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Ben Wittes Relies on Obviously False Document to Claim Other Document False

For those coming from Wittes’ so-called response to my post, here’s my response to that response, which shows that Wittes effectively cedes the point that Fredman’s memo is dishonest. 

In a post subtitled “Just Shut Up About Jonathan Fredman” (really!) Ben Wittes argues we should not hold former CIA Counterterrorism Center lawyer Jonathan Fredman responsible for paraphrases attributed to him in the Senate Armed Services Committee report on torture because Fredman wrote a memo claiming he didn’t say those things and because he’s a career official, not a political appointee.

Fredman is a personal friend of mine, but this is getting ridiculous. It’s one thing to hold political appointees responsible for the things they did, said, and wrote. It’s quite another thing to hold career officials accountable for things they didn’t say, do, or write.

Now, in point of fact, Fredman’s memo does not deny saying “if the detainee dies, you’re doing it wrong.” He says,

Those notes, which were misleadingly labeled by their author as “minutes,” to the best of my knowledge were never circulated for comment and contain several serious misstatements of fact. Those misstatements were then compounded by the false allegation at the hearing that the so-called minutes contained quotations from me; the first page of those so-called minutes themselves expressly states that “all questions and comments have been paraphrased” — and, I might add, paraphrased sloppily and poorly.

And,

I expressly warned that should a detainee die as a result of a violation, the responsible parties could be sentenced to capital punishment.

And,

I noted that if a detainee dies in custody, there will and should be a full investigation of the facts and circumstances leading to the death.

And,

I again emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice;

And, after specifically asserting the paraphrase about the Istanbul conference is inaccurate, Fredman concludes,

I did not say the obscene things that were falsely attributed to me at the Senate hearing, nor did I make the absurd comment about Turkey that the author similarly misrepresented. The so-called minutes misstate the substance, content, and meaning of my remarks; I am pleased to address the actions that I did undertake, and the statements that I did make.

Now perhaps Fredman includes “if the detainee dies, you’re doing it wrong,” in his reference to “obscene things,” but he doesn’t specifically say so.

Funny, isn’t it? That a lawyer would write a 6-page memo purportedly denying he said something really outrageous, but never get around to actually denying the statement in question, even while specifically denying another one?

Yet Wittes tells us to shut up shut up shut up about his friend, based on that non-denial denial.

Now, in a twitter exchange about Fredman, Wittes assured me he read both the SASC report and the OPR report on torture. So either he’s a very poor reader, or he doesn’t want to talk about how disingenuous it has since become clear Fredman’s memo was.

The rest of the memo is, by itself, proof that Fredman misrepresents his own actions relating to torture.

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Those Undated “Legal Principles”

As I noted in an update to my post asking for the unsigned, undated document authorizing the expansion of the torture program from one applying just to Abu Zubaydah to one that could be exported around the world, I have found the document. Or rather the documents–they appear to have been revised over time. Here are three that were included in last night’s document dump.

April 28, 2003: Hand-carried from Scott Muller to John Yoo

June 16, 2003: Faxed from CTC to Patrick Philbin

March 2, 2004: Faxed from Scott Muller to Jack Goldsmith

The three are worth reading in sequence to see how the CIA’s gross rationalizations of patently illegal behavior evolved over time. The April document appears to be a draft developed with John Yoo. The second is a "final" version, apparently written by CIA, sent to Philbin for his files. And the last is a request from Scott Muller to get Jack Goldsmith to reaffirm the three August 1, 2002 memos, as well as the June 16, 2003 version of the legal principles, and add water flicking and water dousing to the approved techniques (which would not be done, ultimately, until the May 2005 memos).

The first copy includes one claim that was removed from the document entirely.

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

I guess we know where the culture that seemed to allow the raping of prisoners came from.

The June 16 document, in addition to shifting language about the US reservations on the Convention Against Torture and on whether international law imposes "no limitation" (April 28) or "no obligations" regarding the treatment of detainees, also had four paragraphs pertaining to the application of the Federal War Crimes statute, the torture statute, and the Fifth, Eighth, and Fourteenth amendments (note, those paragraphs appear in a second file included with the April 28 document, but must not have been part of it originally, because the fax cover sheet to Yoo noted only 3 pages).

In other words, sometime between April and June of 2003, some decided to replace Yoo’s broad "US criminal statutes do not apply" with a discussion of specific statutes that, for some pretty bogus reasons, they claimed did not apply. Read more

Hassan Ghul, Mystery Detainee 2, and the Three Bradbury Memos

Update, March 12, 2015: We know from the Senate Torture Report that the Techniques memo was about Janat Gul, not Hassan Ghul. 

Since the Comey emails have come out, I’ve been trying to puzzle through why the Bush Administration issued three memos in May 2005–Techniques, Combined, and CAT–rather than just one or two. I guess I sort of understand doing a separate memo on whether the torture program complies with the Convention Against Torture, since that was largely written to placate Congress and ought to have (but did not) involve a more sensitive analysis. But since all the techniques are used in combination, why not join the analysis of Techniques and Combined?

This is to an extent a wildarsed guess. But I think they did three memos to hide the analysis and authorization of a particular detainee’s treatment. And I think that detainee was waterboarded.

Two Detainees

It has long been established that Hassan Ghul is discussed in these memos. Dafna Linzer reported on it the day the memos came out (and someone here MadDog also noted it about the same time–gold star to MadDog!!).

