The Politico presents yet another chapter in their serialized he-said-she-said story about whether or not Nancy Pelosi should have and could have objected during the torture briefing she got in fall 2002, once again ignoring the clear evidence that CIA did not notify Congress of actions they had already taken, as required by law.

Nancy Pelosi sat down with CNN’s Candy Crowley tonight and gave her most detailed — and passionate — explanation of her muted behavior during an initial classified briefing on enhanced interrogation procedures in 2002.

Crowley — a tough, well-informed and underrated interviewer — kicked it off by asking the Speaker about about a column by former CIA director and ex-House intel chairman Porter Goss accusing Democrats of collective "amnesia" for urging investigations of waterboarding after remaining relatively mute during those first classified briefings.

PELOSI: Well, first of all, let me say that perhaps we do live in an alternate universe, Porter and I.

Porter’s orientation is that he was a member of the CIA before he came to Congress and he speaks now as a former director of the Central Intelligence Agency.

CROWLEY: Is he wrong?

PELOSI: Perhaps he is seeing it from his perspective. If they say we have a legal opinion, it means we’re going to use it. That’s not how I heard it. They said they had a legal opinion. They said they weren’t going to use and when they did they would come back to Congress to report to us on that. But that’s how I heard that.

[snip]

Crowley then asked why she didn’t raise objections to the briefers, which riled up the Speaker.

PELOSI: To what end? To what end? No, we’re not — they didn’t say they were doing it. But you know what, I’m not getting into that. The fact is, is that I know what they told us and I know that they did not share our values.

So any briefing that you would get from the Bush administration on the subject is one that is probably something you’re not going to agree with, and two, maybe not the whole truth anyway.

Glenn. Let’s play a little "find the criminal conduct in a stupid beltway interview" game, shall we?

I’ll grant that Nancy Pelosi disagrees with Porter Goss and Crazy Pete Hoekstra on whether or not her complaints about the CIA said it would–in the future–torture would have been effective. I understand that that kind of thing apparently gets your ‘Nads off. 

But do you see that Pelosi is saying the Administration was not giving the whole truth here? Have you thought about what she might be referring to? Here’s a hint–an assertion with which Goss’ comments do not disagree (Hoekstra’s are irrelevant because he wasn’t in that briefing).

they didn’t say they were doing it

The CIA came before the Gang of Four, after they had already waterboarded Abu Zubaydah 83 times in a month, and told the intelligence leaders that they had an opinion that would allow them, in the future, to torture. But they didn’t tell Congress they had already been in the business of torture for at least a month. The Bush Administration and the CIA failed to fulfill their legal obligation to notify Congress before it engaged in this kind of activity–hell, they didn’t even notify them after they had engaged in it, not for some months afterwards.

I get that you like he-said-she-said. But you’d think you might spare some interest in the failure to comply with the law sitting right in front of your face.

But I guess real crime isn’t as fun for you as stupid beltway disputes, huh?

NYT has what might be billed as a blockbuster article: JAY BYBEE REVEALS ALL!!!

Except that the article appears to be nothing more than a legalistic CYA statement which I’m sure his hotshot lawyer Maureen Mahoney had a hand in:

Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented “a good-faith analysis of the law” that properly defined the thin line between harsh treatment and torture. 

[snip]

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

The article even reveals why Maureen Mahoney might have encouraged Judge Bybee to issue a statement–to retract comments made by his friends that he regretted the memos.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect.

Of course, Bybee has to claim a "good faith analysis of the law"–that’s his only defense.

But if he’s invoking the other lawyers in the Administration who agreed with the memo–undoubtedly including David Addington, John Yoo, Alberto Gonzales, Jim Haynes, and John Rizzo–that’s not much of a defense. He’s arguing, basically, that a set of lawyers called the "War Council" for the way they collaborated in private on institutionalizing torture, believe his (Yoo’s) memos authorizing torture in spite of the the law and the bogus facts used in the memo was "legally correct." Most children, if you ask them if they like candy, will enthusiastically say they do, too.

