December 8, 2019 / by 

 

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. 

[snip]

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]

[snip]

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. The documents related to the NSA surveillance program discussed in Gonzales’s handwritten notes as well as to a detainee interrogation program. The documents included Office of Legal Counsel opinions that discuss the legal bases for various aspects of the compartmented programs, memoranda summarizing the operational details of the programs, correspondence from congressional Intelligence Committee leaders to Director of Central Intelligence Hayden about one of the TS/SCI programs, a "talking points" memorandum about one of the compartmented programs, and a draft legal declaration of a high-ranking intelligence agency official relating to the NSA surveillance program. [my emphasis]

In general, it seems that this little treasure trove of documents comprised ones that concern programs so sensitive that Gonzales side-stepped all normal document management systems, because he was worried the SCI storage at DOJ would not be secure enough. He chose to keep these documents in a manner that made them more accessible to enemies of the state, because he didn’t trust highly-vetted employees within the DOJ.

And what were the two programs so sensitive he needed to keep documents out of the hands of those who had access to the SCIF down the hall from his office in DOJ? The illegal wiretap program and–almost certainly–the torture program. Alberto Gonzales compromised the security of these programs because he didn’t want any of the highly vetted people with access to an SCIF safe to see evidence of the documentation behind two illegal programs.

The March 10 Document as a Record of Congressional Complicity

Looking more specifically, it appears my original guess was correct–that Gonzales’ notes from the March 10 meeting with the Gang of Eight was designed to record their complicity in the Administration’s illegal wiretapping. We know from the report that when several Democrats disputed Gonzales account of the March 10 briefing, he started sharing the notes with the White House Counsel’s office–so he in fact did use those documents to protect himself, at least (remember, he was risk of perjury charges for his statements about the wiretapping program before Congress).

And I am mighty curious about that one line that he–with his now-legendary memory failures–remembers writing on a separate occasion from the rest of the notes.  Did he go back to implicate another member of Congress? How can Gonzales remember the circumstances surrounding that one sentence and virtually nothing else from his tenure in the Administration?

Are These Documents Among Those Congress Hasn’t Seen Yet?

Then there are the OLC opinions–opinions pertaining to both the warrantless wiretap program and the torture program. Does this batch of documents include some of the opinions–such as the one seemingly abolishing the 4th Amendment–that the Bush Administration hasn’t shown Congress yet? That’s the kind of OLC opinion I could imagine Gonzales hoarding.

Also note that he was keeping draft and final opinions. That’s interesting for two reasons. First, because the torture of Abu Zubaydah started before the August 1 OLC memo was finalized, which opens up the possibility that Gonzales has kept some drafts as if they gave legal cover. But it also raises the possibility that the variances between draft and final opinions reveal the true drafting process.

Finally, note the reference to the "draft legal declaration of a high-ranking intelligence agency official relating to the NSA surveillance program." No mention of which official it was or even which agency, only that it was a draft. Particularly given the Administration’s refusal to actually show NSA the opinions that justified this program, I wonder what’s in that draft declaration.

Congressional Notes to Hayden

And finally, we return to Hayden, with notes from Congress that had to have been written after Hayden became DCI in 2006. But since the IG report doesn’t identify whether the correspondence pertains to the illegal wiretap program or the torture program, and since Hayden was Director of NSA during the period when the warrantless wiretapping program was really lacking in legal justification (according to Comey), it could relate to either program.

But why was Gonzales hoarding this correspondence, and how did he get a hold of it? Was it more CYA, tracking the statements of members of Congress so as to insulate himself and (presumably) Bush?

Perhaps not surprisingly for an IG report that basically lets Gonzales off for breaking the law, the report doesn’t seem all that interested in the content of the documents, aside from noting they include TS/SCI information. After all, you’d think it would go to the issue of intent that Gonzales chose to hoard documents pertaining exclusively to two programs that lawyers within DOJ and CIA had determined to be illegal. But apparently, Gonzales was never asked about that.


