Ashcroft versus CIA

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When I read the CIA IG Report yesterday, I thought to myself, "Of course! They didn’t investigate all the instances when torturers exceeded the Bybee Two memo description of waterboarding because John Ascroft approved of them."

I got that from reading the following passages:

On 29 July 2003, the DCI and the General Counsel provided a detailed briefing to selected NSC Principals on CIA’s detention and interrogation efforts involving "high value detainees," to include the expanded use of EITS.28 According to a Memorandum for the Record prepared by the General Counsel following that meeting [which was dated August 5, 2003], the Attorney General confirmed that DoJ approved of the expanded use of various EITs, including multiple applications of the waterboard.29 The General Counsel said he believes everyone in attendance was aware of exactly what CIA was doing with respect to detention and interrogation, and approved of the effort.

[snip]

The Review determined that the interrogators used the waterboard on Khalid Shaykh Muhammad in a manner inconsistent with the SERE application of the waterboard and the description of the waterboard in the DoJ OLC opinion, in that the technique was used on Khalid Shaykh Muhammad a large number of times. According to the General Counsel, the Attorney General acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DoJ opinion and the authority given to CIA by that opinion. The Attorney General was informed the waterboard had been used 119 times on a single individual. [my emphasis]

But John Ashcroft disagrees with that representation, as relayed in a June 18, 2004 letter from Jack Goldsmith to George Tenet.

Dear Director Tenet:

I am writing at the Attorney General’s request concerning a report that that [sic] the Inspector General of the CIA has recently forwarded to your office. The Department of Justice did not have an opportunity to review a draft of the report and instead only had a chance to review the final report after it had been forwarded to your office.

The Department of Justice believes that the report contains some ambiguous statements concerning the Attorney General’s remarks at a 29 July 2003 meeting of selected NSC principals that should be clarified and that it contains some statements that mistakenly characterize the extent of advice provided by the Department.

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Condi’s Okay Came After OLC Approval

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Here’s an interesting data point.

On July 13, 2002, representatives of CIA’s Office of General Counsel (probably John Rizzo) met with John Bellinger, John Yoo, Michael Chertoff, Daniel Levin, and Alberto Gonzales for overview of interrogation plan. That very same day, Yoo wrote Rizzo, generally laying out the logic he would use in the later memos approving the program. He wrote:

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental pain or suffering, he would not have acted with the specific intent necessary to establish torture.

Four days later, Condi told George Tenet the "CIA could proceed with its proposed interrogation of Abu Zubaydah … subject to a determination of legality by OLC."

In other words, OLC had already given CIA a pretty broad okay before Condi gave Tenet the policy okay.

One more detail of interest. Note the redacted name on the second page of the letter–perhaps as long as 16 characters long. That’s too long to be Jay Bybee or Pat Philbin (though it could be Patrick Philbin). Though it’s probably long enough to be either Robert Delahunty (who had partnered with Yoo on some other crazy opinions by that point) or David Addington. Or, heck, even Alberto Gonzales. Whose role in the torture approval process is DOJ trying to hide?

Update: One more detail of interest. On June 22, 2004, the same day Goldsmith, Comey, and Philbin withdrew the Bybee Memo, John Rizzo sent this earlier approval to Philbin. That seems to suggest that Philbin did not know about it and may even suggest that it wasn’t in OLC’s records (though Philbin, by that point, worked under Comey at DAG. 

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Those Undated “Legal Principles”

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

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

June 16, 2003: Faxed from CTC to Patrick Philbin

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

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

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

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

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

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

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

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Abu Zubaydah’s Psychological Profile

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One of the things we got in yesterday’s document dump is the psychological profile which John Yoo used to assert that Abu Zubaydah was fit to be tortured. There are four key details of it:

The Date

This document was faxed to John Yoo on July 25, 2002 at 5:04 PM (it was dated July 24), the day after OLC verbally authorized a number of the torture techniques used on Abu Zubaydah. But of course, they had already subjected him to two months of enhanced treatment–we know, for example, that they at least threatened to use the confinement box with him in May.

Which raises several questions. First, did they do any psychological profile before they first subjected him to sleep deprivation and isolation and confinement? Or did they just do one when OLC needed it to pretty  up the OLC opinion authorizing torture?