And to suggest the stakes of this are important "no matter our opinion" is pretty disgusting, since it suggests Bybee still believes that issuing an opinion that forced the country to stick to proven methods at extracting the truth (rather than false information) would have been a sacrifice for our country. No, authorizing torture and ensuring we get false intelligence and sacrifice our moral standing in the world? That’s significant. But insist that the government follow the law and in so doing, end up getting better intelligence quicker? Yeah, I guess that’s significant, but only when you consider the disaster that Bybee could have averted.

I know John Yoo and Steven Bradbury are in trouble for their role in the torture memos. But this article makes it clear just how worried Bybee is–and how much trouble he believes he may be in.

Russ Feingold just had a conference call to announce his release of a report card grading Obama’s first 100 days in office. (The report card gives Obama a "some good, some bad, some too early to tell" grade.)

While he applauded the efforts the Obama Administration has made to end torture and to restore a presumption of release under FOIA, there were two areas where Feingold had particular complaints: State Secrets and the disclosure of information to the intelligence committee.

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program.

His second major complaint, while less specific (for obvious reasons), was more revealing. He said there was not yet enough disclosure to members and staffers on the intelligence committees. While he said the Obama Administration is clearly more open than the Bush Administration, he suggested the intelligence community was still "stonewalling and roadblocking" information to the committees. He did note, however, that he can’t assess whether the Obama Administration is using the Gang of Eight process properly as he’s not part of the Gang of Eight. He did argue, though, that there are few things that shouldn’t be briefed to the entire intelligence committees. It seems that’s not currently happening.

In a related point, he said the Administration has an opportunity–one it hasn’t taken yet–to fix overclassification problems. He suggested the Administration could–but hadn’t–return to policies practice on classification under the Clinton Administration.

A Milwaukee reporter–who seemed to reflect a divided local response on the release of the torture memos–asked about what he thought of the release. Feingold said the Administration got "real [high?] marks for having the courage to release these memos." He specified, however, that the Administration still should release the 2006 and 2007 memos on torture that we haven’t yet seen.

It sounds like those memos may be just as appalling as what we’ve seen so far.

He also made clear that the memos authorizing the warrantless wiretap program have not been released and remain in effect. I guess we shouldn’t be surprised, then, that the NSA continues to follow the same domestic wiretapping practices it did under the Bush Administration.

Earlier today, I showed that Jim Haynes personally pushed the SERE people to come up with some materials on waterboarding on July 25, 2002, just one day after OLC had given CIA clearance to use some–but not all–of the techniques they had asked for. The same day Haynes got that information and forward it to OLC (or had John Rizzo do it, depending on whom you ask), OLC approved the use of waterboarding.

I wish I had read this passage from this Charlie Savage story before I wrote that post.

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

This is the second time we’ve heard about emails.

Emails.

Hahahahahaha!

Imagine there were emails between–say, Addington–and Yoo, discussing what it would take to get Bybee to sign off on the torture memos? Imagine those emails were dated July 25, 2002, the same day that Haynes was pushing  JPRA to come up with some description of waterboarding that–since we did it to our own Navy men, could get past the bar of legality.

I want these guys to pay for their crimes. But I’d take special pleasure if they somehow didn’t manage to destroy all the emails. 

There’s a weird detail in John Yoo’s prepared testimony for last year’s House Judiciary Committee hearing on Assholes Who Torture. He claims the National Security Council (so, presumably John Bellinger or Condi or her boss) ordered OLC not to let on what it was doing to either State or Defense.

In particular, the offices of the CIA general counsel and of the NSC legal advisor asked OLC for an opinion on the meaning of the anti-torture statute. They set the classification level of the work and dictated which agencies and personnel could know about it. In this case, the NSC ordered that we not discuss our work on this matter with either the State or Defense Departments. 

To be fair, Yoo is referring to the production of just the Bybee One memo–the one requiring torture to rival organ failure or death–and not the recently-released Bybee Two memo–the one detailing the techniques in question.  And from reviewing the hearing now that Bybee Two has been released (trust me, I mean it when I call it the hearing on Assholes Who Torture), it’s clear that Addington and Yoo both maintained a clear distinction between the two memos (in Addington’s case, for example, he did so to avoid admitting he had discussed torture techniques with the folks in Gitmo.)

