Is the Harman Story an Attempt to Silence Her about Torture?

Laura Rozen has been reporting an angle of the Jane Harman story that has been largely neglected elsewhere–the possibility that this story is coming out now as a way to hit Harman, the fiercest critic of the torture program.

A former senior U.S. intelligence officer said he heard during work on the Hill in the 2004 time period of whispers among members of the intelligence committees and their staffs that Harman was allegedly caught up in some Israel-related case that would likely prevent her from getting the chairmanship of the committee she sought. He also said that it was clear that Goss and Harman (and their staffs) fiercely disliked each other.

But he wondered if the timing of this story was about changing the subject, from what Bush-era officials had authorized, to what the Congress was complicit in. "Is this about taking pressure off the revelations of waterboarding and the memos?" he speculated. "And the fact," he added, "that no real intelligence came out of this whole effort?" referring to the enhanced interrogation/torture regime revealed in the memos, which he said produced no actionable intelligence.

(For his part, Stein said in an online chat Monday afternoon that he had had the story for a while, and only decided to move on it now.)

But the former intelligence official familiar with the matter noted that Goss has given only one on-the-record interview on these CIA controversies since leaving the CIA director job. In the December 2007 interview, he said that Congressional leaders, including Representatives Pelosi and Goss himself, Sen. Bob Graham (D-FL) and Sen. Richard Shelby (R-AL), and later Rep. Harman, Sen. Jay Rockefeller (D-WV) and Sen. Pat Roberts (R-KS), had been briefed on CIA waterboarding back in 2002 and 2003. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," Goss told the Washington Post. "And the reaction in the room was not just approval, but encouragement."

Who was the lone lawmaker the article identified as objecting to the program?

Jane Harman.

The story is plausible not just because Porter Goss–both a former Congressman and former DCI–might fit as one of the sources for all the intelligence reporters covering this story. But also because we know Porter Goss was doing a masterful job working the press to distract from his role in the torture tape destruction (that’s what his on-the-record interview was all about). Read more

Is There a 2003 Waterboarding Memo We’re Missing?

Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

Yes, there is one I, at least, have forgotten. The one in which the White House signed off on waterboarding, even after they had waterboarded KSM 183 times in a month. 

White House
Interrogation of prisoners

 Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

The classified memos, which have not been previously disclosed, were requested by then-CIA Director George J. Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents. Although Justice Department lawyers, beginning in 2002, had signed off on the agency’s interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing.

The memos were the first — and, for years, the only — tangible expressions of the administration’s consent for the CIA’s use of harsh measures to extract information from captured al-Qaeda leaders, the sources said.

Gosh, that would be an interesting memo to see, wouldn’t it?

(Updated entirely to make sensible after I discovered I’m a bone-head.)

Obama on the OLC Memo Release

With my comments interspersed:

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

Michael Hayden was on claiming they could have won this in court–I think he’s really underestimating how fed up Hellerstein is with this bullshit. 

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

Note the admission that not all of the practices have been acknowledged. Perhaps, just for example, blows to the head?  Also, the recognition that these have been widely reported suggests the ICRC report may have made a difference in this fight.

In releasing these memos, Read more

Torture Tape Investigation in HPSCI

Last week we learned that John Durham asked a computer forensics expert to contribute to a legal declaration pertaining to whether or not the CIA Inspector General had–or had ever had–evidence pertaining to the interrogations of two Gitmo detainees.

Today we learn that two of the people involved in the Torture Tape destruction are current high-raking Administration officials.

The [HPSCI] panel interviewed two “current, high-level government officials” in April, according to a congressional official, who declined to name the officials.

Both [Intelligence] panels have interviewed CIA Director Michael V. Hayden. 

It’s not clear whether this passage means that Hayden (who just resigned from the military) is one of the two "current, high-level government officials" or not–he’d certainly qualify.

But that leaves another "current, high-level government official." This is significant because several of the key players (like Jose Rodriguez, who remains under subpoena from HPSCI) are former officials. Two notable exceptions are John Rizzo, who works in CIA’s General Counsel office, and John Helgerson, CIA’s Inspector General. We also know that John Negroponte, currently at State, wrote a memo pertaining to the Torture Tapes when he was DNI. Finally, there’s always everyone’s favorite current high-level government official involved with the torture tapes, David Addington.

But I’m not holding my breath.

I’m just as intrigued by the news that Crazy Pete Hoekstra and Silvestre Reyes have gotten into a spat over this investigation.

The House investigation has been riven by partisan disputes. In January, Peter Hoekstra of Michigan, the panel’s ranking Republican, publicly took issue with Democrats over issuing a subpoena for Rodriguez, selecting witnesses and other aspects of the investigation. Democrats have maintained that they have been responsive to Republican input.

