Who Signed the Explicit Authorization to Torture?

The WaPo reveals that in June 2003, and again in July 2004, the CIA sought and got a memo explicitly authorizing the torture methods used in interrogation.

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 article explains that Tenet felt he needed such memos to make sure the CIA had "top cover" for its actions.

The repeated requests for a paper trail reflected growing worries within the CIA that the administration might later distance itself from key decisions about the handling of captured al-Qaeda leaders, former intelligence officials said.


A. John Radsan, a lawyer in the CIA general counsel’s office until 2004, remembered the discussions but did not personally view the memos the agency received in response to its concerns. "The question was whether we had enough ‘top cover,’ " Radsan said. 


The CIA’s anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program.


By the spring of 2004, the concerns among agency officials had multiplied, in part because of shifting views among administration lawyers about what acts might constitute torture, leading Tenet to ask a second time for written confirmation from the White House.

But at that point, the story gets all vague. What the CIA was seeking, obviously, was a document signed by someone other that John Yoo, someone whose ass would be on the line along with the CIA if the torture program became public. That document would presumably implicate at least top aides to Bush, if not Bush himself. But the WaPo doesn’t describe who that person is.

Days later, he got what he wanted: a brief memo conveying the administration’s approval for the CIA’s interrogation methods, the officials said. Administration officials confirmed the existence of the memos, but neither they nor former intelligence officers would describe their contents in detail because they remain classified. 


Finally, in mid-July, a memo was forwarded to the CIA reaffirming the administration’s backing for the interrogation program. Tenet had acquired the statement of support he sought. 

I’ve updated the torture timeline, and the timing is fascinating (the second memo came, for example, just after Goldsmith and Olson left DOJ, Read more

The Contents of Alberto Gonzales’ Safe Briefcase

Here’s what Alberto Gonzales thought was so sensitive, he illegally kept it in an unsecure safe and brought it back and forth to work in his briefcase.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program; correspondence from congressional leaders to the Director of Central Intelligence; and other memoranda describing legal and operational aspects of the two classified programs. 


Gonzales told the OIG that President Bush directed him to memorialize the March 10, 2004, meeting. [ed. Note, contrary to one of the press reports, it does not appear that Bush was at the meeting–though Cheney was.] Gonzales stated that he drafted notes about the meeting in a spiral notebook in his White House Counsel’s Office within a few days of the meeting, probably on the weekend immediately following the meeting. Gonzales stated that he wrote the notes in a single sitting except for one line, which he told us he wrote within the next day. Gonzales said that his intent in drafting the notes was to record the reactions of the congressional leaders during the meeting, as opposed to recording any operational details about the program that were discussed. In the notes, Gonzales listed who was present, followed by a general summary of the briefing given to the congressional leaders by intelligence agency officials, and the congressional leaders’ responses to the briefing. However, Gonzales’s summary also referenced TS/SCI operational aspects of the program by his use of specific terms associated with the program. The notes also included the SCI codeword used to identify the program. [my emphasis]


The two envelopes contained a total of 17 separate documents. The envelope containing documents related to the NSA surveillance program bore the handwritten markings, "TOP SECRET – EYES ONLY – ARG" followed by an abbreviation for the SCI codeword for the program. The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. Read more

The Strange Case of Hiwa Abdul Rahman Rashul (Part 2)

In part 1, I laid out the facts surrounding the detention and illegal transfer of Hiwa Abdul Rahman Rashul. In this post, I want to demonstrate why this case matters. There is a pattern to the Bush/Cheney Administration’s illegal usurpation of executive power. Because the pattern broke down in this case, the strategy behind that power grab is laid bare. The struggle within the administration over the disposition of Rashul and the way it was resolved helps to illuminate the true nature of the current regime. Perhaps this case creates an opening to unravel the authoritarian infrastructure that has been built within our country in the last eight years.

Part 2: Why it matters

In the grand scheme of things, focusing on this case might seem a little like busting Al Capone for tax evasion. The Bush/Cheney Administration has institutionalized the most egregious extralegal executive abuses in our nation’s history. As matters of policy, they’ve launched a war of aggression under false pretenses, violated the most basic human right treaties, trashed the Fourth Amendment, denied the right of habeas corpus to citizens and non-citizens alike, set up secret prisons, disappeared their presumed opponents around the world, tortured the innocent and presumed guilty alike, conducted sham military tribunals against the underage and the mentally ill, and, worst of all, claimed the power to indefinitely detain anyone in the world, including U.S. citizens, without any external check whatsoever. And that’s just the stuff they have admitted to.