So it’s possible that Yoo was only ordered to keep this memo secret from DOD; it’s possible Condi knew the techniques memo was basically a group project for the torture kids over at Defense and CIA. 

But with this weird detail in mind, I find another weird detail from the Senate Armed Services Report even weirder.  Both DOD’s Jim Haynes and CIA’s John Rizzo kind of sort of take credit for passing the material from JPRA to Yoo and friends at OLC. Here’s Haynes:

Mr. Haynes also recalled that he may have been "asked that information be given to the Justice Department for something they were working on," which he said related to a program he was not free to discuss with the Committee, even in a classified setting.

And here’s Rizzo:

According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice.

These aren’t necessarily contradictory. Maybe Haynes said to Rizzo, "I don’t have any reason to go over to DOJ right now, and besides, I’m pre-emptively hiding from all prosecutors. Can you bring it over?" (Though it seems like it’d be Rizzo’s job to "vehicle" it over anyway, since it was his agency asking for the torture okay.)

But the possibility that Condi didn’t know DOD and CIA were working hand in "take the gloves off" on torture, plus the squirmy way Haynes and Rizzo appear to want to hide who actually brought the documents over, makes me wonder how much Condi is discovering in the SASC report.

It goes without saying, though, that I’m thoroughly unsurprised they left State out of the torture loop.

Mostly because I want to point you all to the newly updated Torture Timeline, I want to make a point about the timing of the decision to torture Abu Zubaydah.

At least according to the Senate narrative, they started discussing torture plans for Abu Zubaydah after February  22, 2002–when DIA first questioned Ibn Sheikh al-Libi’s claim of a tie between Iraq and al Qaeda that derived from torture. And they signed the Bybee Memo the day after the second DIA report questioning al-Libi’s Iraq-al Qaeda ties. 

The intelligence reports from al-Libi’s torture, of course, were used (in spite of DIA doubts about them) as a central claim in Colin Powell’s speech to the UN a year later.

I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to al Qaeda.

Fortunately, this operative is now detained, and he has told his story. I will relate it to you now as he, himself, described it.

This senior al Qaeda terrorist was responsible for one of al Qaeda’s training camps in Afghanistan.

His information comes firsthand from his personal involvement at senior levels of al Qaeda. He says bin Laden and his top deputy in Afghanistan, deceased al Qaeda leader Mohammed Atef, did not believe that al Qaeda labs in Afghanistan were capable enough to manufacture these chemical or biological agents. They needed to go somewhere else. They had to look outside of Afghanistan for help. Where did they go? Where did they look? They went to Iraq.

The support that (inaudible) describes included Iraq offering chemical or biological weapons training for two al Qaeda associates beginning in December 2000. He says that a militant known as Abu Abdula Al-Iraqi (ph) had been sent to Iraq several times between 1997and 2000 for help in acquiring poisons and gases. Abdula Al-Iraqi (ph) characterized the relationship he forged with Iraqi officials as successful.

In other words, they were getting false information from torture–the false information they would use to bring us to war with Iraq–at the same time as they were devising their plan to torture Abu Zubaydah. 

Here’s an excerpt of the full timeline.

September 17 (alternately, 15), 2001: Bush signs Memorandum of Notification authorizing CIA to capture, detain, and interrogate al Qaeda figures.

October 21, 2001: OLC memo eviscerating 4th Amendment. 

December 17, 2001: DoD OGC asks JPRA for information about detainee "exploitation."

December 2001 or January 2002: James Mitchell asked Bruce Jessen to  review documents describing al Qaeda resistence training. They generated a paper on al Qaeda resistence capabilities and countermeasures.

December 18, 2001: Ibn Sheikh al-Libi captured. After being tortured, al-Libi made up stories about Al Qaeda ties to Iraq.

December 27, 2001: Rumsfeld announces plans to hold detainees at Gitmo. 

