Old News Relevant Now - Mukasey on How to Reinstate Waterboarding

From the TPM Document Collection, a letter from Attorney General Michael Mukasey to Sen. Patrick Leahy dated 1/30/2008:

"I have been authorized to disclose publicly that waterboarding is not
among those methods. Accordingly, waterboarding is not, and may not be,
used in the current program. There is a defined process by which any new method
is proposed for authorization. That process would begin with the CIA Director's
determination that the addition of the technique was required for the
program. Then, the Attorney General would have to determine that the use
of the technique is lawful under the particular conditions and circumstances
proposed. Finally, the President would have to approve of the use of the
technique as requested by the CIA Director and as deemed lawful by the Attorney
General."

A little more complicated than this, no?

Senate Intelligence Committee Chairman Dianne Feinstein told The Associated
Press in an interview this week that there is a clear distinction between those
who made the policies and those who carried them out.
"They (the CIA) carry out orders and the orders come from the (National Security Council) and the White House, so there's not a lot of policy debate that goes on there," she said. "We're going to continue our looking into the situation and I think that is up to the administration and the director."

Also Mukasey's letter compliments some of the language in the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody. I quoted all references to the CIA in that document here. Page 5 for instance reads "In the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." In seeking that policy, is the CIA dependent wholly upon the White House lawyers? Wouldn't they cooperate with their own legal staff before making requests of the NSC?

Taking a page from Jane Mayer's "The Dark Side," p.38-39:

"Late in the afternoon of Sunday, September 16, Black emerged from his
self-imposed exile in Langley to show the project he had been working so hard on
all week to the allied British intelligence officials, who were still gathered
in Washington...Black brought a draft of a proposed new, top-secret
presidential "finding" that he and the CIA lawyers had been hammering out all week. Formally called "Memoranda of Notifications" in the Bush
White House, or MONs, they were legal memos detailing proposed covert actions,
all of which required presidential authorization, according to laws that had
been in place since the Agency's founding in 1947. Black's proposed new
finding was an amalgamation of years' worth of thinking about all the powers the
Agency might like to exercise in its fondest dreams....
The proposed finding included the inauguration of secret paramilitary death
squads authorized to hunt and kill prime terror suspects anywhere on earth. A week earlier, these deaths would have been classified as illegal assassinations. Under the new legal analysis, such killings were sanctioned as acts of national 'self-defense.'" [emphasis supplied]

This is a separate issue from the torture memos, but still illuminating. It suggests that the CIA's lawyers work closely alongside CIA staff in the preparation of their requests higher up the chain of command. And if this process was followed in the case of some of the torture authorizations, you have to wonder what those lawyers were thinking - they could be as guilty of giving poor legal advice as Yoo and Gonzales. Which is a big problem - I don't think the rules of the legal profession change if it so happens you work at an intelligence agency.

What's worse is what Mayer writes on p.41: "As soon as he received the paperwork, on Monday, September 17, Bush eagerly signed the new intelligence finding. He had been so enthused when he first heard about it from Tenet and Black at a cabinet meeting at Camp David that weekend according to Bob Woodward's account Bush at War, the President almost shouted 'Great job!' With the stroke of the President's pen, the most important post-Watergate prohibition imposed by Congress on the CIA would be erased, with only a handful of individual's knowledge."

So it appears that a day after Bush received the memo from Black (or the day of!), he signed it. The memo was in draft form on Sept. 16. This caught the attention of some at CIA ("The Dark Side," p.42-43):

"Inside the Agency, Drumheller and a few others were worried. The September 17
Memorandum of Notification had moved much faster than usual. Generally, after
the Agency's lawyers drafted a proposed covert-action finding, it was reviewed
by "The Lawyers' Group," which was chaired by the NSC's legal counsel and
included lawyers from the State Department, Defense Department, Justice
Department, and CIA. After the lawyers flyspecked it, the proposed finding was
reviewed further by the cabinet-level national security policy makers, where
among others the Vice President weighed in. Only then did it move to the
President's desk. But in this critical instance, the CIA would be gaining
fearsome new powers with very little debate - none of it public. The Agency was taking on new responsibilities in areas where it had no expertise, such as
interrogation and detention." [emphasis supplied]

Yep - look again at what that finding contained, according to Mayer (p.39):

"...the finding called for the President to delegate blanket authority to Tenet
to decide on a case-by-case basis whom to kill, whom to kidnap, whom to detain
and interrogate, and how...It authorized the CIA's officers to break and enter
into private property, and to monitor the communications and financial
transactions of suspected terrorists, even inside the United States when
necessary, as well."

