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Why Can’t CIA Handle the Same Level of Oversight the Military Gets?

"We tortured Qahtani," the convening authority for military commissions, Susan Crawford, admitted to Bob Woodward earlier this year. "His treatment met the legal definition of torture."

Though I’m sure it happened, any criticism of Crawford for this admission was muted. I know of no one who claimed that Crawford was causing servicemen and women to be distracted from their core mission of protecting the country. No skies fell, and few claimed they had or would.

But it’s not just Crawford who confessed that the military tortured a Gitmo detainee. Congress, too, has chronicled the ways in which the military tortured detainees. The Senate Armed Services Committee spent eighteen months investigating the way in which the military adapted SERE techniques for use on al Qaeda, Afghan, and Iraqi detainees. Their report describes how techniques approved by Donald Rumsfeld for some circumstances–sleep deprivation and stress positions contributed to homicides in Afghanistan.

In December 2002, two detainees were killed while detained by CITF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were direct contributing factors in the two homicides.

It describes how, a month before those homicides, the Special Forces wrote a memo noting their risk in participating in such interrogations.

"we are at risk as we get more ‘creative’ and stray from standard interrogation techniques and procedures taught at DoD and DA schools and detailed in official interrogation manuals."

It describes the CIA’s General Counsel warning DOD that certain units in Iraq were using methods that not even the CIA would use on the same detainees (suggesting the military interrogators were violating the Geneva Conventions in a legal war zone).

CIA General Counsel Scott Muller had called Jim Haynes and told him that the techniques used by military interrogators at the SMU TF facility in Iraq were "more aggressive" than techniques used by CIA to interrogate the same detainees.

It describes the actions those who tortured, those who planned the torture, and those who authorized it.

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Leon Panetta Begs and Threatens for Consensus Rather than Oversight

Remember when the Obama Administration appealed to a "fundamental compact" between Congress and the Executive Branch when arguing the intelligence community didn’t need more oversight? ("Fundamental compact, my ass," I thought was the best response.)

Well, Leon Panetta’s out with a similar appeal to inflated, but totally bogus, language in an attempt to avoid increased Congressional oversight. This time, he appeals to "consensus" as the core of congressional oversight.

In our democracy, effective congressional oversight of intelligence is important, but it depends as much on consensus as it does on secrecy. We need broad agreement between the executive and legislative branches on what our intelligence organizations do and why. For much of our history, we have had that. Over the past eight years, on specific issues — including the detention and interrogation of terrorists — the consensus deteriorated. That contributed to an atmosphere of declining trust, growing frustration and more frequent leaks of properly classified information. 

[snip]

I recognize that there will always be tension in oversight relationships, but there are also shared responsibilities. Those include protecting the classified information that shapes our conversations. Together, the CIA and Congress must find a balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused on the job of defending America. 

The last eight years have proven that Congress is utterly impotent to stop covert actions the Executive Branch wants to do. Congress’ unsuccessful attempt to stop the data-mining of American citizens by defunding it proves that point. And other tactics used by the Bush Administration–such as funding covert activities in supplemental appropriations or having JSOC carry out those activities instead of CIA, both to completely side-step the intelligence committees’ oversight–further proves Congress’ utter impotence to influence Executive Branch activities.

So when Panetta appeals to consensus as a cornerstone of oversight, when he says "we need broad agreement," he’s basically saying, "Congress must agree with the Executive Branch." "Deteriorating consensus," in this context, is just a pretty way of saying "blowing off Congress" in the face of opposition. When Panetta suggests there needs to be a "balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused," he’s basically arguing that oversight must stop short of actually criticizing CIA, however merited.

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Panetta’s Parsings

As bmaz reported yesterday, in addition to the five current and former CIA officers whom Judge Lamberth has said were invoking state secrets to protect something that wasn’t secret anymore, Lamberth also criticized a declaration he received from Leon Panetta invoking state secrets anew. He describes Panetta’s declaration this way:

