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Pulling Weeds for Think Tank Employees: My Response to Wittes’ Response

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Ben Wittes, an employee of the Brookings think tank, had this to say about my post showing how disingenuous his buddy Jonathan Fredman’s defense of his statements at Gitmo in 2002 is.

Responding to her in detail is difficult, because her account is so weedy;

His entire piece is worth reading, because in key ways it reinforces my argument (though Wittes, the think tank employee, appears not to understand that). His refutation consists of:

  • 189 words effectively saying, “sure I wanted to debate interrogation [sic] history that is a decade old two days ago, but now that you’re presenting facts about my buddy I find it boring.”
  • 444 words admitting that Fredman did not specifically disavow the quote that Wittes claims he did, and shifting the emphasis slightly on what he says Fredman’s memo was disavowing.
  • 1238 words that at times seems to miss the entire headline of my post–which is that Fredman’s actions prove his memo is false–but ultimately seems to accept all the evidence that it is false, though he finds that uninteresting.

Wittes claims Fredman tried to refute his perception comment, not his dead detainee comment

Wittes deems it “bizarre” that I would expect a lawyer to deny a statement explicitly if he were really denying it, especially if he were going to spend 6 pages purportedly denying it. That, in spite of that fact that he admits that Carl Levin and other Senators at the hearing to which Fredman responded referenced a number of other things Fredman allegedly said at the meeting.

Yes, Levin and other senators also quoted a few other alleged Fredman comments from the minutes.

As I noted in my post, several of the things Fredman allegedly said at the Gitmo meeting — claiming the CIA decided which torture techniques to use for most techniques and discussing the use of extreme weather in torture — would have been far more legally troubling in light of Gul Rahman’s subsequent death, by freezing to death after CIA used unapproved water dousing on him, than the “if a detainee dies” comment.

And the “perception … detainee dies” wasn’t even the first quote from Fredman that Levin mentioned at the hearing (which Ben obscures with an ellipsis). First, he raised Fredman’s alleged support for exploiting phobias, including insects which — in 2008 we didn’t know but we now do — appears in the list of techniques approved by DOJ. He also raised Fredman’s description of how waterboarding worked before the “detainee dies” comment.

Claire McCaskill (and Hillary Clinton) focused on Fredman’s alleged comment about hiding detainees from ICRC. McCaskill  also raised Fredman’s alleged comment that videotaping interrogations would be ugly (the latter of which, considering someone in Fredman’s immediate vicinity altered the record of a Congressional briefing just as CIA decided to destroy their tapes, might have been particularly damning given the then ongoing John Durham investigation into that destruction). So in fact, the focus on Fredman at the hearing wasn’t at all exclusively on that detainee dies comment, nor was it the most legally dangerous one for him.

But Ben insists — and he may know this from talking to Fredman personally — that Fredman wrote the memo specifically in response to these comments from Levin, and therefore we shouldn’t expect him to specify that directly:

And Mr. Fredman presented the following disturbing perspective [on] our legal obligations under our anti-torture laws, saying, quote, “It is basically subject to perception. If the detainee dies, you’re doing it wrong.” “If the detainee dies, you’re doing it wrong.” How on earth did we get to the point where a senior U.S. Government lawyer would say that whether or not an interrogation technique is torture is, quote, “subject to perception,” and that, if, quote, “the detainee dies, you’re doing it wrong”?

Look, however, at how Wittes summarizes Fredman’s response:

In that memo, Fredman described the comments he provided at the Guantanamo meeting. And he described them in specific response to these alleged quotations. Far from saying that torture is “subject to perception,” as he described his remarks, he “emphasized that all interrogation practices and legal guidance must not be based on anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice.” And he then went on to flatly deny the statements attributed to him: “I did not say the obscene things that were falsely attributed to me at the Senate hearing. . . . The so-called minutes misstate the substance, content, and meaning of my remarks.” His denial could hardly be clearer. [my emphasis]

Note, first of all, that Wittes uses the plural, “quotations,” in this passage. That’s interesting, because at least some of the journalists Ben wants to shut up shut up shut up used the “if the detainee dies, you’re doing it wrong” quotation without the “subject to perception” bit. The two sentences appear together in the notes and I agree they can be treated as one, but the truly shocking quote — the one Ben wants everyone to stop using — is the “if the detainee dies” one, which is utterly consistent with everything Fredman says in his disingenuous memo, which says repeatedly that detainee deaths are bad things.