But the May 30 CAT memo actually mentions two detainees.

We understand that two individuals, [redacted across two pages] are representative of the high value detainees on whom enhanced techniques have been, or might be, used.

I’ll come back to this passage, but for the moment, understand that by the end of May 2005, Bradbury was ready to at least name two detainees in his memo.

The “Techniques” Memo Is about Ghul

I’m not 100% certain, but I believe that the May 10 Techniques memo is–at least ostensibly–exclusively about Ghul. The title of the memo uses the singular–Detainee. And the memo describes the detainee by name (the name is redacted, but it appears to be an appropriate length to spell “Hassan Gul”–CIA spelled “Ghul” without an “h”).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted]. You informed us that the [redacted] and information about al Qaeda’s plans to launch an attack within the United Staes. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments [redacted] were completed by a CIA physician and psychologist, and that based on this examination, the physician concluded “[redacted] medical stable and has not medical contraindications to interrogation, including the use of interrogation techniques” addressed in this memorandum.

So by all appearances, the Techniques memo uses the interrogation of Ghul to reapprove all the techniques used by the CIA, thereby replacing Bybee Two.

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The April 22, 2005 Fax on Torture

I’m working on a series of posts about the 2005 Bradbury Memos and Hassan Ghul. But first, I want to make a couple of points about a document that plays a key role in them–particularly in the Combined Memo: an April 22, 2005 fax from the CIA’s Assistant General Counsel (the name is always redacted) to Steven Bradbury.

The Chronology

Before I get into the significance of the fax, here’s the chronology of it:

December 30, 2004: Background Paper on CIA’s Combined Use of Interrogation Techniques; Daniel Levin torture memo published

February 2005: Daniel Levin leaves DOJ

April 8, 2005: Draft "Techniques" and "Combined" OLC Memos (at that point, 57 pages in length) sent to CIA

"Several weeks" before April 27, 2005: Pat Philbin alerts Jim Comey to problems with "Combined" draft 

April 20, 2005: DOJ announces Jim Comey’s resignation

April 22, 2005: Meeting between Pat Philbin, Jim Comey, Steven Bradbury, Alberto Gonzales about May 10 torture memos

April 22, 2005: Fax to Steven Bradbury from Assistant General Counsel, CIA

April 26, 2005: Comey gets latest draft of Combined memo (no mention of Techniques draft), meets with Gonzales to express concerns, concurs with Techniques memo

April 27, 2005: White House tells Gonzales memos must be finalized by Friday, April 29

April 28, 2005: Gonzales’ Chief of Staff, Ted Ullyot, tells Comey the memo will have to be "sent over" tomorrow

May 10, 2005: Techniques and Combined memos (totaling 67 pages in length) finalized and sent to CIA

Note a few points. The May 10, 2005 memos were drafted by April 8, 2005. Apparently not long after CIA received that draft, Pat Philbin notified Jim Comey of problems with the "Combined" memo and (though there’s no reason to believe they’re related events) Comey resigned. 

And then, on Friday April 22, two things happened. Comey and Philbin tried to talk Gonzales and Bradbury into fixing the "Combined" memo. And Bradbury received the April 22 fax from the Assistant General Counsel of the CIA. Also note, while it’s clear Comey saw a draft of the "Combined" memo after April 22 (the one he describes as being worse than the previous draft he had seen), it’s not clear he saw another draft of the "Techniques" memo before he concurs with it on April 26–though we know the memo would have changed in the interim, since it cites the April 22 fax.

We don’t know what happened after that point. Read more

All the News NYT Does Not See Fit to Print

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As I have pointed out in the last two posts, the NYT has a story up claiming that Jim Comey approved of torture, but that grossly misreads the Comey emails on which the story is based. In fact, the memos appear to show that the White House–especially Dick Cheney and David Addington–were pushing DOJ to approve the torture that had been done to Hassan Ghul, without the specificity to record what they had done to him; in fact, one of the things the push on the memos appears to have prevented, was for Comey and Philbin to have actually researched what happened to Ghul.

But the NYT instead claims that Jim Comey approved of torture legally, even while downplaying his concerns about the "combined techniques" memo that was the focus of his concerns (and not mentioning his response to the third memo).

But there is more news than that in the Comey emails–news the Grey Lady doesn’t seem to think is news. This includes:

Pressure on Pat Philbin

On April 27, 2005, Jim Comey alerted Chuck Rosenberg, his then Chief of Staff, on the fight over the torture emails because he was about to go on a trip, and he figured Pat Philbin would need cover from political pressure. He described that Philbin’s concerns about the memo were ignored. He closed the email by saying that Gonzales had visited the White House and–in spite of Comey’s request for a delay–told Philbin and Bradbury to finish the memo by Friday, April 29. Philbin objected that that was not enough time to do the "fact gathering" needed to fix the memo. Comey was basically asking Rosenberg to prepare to intercede on this process.

The following day, Comey emailed again to say that Ted Ullyot (who had just been read-in to this program) was pushing to get the memo done. It also appears that Ullyot was claiming Comey’s objections had to do with the prototypical interrogation included in the memo, and not the lack of specificity.

Alberto Gonzales’ Cowardice

Comey describes Dick Cheney putting a great deal of pressure on Alberto Gonzales to push through the memos in the last weeks of April.

The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week. Read more