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.

Competing Narratives

One of the biggest problems in telling the full story of the Bush/Cheney Administration various illegal activities is distinguishing between the various narratives surrounding each episode. In every case, there is the story of the actual events are that always hidden behind a veil of secrecy. Then there is the momentary political scandal caused by a leak or leaks. The traditional media and the political opposition typically focus on that narrative only until there is an administration response. The administration responds with a modified limited hangout, selectively declassifying or leaking some information and augmenting it with false or misleading public statements to create an alternative narrative to defuse the political scandal. Later on, additional information comes out that contradicts the official narrative, but by that time, the issue is ‘old news’. Only after a series of scandals could anyone notice that there is a pattern to the actual events, the leaked narratives and the official narratives that help illuminate the strategy that the administration used. Keeping in mind that we always have to be alert to the unreliable narrator problem, let’s take a look at these narratives in the order they come into the public consciousness, the scandal, the hangout, and what really happened.

Narrative 1:   The Scandal

The most easily overlooked, and most interesting, aspect of the scandal narrative is that it is almost always driven by institutional self-preservation. In this instance, the confirmation of the existence of ghost detainees in Iraq was a side effect of Gen. Taguba’s investigation of the Abu Ghraib scandal. The original leakers wanted to separate themselves from the Abu Ghraib scandal and prove they had explicit orders from higher-ups to hide Rashul. The first story about Rashul starts like this:

The top U.S. commander in Iraq, Lt. Gen. Ricardo Sanchez, issued a classified order last November directing military guards to hide a prisoner, later dubbed "Triple X" by soldiers, from Red Cross inspectors and keep his name off official rosters. The disclosure, by military sources, is the first indication that Sanchez was directly involved in efforts to hide prisoners from the Red Cross, a practice that was sharply criticized by Maj. Gen. Antonio Taguba in a report describing abuses of detainees at the Abu Ghraib prison near Baghdad.

Whatever the triggering event, whether there’s a whistleblower, an inadvertant disclosure, or just someone with a score to settle, the first big story in the mainstream press is usually shaped by a bureacracy trying to protect itself. Which mean the story always has one big revelation and it almost always points the finger at political appointees. That naturally leads to an official administration response.

Narrative 2: The Modified Limited Hangout

This is where the Bush/Cheney team has shown real innovation. The typical script for goes like this. You put a Cabinet-level official (or if you do it on background, the infamous Senior Administration Official or SAO) out front, backed up by some guy in uniform. After the obligatory ‘the terrorists are gonna kill us all’ hand-wringing, the SAO confirms some of the details from the scandal story and adds a few new juicy bits, but denies or ignores significant elements of the previous narrative. The situation is presented as perfectly normal, at least for a post 9/11 world, and besides, the lawyers signed off on the whole thing, so no one could possibly question the purity of the administration motives, except the partisan media and their anonymous sources who are obviously from the Democrat party. Any uncomfortable questions are avoided because the answers are, of course, classified. The main purpose of the new narrative is deflect attention away from the most damaging aspects of the story. A key function of the cover story is to allow the policymakers to hide behind the lawyers and the lawyers to disclaim any responsiblity for the policy.

Narrative 3: What really happened

Of course, the cover narrative never satisfies everyone. For example, Philippe Sands’ dogged investigation of torture at Guantanamo led him to uncover the facts behind the institutionalization of torture there. Sands’ article for Vanity Fair exposing the false timeline was really the inspiration for my analysis of the Rashul case. Valtin’s yeoman work in ferreting out the fact that SERE techniques were the first choice for interrogations by some in this administration provided another clue. Ultimately, I came to realize that there was a pattern, even in the actual narratives.

In a comment to my previous post, Ondelette gets this almost exactly right, so I’ll quote that:

I think your timeline on Rashul is probably quite correct and very devastating. But I tried to do the ‘when did the document come and when did the illegal actions come’ thing several times now, and it turns out as information seeps out, every time line is similar to yours with Rashul.

