southern Command did not respond Friday night to questions from the Miami Herald on whether the 2,200-strong military and civilian staff at the detention center had received and would honor the order.
Recall that when the waterboarding tapes were destroyed, that destruction was in direct violation of court orders, including one from Kessler: Continue reading
By my count, John Rizzo completes his first lie in his purported “memoir,” Company Man, at the 64th word:
Zubaydah complained in his diary (see page 84) before he was captured in 2002 that he was being called Osama bin Laden’s heir when he wasn’t even a member of al Qaeda. And in his Combatant Status Review Board hearing in 2007 (see page 27), Zubaydah described his interrogators admitting he wasn’t Al Qaeda’s number 3, not even a partner. And in a 2009 habeas document the government calls Zubaydah an Al Qaeda affiliate, not a member (see 35 to 36 and related requests).
And yet Rizzo tells this lie right in the first paragraph of his book.
Granted, I’m more sympathetic to this lie than many of Rizzo’s other lies. I understand why he must continue telling it.
Back in 2002, Rizzo told John Yoo that Abu Zubaydah was a top al Qaeda figure during the drafting of the August 1, 2002 Bybee Memo authorizing torture. And based on that information, Yoo wrote,
As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.
Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.
Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.
If Rizzo were to admit that the representations he made to Yoo back in 2002 were false, then the legal sanction CIA got to conduct torture would crumble.
And unlike a lot of the lies CIA — and John Rizzo in particular — told DOJ during the life of the torture program, I’m not absolutely certain CIA knew this one to be a lie when they told it. CIA (and FBI) definitely believed Zubaydah was a high ranking al Qaeda figure when they caught him. In his CSRT, Zubaydah describes admitting he was al Qaeda’s number 3 under torture. Though it’s not clear whether that was the torture that took place before or after the memo authorizing that torture got written, raising the possibility that CIA presented lies Zubaydah told under torture to DOJ to get authorization for the torture they had already committed. But by the time of the memo, CIA had also had 4 months to to read Zubaydah’s diaries, which make such matters clear (and had it in their possession, so that by itself should invalidate the memo). So they should have and probably did know, but I think it marginally conceivable they did not.
Still, that doesn’t excuse journalists who have these facts available to them yet treat Rizzo as an honest interlocutor, as James Rosen is only the latest in a long line of journalists to do.
So as a service to those journalists who aren’t doing the basic work they need to do on this story, I thought I’d make a list of the documented lies Rizzo tells just in the first 10 pages of his “memoir.” These don’t include items that may be errors or lies. These don’t include everything that I have strong reason to believe is a lie or that we know to be lies but don’t yet have official documentation to prove it. They include only the lies that are disproven by CIA and other official documents that have been in the public domain for years.
These lies, like Rizzo’s lie about Abu Zubaydah’s role in 9/11, also serve important purposes in the false narrative the torturers have told.
I’ve gone through this exercise (I’m contemplating a much longer analysis of all the lies Rizzo told, but it makes me nauseous thinking about it) to point out that any journalist who treats him as an honest interlocutor, accepting his answers — he made some of the same claims to Rosen as he made here — as credible without real challenge is just acting as a CIA propagandist.
Don’t take my word for it — take the CIA’s word, as many of Rizzo’s claims are disproven by CIA’s own documents!
Update, April 21: Ben Wittes, in his review of this tract: “Rizzo is just being honest.” To be fair, Wittes appears to have meant it to describe Rizzo’s unvarying viewpoint, always serving his loyalty to the CIA. But in a review that doesn’t mention Rizzo’s serial lies, it’s embarrassing.
(1) Abu Zubaydah was not CIA’s first significant “catch.” Ibn Sheikh al-Libi was, though the CIA outsourced his torture to the Egyptians.
(3) Correspondence describes tapes of Abu Zubaydah’s torture in April 2002, not July 2002, as Rizzo claims. (see PDF 1)
(3-4) Obviously, CIA had another option besides torture: to let the FBI continue interrogating Zubaydah. Even if you don’t believe FBI had the success they claim to have had, they were an alternative that Rizzo makes no mention of.
(4) The first torture memo was not the August 1, 2002 one. Yoo wrote a shorter fax on July 13, 2002, which (according to the OPR Report) is actually the memo CTC’s lawyers relied on for their guidance to the torturers.
