The Bush Administration Did Not Give Legally-Required Prior Notification to Congress

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We know, because Michael Hayden confirmed it the other day, that the torture program started as a covert operation (at 1:45).

By law, covert operations must be supported by a Presidential Finding (or Memorandum of Notification, which is reportedly what was used here) and require prior notification to Congress.

Congressional Notification

  •  The Requirement to Notify Congress

Consistent with section 501 of the National Security Act of 1947, as amended (50 U.S.C. 413), and unless the President otherwise directs in writing pursuant to his constitutional authorities and duties, Congress shall be notified on the President’s behalf of all special activities in accordance with this Directive.

  •  Contents of Notification

In all cases, notification to Congress as provided herein shall include a copy of the Finding or associated MON, if any, as signed by the President, and the statement described in section II.A.3 hereof.

  •  Prior Notification

Consistent with the expectation of prior notification to Congress, in all but extraordinary circumstances as specified herein, the DCI, or head of such other Executive department aqency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter collectively referred to as the "Intelligence Committees"), prior to initiation of each special activity authorized by a Finding and associated MON, if any. In extraordinary circumstances affecting the vital interests of the United States, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Majority and Minority Leaders of the Senate the Speaker and Minority Leader of the House of Representatives, and the Chaiman and Vice Chairman of the Senate Select Committee on Intelligence, and the Chairman and Ranking minority Member of the Permanent Select Committee on Intelligence of the House of Representatives, prior to initiation of a special activity authorized by a Finding and associated MON, if any.

  •  Extraordinary Circumstances

If the President determines that it is necessary, in order to meet rare, extraordinary circumstances, to delay notification until after the initiation of a special activity, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall delay notification consistent with section 501(b) at the direction of the President. Read more →

Porter Goss Escalates Attacks on Pelosi and Harman–But Admits CIA Broke the Law

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Porter Goss–who was DCI when the CIA destroyed videotapes depicting illegal torture and had been warned not to destroy the tapes, and who may have been the "senior CIA official" who allegedly lied to Congress about the torture CIA had done in February and June of 2005–just escalated the Republican attack on Nancy Pelosi and Jane Harman. In an op-ed in the WaPo, he describes the briefing Congress’ intelligence leaders received in fall 2002:

Let me be clear. It is my recollection that:

The chairs and the ranking minority members of the House and Senate intelligence committees, known as the Gang of Four, were briefed that the CIA was holding and interrogating high-value terrorists.

  • We understood what the CIA was doing.
  • We gave the CIA our bipartisan support.
  • We gave the CIA funding to carry out its activities.
  • On a bipartisan basis, we asked if the CIA needed more support from Congress to carry out its mission against al-Qaeda.

But look carefully at Goss’ language describing what they were briefed on.

In the fall of 2002, while I was chairman of the House intelligence committee, senior members of Congress were briefed on the CIA’s "High Value Terrorist Program," including the development of "enhanced interrogation techniques" and what those techniques were. 

[snip]

Today, I am slack-jawed to read that members claim to have not understood that the techniques on which they were briefed were to actually be employed; or that specific techniques such as "waterboarding" were never mentioned.

Goss explains that the Gang of Four was briefed on "the development" of the torture program and "what those techniques were." He implies strongly–but does not say it directly–that "waterboarding" was mentioned specifically. And he complains that the attendees should have understood that "the techniques on which they were briefed were to actually be employed."

Note what Pelosi has said:

"In that or any other briefing…we were not, and I repeat, were not told that waterboarding or any of these other enhanced interrogation techniques were used," said Pelosi. "What they did tell us is that they had some legislative counsel…opinions that they could be used, but not that they would."

Read more →

Zelikow, the 9/11 Commission, and Effectiveness

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If you’ve been paying attention, you know I’ve been poring through the 9/11 Report to figure out how useful the interrogation reports from the waterboarded detainees were, and when they made them.

That exercise shows that the 9/11 Report found just 10 pieces of intelligence from Abu Zubaydah’s interrogation reports informative and credible; it found just 16 pieces of such intelligence in al-Nashiri’s interrogation reports. And while the Commission did find KSM’s interrogation reports to be incredibly useful, an incomplete index (I’m working on this, but it’s on the back burner for the next week) of the references to KSM show that many of his most productive interrogation sessions came long after he was waterboarded. And, as Philip Zelikow made clear in a memo relating to the torture tape destruction, there were abundant other problems with the quality of the interrogation reports coming from CIA, too.