The conduct begins.
The administration wishes to make the conduct the norm.
They solicit an opinion from OLC, who is led to believe that the conduct is only being contemplated.
The OLC writes a memorandum.
Written policies flow from the memorandum.

The one thing I think Ondelette gets wrong is the bit about the OLC thinking that the conduct is only being contemplated. I think the available evidence points us in a different direction. In this case, Goldsmith clearly knew that Rashul was already in Afghanistan when Gonzales asked for the opinion. Even before he was confirmed, when Goldsmith gets the call from Philbin it’s described as urgent. You don’t make calls like that for contemplated action. Those issues become urgent after the fact when someone questions the legality of the action. Compare this to what we know about the warrantless wiretapping. The program was started, the FBI and others questioned the legality, and then the OLC opinion was issued to shut down the debate. If you look closely at Yoo’s DOD torture memo, you find some very direct coorelation between what had already been done at Guantanamo and the specific actions he immunized. This coorelation goes beyond the techniques documented in the request from Diane Beaver to Rumsfeld to include ‘unauthorized’ techniques used on al-Qatani and others. Here’s how I would alter Ondelette’s outline:

  • An illegal policy is adopted. 
  • The policy is implemented.
  • The policy is challenged.
  • The OLC is presented with the Hobson’s choice of authorizing the policy as already implemented.
  • The OLC writes an opinion.
  • The policy becomes ‘legal’.
  • A select few in Congress are notified about the policy, but only in broad outlines and under strict secrecy.

The OLC was repeatedly confronted with being asked to come up with a legal justification for a ‘vital’ program in the so-called War on Terror. Goldsmith’s descriptions of his interactions with David Addington are revealing. On one occasion, he quotes Addington thusly:

If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.

Waving the bloody shirt was even more effective for the administration internally than it was politically. Despite all of Cap’n Jack’s protestations to the contrary, he effectively caved to this pressure with his draft opinion of March 2004.

Rashul: Frayed Narratives

The Bush/Cheney Administration has been remarkably effective in creating a consistent false narrative that disguises the true nature of their regime and protects the perpetrators from being held accountable. In the case of Hiwa Abdul Rahman Rashul, there are some interesting holes in the cover story and breakdowns in the Administration’s execution of their standard game plan that leave an opening for an effective investigation. The first failure of execution was Goldsmith’s initial unwillingness to bless the rather obvious breach of the Geneva Convention. By bringing Rashul back to Iraq and hiding him from the ICRC, the administration engaged in conspiratorial conduct. By renewing the program of disappearing Iraqis to Afghanistan on the basis of a DRAFT opinion from Goldsmith, the administration showed that they considered legality nothing but a formality. Finally, the cleverest thing part of the Bush/Cheney Adminstration game plan for implementing their tyrannical policies was the way they implicated Congress in their actions by manipulating Congressional notifications. I suspect that Congress is in the clear on this one. During the Rumsfeld modified limited hangout presser there was this exchange:

            SEC. RUMSFELD:  And as we get more information, we’ll make it available.  The Congress has been briefed extensively on this, as I understand it.  No.

            MR. DELL’ORTO:  Not this particular case, as far as I know.

            MR. DIRITA:  Yes.  No, we’ve done some notifications to the staff on the Hill, both us and the CIA, with respect to the details of this particular case.  And as we get more, we will provide it.

That’s clear as mud. If there were notifications, it’s likely they were done in June 2004 rather than July 2003 when the deed was done.