(5) Jose Rodriguez did not decide to destroy the tapes in October; he decided on September 5, the day after first briefing Nancy Pelosi on torture (without having told her they had already engaged in it).
(5) CIA did not follow the guidelines laid out in the Bybee memo for waterboarding, as CIA’s IG determined in 2004, and at least by the time the CIA IG reviewed the tapes, there was a great deal censored via damage, turning off the camera, or taping over of the content.(see PDF 42 and this post)
(6) The Gang of Eight was not briefed in 2002; only the Gang of Four (the Intelligence Committee heads) was. According to CIA’s own records, only one Congressional leader got a timely briefing, Bill Frist in 2004 (though Pelosi was briefed as HPSCI Ranking Member in 2002).
(8) John McPherson did not review the tapes after Christmas, 2002; he reviewed them about a month earlier. (see this post and linked underlying documents)
(8) Jay Rockefeller was not briefed in January 2003; only a staffer of his was. See this post for all the lies they told Pat Roberts in that briefing.
(9) While John Helgerson did not write about techniques that had not been authorized, he did describe that the waterboard as performed did not follow the guidelines given by DOJ. (see PDF 42) Rizzo also doesn’t note Helgerson’s observations about the tampering done to the tapes, which may have hidden unauthorized techniques.
(10) It is false that the 9/11 Commission Report relied heavily on Abu Zubaydah’s interrogations. They are cited just 10 times, and at least one of those was not corroborated.
Aspiring Senate Intelligence Chair Richard Burr has announced he will vote to declassify the Torture Report.
Sen. Richard Burr, R-N.C., also said he planned to vote to declassify.
Burr added: “We’ve already expressed our opposition to the content.”
Declassifying, he said, is “the only way that we get minority views out there,” because the Republicans plan to offer their views on the report.
This gives a pretty strong indication of where this Torture Report debate will go — and why CIA got so quiet all of a sudden, aside from former CIA lawyer John Rizzo’s tireless propaganda efforts.
The Committee would have published dissenting views in any case, but Republican Susan Collins specifically included them in her support for the report.
What we’re going to get will be the Executive Summary, Findings, and Additional and Dissenting Views. Because we’ll get just the Executive Summary, we won’t get much hard detail — aside from that which has been public for years — about the allegations that will appear in the Executive Summary, which will make it harder to rebut any claims CIA’s defenders make.
Moreover, I would not be in the least surprised if the same rule that applies to CIA Publication Review Board decisions — that the writings of torture critics like Ali Soufan and Glenn Carle are aggressively censored, while the views of torture boosters like Rizzo and Jose Rodriguez will be permissively published — applied here. The CIA has — as McClatchy emphasizes — already assumed they’ll do the declassification review. And in spite of calls for the White House to take the lead, I expect they won’t. After all, the White House has relied on CIA to hide the Executive Privilege-lite documents (which I suspect would show that CIA only lied to some people at the White House, but not to people like David Addington). So CIA is owed something by the White House.
That mutual embrace of incrimination will provide the CIA a great deal of protection.
Remember, too, that torture critics have gotten recent warnings not to speak publicly, even while Rodriguez and Rizzo blather away.
And all this — what will surely be calls that Democrats have unfairly tainted noble Jose Rodriguez’ reputation — will play out against electoral politics, as Republicans try to take out Mark Udall for his opposition to torture.
Thus far, too, the torture boosters have laid the groundwork to win this debate. Even ignoring Rizzo and Rodriguez’ books, they’ve been working the press with details, as compared to the vague releases that the Torture Report will find CIA lied.
Which is my pessimistic way of saying that unless torture critics get a lot more serious about the propaganda onslaught the Republicans plan to launch to defend torture, this Torture Report release may not do all that much good at all. Torture critics largely lost this debate in 2009, and they’ll actually have less new information with which to fight this if CIA gets its way on declassification.
On several occasions, I have pointed to the arbitrary system our classification system constructs. It asks government employees to spy on their colleagues. It permits agencies to conduct fishing expeditions into personal information as part of the polygraph process. It permits Agencies to selectively approve propaganda under the guise of pre-publication review (most notably in the case of Jose Rodriguez and John Rizzo). By stripping sensitive unclassified jobs of their Merit Board protection, even lower level staffers who don’t receive a clearance-related income boost are now subject to this arbitrary system. And Congress even tried to use pensions as another leverage point against cleared personnel.