Also, how much of what it records is itself a reflection of this earlier torture? For example, when they cite Zubaydah admitting he lies,

He said, "I lie, lie, lie, lie, lie, lie, and lie."

Was he referring to something he did before he was captured–or after? Were they taking his retraction of things he said under coercion as proof that he was more generally a liar? (The context suggests it was before, but I’m not sure I buy that.)

No Apparent Mention of Abu Zubaydah’s Head Injury

There are two complete paragraphs redacted and significant other redactions here, so it may be they’ve redacted all discussion of whether a prior, serious head injury ought to preclude someone from torture. But in what is unredacted, there is no mention of his head injury. So, for example, the section on "Emotional/Mental Status/Coping Skills" starts with this claim:

Overall, subject’s background as revealed by self-report (including diaries and interview) does not indicate that he has a history of mood disturbance or other psychiatric pathology. Indeed, his reported and known history indicates that he is remarkably resiliant and confident that he can overcome adversity. During the occasions that he experiences increased stress and/or low mood, he may become somewhat more withdrawn, melancholy, and reflective. However, the shift in mood will likely last a relatively short time. He denies and there is no evidence in his reported history of thought disorder or enduring mood or mental health problems.

Keep in mind, if this assessment was done in July, then the "somewhat more withdrawn" periods mentioned refer to his response to prior abuse!! We know that twice, after Mitchell took control of his interrogation and subjected him to abuse, he stopped talking. But this is how the failure of past abuse got translated into his profile for OLC.

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Where Is the “Legal Principles” Document?

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One of the most important–but least sexy–passages revealed in yesterday’s release of the IG Report is this one, on page 22.

OGC continued to consult with DoJ as the CTC Interrogation Program and the use of EITs expanded beyond the interrogation of Abu Zubaydah. This resulted in the production of an undated and unsigned document entitled, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel.27 According to OGC, this analysis was fully coordinated with and drafted in substantial part by OLC. In addition to reaffirming the previous conclusions regarding the torture statute, the analysis concludes that the federal War Crimes statute, 18 U.S.C. 2441, does not apply to Al-Qa’ida "Because members of that-group are not entitled to prisoner of war status. The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war." It also states that the interrogation of Al-Qa’ida members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. Finally, the analysis states that a wide range of EITs and other techniques would not constitute conduct of the type that would be prohibited by the Fifth, Eighth, or Fourteenth Amendments even were they to be applicable:

The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.

According to OGC, this analysis embodies DoJ agreement that the reasoning of the classified 1 August 2002 OLC opinion extends beyond the interrogation of Abu Zubaydah and the conditions that were specified in that opinion. [my emphasis]

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Societe Nationale Industrielle Aerospatiale, Or the Geneva Convention

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I’m being a bit silly now–checking my email before I go to bed (the recently successful mr. ew is watching Nimoy on Next Generation so I can sneak away). And I’m not a lawyer. But I’ve got a suspicion that Steven Bradbury invoked the "Societe la la la" to suggest the Geneva Convention was meant to be read even more literally than its words.

That’s my initial take, anyway, from reading his August 31, 2006 Letter to John Rizzo about detainee treatment.

Here’s one example:

More specifically, the prohibition in subparagraph (a) on "violence to life an person" suggests that not all physical contact with detainee is banned; the word "violence" connotes "an exertion of physical force so as to injure or abuse."

In case you’re wondering, Steven Bradbury, who wrote this, is currently a Partner at Dechert, Scooter Libby’s old firm.  The phone number there is (202) 261-3300.

The ACLU got several more late Bush Administration documents in today’s document dump:

August 31, 2006 Memorandum to Rizzo from OLC concerning Application of Detainee Treatment Act to Conditions of Confinement

2007 OLC opinion on Interrogation Techniques

August 23, 2007 Letter from OLC to CIA

November 6, 2007 Letter from OLC to CIA

November 7, 2007 Letter from OLC to CIA

June 11, 2009 Memorandum for the Attorney General written by David Barron

(All but the last of which–if you’re on hold with Dechert–were written by Steven Bradbury.) I’ll be reading all these tomorrow. But in the meantime–if you need a hobby–here they are.