January 20, 2002: Bybee to Abu Gonzales memo specifying that common article 3 of the Geneva Convention does not apply to "an armed conflict between a nation-state and a transnational terrorist organization."

January 25, 2002: Gonzales memo for Bush recommends against applying the Geneva Convention to enemy detainees.

January 2002: Supplemental Public Affairs Guidance on Detainees affirms Geneva Convention wrt media photographs.

February 2, 2002: William Taft argues for the application of Geneva Conventions.

February 12, 2002: Jessen sends paper on al Qaeda resistance capabilities to JPRA commander Randy Moulton.

February 22, 2002: DIA voices doubts about al-Libi’s claims of Iraq-al Qaeda ties.

March 28, 2002: Abu Zubaydah taken into custody.

March 29, 2002: James Mitchell closes consulting company, Knowledge Works, in NC.

March 31, 2002: Abu Zubaydah flown to Thailand.

April 2002: CIA OGC lawyers begin conversations with John Bellinger and John Yoo/Jay Bybee on proposed interrogation plan for Abu Zubaydah. Bellinger briefed Condi, Hadley, and Gonzales, as well as Ashcroft and Chertoff.

April 16, 2002: Bruce Jessen circulates draft exploitation plan to JPRA Commander.

May 2, 2002: The US "un-signs" the International Criminal Court treaty.

May 8, 2002: Jose Padilla taken into custody based on material warrant signed by Michael Mukasey and based on testimony from Abu Zubaydah.

Mid-May 2002: CIA OGC lawyers meet with Ashcroft, Condi, Hadley, Bellinger, and Gonzales to discuss alternative interrogation methods, including waterboarding.

June 25, 2002: Moussaoui arraigned.

July 10, 2002: Date of first interrogation report from Abu Zubaydah cited in 9/11 Report.

July 13, 2002: CIA OGC (Rizzo?) meets with Bellinger, Yoo, Chertoff, Daniel Levin, and Gonzales for overview of interrogation plan.

July 17, 2002: Tenet met with Condi, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

Late July 2002: Bybee discusses SERE with Yoo and Ashcroft.

July 24, 2002: Bybee advised CIA that Ashcroft concluded proposed techniques were legal.

July 26, 2002: Bybee tells CIA waterboarding is legal. CIA begins to waterboard Abu Zubaydah.

July 31, 2002: DIA issues second report doubting al-Libi’s confession of Iraq-al Qaeda ties.

August 1, 2002: "Bybee Memo" (written by John Yoo) describes torture as that which is equivalent to :the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

There’s an interesting footnote in the Senate Report on Torture that suggests Jim Haynes personally went fishing for a description of waterboarding so it could be added to techniques approved by OLC.

Footnote 179–describing JPRA (the SERE people) receiving a request for descriptions of SERE techniques from DOD’s Office of General Counsel reads,

Committee staff interview of Lt Col Daniel Baumgertner (August 8, 2007); see also email from Col Moulton to [redacted] (June 30, 2006) ("We [JPRA] initially received a call from OSD General Counscil (sic) requesting information about resistance techniques used against U.S. POWs. I believe this was early in Operation Enduring Freedom. We were requested to provide that information within hours and were authorized by JFCOM to forward it to OSD. … Once we understood what OSD/GC was looking for, we provided a[] list of techniques.")

There are several things about this note. Colonel Randy Moulton, the head of JPRA, presumably in response to a DOD IG request, seems to refer to the December 2001 request from DOD’s General Counsel (since that would have been "early in Operation Eduring Freedom"). He goes on to describe the process by which Jim Haynes’ office asked for a list of techniques, suggesting that JPRA at first didn’t understand what Haynes’ office was looking for. And note the bracket: "a[] list of techniques." That suggests a word beginning with "a" was shortened–the most likely possibility being "another." That suggests that JPRA may have submitted a list of techniques, subsequently learned that Haynes’ office was looking for something else, and then submitted a second set of techniques. 

That’s interesting because there’s a difference of recollection between Richard Shiffrin, then DOD Deputy General Counsel in charge of Intelligence, and Daniel Baumgartner, Chief of Staff for JPRA, that pertains to these requests.