A spokesman for Hoekstra declined to comment Tuesday.

As I have said repeatedly, one of the people spinning hard to dissociate himself from the Torture Tape destruction is Porter Goss, who was head of the CIA when the Torture Tape was destroyed, and who received Negroponte’s warning not to destroy the Torture Tape. I’ve long worried that an HPSCI investigation, handled badly, would work the same way Lee Hamilton and Dick Cheney’s HPSCI investigation into Iran-Contra did–to immunize key players from prosecution. In particular, I’ve worried about Pete Hoekstra attempting to protect his former colleague, Porter Goss, from any incrimination.

So I consider it a good sign that Crazy Pete has his knickers in a twist about the investigation. 

A Peek into the Torture Tape Investigation

As the NYT and AP have reported, the CIA says none of its records were responsive to the Court order in the Hani Abdullah case.

A records search by the Central Intelligence Agency has found no evidence that the agency violated a judge’s order when, in 2005, it destroyed videotapes that showed harsh interrogations, the C.I.A. said in a court declaration this week.

Since the CIA is still reviewing its records, though, that declaration may or may not be conclusive.

But the CIA’s declaration is far more interesting for what it says about John Durham’s Torture Tape investigation than what it says about Hani Abdullah’s civil suit against George Bush. Comparing the two declarations submitted in response to Abdullah’s suit with an earlier declaration the CIA submitted in response to the ACLU’s FOIA suggests that John Durham may have reason to suspect that some records pertaining to the torture tapes were destroyed in the Office of Inspector General.

First of all, consider who wrote the two declarations submitted Wednesday by the CIA. First, there’s Robert Dietz, who conducted a general search of the CIA’s operational files. Here’s how Dietz describes his expertise in this matter:

I am the senior councilor to the Director of the Central Intelligence Agency. I joined the CIA in Autumn of 2006. Although I am a lawyer by training, I am not serving in a legal capacity and I am not part of the Office of General Counsel. In my position, I report to the Director of the CIA and receive assignments from him. For example, I have chaired an Agency Accountability Board, and I have recently concluded a management review of the Office of the Inspector General. In December 2007, in connection with the public disclosure that the CIA had destroyed certain videotapes, the Director asked me to chair the so-called Tapes Coordination Group ("TCG"). This Group’s assignment is to respond to requests for information from Acting United States Attorney John Durham, specially appointed prosecutor investigating the destruction of the tapes, and similar requests by the House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence.

Dietz is not a lifetime CIA employee. Rather, he appears to have come in when Michael Hayden took over as Director. That means he had nothing to do with the destruction of the torture tapes. But it also likely means he’s a Hayden loyalist, there to protect Hayden.

Most interesting, Dietz reveals he was in charge of the "management review of the Office of the Inspector General." I find that interesting, not least, because the spat between OIG and Hayden (or rather, and the rest of the CIA) relates to OIG’s report finding CIA’s interrogation methods constituted cruel and inhuman treatment.

Read more

The Watchdog’s Watchdog

Last month, just as CIA’s IG and Director learned of the DOJ investigation into the torture tape destruction, the CIA also announced that Helgerson and Hayden had agreed on some measures to make the IG process "more fair."

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

Right on schedule, yesterday the CIA announced those "procedural changes." The IG’s office will have an ombudsman to act as a watchdog on the watchdog.

The CIA’s inspector general has agreed to tighter controls over its investigative procedures, agency officials revealed yesterday, in what appeared to be an attempt to soften resentments among agency officials over the watchdog’s aggressive probes into the legality and effectiveness of the CIA’s counterterrorism efforts and detention programs.

The revisions, which include the appointment of a special ombudsman to oversee the IG’s work, were disclosed by CIA Director Michael V. Hayden in an e-mail sent to employees, announcing the end of an unusual inquiry into the performance of Inspector General John L. Helgerson, a 36-year CIA veteran and the man chiefly responsible for the spy agency’s internal oversight.

Most interesting–or troubling, depending on how you look at it–is the requirement that the IG’s office keep senior CIA officers informed of the status of investigations.

The changes include measures intended to speed up investigations and require the watchdog to keep CIA employees and managers informed about both the process and results of investigations.

Call me crazy, but I would imagine that if you tell the CIA Director that you’re about to report that the "enhanced interrogation techniques" the CIA has been doing probably violate international law, then you’re never going to be able to write a report to that effect. And certainly never going to be able to circulate to anyone who can do something about the violations of international law.

Helgerson’s Reports Will Remain Unchanged

Since I’ve been talking so much about Helgerson, and since we now have proof that Helgerson’s investigation was always central to discussions of the torture tape destruction, I would be remiss in ignoring this bit from the LAT (h/t Laura).