In that same presser, Rumsfeld openly implicated himself and George Tenet in the coverup. The CIA OIG criminal referral implicates the highest levels in the DOJ. The available information leaves a number of avenues open for Congressional investigation. Might I suggest to Sen. Leahy that he add that criminal referral to the list of documents he’s been asking for? Indeed, I will. At the same time, I’ll remind the Obama camp of that promise they gave Will Bunch and that they will likely be in charge of all these records in a few months. I’ll also remind the folks here that our duty as citizens includes keeping the pressure on ‘our’ guys to do the right thing. I’m not naive enough to think that Obama will do much about any of this unless there’s some pressure. In fact, I’m old enough to remember that the best conditions for limiting Executive Branch power are when there is a Dem President and Dem Congress. We need to help Leahy, Levin, Waxman, and the rest that they need to keep pushing.

Here’s my bottom line. There’s plenty of evidence of war crimes for an international tribunal to start an investigation of Bush, Cheney, Rumsfeld, and the whole crew in February 2009. I think an international tribunal, as unlikely as it seems, would be a disaster. It would ignite a jingoistic furor in this country. These guys are our criminals and our responsibility. It’s time for America to face up to what we’ve allowed this country to become. Unraveling some this big has to start with a single thread. I think that thread just might be asking what happened to Hiwa Abdul Rahman Rashul and what are we going to do about it?

[UPDATE]

If you really want to understand what Cheney’s been up to the last eight years, you need to go back read the Iran-Contra Congressional Minority Report that he and David Addington wrote. The goal has always been as much about expanding Executive Branch power as anything else. I’m sure that Bush and Cheney get off on the torture, but for Cheney at least, that’s secondary to the effort to establish what is effectively an elected constitutional dictator. That’s another thing Cap’n Jack never understood. It was never really about protecting America from terrorists. It was about using that as an excuse to push the real agenda.

[WilliamOckham makes an excellent, and absolutely critical, point in the update paragraph immediately above about the overarching plan of Cheney to retake, and expand further, Executive Branch power that was spelled out in the Iran-Contra Congressional Minority Report. And that is exactly what we have been witnessing in the announcement by the Administration of last minute wild expansion of domestic spying and datamining capabilities, and as discussed in the two "FISA Redux" posts here and here. – bmaz]


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 brigade members. There is also a lot of excellent information and background at the blog Invictus (See: here and here for instance). Invictus is run by a chap known as Valtin, a practicing psychologist in Northern California who is very passionate and dedicated on these issues. It is about time that a professional group is serious about policing the lapses of their own; kudos to the APA members standing up on this issue.

For me though, the more germane interest is in what effect Zierhoffer’s, and others that will undoubtedly be following in her footsteps, invocation of the right against self incrimination will have on the Gitmo Show Trial Process, both as to Jawad and subsequent proceedings. i cannot discern that there is any reporting, as of yet, as to how the parties and court are going to deal with the substantial issue of a material fact witness, Zierhoffer, refusing to testify. It should create a profound commotion.

The traditional tried and true response from a competent criminal defense lawyer would be to immediately formally demand on the record that the prosecution provide the necessary level of immunity to negate the witness’s self incrimination potential (very much the same concept as has been seen in the Congressional hearings with Monica Goodling; remove their criminal exposure, and they no longer have grounds to refuse testimony). The standard prosecution response to this is "No". The next step is to then move the court to immunize the requisite witness and/or compel the prosecution to do so. The standard response from the court to this motion Is abject denial on the grounds that the court does not have that authority absent a request by the prosecution and, further, lacks the authority and discretion to order the prosecution to make such a request.

Having laid the prerequisite foundation described immediately above, the defense then moves the court to dismiss the charges against the defendant on the grounds that he has been denied his Sixth Amendment Confrontation Clause right to confront and cross examine witnesses and right to compulsory process for obtaining witnesses in his favor. There is a fairly high burden for the defendant to prove that the denied testimony is sufficiently material and central to his defense that he cannot adequately defend himself without it. This is a very simplified explanation and description, but hopefully is sufficient to give an indication of what to expect. The other caveat I would make is that my vignette is taken from a traditional Federal or state criminal case and the "relaxed" rules of procedure and evidence in the Gitmo Show Trials may portend additional problems to the interjection of this type of dismissal motion tactic.