This is a far cry from "The White House dictates the policy." A bit of mud in the eye to those anti-torture investigation zealots, isn't it (esp. those who say "we know enough already")? The Bush administration authorized various illegal techniques through such irregular, distorted processes, that it's impossible to say we know enough already about what happened. And if we know that CIA lawyers laid the groundwork for torture, then what? Is there no consequence for that? Every memo must be revealed - and in the context of Holder's ability to prosecute. I have a feeling that what will come out during an investigation is going to be very, very embarrassing for all involved - and criminal prosecution may be well deserved.

Frank Naif Rocks

(h/t freedetainees.org)

This week, Frank Naif recently wrote about torture investigations/prosecutions in the Huffington Post. He echoes The Washington Monthly's Charles Homans' suggestion that interrogators receive immunity from the government, presumably in exchange for cooperation and testimony. And he denounces the high-level officials, including those in the CIA, for their role in implementing Bush policy. Again, this WSJ chart is illuminating.



From Naif:

"Outside of the halls of government, the public and opinion makers are also
clamoring for truth and reconciliation. On Obama's change.gov web site, the most often-asked citizen question (22,000 or so!) was whether the new president intends to appoint a special prosecutor to investigate torture and warrantless wiretaps.
Observers as disparate as Thomas Ricks and Arianna Huffington have called for some form of truth and reconciliation commission, not unlike those set up in South Africa after apartheid and in Chile after Pinochet.

Presumably, such a commission would be independently empowered to elicit testimony and could offer amnesty to anyone who testifies before it. Therein lies the Obama administration's opportunity to lead, and not merely follow or get out of the way of investigations and commissions.

The Obama administration ought to make at least one meaningful and practical gesture of leadership regardless of what form an inquiry assumes. That action would be to emulate past truth and reconciliation commissions by granting amnesty or some form of legal immunity for the mid- and junior-level personnel who were on the front lines of these odious Bush-era policies.

Such a move will be absolutely vital to getting to the bottom of the program of abuses of the past eight years. Failing to protect from prosecution or civil actions the ground-level national security drones who carried out these policies will:
--Destroy morale in the national security workforce;
--Force the people who can least afford it to 'lawyer up;' and
--Probably bury forever any chance of understanding what happened at Guantanamo and countless foreign and US-run detention facilities worldwide.

Flag-level military officers (admirals and generals), senior executive service civilians, c-level contractor executives, political appointees, and elected officials, however, are the rightful targets of investigation into alleged intelligence and detention misdeeds. These are the individuals whose implicit responsibility was to not only carry out executive branch policies, but also to professionally guide policy in accordance with US law, applicable international law pertaining to warfare, and accepted norms of human rights.

In other words, these are the senior officials who chose not to fall on their metaphorical swords when they were asked to break the law, forgo human decency, and expose their Lieutenants and Sergeants and Petty Officers and GS-13 civil servants and junior contractors to future prosecution and litigation.

These senior officials didn't resign or protest in '02 or '03 or '04, and they should now come forward to explain themselves, and if necessary, take the fall for subordinates who didn't have the prerogative or power to thwart policies that are against American honor and tradition.

To be sure, Obama faces enough of an uphill battle in taking an inventory of the national security wrongs of the Bush years. Perhaps the biggest showdown looms between the White House and Capitol Hill: Senior Democrats in the House and Senate were aware of torture and domestic surveillance programs. Jane Mayer, who delved into Bush-era intelligence abuses in her book The Dark Side, said via a Washington Post online chat last July that legislators 'in both parties would find it
very hard at this point to point the finger at the [Bush] White House, without
also implicating themselves.'

The Obama administration will have its hands full with its own Democratic colleagues -- and lots of other adversaries -- if the badly needed cataloging of Bush-era national security blunders manages to get underway. Making sure that ordinary national security drones aren't vilified or set up to take the fall for their bosses today will strengthen tomorrow's national security."