First, the timeline the SASC Report describes surrounding the list of techniques is:

July 25, 2002: Shiffrin requests information  for a "list of exploitation and interrogation techniques" from Baumgartner.

July 25, 2002: Baumgartner writes a memo in response to Shiffrin including lesson plans and describing JPRA’s expertise on exploitation.

July 25, 2002: "Prior to the memo being delivered" to the General Counsel’s office, Shiffrin calls Baumgartner again to ask for additional information, including a list of techniques used by JPRA at SERE school.

July 25, 2002: The memo is "delivered to Deputy General Counsel Richard Shiffrin by a JPRA employee." 

DoD General Counsel Jim Haynes did not recall whether or not he saw the memo at the time, but said that "in all likelihood," he would have received the memo, and that the timing of the memo coincided with his recollection of his meeting with JPRA personnel.

July 26, 2002: A second memo completed and delivered to Haynes’ office. This memo–with attachments including a list of techniques, a memo on psychological effects of SERE techniques, and the CYA memo noting that torture is unreliable–would be sent to DOJ and CIA, and would eventually serve as the basis for the August 1, 2002 OLC memo authorizing torture.

Now onto the difference of recollection between Shiffrin and Baumgartner expressed at the SASC hearing on this last summer. Baumgartner claims that Shiffrin called, the July 25 memo including psychological interrogation plans was delivered, Shiffrin called back, then "a few days later" Shiffrin called back and asked for a list of physical pressures. 

With respect to Mr. Shiffrin’s July 2002 request, he contacted the JPRA and asked for information on interrogation resistance techniques used against U.S. prisoners of war. I asked my Commander, Colonel Moulton, for approval to support the request, which he granted. I then passed the request for support to our higher headquarters through USJFCOM J3 for approval. After USJFCOM approved supporting the request, I asked our resident JPRA experts for assistance in obtaining the information Mr. Shiffrin requested. My response memorandum to Mr. Shiffrin included a couple of papers on exploitation, and interrogation and lesson plans used to train our U.S. personnel (i.e., potential isolated personnel) in the psychological aspects of detention, exploitation-threats and pressures, methods of interrogation, and resistance to interrogations. After having the package delivered I believe there were some phone calls between Mr. Shiffrin and me to clarify parts of the package (I don’t recall what the specific questions were, but essentially they involved follow-up questions about the material I sent).

A few days later I received another phone call from Mr. Shiffrin requesting information on the use of physical pressures, which, after notifying Colonel Moulton, I provided. The information on the use of physical pressures in our personal recovery training consisted of a memorandum with information compiled from JPRA experts and one paper from an Air Force Survival, Evasion, Resistance, and Escape school psychologist, Captain (Dr.) Jerry Ogrisseg, on the effects of resistance training. I followed- up with one or two phone calls to make sure I had provided the information Mr. Shiffrin requested. I do not recall any further communications with Mr. Shiffrin or other DOD, OGC personnel about these issues after the July 2002 requests for information. [my emphasis]

Note some clear inaccuracies: the dates and the order of the phone calls (which Baumgartner should have known–the dates on the memos make it clear this all happened on July 25 and July 26). 

But the really key difference is that Shiffrin says the request for more information came not in phone calls from him, but in a meeting between Jim Haynes and JPRA (Shiffrin suggests Baumgartner was at the meeting). And the language of the memo supports Shiffrin’s version.

Mr. SHIFFRIN. The memo refers to a follow-on question resulting from a meeting with JPRA and the General Counsel, OSD General Counsel. That would be Mr. Haynes. I’ve never met, in person, Colonel Baumgartner before. I did not attend the meeting with Colonel Baumgartner. So, to the extent these memos are responsive to requests at a meeting, I didn’t attend that meeting.

Chairman LEVIN. All right. I think Colonel Baumgartner was referring to a phone conversation.

Mr. SHIFFRIN. He did. But the memo itself says, ‘‘This is follow on questions from a meeting.’’

Chairman LEVIN. I think, though, his testimony relates to a phone conversation.