It will be fascinating to see what the full impact of Zierhoffer’s refusal to testify is, both as to Jawad and later cases.

One other tangential goody I am going to throw in here just for grins. This again comes from Valtin at Invictus.

The depth and depravity with which the Bush/Cheney neocon warhawk aggressor machine has co-opted and corrupted the institutions, associations and professions that compose the fabric of this nation is simply astounding. The DOJ, the judiciary, the regulatory and administrative agencies and framework, private enterprise. They literally consume and soil every thing they touch. Here at Emptywheel, we have focused mainly on the institutions and, lately, the professions as to lawyers and now doctors and psychologists/psychiatrists. How bad is it, and how far have they gone? Well, now they have swallowed up Indiana Jones too. Yep, the Bushco Borg collective has assimilated the anthropologists. From a report by Hugh Gusterson at the Bulletin of the Atomic Scientists:

The Pentagon plans 26 Human Terrain Teams–one for each combat brigade in Iraq and Afghanistan. The five-person teams include three military personnel. Each team also includes an anthropologist–or another social scientist–who will wear a military uniform and receive weapons training. Described as doing "armed social work" by David Kilcullen, an Australian expert in counterinsurgency who advises Gen. David Petraeus in Iraq, the teams elicit information from villagers for Pentagon databases and provide cultural orientation to U.S. military leaders….

Last year, the Executive Board of the American Anthropological Association (AAA) issued a statement condemning the use of anthropologists in Human Terrain Teams….

One cannot grasp AAA’s concerns without understanding that anthropologists have a unique research method that brings with it special ethical responsibilities: We engage in what one anthropologist has called "deep hanging out" with people, passing the time with them, often day after day for months, painstakingly earning their trust and getting them to tell us about their worlds. What distinguishes anthropology from espionage (apart from anthropologists’ impenetrable jargon) is that we seek the consent of our subjects, and we follow an injunction to do no harm to those we study. According to the anthropological code of ethics, our obligations to those we study trump all others–to colleagues, funders, and nation.

Marvelous. This ought to present a whole new level and meaning to the concept of rewriting history, even for accomplished rewriters like the Bush/Cheney pack of rats. As Valtin observes:

Meanwhile, U.S. Army personnel are showing up at meetings of anthropologists and taking down names and institutional affiliations of anthropologists who had signed a public pledge not to participate in "counter-insurgency operations in Iraq or in related theaters in the ‘war on terror,’" believing that "anthropologists should refrain from directly assisting the US military in combat, be it through torture, interrogation, or tactical advice."

The U.S. ruling class’s mobilization of all layers of civil society for the fear-driven defense of the nation against "terror," is leading to the militarization of the society as a whole. We are already far down this path… too far, such that many sober observers would already call the United States "fascistic."

I would stop short of making that judgment, but we may be closer to it than anyone would like to think.

Our nation is in a world of hurt, and full public accountability for the malefactors that put us there is a large and necessary part of the cure. We need it now Ms. Pelosi; the sole substantive requirement of your sworn oath to office is to "support and defend the Constitution of the United States". Either quit being derelict in duty, and start honoring your oath and duty, or get out of the way for somebody that will.


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?

Dalton General Miller said it did not involve nudity.

McCaskill there’s nothing here that would say [limit] removal of clothing. It’s not in there.

Aside from the sheer idiocy of the claim, after watching both those hearings I was haunted by the seeming formulaic quality of the claim: removal of clothing is not nudity, removal of clothing is not naked, as if the repetition of the phrase would somehow divorce the actual nakedness seen everywhere in our torture regime from the authorization for that nakedness.