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Feinstein Issues Statement On IG; Misunderstands Army Field Manual

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Senator Dianne Feinstein of California has issued an official statement "On Release of Documents Related to CIA Interrogation and Detention Program and Renewed Commitment to Army Field Manual Standard for Interrogations":

“The documents released today provide evidence that the CIA detention and interrogation program exceeded its authority as follows:

· Beating a detainee in Afghanistan, who later died in custody, with a heavy flashlight;
· Threatening a detainee with a handgun and a power drill;
· Staging a mock execution;
· Threatening to kill a detainee’s family;
· Choking a detainee to the point of unconsciousness;
· Applying waterboarding in ways that beyond what the Office of Legal Counsel had authorized, and not informing OLC of how waterboarding was being done in practice prior to the Inspector General’s report.

The IG report also noted a case in which the interrogators at a ‘black site’ recommended ending the use of enhanced interrogation techniques on a detainee, but were overruled by officials at CIA headquarters and told to resume waterboarding the detainee.

I first learned of this and other IG reports, starting in September of 2006. I expressed significant concern with the program and introduced legislation in 2007 to limit CIA interrogations to techniques authorized by the Army Field Manual. This provision was passed by Congress in 2008, but was vetoed by President Bush. I reintroduced this legislation in January.

President Obama has committed to requiring that the CIA only use the proven and effective interrogation techniques authorized by the Army Field Manual, and I strongly agree with that position.

The Senate Intelligence Committee is conducting a comprehensive, bipartisan study of all aspects of CIA’s detention and interrogation program. This study includes how the program was created and operated, how it was briefed to the Congress and other parts of the Executive Branch, its compliance with guidance from the Department of Justice, and the information produced. The study is ongoing. We have reviewed thousands of documents on a number of high-value detainees, and will review the cases of all such detainees.

The Committee’s study will continue until we complete our work, regardless of any decision by Attorney General Holder on whether to proceed to a criminal investigation. I Read more →

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Cheney’s Cherry-Pick

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picture-126.thumbnail.pngWIndy has put the two documents Dick Cheney wanted released up (or go to CCR’s somewhat clearer versions).

The most important thing to understand about these documents–aside from the very, um, finished feel that graphics like the one on the left give it–is the timing. The first one came just after (July 17, 2004) the release of the IG Report and was, significantly, an attempt to rationalize the torture program. And the other came at a time (June 3, 2005) when Congress was increasingly pressuring the Administration to bring the torture program under CAT guidelines prohibiting cruel and inhuman treatment.

So they’re big PR pieces, boasting of how important KSM is to their fight against terror, boasting of how much information they’ve gotten from detainees. 

The pieces do (and I suspect would even more so if not so heavily redacted) sort of contradict themselves. For example, the 2005 document reveals that "almost immediately following his capture in March 2003, [KSM] elaborated on his plot to crash commercial jets into Heathrow."

The IG Report, in its section on efficacy, says, 

On the other hand, Khalid Shaykh Muhammad, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete.

So which is correct? The claim, made in 2004, that this early info was outdated? Or the claim made in 2005 that it was worthwhile?

As Center for Constitutional Rights lawyer Gitanjali Gutierrez says of them:

These are the documents Dick Cheney was so excited to see declassified, but they don’t make the case for torture, they only show that the CIA is able to tailor documents to justify its actions after the fact. The descent into torture has made the world a darker and more dangerous place for everyone.

Have fun with these. I’m going to head out and do some drinking to celebrate mr. ew’s very successful defense of his Master’s Thesis today. I’ll have way more on all this tomorrow.

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Holder Announces the Investigation

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And notes some will be unhappy that he has initiated the review. But doesn’t consider those of us who smell a whitewash.

I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review. Mr. Durham, who is a career prosecutor with the Department of Justice and who has assembled a strong investigative team of experienced professionals, will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.

There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not Read more →

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Durham to be Torture Special Prosecutor

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And thus the whitewash starts.

Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to the sources, who spoke on condition of anonymity because the process is not complete.

Durham’s mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

As I said in my panel at Netroots Nation, we’ll know a lot about whether Holder intends to do a real investigation, or just a whitewash investigating the Lynndie Englands, by the stature of the prosecutor he names. And while Durham is already neck deep in the investigation of torture on the torture tapes, he doesn’t necessarily have the stature to go after–say–Jim Haynes and John Rizzo for setting up the torture regime.

I guess Holder wasn’t that serious about investigating torture after all. 

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