The arbitrary nature of this system is perhaps most clear, however, when it comes to prosecutions.
Which is a point John Kiriakou made in an op-ed yesterday. In it, he suggests Leon Panetta and James Cartwright could be sitting next to him in Loretto Prison.
The [Espionage Act] states: “Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates … the same to any person not entitled to receive it … shall be fined under this title or imprisoned not more than 10 years, or both.”
A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.
U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.
The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.
If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.
If Panetta and Cartwright aren’t accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?
Kiriakou goes on to call for changes in the Espionage Act to focus on issues of intent and harm.
Kiriakou is, of course, correct that he got punished for things that Panetta and Cartwright have (so far, at least) escaped such levels of punishment for. (I’d also add the unnamed real sources for the UndieBomb 2.0 leak, who are being protected by the scapegoating of Donald Sachtleben.)
But I’d go even further. Given reports that FBI is investigating whether Senate Intelligence Committee staffers violated the law for obtaining proof the Agency they oversee was hiding evidence from it, it’s crucial to remember how Kiriakou’s prosecution came about, which I laid out in this post.
It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.
As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.
The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.
According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.
According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba. Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.
The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.
That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.
What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.
A bit of a row has started between Jay Rosen and Will Saletan for the latter’s attempt to “see how [the torturers] saw what they did” in this post. Frankly, I think Rosen mischaracterizes the problem with Saletan’s post. It’s not so much that Saletan parrots the euphemisms of the torturers. It’s that he accepts what John Rizzo, Michael Hayden, Jose Rodriguez, and Marc Thiessen said — in a presentation with multiple internal contradictions even before you get to the outright demonstrable lies — as the truth.
I’m particularly troubled by the way Saletan takes this assertion (which is based on the pseudo science behind the torture):
EITs were used to break the will to resist, not to extract information directly. Hayden acknowledged that prisoners might say anything to stop their suffering. (Like the other panelists, he insisted EITs weren’t torture.) That’s why “we never asked anybody anything we didn’t know the answer to, while they were undergoing the enhanced interrogation techniques.
And concludes this, which I take to be Saletan’s belief, not the torturers':
Fourth, the right question to ask about the EIT program isn’t whether people lie under torture but whether using torture to train human beings in obedience is wrong despite the payoffs.
In an effort to take the torturers’ comments — and very notable silences, which Saletan doesn’t discuss — in good faith, Saletan presumes we might treat obedience among detainees being exploited as one of its “payoffs.”
Doing so ignores how the Bush Administration used torture to get detainees to tell useful lies, the most important of those being that Iraq had ties to Al Qaeda, which is one of the key pieces of “intelligence” that was used to get us into the Iraq War. That lie from Ibn Sheikh al-Libi — extracted through the use of mock burial and waterboarding, the two main forms of torture discussed in the panel — contributed directly to the unnecessary deaths of 4,000 Americans, to say nothing of hundreds of thousands of Iraqis.
Hayden’s claim we always knew the answer to questions we asked under torture
Here’s the full exchange from which Saletan takes as truthful the assertion that torture is about “learned helplessness” (no one here uses Mitchell and Jessen’s term, but that’s what we know they called it).
MR. THIESSEN: Mike, one of the – one of the scenes, you have the interrogator throws the – whoever the detainee is down and starts pouring water over his face and starts shouting, when’s the last time you saw bin Laden? And I think that gets to a deep misunderstanding of how interrogation actually worked. And one of the things you explained to me when I was working on my book and on the president’s speech was that there’s a difference between interrogation and debriefing, and the purpose of interrogation was not – we actually didn’t ask questions that we didn’t know the answers to. It was to ascertain whether they were being truthful or not. (So if you ?) walk through that?
MR. HAYDEN: I’m almost willing to make an absolute statement that we never asked anybody anything we didn’t know the answer to while they were undergoing the enhanced interrogation techniques. The techniques were not designed to elicit truth in the moment – which is what was, you know, tell me this or I’ll hurt you more, I’m not your friend – for about a third of our detainees. By the way, for two thirds of our detainees, this wasn’t necessary. Now, I’m willing to admit that the existence of the option may have influenced the two-thirds who said, well, let’s talk, all right? I mean – I mean, let’s be candid with one another. But for about a third, techniques were used not to elicit, again, information in the moment, but to take someone who had come into our custody absolutely defiant and move them into a state or a zone of cooperation, whereby – and then you recall the scene in the movie after the detainee is cleaned up and they’re having this lengthy conversation – for the rest of the detention, and in some cases it’s years – it’s a conversation. It’s a debriefing. It’s going back and forth with the kind of dialogue that you saw in that scene about a – about a third of the way through the movie.