I emailed Zelikow yesterday to see if he would answer some more questions on this. He hasn’t responded and I haven’t had time to follow-up.

But it looks like I may not have to. Zelikow promises to address some of these issues shortly.

I will have more to say on the topic of effectiveness later. 

Of particular interest, he makes this promise to address the effectiveness of torture in the context of the work the 9/11 Commission did with Ali Soufan, the FBI interrogator who called George Bush a liar yesterday.

I met and interviewed Soufan in the course of my work at the 9/11 Commission, while he was still doing important work at the FBI. From my commission work, my fellow staffers and I had direct knowledge about several of the specific assertions Soufan makes in this piece: about Abu Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed. My fellow staffers and I considered Soufan to be credible. Indeed, Soufan is fluent in Arabic, and he seemed to us to be one of the more impressive intelligence agents — from any agency — that we encountered in our work.

If the 9/11 Commission spoke with Soufan about AZ’s treatment (Zelikow does not say they did, though he does say they asked why Soufan’s KSM-expert colleague wasn’t involved in those interrogations), it might explain why only 10 pieces of intelligence from AZ show up in the 9/11 Report. 

In this post, Zelikow also confirms something I suggested this afternoon. Read more →

Yet Another Warning against Torture Ignored

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So what kind of Friday night news dump do you think would elicit this much silence? (h/t scribe)

Haynes declined to comment, as did Rizzo and the CIA. Jay. S. Bybee, who as an assistant Attorney General signed the Aug. 1, 2002, memo, did not respond to a request for comment.

[snip]

James Mitchell and Bruce Jessen … declined to comment on their role in formulating interrogation policy.

How about a document–given to DoD and from DoD to CIA and from CIA to Jay Bybee–referring to harsh tactics as torture and warning they don’t work?

The key operational deficits related to the use of torture is its impact on the reliability and accuracy of the information provided. If an interrogator produces information that resulted from the application ofphysical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop.

The document comes complete with quotes from someone (my wildarsed guess is John Bellinger) who had been involved in deliberations on the torture policy stating that CIA shared none of this with the National Security Council.

A former administration official said the National Security Council, which was briefed repeatedly that summer on the CIA’s planned interrogation program by George Tenet, then Director of Central Intelligence, and agency lawyers, did not discuss the issues raised in the attachment.

"That information was not brought to the attention of the principals," said the former administration official, who was involved in deliberations on interrogation policy who requested anonymity because of the sensitivity of the issue. "That would have been relevant. The CIA did not present with pros and cons, or points or concern. They said this was safe and effective, and there was no alternative."

The urgent efforts of all the people involved in setting up our torture regime to blame each other seems likely to keep us in new document dumps for the next several weeks. But I don’t know about you–I’m getting overwhelmed. Though, imagine how Haynes, Rizzo, Bybee, Mitchell, and Jessen feel. It’s almost … "poignant."

Judge Hellerstein Spanks (Figuratively) the CIA

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Michael Hayden and the rest of the torture apologists have been wandering around all week claiming that the Administration could have won its FOIA case against ACLU and withheld the torture memos.

If this ruling from Juge Hellerstein is any indication, they couldn’t be more wrong. It did five things:

  • Demanded a full "Vaughn" index for the FOIAed materials, describing the people involved and other details.
  • Refused the government’s attempt to limit production of descriptions of the torture tapes to August 2002, and instead demanded all of it (through December 2002)
  • Required the government to produce documents relating to the torture tape destruction through at least June 20, 2003.
  • Sent the government back to reconsider the redactions on documents pertaining to the torture tapes that takes into consideration the release of the torture memos.
  • Asked whether it’s too soon to hold CIA in contempt for destroying the torture tapes that were resposive to the original FOIA.

I would imagine we’re going to be seeing a lot more revealing documents get processed through Hellerstein’s Courtroom.

Why Don’t They Claim al-Nashiri’s Waterboarding Worked?

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As I noted last night, Liz “MiniCheney” Cheney very pointedly avoided claiming that al-Nashiri provided important intelligence as a result of being waterboarded. In a non-sequitur response to Norah O’Donnell’s assertion that waterboarding is torture, MiniCheney offered this as rebuttal to O’Donnell’s point (at 2:15).

There were three people who were waterboarded, and two of those people are people who gave us incredibly important and useful information, information that saved American lives after they were waterboarded, both Khalid Sheikh Mohammed and Abu Zubaydah.

That’s pretty shocking, coming as it does from someone trying hard to claim waterboarding is effective. The implication is that Rahim al-Nashiri did not give such information after he was waterboarded.