Director Panetta’s unclassified declaration appears to significantly conflict with his classified declaration. His unclassified declaration states that: "Plaintiff has provided a declaration in which he stated that the alleged wiretap at issue in this case was allegedly the result of an eavesdropping transmitter placed under the coffee table located in his residence in Burma… To the extent that this is his allegation, he is permitted to proceed with discovery to determine whether such a transmitter was used." (Panetta Unclassified Decl at 9) Panetta later states, however, that the plaintiff cannot inquire into information about the "U.S. Government’s capabilities to conduct electronic surveillance." id. If a method of intelligence is unclassified and publicly available, it is not immediately apparent why it suddenly becomes a state secret to even argue that it could be used by the U.S. Government. Moveover, the plaintiff makes a credible argument not only that the device is publicly known, but that the fact that the government uses this type of device is publicly available, as this type of device is on display at the Spy Museum in Washington, D.C. Indeed, Panetta’s classified, ex parte declaration significantly conflicts with the unclassified declaration and appears to acknowledge that the plaintiff can present evidence as to the coffee table eavesdropping transmitter, even if it is used by the U.S. Government. Panetta states: "Plaintiff has alleged that the defendants used an eavesdropping transmitter placed under the coffee table located in his residence in Burma. He has also stated that these types of transmitters are publicly available and on display at the Spy Museum in Washington, D.C. To the extent that the theory of his case is that the defendants conducted the alleged surveillance using purely unclassified, publicly available methods, I do not assert the state secrets or statutory privileges. To the extent Plaintiff’s discovery attempts to sweep more broadly, and to inquire about other intelligence capabilities … such discovery cannot proceed …." (Panetta Classified Decl. 21) Read more

CIA Sticks with Its Waterboarding Shiny Object Strategy

A month ago, I argued that the CIA was deploying a waterboarding "shiny object" strategy in its attempt to hide the details of the torture program that they otherwise eliminated by destroying the torture tapes–particularly, that torture started before OLC approved it, and that Abu Zubaydah had cooperated without torture, meaning their entire premise for torture was false.

The CIA was hoping–it appears–that its narrative that the torture tapes portrayed waterboarding, and that’s the big reason they were sensitive, would distract Hellerstein and the ACLU and therefore allow them to hide a slew of other information: the success of the FBI before Abu Zubaydah’s torture started, the torture that started before the OLC opinions were written (and the White House’s intimate involvement in approving the earlier torture), the role of contractors in the torture, the quality of intelligence they got using persuasive interrogation as compared to the quality of intelligence they got using torture, whatever happened in al-Nashiri’s waterboarding that led them to stop and even admit it didn’t work with him, whatever happened to Abu Zubaydah around October 11, 2002 that led them to take a picture of him, and the Inspector General’s reconstruction of the Abu Zubaydah’s interrogation (which should have been turned over in the first FOIA).

SHINY OBJECT!! WATERBOARDING!!!

They submitted a filing in the case today that sticks with that same shiny object strategy. Of particular note, there’s a long paragraph that seems to be written for Mary personally. Mary always reminds us that you can’t use classification to hide an example of crime. The CIA responds, as if to Mary, that they couldn’t be hiding a crime because they already revealed all this stuff.

To the extent that plaintiffs argue that the intelligence methods in these documents are illegal and outside the scope of the agency’s authority, and thus are not properly classified, the interrogation and detention methods addressed in the documents were, until January 2009, within the CIA’s authority. See Executive Order 13491, 74 Fed. Reg. 4,893 (Jan. 22, 2009) (terminating CIA terrorist and detention interrogation program). Moreover, Section 1.7(a) of the Executive Order does not bar the Government from classifying information that might contain evidence of illegality, but rather bars the Government from classifying otherwise unclassified information “in order to”— i.e., for the purpose of—concealing violations of law. 68 Fed. Reg. at 15318. Read more

“Certain Officers”

Wow. This spat on the CIA lying to Congress is like a tennis game. First there was Silvestre Reyes’ letter to Crazy Pete reminding him that CIA had affirmatively lied to Congress. Then seven Congressmen and women released a letter saying that Panetta had recently told them that "top CIA officials have concealed significant actions from all Members of Congress."

Now Reyes has released a statement. (h/t Laura Rozen)

I appreciate Director Panetta’s recent efforts to bring issues to the Committee’s attention that, for some reason, had not been previously conveyed, and to make certain that the Committee is fully and currently briefed on all intelligence activities. I understand his direction to be that the Agency does not and will not lie to Congress, and he has set a high standard for truth in reporting to Congress.

I believe that CIA has, in the vast majority of matters, told the truth. But in rare instances, certain officers have not adhered to the high standards held, as a rule, by the CIA with respect to truthfulness in reporting. Both Director Panetta and I are determined to make sure this does not happen again.

The men and women of the CIA are honest, hard-working patriots, and they do not deserve the distraction to their mission that this current issue has caused.

So, to conclude:

  1. Panetta confirmed that someone was lying in the past.
  2. Reyes will give Panetta the benefit of the doubt going forward.
  3. The men and women in the CIA are patriots.
  4. Our President still wants to maintain this system of abusive secrecy. 