Mr. SHIFFRIN. I understand. [my emphasis]

Now we know the meeting existed (Haynes admitted to it in a staff interview last year). So all the evidence suggests that Shiffrin is right in this disagreement–the request for a list of physical techniques came in a meeting with Jim Haynes directly (I’m guessing Baumgartner was protecting Haynes with his testimony).

Now look at the wider context of this. We know from the Bybee Memo that OLC gave CIA oral advice on the use of torture twice before it came out with the memo. The SSCI Narrative makes it clear that the first oral advice approved a range of techniques, while the second on approved waterboarding specifically.

On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.

In other words, OLC had already approved "certain proposed interrogation techniques" before Shriffrin’s first phone call to Baumgartner. The day after that approval, Jim Haynes’ office makes a high pressure request to JPRA for more information, which is delivered that same day. But then, apparently in a meeting between Haynes and Baumgartner, Haynes made it clear precisely what he was looking for: physical techniques. Physical techniques specifically including waterboarding.

All this is significant for several reasons. First, the timeline makes it clear that CIA already had pitched waterboarding to OLC–the request for a description from JPRA served either to make it look like it came from reverse-engineering SERE internally (as opposed to Mitchell, working off a purported al Qaeda manual), or because they wanted to hide the description they already had of waterboarding. Jim Haynes’ personal involvement (predictably, he can’t remember any of it) also shows how central the "War Council," including David Addington, John Rizzo, Alberto Gonzales, and John Yoo, was to this process. Rizzo had apparently already made the request for waterboarding, but he had to get Haynes involved at the last minute to somehow make waterboarding appear to be based on scientific principles and on SERE. And when JPRA didn’t give Haynes what he wanted the first time, he explained to them, face to face, precisely what he was looking for.

Leen links to two articles suggesting the Democrats are reluctant to have a truth commission because of their own complicity in torture.

Now, I don’t mean to be an apologist for Democrats on torture–because I do believe the Constitutional Speech and Debate clause must take precedence over national security guidelines that limit briefings to the Gang of Four or Eight. But before we start attacking Democrats, let’s establish what we know about briefings that happened before the waterboarding of detainees. Between the public spat between Porter Goss and Nancy Pelosi, Jane Harman’s letter to Scott Muller, and the SSCI Narrative, we can establish that the only Democrat who was briefed in time to prevent waterboarding and told it had been and was going to be used–Jane Harman–wrote a letter raising concerns about the techniques.

Fall 2002: The CIA first briefed the Gang of Four (then comprising Richard Shelby, Porter Goss, Bob Graham, and Nancy Pelosi) after the waterboarding of Abu Zubaydah had already ended–and possibly after the waterboarding of al-Nashiri had, too. Furthermore, even Porter Goss appears to confirm Nancy Pelosi’s assertion that the CIA spoke of enhanced techniques (whether or not they mentioned waterboarding specifically) as a prospective activity. That is, in fall 2002, CIA did not reveal that it had already waterboarded Abu Zubaydah (and possibly al-Nashiri).

January/February 2003: Three of four leaders in the intelligence committees changed in 2003. Jello Jay replaced Graham (who was running for President), Pat Roberts replaced Shelby (who had been ousted for leaking classified information), and Jane Harman replaced Pelosi (who had become Minority Leader). The SSCI Narrative notes that Roberts–but not Jello Jay–got a briefing in "early 2003" (though Jello Jay’s staffer did attend).

After the change in leadership of the Committee in January of 2003, CIA records indicate that the new Chairman of the Committee was briefed on the CIA’s program in early 2003. Although the new Vice-Chairman did not attend that briefing, it was attended by both the staff director and minority staff director of the Committee.

In addition, Scott Muller refers to briefing Goss and Harman on February 5, 2003.

Thank you for your letter of 10 February following up on the briefing we gave you and Congressman Goss on 5 February concerning the Central Intelligence Agency’s limited use of the handful of specially approved interrogation techniques we described.