But it turns out the 9/11 Commission actually used more information from al-Nashiri in its report than it did from Abu Zubaydah (though still not a lot), a total of 16 references–and the Commission may have included more information gathered immediately after waterboarding. There’s some confusion about when al-Nashiri was captured (the contemporaneous public announcement placed it in early November 2002, whereas the ICRC lists October 2002 without the specific date; the ICRC also reports that al-Nashiri was allegedly interrogated by Dubai agents for a month before being handed over to the Americans), and we have no reporting on precisely when al-Nashiri was waterboarded. Nevertheless, al-Nashiri gave information that was used in the 9/11 Report closer to his capture date than AZ and as close as a few of the KSM reports. And reports were generated consistently in all four months after he was captured:

November 20, 2002: One citation
November 21, 2002: Two citations (one contradicted by later reporting)
December  26, 2002: Three citations (one labeled “may not be true”)
January 14, 2003: One citation
January 27, 2003: One citation
January 28, 2003: One citation
February 10, 2003: One citation
February 20, 2003: One citation
May 21, 2003: One citation
February 21, 2004: Four (probably) citations, all presumably in response to 9/11 Commission questions

Thus, if al-Nashiri was waterboarded in any of the four months following his capture, information collected in the same month made it into the report. (Note, much more of this testimony was corroborated than AZ’s or KSM’s.)

In other words, they did get information from al-Nashiri, at least in the 9/11 Report, more than they did from Abu Zubaydah. And while we can’t be sure, it may have been collected using waterboarding. But for some reason, MiniCheney carefully stops short of claiming they got information from al-Nashiri.

Now, there are several possible reasons why MiniCheney doesn’t want to claim that waterboarding worked with al-Nashiri. Read more →

Cheney Cherry Picks Intelligence Again

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Greg Sargent got a hold of Cheney’s FOIA request for the documents that will prove–he claims–that torture was effective. He’s asking for two documents, both of which were stored in his "detainees" file in his files. They are:

  • CIA Report, dated July 13, 2004
  • CIA Report, dated June 1, 2005 

(I’m a little confused about what the two different forms refer to, as they seem to refer to the same documents, though of different length.)

One thing is immediately clear from this request: Cheney is cherry-picking the documents that will prove his case (I know. You’re shocked.)

Cheney doesn’t request, after all, the roughly 6 pages of the CIA IG Report which directly addresses the efficacy of torture in collecting intelligence, which I discuss at length here. He probably doesn’t want that document because some of its conclusions–such as that "it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks"–really don’t help his case. By not FOIAing this document, though, Cheney makes it clear that he is just trying to get two documents that do prove his case, while leaving the counterarguments buried as still-classified documents. Just like he did, you’ll recall, with the intelligence that disproved the aluminum tubes and uranium acquisition claims he used to drag us into the Iraq War. (He’s consistent, I’ll give him that.)

It appears that one of the documents–the July 13, 2004 document–is referenced in detail in the May 30, 2005 Memo. Bradbury writes:

Prior to his capture, the CIA considered KSM to be one of al Qaeda’s "most important operational leaders … based on his close relationship with Usama Bin Laden and his reputation among the al-Qa’ida rank and file." [reference omitted] After the September 11 attacks, KSM assumed "the role of operations chief for al-Qa’ida around the world." CIA Directorate of Intelligence, Khalid Shaykh Muhammed: Preeminent Source on Al-Qa’ida (July 13, 2004)

Given the date, I believe this is one of the two documents Cheney is seeking. Bradbury later quotes the document saying,

KSM and Abu Zubaydah have been pivotal sources because of their ability and willingness to provide their analysis and speculation about the capabilities, methodologies, and mindsets of terrorists.

Such a claim, of course, seems to be contradicted by (and may be a response to) the IG Report’s assertion that lower-level detainees have been critical in developing an understanding of al-Qaeda.

CTC frequently uses the information from one detainee, as well as other sources, to vet the information from another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further. … Read more →

Is the Harman Story an Attempt to Silence Her about Torture?

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Laura Rozen has been reporting an angle of the Jane Harman story that has been largely neglected elsewhere–the possibility that this story is coming out now as a way to hit Harman, the fiercest critic of the torture program.

A former senior U.S. intelligence officer said he heard during work on the Hill in the 2004 time period of whispers among members of the intelligence committees and their staffs that Harman was allegedly caught up in some Israel-related case that would likely prevent her from getting the chairmanship of the committee she sought. He also said that it was clear that Goss and Harman (and their staffs) fiercely disliked each other.