More interesting though is that Wittes lays out very clearly what he says Fredman was refuting: that he said torture is subject to perception. And his response to that — Ben’s evidence the memo should be accepted as refutation of that comment — is Fredman’s claim that all torture must be based on definitive and binding legal analysis from DOJ.

Wittes seems to accept that Fredman did not base torture on definitive and binding legal analysis from DOJ

Here’s where Ben’s professed difficulty with weeds seems to have utterly sunk his efforts to defend his buddy. Because if it can be proved that Fredman did not, in his actions, ensure that torture be limited by definitive and binding legal analysis from DOJ, then it is clear that his memo is false, a lie, issued to refute some very damning evidence made worse by subsequent events, but not in any way an honest reflection of what Fredman believed or how he acted.

For any think tank employees or others who have difficulty with weeds, here’s what the evidence I laid out showed:

  • The torturers started using sleep deprivation, with the approval of Fredman’s office, months before DOJ got involved.
  • When the torturers exceeded Fredman’s office’s original limits on sleep deprivation, his office just retroactively authorized what they had already done, apparently without any input from DOJ.
  • When Fredman translated DOJ’s guidance for the Abu Zubaydah torturers, he used not the definitive and binding legal analysis from DOJ, but instead a fax John Yoo had sent, one he purportedly wrote without the input or approval of Jay Bybee.
  • After a detainee died after being subjected to a torture technique that had not been approved by DOJ, CIA’s lawyers — including Fredman’s office — tried to snooker OLC into accepting that another document crafted with Yoo outside official channels constituted “definitive and binding legal analysis.” That effort failed.

There are at least four pieces of evidence in the public record that Fredman authorized torture in ways outside of DOJ’s definitive and binding legal analysis. Now, Ben doesn’t refute a single one of these points. Indeed, he actually uses the Yoo fax in his response (he doesn’t, however, mention the retroactive effort to snooker OLC, perhaps because his blogmate was involved in refusing to be snookered).

From which I take it that Ben accepts that Fredman’s office, and Fredman personally, repeatedly found ways around relying on the definitive and binding legal analysis DOJ developed. Read more →

How the Government Hid Their Pacha Wazir Mistake by Denying Habeas Corpus

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Scott Horton’s revelation that the detainee described as “CAPTUS” in Glenn Carle’s book, The Interrogator, is an Afghan named Pacha Wazir reveals something else: in spite of the fact that Carle realized the CIA had been mistaken about Wazir’s ties to al Qaeda sometime in 2002, Wazir was not released from US custody until February 24, 2010.

We held Wazir for over seven years after the time Carle first figured out the CIA had made a mistake.

Of particular concern, however, are the decisions the government made to prevent Wazir from getting any kind of review of his detention.

Rather than move Wazir from the Salt Pit to Gitmo–where he would have received a Combatant Status Review Tribunal–he was instead moved to Bagram in 2003 or 2004. At Bagram–as John Bates summarized in his opinion regarding habeas petitions for three other Bagram detainees–the review was much less stringent.

The initial “enemy combatant” determination is made “in the field.” Tennison Decl. ¶¶ 11-12. For detainees at Bagram, the initial determination is reviewed within 75 days, and then every six months thereafter.19 Id. ¶ 13. The reviewing body is the Unlawful Enemy Combatant Review Board (“UECRB”), a panel of three commissioned officers. The UECRB reviews “all relevant information reasonably available,” and detainees have the opportunity to make a written statement.20 Id. ¶¶ 12-13. The UECRB then makes a recommendation by majority vote to the Commanding General as to the detainee’s status. Id. ¶ 13. There is no recourse to a neutral decision-maker.