Muller’s reference to Goss and Harman–but not Roberts–suggests it’s possible that Roberts received a separate briefing, potentially with different content. We know from the briefing record on the illegal wiretap program that the Administration did do this, and some of those partial briefings appear to be strategically chosen (note, for example, that after the wiretap program was revealed, Jello Jay was briefed with all the Republicans, but the other Democrats received a briefing of their own–with Pat Roberts present to baby-sit). In other words, we can’t be sure that the Goss-Harman briefing was the same as the Roberts briefing, which Jello Jay did not attend. 

So by February 2003, only one Democrat had been informed directly that enhanced techniques had already been used–Jane Harman. And she wrote a letter even before KSM was captured, questioning the policy wisdom of the techniques and warning CIA to keep the records of the interrogations.

After March 2003: Finally, the SSCI Narrative reveals that Jello Jay and Pat Roberts (and potentially their House counterparts) were briefed after KSM’s waterboarding was complete.

According to CIA records, the Chairman and Vice Chairman of the Committee were also briefed on aspects of the program later in 2003, after the use of interrogation techniques on Khalid Sheikh Muhammad.

To be clear, this schedule doesn’t absolve Pelosi and (especially) Jello Jay from not having objected. And it’s worth noting that Jello Jay was the one who pushed to have this narrative constructed; since he is the only Democrat who was briefed before 2006 that torture had occurred but apparently didn’t object, the narrative may be CYA for him. And Jello Jay’s more significant complicity may explain why the Senate (Jello Jay is still on SSCI) has more strongly objected to an inquiry than the House, where Pelosi is pushing for one.

Now, Jello Jay was an early backer of Obama, so it’s possible Obama’s opposed to a truth commission to protect a close ally. But we should be careful not to suggest that all Democrats would need such protection.

The SASC Report on Detainee Treatment reveals that some information collected from al Qaeda–and not DOD’s attempts to find methods to interrogate detainees–is one key to discovering how we got in the torture business. The SASC report reveals (as Valtin has been pointing out for some time) that DOD first contacted JPRA–the unit that oversees SERE–for "information about detainee ‘exploitation’" on December 17, 2001. But there’s another reference that suggests James Mitchell–one of the two retired SERE psychologists who reverse-engineered SERE and oversaw the first interrogations–was already on the job. In the section, "JPRA Collaboration with Other Government Agencies" (meaning, CIA), this reference appears:

[classification redaction] In December 2001 or January 2002, a retired Air Force SERE psychologist, Dr. James Mitchell, [redaction that I bet talks about a CIA contract] asked his former colleague, the senior SERE psychologist at JPRA, Dr. John "Bruce" Jessen, to review documents describing al Qaeda resistance training. The two psychologists reviewed the materials, [half line redacted], and generated a paper on al Qaeda resistance capabilities and countermeasures to defeat that resistance. 

Note, the "December 2001 or January 2002" date comes from an interview of Jessen, not directly from Mitchell. It’s not clear anyone has asked when Mitchell got the al Qaeda documents–but by the time Jessen was interviewed on July 11, 2007, DOD had already sent out notice to preserve all documents relating to Mitchell, so he was already under legal scrutiny at the time Jessen gave these dates.

In a section describing a DIA training session Jessen and Joseph Witsch did, it’s clear the al Qaeda documents form the basis for the training.

[classification redaction] Mr. Witsch stated that he worked with Dr. Jessen to develop a set of briefing slides for the [acronym redacted] training. The Department of Defense provided the Committee with slide presentations that appeared to have been produced by JPRA for the March 8, 2002 training. Mr. Witsch testified that the two slide presentations (1) [half line redacted–elsewhere this appears unredacted as Al Qaeda Resistance Contingency Training: Contingency Training for (redacted) Personnel] Based on Recently Obtained Al Qaeda Documents" and (2) "Exploitation" — appeared to be the same as those used by JPRA in the March 8, 2002 training. Dr. Jessen told the Committee that he did not recognize the slides as those that he presented [redacted] but that the vast majority of the slides were consistent with what he would have taught at the training session. 

While the discussion of the slides connected with the al Qaeda documents is heavily redacted, it appears that these slides already attached techniques or objectives to interrogating al Qaeda detainees.