But he wondered if the timing of this story was about changing the subject, from what Bush-era officials had authorized, to what the Congress was complicit in. "Is this about taking pressure off the revelations of waterboarding and the memos?" he speculated. "And the fact," he added, "that no real intelligence came out of this whole effort?" referring to the enhanced interrogation/torture regime revealed in the memos, which he said produced no actionable intelligence.

(For his part, Stein said in an online chat Monday afternoon that he had had the story for a while, and only decided to move on it now.)

But the former intelligence official familiar with the matter noted that Goss has given only one on-the-record interview on these CIA controversies since leaving the CIA director job. In the December 2007 interview, he said that Congressional leaders, including Representatives Pelosi and Goss himself, Sen. Bob Graham (D-FL) and Sen. Richard Shelby (R-AL), and later Rep. Harman, Sen. Jay Rockefeller (D-WV) and Sen. Pat Roberts (R-KS), had been briefed on CIA waterboarding back in 2002 and 2003. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," Goss told the Washington Post. "And the reaction in the room was not just approval, but encouragement."

Who was the lone lawmaker the article identified as objecting to the program?

Jane Harman.

The story is plausible not just because Porter Goss–both a former Congressman and former DCI–might fit as one of the sources for all the intelligence reporters covering this story. But also because we know Porter Goss was doing a masterful job working the press to distract from his role in the torture tape destruction (that’s what his on-the-record interview was all about). Read more →

Crazy Pete Hoekstra Wants to Be Governor Torture

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I wanted to comment on Crazy Pete Hoekstra’s torture apology in the WSJ. The WSJ doesn’t mention it, but Crazy Pete is running for governor in Michigan in 2010. We’ve got our share of wingnuts in this state, but MI is increasingly blue, and our large population of Arab-Americans have historically been one of the swing voting blocks.

So Crazy Pete’s torture apology should be looked at as an attempt by the current or former Gang of Eight member facing the toughest electoral campaign next year (save perhaps Jane Harman, given recent revelations, but she made written objections to the torture program) to minimize the damage his support for torture will have next year. 

That said, Crazy Pete’s effort to spin his own complicity in torture is a (surprise!) thoroughly dishonest effort. He pretends to want to expose to complicitly of both Democrats and Republicans by releasing a list of the briefing’s Congress received. 

Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can’t be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.

So Crazy Pete wants to publish a list of briefings, much like the one released for the illegal wiretap program several years ago. I’m all in favor of that, though we could pretty much construct such a list based on existing public information. But without the content of those briefings, what’s the point? We know the CIA lied in at least two of those briefings. And Nancy Pelosi, at least, insists that the first briefing–in fall 2002–did not reveal one or two people had already been waterboarded. She also claims the CIA never informed the full Gang of Eight that they would or had used waterboarding (note, there’s confusion in the reporting in this, which appears to be due to erroeneous assumptions that BushCo briefed the full Gang of Eight on subjects that they actually only briefed the intelligence leaders on–we saw the same confusion with the warrantless wiretap program, where we know the intell leaders were the only ones briefed until 2004).  

Read more →

Detainee Abuse Pictures to Be Released May 28

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Thanks, again, to the ACLU:

By orders dated June 9, 2006 and June 21, 2006, the Court directed the Government to release twenty-one photographs depicting the treatment of detainees in Iraq and Afghanistan. By opinion dated September 22, 2008, the Second Circuit affirmed this Court’s orders. On November 6, 2008, Appellants filed a petition for rehearing en banc only as to the panel’s decision on FOIA exemption 7(F); that petition was denied March 12, 2009. As the Government has now determined that it will not seek certiorari of the Second Circuit’s decision, the Department of Defense is preparing to release the 21 photos at issue in the appeal and 23 other photos identified as responsive. In addition, the Government also is processing for release a substantial number of other images contained in Army CID reports that have been closed during the pendency of this case; these other images will be processed consistent with the Court’s previous rulings on responsive images in this case. The parties have reached an agreement that the Department of Defense will produce all the responsive images by May 28, 2009. [my emphasis]

Whether you believe Obama is impeding investigation or playing 11 dimension chess to set it up without looking like the bad guy, his policy on FOIA has already begun to open up the floodgates that may enable public opinion make this happen. 

I know we’ve been having our own fund-raiser, but if you can, please show some appreciation to the ACLU for fighting this fight. Multi-year FOIA fights don’t come cheap.