I’m particularly interested in Reyes’ mention of "certain officers." Would those officers happen to be named Jose Rodriguez and/or Porter Goss, I wonder? Both of whom would fit the description the 7 members of Congress used, "top CIA officials." And hell, while we’re at it, let’s throw George Tenet onto that list as well…

So if just "certain officers" have been lying to Congress, what are we going to do about it?

Silvestre Reyes: CIA Lied to Congress

I suspect Crazy Pete Hoekstra didn’t really consider that his efforts to escalate the battle between CIA and Nancy Pelosi would backfire like this, but now Silvestre Reyes, the Chair of the House Intelligence Committee, has responded to Hoekstra’s opposition to measures to increase intelligence oversight by stating that CIA lied to Congress.

House Intelligence Chairman Silvestre Reyes has suggested Republicans avoid politicizing the intelligence authorizaton bill later this week in light of what he says is evidence the CIA "affirmatively lied to" the panel.

In a Tuesday letter to his committee’s top-ranking Republican, Peter Hoekstra of Michigan, that was obtained by Congressional Quarterly, Reyes, D-Texas, wrote that the committee has recently received information that reveals significant problems with the intelligence agency’s reporting to the panel.

"These notifications have led me to conclude this committee has been misled, has not been provided full and complete notifications, and (in at least one occasion) was affirmatively lied to," Reyes wrote.

Reyes did not describe or detail the alleged false or misleading statements to the committee.

[snip]

Republicans contend a provision of the fiscal 2010 bill (HR 2701) scheduled for floor action Thursday would modify congressional notification procedures to provide political cover for Speaker Nancy Pelosi. Such briefings are a sensitive political topic, because Republicans have repeatedly criticized Pelosi over what she knew and when about the Bush administration’s use of harsh interrogation techniques and her assertion that the CIA "misled" Congress on that topic. [my emphasis]

Reyes actually gave a date when the Committee discovered it had been lied to by the CIA: June 24, squarely in the middle of CIA’s review of both the CIA IG Report and of the Office of Public Responsibility report on the John Yoo and Steven Bradbury memos. 

"Like you, I was greatly concerned," Reyes told Hoekstra, about what he committee learned on June 24 and another unspecified date from CIA Director Leon E. Panetta. "As you know, I have begun to take steps to gather information on the recent notifications," Reyes wrote. Read more

From the Blogger’s Basement on Jane Mayer

Since Spencer asked, I read Jane Mayer’s piece this morning while sitting at my kitchen table eating mr. ew’s "best in the world" sourdough pancakes (from our homegrown sourdough), syrup from my syrup guy out in Mason, my butcher Bob’s amazing breakfast links, and locally roasted Ethiopian Yirgacheffe coffee. Though I admittedly read it while still wearing the t-shirt I had slept in.

Aside from the bloggers-on-cheetos slur, there were some interesting bits in the story. Mayer catalogs the changing fortunes of Mitchell and Jessen’s torture boondoggle.

In April, Panetta fired all the C.I.A.’s contract interrogators, including the former military psychologists who appear to have designed the most brutal interrogation techniques: James Mitchell and Bruce Jessen. The two men, who ran a consulting company, Mitchell, Jessen & Associates, had recommended that interrogators apply to detainees theories of “learned helplessness” that were based on experiments with abused dogs. The firm’s principals reportedly billed the agency a thousand dollars a day for their services. “We saved some money in the deal, too!” Panetta said. (Remarkably, a month after Obama took office the C.I.A. had signed a fresh contract with the firm.)

According to ProPublica, the investigative reporting group, Mitchell and Jessen’s firm, which in 2007 had a hundred and twenty people on its staff, recently closed its offices, in Spokane, Washington. One employee was Deuce Martinez, a former C.I.A. interrogator in the black-site program; Joseph Matarazzo, a former president of the American Psychological Association, was on the company’s board. (According to Kirk Hubbard, the former head of the C.I.A.’s research and analysis division, Matarazzo served on an agency professional-standards board during the time the interrogation program was set up, but was not consulted about the interrogations.)

I’ll note that April was the same month that the ICRC Report, SASC Report, and Ali Soufan’s first public statements came out (all of which specifically implicated the contractors). It’s amazing how quickly a little sunshine can make outsourcing torture unsustainable.

Mayer also notes something I’ve been sensing too–that John Durham’s investigation into the torture tape destruction may well have to investigate the reasons why the CIA had to destroy the tapes, most notably all the torture they did before OLC had authorized it.