But a couple of passages from Jane Mayer’s book–describing the Standard Operating Procedures that came out of the approval–make it clear that the reason why the DOD approval doesn’t specify nakedness has more to do with the institution of "learned helplessness" rather than any carelessness about language. That is, the reason why DOD doesn’t put any limits on when removal of clothing becomes nudity is because the goal is to put the interrogator in complete control of the detainee. As Mayer writes:

A secret government document, which was originally written for use in Guantanamo, gave further credence to the Bush Administration’s official use of forced nakedness as a psychological weapon. "In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee," it said. The document advised interrogators to "tear clothing from detainees by firmly pulling downward against buttoned buttons and seams. Tearing motions shall be downward to prevent pulling the detainee off balance." (273)

She describes how this "removal of clothing is not nudity" translated for Abu Zubaydah (which, admittedly, did not rely on the DOD SOPs):

… the CIA interrogators also announced they planned to become Zubaydah’s "God." They reportedly took his clothing as punishment, and reduced his human interaction to a single daily visit in which they would say simply, "You know what I want," and then leave. (168)

You see, the word games these monsters are playing are all about playing "god" with other human beings. It’s not the status of nudity that they’re so much interested in. It’s the process, the power, the ability to remove another human’s clothing at will.


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 for future cases,” said Army Col. Lawrence Morris, the tribunals’ chief prosecutor.

Irony is a bitch when you are a Bush.

UPDATE: An additional portion from the bottom of the MSNBC report that I overlooked (h/t Frank Probst) when writing the initial post relates:

In addition to the other interrogations, the judge said he would throw out statements whenever a government witness is unavailable to vouch for the questioners’ tactics. He also withheld a ruling on a key interrogation at Guantanamo in May 2003 until defense lawyers can review roughly 600 pages of confinement records provided by the government on Sunday night.

This is incredibly significant. If Judge Allred follows through with this determination as stated in the above report, it is of unbelievable far reaching significance. Said position by Allred effectively indicates that all confessions by Hamdan (and arguably the remaining detainees when brought to trial too) will be presumed coerced or otherwise inadmissible without foundational testimony from a government officer or agent, with a sufficient nexus to the case to be credible, being made on the record. Although, at first blush, it would not seem to require live testimony, it would require a live human being going on the official record to vouch to a court of law that abusive actions/torture were not behind each and every statement by the defendant sought to be used. It is extremely hard to imagine who, at this point, is going to be willing to do that.

It is impossible to really nail down the exact parameters of Allred’s rulings, and the full scope of the implications therefrom, without being able to see the official language of the order or transcript. There is, however, preliminary reason to believe that this may be a game changing moment with monumental ramifications to the entire detainee trial process. There is, as stated above, no way that this will not bleed over to the DC District courtroom of Judge Thomas Hogan and his considerations of the Habeas petitions.

Cheney, Addington, and all of King George’s horses and men will be furiously seeking to have the Democratically controlled Congress serve their whims and bail them out again through legislation sanctioning and ratifying their unconscionable acts. As Marcy said:

Sadly, Mukasey knows he’s got a really compliant Congress going into an election season, a Congress which has shown absolutely no ability to withstand requests like this, even if they are transparently designed to help the Administration avoid consequences for its actions.

So what’s it going to be Democratic leadership? You have already sold out the American people and the Fourth Amendment to their Constitution with your craven cave on the FISA crimes; are you going to apply the coup de gras and sell out the Geneva Conventions, the Torture Conventions and basic humanity too?


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. In Laura Rozen’s discussion of Tim Starks’ coverage of the veto threat, she included this observation from him:

Since interrogation stuff is still in the Senate bill, and that’ll make it hard for that bill even to get to the floor, it may not ever get to a veto, because the bill may never get to the president at all,

As Starks points out, the anti-torture provision is still in the Senate bill–the one Levin has worked on in SSCI and SASC. As I said, I have no idea what might be in the Senate bill–and neither do the terrorists. But there sure seem to be some interesting goodies in that classified annex.


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.