Respondents concede, as they must, that the process used for status determinations at Bagram is less comprehensive than the CSRT process used for the Guantanamo detainees. Tr. at 53. Focusing the inquiry on the flaws Boumediene identified in the CSRT process, the UECRB process is plainly less sophisticated and more error-prone. Unlike a CSRT, where a petitioner has access to a “personal representative,” Bagram detainees represent themselves. Obvious obstacles, including language and cultural differences, obstruct effective self-representation by petitioners such as these. Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. Respondents’ far-reaching and everchanging definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.

In September 2006, Wazir did file a habeas petition–his suit was ultimately consolidated with the three Bagram detainees whose DC Circuit habeas denial remains the relevant decision denying Bagram detainees habeas. But Wazir’s petition was denied in spite of the fact that a former Bagram detainee revealed that Wazir had been told some time in June or July 2008 there was no evidence against him.

About four months ago, in June or July of this year, one of the investigators in Bagram told Haji Wazir that there was no incriminating evidence against him.

More troubling, Wazir’s petition was denied on jurisdictional grounds because he’s an Afghan citizen. Yet even before that decision, Afghan prosecutors determined on June 26, 2008 that coalition forces had no evidence of collaboration with al Qaeda, so Wazir should be freed.

In the documents from coalition forces, it has been mentioned that evidence, physical supporting material and pictures do not exist to prove the accusations, he has not been arrested in a face to face battle, has not performed any terrorism related actions, polygraph tests show that there are no evidence of deception.

Based on the requirements of his job and business he has performed currency exchange activities in all parts and corners of the world legally to earn his livelihood.

Therefore, the commission believe that there are no documents in his file that would support the allegations against this person and he has already spent more than five years in prison. Thus, it is considered appropriate if the suspect is released from prison, introduced to National Independent Commission on Peace and Reconciliation and a report be delivered to the President of Islamic Republic of Afghanistan.

Nevertheless, several weeks after the Afghan determination that coalition forces had no evidence against Wazir, a DOD UECRB determined that he was an unlawful enemy combatant.

Petitioner Wazir is a detainee at BTIF. See id. ¶ 19. DoD’s records reflect that he was captured in Karachi, Pakistan, and was determined to be an unlawful enemy combatant both when he was first brought under DoD custody and in subsequent reviews. See id. ¶ 20. The UECRB’s most recent reevaluation of his status was on July 17, 2008. Id. Following that review, his status as an unlawful enemy combatants was reaffirmed. Id.

So ultimately, John Bates denied his petition on jurisdictional grounds to prevent tensions between the US and Afghans. But the US recertified Wazir as an unlawful enemy combatant even after the Afghans had determined there was no evidence to support such a designation.

Now, there’s a lot else that’s funky about the government’s treatment of Wazir. For example, they claimed he had been arrested November 13, 2003 in Karachi, even while it was clear he had been arrested a year earlier in Dubai. Then, the US sent paperwork transferring custody of Wazir to an Afghan prison, but did not transfer Wazir himself (and then went on to to reaffirm his enemy combatant status).

But ultimately, there’s also the question of why they left someone of such purported import in Afghanistan, rather than Gitmo. And while the government insists they don’t make detention decisions to avoid giving detainees access to habeas, the three other detainees whose habeas petitions were denied recently submitted new evidence, including two WikiLeaks documents disproving a government claim that it had never moved detainees from Gitmo to Bagram. Of particular note is the detainee who–according to an Afghan War Log cable–was transferred from Gitmo to Bagram on January 18, 2009, just two days before Obama would become President.

Of course, even if they had granted jurisdiction for Wazir to file a habeas peittion, two key pieces of evidence had already been disappeared: the two cables Carle wrote in late 2002 or early 2003 documenting that Wazir was not the al Qaeda banker the CIA had made him out to be.

For much of the time the CIA was fighting with Glenn Carle over how much detail he could write about Wazir, Wazir was stuck in Bagram, having already been cleared for release by the Afghans yet still–in spite of the lack of evidence–claimed to be an enemy combatant by the US.

That’s the kind of injustice our refusal to offer habeas corpus to Bagram detainees permits.

Scott Horton: Glenn Carle’s “CAPTUS” Is Pacha Wazir

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As we’ve noted a couple times at EW, I will be hosting Glenn Carle to discuss his book, The Interrogator, at Saturday’s FDL Book Salon. As you no doubt know, his book describes his interrogation of what was described as a high level al Qaeda figure (the detainee wasn’t) and his objections to the government’s use of dislocation and other torture methods with him.