A prosecutor appointed by the Justice Department, John Durham, has convened a grand jury in Washington to weigh potential criminal charges against C.I.A. officers who were involved in the destruction of ninety-two videotapes documenting the interrogations of Abu Zubaydah and other detainees. Read more

Why Doesn’t the CIA’s Vaughn Index Match the CIA’s Vaughn Index?

Bear with me, because this is going to be weedy, even for me.

The CIA has produced two different Vaughn Index descriptions of four cables recording Abu Zubaydah’s interrogation: the cables from August 1, 2002 (page 1-2; page 24), August 7, 2002 (page 21; page 25), August 11, 2002 (page 12 or 14; page 26), and August 16, 2002 (page 23; page 27).

Basically, what happened is that the government produced a Vaughn Index for the first half of August 2002 back on May 1, but then got ordered to produce a Vaughn Index that covered a wider range of dates, which was released two days ago. The two Vaughn Indices both include these four dates (as well as the interrogation log dated August 4, 2002), which means we’ve got two versions of the index descriptions of the cable for those dates. To avoid confusing dates of cables with dates of indices, I’m going to call the first Vaughn Index–dated May 1, 2009–Vaughn A, and the second Vaughn Index–dated June 8, 2009–Vaughn B.

The series are worth comparing generally, but by comparing these same-day descriptions, we learn a few things.

Somebody (the FBI?) Left the Interrogation Site after August 6, 2002

Yesterday, I pointed out that Leon Panetta admitted that there were contractors on site whose identities could not be revealed because it’d be an unwarranted invasion of their privacy. That manifests itself as an Exemption b(6) for every single cable in Vaughn B.

Vaughn A makes different Exemption claims for the persons present. The Vaughn A August 1, 2002 description includes the same Exemption b(6) claimed in the Vaughn B August 1 description. But it also includes another person-based exemption:

Exemption b(7)(C) – This document contains the names and other personal information of law enforcement officials acting in their official duties. The disclosure of this information could reasonably be expected to constitute an unwarranted invasion of personal privacy and for which there is no public interest in the disclosure. Therefore the information is protected from disclosure by Exemption b(7)(C). [my emphasis; note this strikes me as a really bogus use of this exemption]

In other words, Vaughn A claims there were personnel involved in counterterrorism operations and claims there were law enforcement personnel on site on August 1, 2002.

But Vaughn A stops making both those exemption claims after August 6. It appears someone left the interrogation site after August 6. Given that the Index claims a law enforcement exemption, I wonder if this was an FBI agent, perhaps Ali Soufan’s partner (who was supposed to have left in June)?

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Did Somebody Improperly Make Torture a Special Access Program?

I wanted to take one last look at the Panetta declaration, this time with respect to what it says about classifying torture (also see Mary’s long comment and pmorlan’s comment on this topic).

NSC Officials Made This a Special Access Program, Not Director of CIA

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a "special access program" as "a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.

[snip]

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA "shall" "exercise" the function of creating special access programs pertaining to intelligence. But then the very next paragraph says "NSC officials established a special access program." One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it. 

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Leon Panetta: I’ve Got to Protect the Contractors from Unwarranted Invasion of Privacy

Well here’s a really really telling passage from Leon Panetta’s declaration on why he can’t turn over the torture documents to the ACLU.

Information concerning the names and titles of CIA personnel, and information concerning CIA organization, functions, and filing information, has also been withheld from the documents at issue based on FOIA Exemptions b(1) and b(3). Names and identifying information of CIA personnel, and CIA contractors and employees of other federal agencies involved in clandestine counterterrorism operations, also has been withheld on the basis of FOIA Exemption b(6), as the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.1

1 As described in the attached Vaughn index, 62 of the 65 documents at issue contain names or identifying information of Agency employees or personnel involved in clandestine counterterrorism operations. [my empahsis]

And sure enough, every cable from the field includes this dual invocation of FOIA exemptions to protect the identities of those involved in torture.

Exemption b(3) … This document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949 … and thus is protected by Exemption b(3).

[snip]

Exemption b(6) – This document also contains information relating to the identities of personnel engaged in counterterrorism operations, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The public interest in disclosure of this information does not outweigh the harm to the individual whose privacy would be violated, and thus the information is protection from disclosure by Exemption b(6).

They can’t protect James Mitchell and his crowd by invoking the CIA Act of 1949, of course, becase the guys in charge of the torture weren’t employees of the CIA. So instead, they’re invoking privacy protection that even the CIA seems to think might be dodgy.

And curiously, this is not what they have done in the past. Compare what appears in this Vaughn Index with the FOIA exemptions invoked for this set of apparently similar documents from 2004. Like a lot of cables in this series, Document 55 is a clandestine cable from Field to HQ. Read more