Darrell Issa, making a series of parliamentary inquiries, which are not parliamentary inquiries, to remind everyone that Jane Harman and Nancy Pelosi were briefed on this. My understanding as a member of the Intell Committee. Let’s do it before Thursday.

Nadler: I’ll take suggestion–as a suggestion, bc motion would not be in order–under advisement.

King: Oh, by the way, I didn’t mean okay to torture.

Nadler: Dougie Feith. Phillipe Sands.

Hey! Dougie wasn’t too fucking stupid to turn on the microphone.

Dougie: Counter some falsehoods on Admin policies. The "torture narrative" unsubstantiated narrative that top members of Admin sanctioned torture. Hitting back at Sands hard.

Shorter Dougie: "I’m confident enough in getting pardoned before the end of the Administration that I’d rather say risk a lying to Congress charge than risk having people believe I’m as stupid as I am."

Shorter Dougie: "Fighting Soviet Russia was so much easier."

Shorter Dougie: "Torture is effective."

Shorter Dougie: "Blame the lawyers. I recognize, of course, I’m a lawyer. But that doesn’t mean I think like a lawyer."

[Missed some fireworks while I was at the mothership]

Issa: Been to Gitmo? At hearings in HPSCI? Were enhanced techniques discussed?

Dougie: I believe so.

Issa: Harman was aware of some of the techniques?

Dougie: I believe so.

Issa: What Iraqi govt allowed to be done to our troops? By Al Qaeda?

Issa: Anyone know of knowledge to counter the claim that Harman and Pelosi were briefed?

Davis: Issa had a clever set of questions that Speaker and former Ranking member had some knowledge of this. Members of Congress cannot share with their colleagues stuff they learned on the Committee.

Issa; Yield?

Davis: Nope. The issue is not whether certain members of leadership were given a briefing that they couldn’t share with their colleagues. I think it is in dispute that that did not happen (Bush consult with Congress). At no point did Bush come to Congress and ask Congress to help shape policy on interrogations.

Davis: Here’s the Constitution. It’s really nifty. Congress shall provide for the common defense. Why the US Congress should not have had a role in shaping detainee policy.

Dougie: I believe Congress did have a role.

Davis: How can issues be addressed, how can Congress have a role of policy debate is confidential and intelligence committee members cannot share with their colleagues. Has to be transparency.

Dougie: President’s statement on Geneva Convention was public to the world. If you wanted to engage in that?

Davis: Professor Sands, is that true it was on the record?

Sands: News reports, but what had not come out was the decision to move to abandon Lincoln’s prohibition on cruelty.

Davis: This is the point I think you miss. The issue is what those words meant in practice. It was an impossible debate to have. It was only shared after 3 years of newspaper reporting.

Pence: Not always in agreement with your interpretation of events in recent years, but I’m grateful for your service. I have to be honest with you, went to law school. Try to not think like a lawyer.

Debbie Wasserman Schultz: Hammering on techniques.

D WS Did these discussions discuss whether these techniques accorded with Geneva Convention? Was your advice ignored?

Dougie: Bush follwoed GC.

D WS Role in working group? Role of OLC advice.

D WS Newsweek, urgent email not to discuss Taguba report.

Dougie: Doesn’t ring any bells. Maybe sent by someone in my office.

D WS You’re saying Newsweek report is inaccurate. Never seen any email like that?

Dougie: I don’t remember. I was completely surprised when I read that.

Nadler: When you saw Newsweek report that, you didn’t check into it?

Dougie: I only remember hearing about it when I read Pearlstein’s testimony.

Ellison: Do you concede that people designated as POWs are subject to questioning?

Dougie: No form of coercion to secure information of any kind.

Ellison: You agree they can be questioned. In an earlier hearing, we had Wilkerson. I heard you objected because of his presence?

Dougie: Laid out in letter…

Ellison: I want to know.

Dougie: Accused me of being card-carrying member of being Likud party, loyalty to Israel rather than US. He made other nasty statements too.