But Carle’s book doesn’t reveal the locations at which these interrogations took place, nor the detainee’s identity. So I wanted to make sure you had seen Scott Horton’s posts yesterday revealing those details.

As Horton describes, the detainee called CAPTUS in Carle’s book is actually a businessman by the name of Pacha Wazir who ran a hawala al Qaeda used.

As The Interrogator: An Education details, in the fall of 2002, Carle was the CIA case officer for a man identified as CAPTUS — but who was clearly Pacha Wazir — who had operated an informal money-changing and transfer business, known as a hawala system, that may have had customers with terrorist ties.

And the two locations described in the book are a location outside of Rabat, Morocco and Afghanistan’s Salt Pit.

As for the location of the initial rendition, the opening chapters of Carle’s book play out in an unnamed desert country where French and Arabic are spoken interchangeably, and where domestic intelligence services were holding terrorism suspects for CIA interrogation under a program a New York City Bar Association Report described as “torture by proxy.” “There is no doubt that Carle is talking about Morocco,” said John Sifton, an attorney who studied the CIA detentions program on behalf of Human Rights Watch and other organizations, and who travelled to Morocco in early 2006 to look into reports that the CIA was holding terrorism suspects there. “Most of the events described in the early chapters occurred in and around Rabat, which is where it appears the CIA detention arrangements were being carried out.”

In my interview with him, Sifton pointed to flight records from CIA aircraft used for detainee transport, which detailed several flights from Rabat to Afghanistan that matched the flight described by Carle in a chapter entitled “Methane Breathers” (a term he used to describe the CIA officers clad as ninjas who roughed up and humiliated Pacha Wazir on a Moroccan airstrip). The prisoner was then transferred to a CIA-run prison near Kabul. The description in Carle’s book perfectly matches existing accounts of the Salt Pit, a prison maintained by the CIA in an abandoned brick factory north of Kabul.

Horton has one of his “six question” interviews with Carle here. (If you haven’t already read Spencer’s interview with Carle, that’s well worth your time, too.)

In his posts, Horton also reminds readers that Wazir was first profiled in Ron Suskind’s One Percent Doctrine. Suskind describes how the CIA picked up Wazir just as he was attempting to meet with the FBI to explain his business.

The UAE’s central bank had done its job–too well. They’d gone ahead on their own and frozen Wazir’s assets. That was just the start. Wazir, seeing that his millions were frozen, called up the central bank, indignant. The head of the central bank told Wazir that he was under investigation by the FBI.

Cool customer that he was, Wazir expressed outrage. “Are there FBI agents in the country?” he asked the banker, who said, yes, right here in Dubai. “Well then, I’ll meet with them, and explain everything,” Wazir said. “I’m sure it’s just a mistake.”

[snip]

The next morning, a plump Emirates financier, in his white gown, vest, kufi cap, and fastidiously trimmed beard, left his palatial home in Dubai to travel downtown for his meeting with the FBI. In his driveway, he was greeted by a team of agents from the CIA. He went without a struggle.

After rendering Wazir, Suskind explains, the CIA reopened his hawala and used it to round up al Qaeda figures who had used the facility.

I will probably do a follow-up post next week to talk about some of the secondary implications of Carle’s book (I suspect Carle will be unable to address many of these issues):

  • What does it mean that he was never able to get the documents Wazir had with him when he was rendered (which he presumably intended to use to answer the FBI’s questions)?
  • What does it mean that he was at the Salt Pit not long after the Gul Rahman death?
  • What does it mean that two cables he sent criticizing the interrogation program got disappeared?
  • What do Carle’s disclosures say about the government’s successful attempt to dismiss Wazir’s habeas corpus suit?

But in the interim, for those of you reading the book in anticipation of the Book Salon, I wanted to make sure you had seen these details.

Gul Rahman: Another Case Where Torture (and Homicide) Failed to Elicit the Location of Extremist Leaders

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The US government has a long history of refusing to turn over evidence on its torture program, most recently when DOJ refused to cooperate with a Polish inquiry into the black site at which Khalid Sheikh Mohammed was waterboarded 183 times.