If we want to undo all this, and I very much do, we’ll have understand how they were able to accomplish it. I’m not going to rehash the sociopolitical environmental conditions that the administration took advantage of. Folks here understand that the generalized fear and anger after the attacks of September 11, 2001, the fecklessness of the Democratic party, the docile and compliant traditional media, the tight discipline within the Republican party, and the latent authoritarian impulses of a sizeable minority of the country created the necessary conditions for what happened. I want to focus on how the administration manipulated secrecy, its own people’s psychology, and the instinct for institutional self-preservation to manage a shifting set of narratives that allowed them to follow a deliberate strategy of expanding executive power and upsetting the constitutional balance of government while evading responsibility and steam-rolling all opposition. Then, I hope to show how this case exposes some chinks in the rather substantial armor of these malefactors. Read more

The Gitmo Shrinks Find Their Super Ego And Cowboy Up

As several of you have noted, there has been a rather significant event at the Gitmo Show Trials. Lt. Colonel Diane M. Zierhoffer, a US Army psychologist who ordered the illegal torture of a juvenile, Mohammad Jawad, invoked her right not to incriminate herself and refused to testify in the case of Mohammad Jawad. She took the Fifth.

Her testimony was sought by defense attorney Maj. David Frakt in a hearing on his motion to dismiss charges based upon government misconduct in using prolonged isolation, sleep deprivation, and other torture techniques against his client in an attempt to make him more pliable in interrogations. Following a month-long isolation, apparently recommended by the military psychologist, Mr. Jawad – who entered Guantánamo as a teenager — attempted suicide.

The psychologist’s testimony would have marked the first time that a member of the secretive Behavioral Science Consultation Team (known as BSCT or “biscuits”) had been called to testify in a detainee hearing. The BSCT program has been highly controversial among psychologists and other health professionals. The psychologist invoked her rights under Article 31 of the Uniform Code of Military Justice, the military equivalent of the 5th amendment right against self-incrimination/right to remain silent.

“The fact that the BSCT Psychologist now apparently recognizes that her conduct was criminal in nature is very significant,” said Maj. Frakt. “We have alleged, based on classified government records that the BSCT psychologist’s recommendation led directly to the illegal abuse and inhumane treatment of Mohammad Jawad. This invocation of the right to remain silent seems to confirm that.”

“The evidence in this case confirms our worst fears, that military psychologists are working to break down detainee’s psyches,” said Dr. Stephen Soldz, an expert psychologist who had been called by Maj. Frakt to testify that the BSCT psychologist had violated the professional credo of “Do no harm.”

Zierhoffer’s, and her fellow colleagues in the BSCT biscuit brigade, apparently have an operational definition of "Do no harm" with which I am not familiar. It would appear that "Do no harm" is fully operational as to her own self interest, but not to the humane interests of the powerless vulnerable souls she, and they, are ethically and morally obligated to protect.

The relevant professional association, the American Psychological Association (APA), has been having a fairly interesting internal discussion on how stridently the group will disapprove and sanction the gross ethical failings of the biscuit Read more

Maher Arar Gets A(nother) Day in Court

On June 30, the 2nd District Court of Appeals rejected Maher Arar’s suit against the US government for sending him to Syria to be tortured. That decision came almost a month after the Dpartment of Homeland Security Inspector General released a report showing–even in its redacted form–that Arar had repeatedly warned that he would be tortured if sent to Syria, and that the INS folks knew that there was a high likelihood that Arar was right.

Perhaps it took the judges on the Appeals Court some time to really digest the report, because today they announced the entire court will rehear his appeal.

The Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard en banc by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare.

“We are very encouraged,” said CCR attorney Maria LaHood. “For the court to take such extraordinary action on its own indicates the importance the judges place on the case and means that Maher may finally see justice in this country. As the dissenting judge noted, the majority’s opinion gave federal officials the license to ‘violate constitutional rights with virtual impunity.’ Now the court has the opportunity to uphold the law and hold accountable the U.S. officials who sent Maher to be tortured.”

One more thing may factor into this reversal. Recall that, when the DHS IG testified on the report, he said he was reopening his investigation into Arar’s rendition.

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

So maybe, pursuant to that reopened investigation, the Appeals Court knows of new information?

Is it possible that Arar will yet have the opportunity to prove his case against Larry Thompson and others, who sent him to be tortured in Syria?

The Logic Behind the Script “The Removal of Clothing Is Not Nudity”

Watching the lawyers who established the torture regime a few weeks ago was particularly stunning in one respect. Jim Haynes, Dougie Feith, Jane Dalton, Diane Beaver–all of them at some point in the hearings repeated the non-sensical claim, "the removal of clothing is not nudity" (or naked).