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

But the agency will not force Helgerson to revise previously issued reports or acknowledge flaws in the reports, including one report that was sharply critical of top CIA officials for intelligence failures before the Sept. 11 terrorist attacks. Read more

What Did Helgerson Do with the Torture Tapes?

I noted here that both Michael Hayden and John Helgerson are recusing themselves from the torture tape criminal investigation.

Hayden said in a statement today that he was recusing himself from any involvement in the new Justice investigation because of his past role in reviewing the tape destruction. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation," Hayden said.

CIA Inspector General John L. Helgerson announced that he also would recuse himself from the criminal inquiry to avoid a conflict of interest. Helgerson said he and his staff had "reviewed the tapes at issue some years ago," during the time when agency officials were debating whether to destroy them.

"During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said in a statement. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation." [my emphasis]

Since Hayden wasn’t at CIA when the tapes were destroyed in 2005, I presume when he says he was involved in reviewing the tape destruction, he’s referring to his lead-up to sending a silly letter to CIA making transparent excuses for why the torture tapes were destroyed [Update: actually, I take that back. Hayden was Deputy DNI starting in April 2005, so early enough to be party to the summer 2005 discussions between John Negroponte, then DNI, and Porter Goss, in which Negroponte told Goss not to destroy the tapes]. I’ll come back to that in a second. But for now, I’m more interested in Helgerson’s reasons for recusing (I’d point out that if he has to recuse going forward, he should have already recused. But this is the Bush Administration, after all).

Helgerson notes he and his staffers "had ‘reviewed the tapes at issue some years ago,’ during the time when agency officials were debating whether to destroy them." The "time when agency officials were debating whether to destroy them" is generally described as February pr March 2003 (when CIA first pitched destroying them to the Gang of Four) through November 2005 (when they were destroyed). We also know there was a CIA briefing for the White House involving Alberto Gonzales, David Addington, and John Bellinger in May 2004, not long after the Abu Ghraib scandal became public (but long after Gonzales, at least, was likely aware of the impending scandal).

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say. Read more


It seems the NYT was not the only one who knew that Addington, Gonzales, and Bellinger got a briefing on the terror tapes. It appears the whole SSCI knew that too.

CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be "cautious" about destroying the tapes, according to sources familiar with his classified testimony.

The three White House officials present at the briefing were David S. Addington, then Vice President Cheney’s chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden’s closed-door testimony before the Senate intelligence committee.

When told that some high-ranking CIA officials were demanding that the tapes be destroyed, the White House lawyers "consistently counseled caution," said one U.S. official familiar with Hayden’s testimony. Another source said that Harriet E. Miers followed up with a similar recommendation in 2005, making her the fourth White House lawyer "urging caution" on the action.

The ambiguity in the phrasing of Hayden’s account left unresolved key questions about the White House’s role. While his account suggests an ambivalent White House view toward the tapes, other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed.

Also unexplained is why the issue was discussed at the White House without apparent resolution for more than a year.

But note what’s funny about this story (and therefore, about Hayden’s testimony). Hayden says this briefing took place in 2004, not 2003, when we know the Gang of Four got a briefing.

Yesterday’s NYT story suggested the discussions started in 2003.

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

So which is it? Did the briefings start in 2003? And if so, did Hayden tell the SSCI about those briefings?

General Hayden Gets Mail

Congressmen Conyers, Delahunt, Scott, and Nadler would like Michael Hayden to provide a detailed description of how and why torture tapes got destroyed. Here are the key questions:

3. Did the CIA notify the Department of Justice of its intention to destroy the tapes and if so, when? Did the CIA receive a legal opinion from the Department of Justice’s Office of Legal Counsel, or any other entity, relating to the destruction of the tapes? Please provide copies of any such written materials.

4. In light of the fact that the September 11 Commission and a federal court requested information regarding these types of materials, why did the CIA decide not to provide information to these two entities concerning the existence or possible and actual destruction of the tapes?

5. When the CIA provided information to Department of Justice lawyers in 2003 and 2005 with respect to the request of the court in the Moussaoui case for evidence taken from interrogations of CIA prisoners, as stated in the Times article, what information concerning the tapes was provided to Department lawyers?

I’m especially interested in question number 3. As I said earlier, I think one of the two most likely times for the destruction of the tape is between May 10 and May 30, 2005, when OLC was busy writing torture opinions to override existing restrictions on torture. In fact, I wonder whether they have refused to turn over those particular torture memos (in addition to their desire to hide the ongoing torture) because they didn’t want anyone to know that (probably) Steven Bradbury deemed it legal.

In any case, I think there’s a high likelihood that Bradbury did deem it legal–given Hayden’s repeated claims that it was.

Anyway, things are getting interesting…