You know a lot of people kind of reflexively say – they’ll say anything to make you stop, which may actually be true. That’s why we didn’t ask them questions while this was going on. Again, as John said, I mean, you know – these things weren’t gentle or kind, but the impact – and I think Jose’s written very thoughtfully about this – the impact was psychological. The impact is you are no longer in control of your destiny, all right? You are in our hands, and therefore, that movement into the zone of cooperation as opposed to the zone of defiance. But Jose’s got more of the fine print on that. [my emphasis]
As I mentioned the other day, I still haven’t seen the movie, so I’m not sure. But Thiessen’s effort to dismiss the claim that we asked detainees where Osama bin Laden was while being waterboarding may be an effort to rebut Khalid Sheikh Mohammed’s assertion that he lied about OBL’s location to get them to stop waterboarding him — all while hiding the importance of the courier, Abu Ahmed al-Kuwaiti, who would eventually lead to OBL.
Now, Hayden’s claim is so obviously false as to be almost pathetic.
The ticking timebomb that blows up Hayden’s claim
It’s a claim that Rodriguez — in the very same appearance — undermines, when he describes turning to torture out of sheer ignorance.
MR. THIESSEN: Follow-up, Jose. I mean, take us back to – since we’re pulling the broader picture – take us back to September 11 th , 2001. You know, we’ve just been hit – there’s smoke in the ground in New York, buildings have fallen, the Pentagon is broken. And what do we know about al-Qaida? I mean, did we know that KSM was the operational commander of al Qaida or that he had this – or that members of his network – or all this information that we take for granted that we know now?
MR. RODRIGUEZ: Yeah, we didn’t know that much. Continue reading
It cannot be sheer coincidence that Dianne Feinstein released two letters to acting CIA Director Michael Morell just hours before WaPo published yet another fact-free defense of torture from Jose Rodriguez.
In addition to demanding proof for assertions Morell made–after DiFi sent her first letter–in a letter to CIA employees about Zero Dark Thirty…
In your December 21, 2012, statement to CIA employees regarding the film, Zero Dark Thirty, you state that “the film creates the strong impression that enhanced interrogation techniques” were “the key to finding Bin Ladin” and that this impression “is false.” However, you went on to refer to multiple streams of intelligence that led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad and stated that “Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.”
DiFi also noted (in her first letter) that the false assertions in the film tracked public claims made by Michael Hayden and Rodriguez.
As you know, the film depicts CIA officers repeatedly torturing detainees. The film then credits CIA detainees subjected to coercive interrogation techniques as providing critical lead information on the courier that led to the UBL compound. While this information is incorrect, it is consistent with public statements made by former Director of the CIA Counterterrorism Center, Jose Rodriguez, and former CIA Director Michael Hayden.
DiFi sent her first letter December 19. Morell made his incorrect claims two days later. Then DiFi demanded he back his claims on Monday.
Then here we are, on Thursday, with Rodriguez both denying the brutal aspects of the torture depicted in the movie resemble what the CIA did, while claiming (as DiFi predicted) that torture was central to finding Osama bin Laden.
I guess this is why the name of Jane Harman–who may have been terrible on a number of points but pushed back on the Bush Administration’s torture regime–got floated in the last few days as CIA Director, instead of Morell, who had previously been a lock?
In addition to preventing Morell from officially directing the CIA, DiFi does have another way to respond to this insubordination: to release her long report showing that torture not only didn’t work, but did resemble the brutal scenes in the movie.
Mind you, she’s going to face an increasingly fierce battle over classification. Does CIA retain primary classification authority for the program–in which case they’ll fight her? Or does Obama–and will the CIA’s godfather, John Brennan, allow the report to be released?
In any case, this seems a clear moment when DiFi’s authority (indeed, when Congress’ authority) on an issue on which she has been productive, is being challenged head on.
We shall see whether the Congressional overseer or the torturer wins this battle.