In this video, for example, Jerrold Nadler asks Dougie Feith,

Nadler: How could you force someone to be naked and undergo a twenty hour interrogation?

Feith: It doesn’t say naked. It doesn’t say naked. This is why the words…

Nadler: Removal of clothing doesn’t mean naked?

Feith: Removal of clothing is different from naked.

Haynes repeated the mantra in his testimony before the Senate Armed Services Committee.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

Jane Dalton explained that in context (remember, she’s talking about a two page memo with no footnotes) the removal of clothing is not nudity.

Dalton: If conducted with oversight. In context in which discussed. Removal of clothing not nudity, working dogs not dogs unmuzzled and snarling, stress limited to standing for four hours. When you put them together, those techniques could be consistent with domestic and intl law.

And Claire McCaskill gave Jane Dalton and Diane Beaver a short reading lesson.

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

mcCaskill Within our military. It happened/

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word all. If I saw removal of clothing and I was trying to get info, how would anyone know?

Read more

Tortured Confession Evidence Tossed In First Day Of Hamdan Trial

The Bushco Torture Brigade is on a bad luck streak in dancing school. Four beatdowns by the Supreme Court on the legality/Constitutionality of their torture and trial program is beyond bad. Four drubbings of this type for a Presidential Administration, during a supposed time of war, is simply unheard of.

When Bushco got the ruling late last week that they could proceed with their first gulag trial against Salim Hamdan, they were ecstatic. Smug in the self satisfaction that the first show trial, of the many they have been pining for, would not be further delayed, Hamdan was rushed to the Guantanamo dock and the trial commenced this morning. So far, so good.

But wait, there’s more; and it’s not good for Bushco’s cherished show trial dreams. Not even one full day into the show, and even the hand selected military judge, Keith Allred, is sending Bushco up the proverbial creek without their torture evidence paddle. From the CBC:

Judge Keith Allred, the navy captain presiding at the trial, decided Monday to bar evidence obtained from Hamdan by interrogators under “highly coercive” conditions in Afghanistan, saying prosecutors cannot use statements he made shortly after his capture at the Bagram air base and Panshir in Afghanistan.

Hamdan has said he endured beatings and solitary confinement at those locations.

The judge left the door open for the prosecution to use other statements Hamdan gave elsewhere in Afghanistan and at Guantanamo.

Michael Berrigan, the deputy chief defence counsel, described the ruling as a major blow to the tribunal system that allows hearsay and evidence obtained through coercion.

“It’s a very significant ruling because these prosecutions are built to make full advantage of statements obtained from detainees,” he said.

Berrigan is exactly right, this is a major blow. And it is a blow with far reaching consequences too, because it sets the tone, in an absolutely blistering manner, for the considerations on the Habeas petitions about to be considered by Royce Lamberth’s designated judge, Tom Hogan. What will the government do now? Ah, well…

Prosecutors are considering whether to appeal the judge’s ruling — a development that could halt the trial of Salim Hamdan that began earlier Monday after years of delays and legal setbacks.

“We need to evaluate … to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out Read more

Bush Doesn’t Want to Be Forbidden to Torture, Even If You Don’t Tell the Terrorists

In yesterday’s chat about detainee treatment, I asked Carl Levin if he had suggestions for ways to improve intelligence oversight.

Which raises another good point.

Senator Levin, what can we do to improve intelligence oversight? Just before this chat started, Trent Franks proposed calling Speaker Pelosi and Jane Harman before HJC to testify about how they reacted in briefings on interrogation methods. There’s also the example of FISA.

What can we do to enable Administrations to present information to Congress in classified fashion–but make it possible for those Members of Congress on oversight positions to do something if they find the Administration policies are illegal?

Senator Levin responded:

Congress has three powers that can be used: they can pass a law, even in classified form as a classified annex to an unclassified bill (such as the intelligence authorization bill), second, the power of the purse which can be carried out in a classified or unclassified manner, and third there is of course our oversight power and responsibility. [my emphasis]

To which Jim White astutely asked this question:

What did you think of his mentioning of the ability of Congress to pass classified annex to the public versions of bills. Should we be hoping that there has been a little more oversight through this route? I haven’t heard much discussion on this front. He seems to be pointing us to the Intelligence Authorization Bill in this regard.