[classification redacted] The "Al Qaeda Resistance Contingency Training" presentation described methods used by al Qaeda to resist interrogation and exploitation and [half line redacted]. The presentation also described countermeasures to defeat al Qaeda resistance, including [~five lines redacted]. Mr. Witsch testified to the Committee that the countermeasures identified in the slides were "just an interpretation of what we were doing at the time and what we constantly did when we trained SERE students."

So just to review. By "December 2001 or January 2002," Mitchell already had documents presumably captured from al Qaeda, and he and Jessen proceeded to use those documents to develop a training session on interrogation (one they offered to both DIA and CIA). And al Qaeda’s resistance training–as much as SERE’s program–drove what "countermeasures" Mitchell and Jessen were recommending to the CIA and DIA.

That’s relevant because there’s no obvious reason Mitchell should have had an al Qaeda training manual in hand. At the time he still had his executive consulting company, Knowledge Works, which presumably wasn’t dealing in al Qaeda training. And he had none of the specialized expertise–Arabic skills or familiarity with al Qaeda–that might have gotten him access to such materials. 

Of course, it’s not hard to come up with a plausible explanation for how James Mitchell came upon some al Qaeda intelligence in 2001, before DOD started pursuing JPRA techniques for interrogation. As I suggested, the half-line redaction following the introduction of Mitchell in the SASC almost certainly describes an affiliation with the CIA. Put that together with Jane Mayer’s report that Mitchell (and Jessen) had permanently assigned desks at the CounterTerrorism Center at the CIA by summer of 2002, and her explanation that some dweeb at CIA first suggested Mitchell for the job:

As some point, the source said, a CIA officer who could not be identified, whom a colleague at the Agency described as "a nobody–a pocket-protector-wearing Joe Molecule" who was "in charge of the shrinks on the science side," turned to the former SERE school psychologists. Having retired from the military and been sidelined from the war on terror, Mitchell and Jessen were eager to get involved. "Mike knew these guys," the source working with the intelligence community recounted," and when his colleagues were wimps, he said they would fit the bill."

And it seems likely that CTC–which would have been the central custodian of intelligence coming back from the Afghan war–gave Mitchell that intelligence.

Which then leads us to the unsurprising likelihood that CTC had already engaged Mitchell to reverse-engineer SERE before the time Jim Haynes’ office contacted JPRA for help on interrogation in December 2001. 

Like I said–all this is unsurprising.

But the apparent timing undermines the claim that DOD, in an effort to find expertise internally, turned to (among others) SERE. It seems to support Mayer’s source’s contention that Mitchell and Jessen were engaged by CIA because they weren’t "wimps" and not because of any respect for expertise.

John Lopresti noted that it might be helpful to have a timeline of all the torture documents released in the last several weeks. And you know I can’t resist requests for timelines. So here goes:

April 6: NYRB posts the Red Cross report on high value detainees

April 9: CIA Director Leon Panetta bans contractors from conducting interrogations

April 16: Obama statement on memo release, torture memos released:

• August 1, 2002: Memo from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA 
• May 10, 2005: Memo from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA ["Techniques"]
• May 10, 2005: Memo from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA ["Combined"]
• May 30, 2005: Memo from Steven Bradbury, Acting Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA

April 21: Senate Armed Services Committee releases declassified Inquiry into the Treatment of Detainees in US Custody

April 22: Senate Intelligence Committee releases declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program (Jello Jay’s statement on the release)

April 23: Ali Soufan, FBI interrogator, publishes NYT op-ed describing early interrogation of Abu Zubaydah

April 23: DOJ announces it will release a number of photos showing detainee abuse that had previously been FOIAed, along with thousands more

April 24: Greg Sargent gets a copy of Cheney’s request for two documents to make his "efficacy" case

April 24: In ACLU FOIA case, Judge Hellerstein orders a more expansive response on torture tape documents from CIA

April 24: WaPo releases JPRA memo–which had been circulated among the torture architects–using the word "torture" and warning that torture will beget false information