Ellison: I don’t care if you’re interested.

Dougie: I think that remark in and of itself explains why he was not an appropriate person. I believe he’s made reckless remarks describing top officials as war criminals. He said he had to violate the rules not to shoot a 12 year old girl.

Ellison: Is there anything he said about YOUR role?

Dougie: He’s lumped me in with others in Administration about war crimes?

Ellison: I’m trying to figure out

Franks: Regular order–he’s badgering a witness.

Nadler: We’re not in court.

Ellison: What is the factual basis for refusing to participate. I’m trying to get the facts about why he wouldn’t appear.

Dougie: Here’s what my lawyer said. What should neither be expected or tolerated are the kinds of personal attacks.

Ellison: You’ve made it clear, personal invective. In your book, you said AG Ashcroft said that prisoners could not be effectively interrogated under GC.

Dougie: I think he was referring to POW.

Ellison: But you’ve already said they could be interrogated. Did he say tell you prisoners could not be effectively interrogated. Do you know why he was under impression they could not be interrogated effectively?

Dougie: General view?

Ellison: Another minute?

Issa:  Object. [the he recalls objection]

Ellison: Why not effective interrogation.

Dougie: No inducement positive or negative. No cigarettes.  


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. The only case so far that has been prosecuted in the criminal courts is that involving David Passaro—a low-level CIA contractor, not a full official in the Agency. Why have there been no charges filed? It’s a question to which one would expect that Congress and the public would like some answers. Sources suggested to me that, as you imply, it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned. Chertoff’s role in particular seems ripe for investigation. Alice Fisher’s role also seems of interest. Much remains to be uncovered. [my emphasis]

This report Mayer and Horton are discussing is the same one that I talked about repeatedly in my tracking of the torture tape disappearance.

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.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

In that context, I was mostly interested in the remarkable coincidence of timing. The report was first done on May 7, 2004–almost the same time as Gonzales, Belllinger, and David Addington had a briefing at which the destruction of the torture tapes was discussed. And Doug Jehl had published the most comprehensive account of the IG report (that is, before Mayer’s book came out) on November 9, 2005, within days of when the torture tapes were destroyed. In short, I have argued in the past, that IG report and the leaks about it in November probably had as much to do with the torture tape destruction as Dana Priest’s article on the black sites.

And now we learn that Cheney was harassing Helgerson in 2004, around the same time as Cheney’s counsel was discussing destroying the torture tapes. That’s rather curious timing, don’t you think?


Senator Levin to Do Live Chat on Ongoing Senate Investigation into Detainee Abuse at 11 ET Tuesday

levinhighres.thumbnail.jpgWe had a very engaged liveblog discussion during the Senate Armed Services Committee’s hearing on Detainee Abuse a few weeks ago. Tomorrow, the Chair of the Committee, Senator Carl Levin, will do a live chat at FDL to talk about the next steps in the Committee’s investigation. Senator Levin will join us at 11 AM ET on Tuesday.

In his statement from that earlier hearing, Levin gave a detailed description of how DOD adapted its SERE training techniques for use on prisoners.

So, how did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep, and blasted music at them. Were these actions the result of “a few bad apples” acting on their own? It would be a lot easier to accept if it were. But that’s not the case. The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees. In the process, they damaged our ability to collect intelligence that could save lives.

Today’s hearing will explore part of the story: how it came about that techniques, called SERE resistance training techniques, which are used to teach American soldiers to resist abusive interrogations by enemies that refuse to follow the Geneva Conventions, were turned on their head and sanctioned by Department of Defense officials for use offensively against detainees.

During June’s hearing, a lot of new questions were raised (and DOD General Counsel Jim Haynes proved to have as fuzzy a memory as every other senior Bush official). Tomorrow, join us to talk with Senator Levin about how the investigation will move forward.

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Originally Posted @ https://www.emptywheel.net/torture/page/102/