As it happens, Bush issued a veto threat of the House Intelligence Authorization Bill today. And look at one of Bush’s objections to the bill (h/t Steven Aftergood):

Secret Law. Section 317 would incorporate by reference all reporting requirements in the classified annex into the act, thereby making them a requirement in law. The Administration strongly opposes the imposition of reporting requirements in this opaque manner. Further, such a provision would remove the flexibility that Congress and the Executive branch would otherwise have to modify and adapt provisions in the classified annex to meet changing conditions and requirements without seeking a statutory change.

Now, I have no clue what it is in the annex that Bush is objecting to. Read more

Dougie Feith Visits HJC

Before Nadler’s Subcommittee. I’ll liveblog until Levin shows up at FDL–note, there’s an 11 ET vote scheduled in the Senate, so Levin’s likely to show up closer to 11:15.

Nadler speaking now: "Perhaps there’s something in the WH drinking water these days that causes amnesia."

Also note, the Republicans are in a really ornery mood. When Nadler moved to assert the ability to recess without objection, Franks objected. Should be interesting–looks like Darrell Issa’s ready to do his thing.

Franks: Speaker Pelosi never objected. Zubaydah caught building a bomb. Complains about Nadler’s statement that Republicans can’t respond to a request for ticking bomb scenario. "Tenth hearing dedicated to protecting the rights of terrorists."

Conyers: Can Franks tell us about the ten hearings?

Franks: I think this is one of the examples, this is a repetitive hearing.

Conyers: Can I have a list of the hearing? This is the Constitutional Committee of the Judiciary. This is to protect the rights of Americans. To prevent our own government from violating the laws and treaties that pertain to torture. I counted some hearings myself. This is the fourth hearing. The first hearing was when Sands came. Ordered from the top, not a few bad apples. Dan Levin, told us flaws in Professor Yoo’s memos. Forced out of OLC while attempt to impose constraints on torture. Wilkinson, Powell worried about torture and the President was complicit. Third hearing Yoo and Addington. Could not or would not remember the facts. Fourth hearing was necessitated bc we had trouble getting Feith to the hearing. Khadr kept up 50 days, ICRC, Administration committed war crimes. Taguba has also written that war crimes were committed. How high does responsibility go? Mukasey refuses to appoint special counsel. Said these people acted in good faith, so not fair to prosecute them. That starts out sounding fairly reasonable. But let’s look more closely.

Update on Levin chat: It is back to the original time: 11AM.

King: 9/11 9/11 9/11. Success success success. People on this committee despise the Administration. People here disagree with that legal analysis. Let’s think about what Dougie was thinking when the open hole was still smoking.

Nadler: Point out, regardless of the situation of the country, we do have laws, that’s what distinguishes us from other countries. Read more

Helgerson and Cheney

It’s going to be a busy day for me, but one thing I’m hoping to do is nick down to Borders (hey, this branch is unionized, and Borders is local to Ann Arbor) to buy Jane Mayer’s new book. If for no other reason then to find out more about the meeting between John Helgerson, the CIA Inspector General, and Dick Cheney.

One of the lingering mysteries in Washington has been what happened to the CIA internal probe into homicides involving the program. You note that CIA Inspector General (IG) John Helgerson undertook a study and initially concluded, just as the Red Cross and most legal authorities in the United States and around the world, that the program was illegal and raised serious war crimes issues. Helgerson was summoned repeatedly to meet privately with Vice President Cheney, the man who provided the impetus for the program, and it appears as a result of these meetings the IG’s report was simply shut down. Would those probes have brought into question the Justice Department’s specific approval of torture techniques used by the CIA–approval that involved not just John Yoo, but much more specifically Michael Chertoff and Alice Fisher, the two figures who ran the criminal division?

The fact that John Helgerson—the inspector general at the CIA who is supposed to act as an independent watchdog—was called in by Cheney to discuss his tough report in 2004 is definitely surprising news. Asked for comment, Helgerson through the CIA spokesman denied he felt pressured in any way by Cheney. But others I interviewed have described the IG’s office to me as extremely politicized. They have also suggested it was very unusual that the Vice President interjected himself into the work of the IG. Fred Hitz, who had the same post in previous administrations, told me that no vice president had ever met with him. He thought it highly unusual.

Helgerson’s 2004 report had been described to me as very disturbing, the size of two Manhattan phone books, and full of terrible descriptions of mistreatment. The confirmation that Helgerson was called in to talk with Cheney about it proves that–as early as then–the Vice President’s office was fully aware that there were allegations of serious wrongdoing in The Program.

We know that in addition, the IG investigated several alleged homicides involving CIA detainees, and that Helgerson’s office forwarded several to the Justice Department for further consideration and potential prosecution. Read more