So it’s no surprise that they are refusing to turn over the remains of Gul Rahman–the detainee whom the CIA killed in the Salt Pit in 2002–to his family. (h/t Mary) The FBI is also refusing to turn over the autopsy report on Rahman’s death to the AP on account of the probably “pretend” investigation they’re conducting on it.

Assholes.

In addition to reporting that news, the AP reports the excuse the CIA is now giving for having killed Rahman in the first place.

Former CIA officials say Rahman was acting as a conduit between Hekmatyar and al-Qaida. Hekmatyar’s insurgent group is believed to be allied to al-Qaida. The former officials said the CIA had been tracking Rahman’s cell phone at the time of his capture and were hoping the suspected militant would provide information about Hekmatyar’s whereabouts.

But Rahman never cracked under questioning, refusing to help the CIA find Hekmatyar. Former CIA officials described him as one of the toughest detainees to pass through the CIA’s network of secret prisons.

Note the logic of this argument? For some reason, they couldn’t find Hekmatyar by tracking Rahman’s cell phone (Rahman was picked up long before Afghans got more aggressive about hiding their cell phone locations).

But if they couldn’t find Hekmatyar by tracking Rahman’s calls to him, then why were they so sure he knew where Hekmatyar was?

So now they’ve got to explain away his death because he was “one of the toughest detainees to pass through the CIA’s network of secret prisons,” and not because maybe he didn’t know the answer to the question they were asking, the location of Hekmatyar himself.

Of course, there’s a history of using the worst kinds of torture on detainees who don’t know or wouldn’t reveal the whereabouts of others, too. The location of Osama bin Laden, after all, is one of the things that KSM has said he lied about in response to his brutal torture.

And while we’re on the subject of lying, let’s return to what KSM has said he lied about while being tortured during his 2007 Combatant Status Review Tribunal.

… I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area of this is al Qaida which I don’t him.

Mind you, in KSM’s case, at least, Ali Soufan believes KSM could have been persuaded to reveal OBL’s location if only real interrogators had interviewed him.

KSM should consider himself lucky, I guess, that the government’s brutal torture in hopes of learning the location of top extremist leaders got slightly safer between the time they killed Rahman and wateboarded him a mere 183 times.

Dusty Foggo’s Girlfriend, John Rizzo, and the Salt Pit

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The AP story on the Salt Pit death makes it clear that–at a time when Dusty Foggo was Executive Director of CIA–he was involved in an internal review of the death.

The current U.S. official insisted that the case was adequately scrutinized. The official also said a CIA accountability review board was held in connection with the death.

The CIA declined to discuss whether the two agency officers cited in the inspector general’s report were punished.

But when the case was put before Kyle D. Foggo, the CIA’s third-ranking officer at the time, no formal administrative action was taken against the two men, said two former intelligence officials with knowledge of the case.

This review must have happened some time after fall 2004, when Foggo started in the ExDir position (it seems to have been a follow-on to the CIA IG Report). That means that Foggo’s decision not to act against any of the people in the Salt Pit killing came at around the same time that his girlfriend was hired at CIA’s Office of General Counsel over the objections of staffers within OGC. That’s significant because among the people in the chain of authorization between the Bybee Memo and the torture was then OGC head John Rizzo, who intervened to make sure Foggo’s girlfriend got and stayed hired.

Details of how Foggo got his girlfriend hired appeared in the sentencing documents for his conviction in the Brent Wilkes/Duke Cunningham case (they were included not just to show Foggo’s corruption, but also because, over the course of the case, Foggo had repeatedly claimed to be happily and faithfully married).

As William Mitchell of the CIA Inspector General’s office described, Foggo’s girlfriend, ER, was at first rejected by OGC because she had previously been investigated for having an affair with her boss (elsewhere the sentencing materials include Foggo’s claim that “she didn’t fuck him”), and then destroyed evidence to cover up the affair. But after OGC rejected her application, Foggo harassed the Managing Associate General Counsel of CIA, who then passed on Foggo’s concern to then Acting General Counsel John Rizzo.

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