Too often, the dynamic involvement of our intelligence services in the torture regime is dismissed out of hand - Senate Intelligence Committee Chairman Dianne Feinstein's comments are a great example: "They (the CIA) carry out orders and the orders come from the (National Security Council) and the White House, so there's not a lot of policy debate that goes on there," continuing "We're going to continue our looking into the situation and I think that is up to the administration and the director." That is extremely misleading from someone who chairs the Senate Intelligence Committee. For example, it was policy that extraordinary renditions be approved by several levels of CIA command, but not approved by the White House (Chicago Tribune) although it has been suggested that the White House was informed of these renditions. So knowledge is divorced from policy - the CIA undoubtedly has masses of information to share with us. That's one of the reasons we need their involvement in any sort of fact-finding commission or investigation. For example, from Der Spiegel, ex-CIA Europe chief Tyler Drumheller:

"I once had to brief Condoleezza Rice on a rendition operation, and her chief
concern was not whether it was the right thing to do, but what the president
would think about it. I would have expected a big meeting, a debate about
whether to proceed with the plan, a couple of hours of consideration of the pros
and cons. We should have been talking about the value of the target, whether the
threat he presented warranted such a potentially controversial intervention.
This is no way to run a covert policy. If the White House wants to take
extraordinary measures to win, it can't just let things go through without any
discussion about their value and morality."

Yet the way it sounds, the total irresponsibility of the White House didn't stop the CIA from conducting the rendition. In Mayer's "The Dark Side," it is suggested that Tenet agreed to hosting a detention program because he was simply too eager to please. So the CIA runs the risks, the executive branch is clueless, and they bend over backwards anyway? Surely someone could've said, hey, this is a really dumb idea? In representing the executive branch's desires more than reality (in terms of operational strategy and intelligence), the CIA has made itself very much part of the problem.

Naif is also eloquent in establishing what I have written about as "The Broader CIA Critique." Really, it's simple - the concept of command responsibility. What did the top 5 people (including John Brennan) at the CIA know about Bush's attempts to make them torture? What did they know and how did they act?

Those questions are simple, and could be addressed in a fact-finding commission. But it's embarrassing that even as former CIA staff fight legal battles over renditions in Italy, now ex-CIA chief Hayden parades around, asking "If the techniques used are said to be legal, should they not be used?" It's clear that many, including our current President, do not think those techniques are legal, and that justice systems around the world are prepared to challenge the legality of our torture operations, and relabel them criminal. If a technique is said to be legal, but flies completely in the face of international law, you better double-check. If the CIA kicked that legal process to the side, they like the other government agencies deserve thorough investigation.

A question

Is this report to be believed?

"The Guantanamo Bay prison camp was ordered closed by the US president, in
addition a review of the detainees' trials was ordered, along with the
closure of CIA secret prisons and an end to harsh interrogations.
But the orders appear to leave loopholes that could allow some controversial US
practices to continue.
Extraordinary renditions, where 'terror' suspects are apprehended and transferred from countries by US intelligence services or their allies, without going through any
legal process, could still be carried out.
A senior Obama administration official has said the policy of extraordinary rendition would continue while a task force headed by the US attorney general investigates the issue.
The task force will report back to Obama in six months.
The official also said the US would not render anyone to a country that tortures and will gain assurances from the countries that they do send people to that the suspects won’t be tortured."

This is the only place I've read that. I will update later if I find corroboration.

Updated - Holder (seems to) Roll Over

Ackerman quoting the Washington Times:

"President Obama's choice to run the Justice Department has assured senior
Republican senators that he won't prosecute CIA officers or political appointees
who were involved in the Bush administration's policy of 'enhanced interrogations.'
Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.'s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama's Justice Department will not prosecute former Bush officials involved in the interrogations program.
Mr. Holder's promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon."

Prosecutions off the table - even for people like Gonzales and Yoo. So says Eli Lake.

BUT I would like to know exactly what was said to Kit Bond. Bond's actual quoted statements in the article are less severe:

"In the interview Wednesday, Mr. Bond said, 'I made it clear that trying to
prosecute political leaders would generate a political firestorm the Obama
administration doesn't need.'
He added, 'I was concerned about previous statements he made and others had made. He gave me assurances that he would not take those steps that would cause major disruptions in our intelligence system or cause political warfare. We don't need that kind of political warfare. He gave me assurances he is looking forward.'
Mr. Bond also said, 'I believe he will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9-11.'"

IOW, Mr. Bond may believe Holder won't prosecute - but that doesn't mean he won't. There hasn't been a public promise to that effect. Who knows what language Holder used. Being optimistic here.

It doesn't look good for prosecutions, by any stretch of the imagination. But I'm hoping that Bond and the Washington Times are just doing their job as dutiful Republicans causing trouble for Democrats and protecting their own.

The LA Times op-ed page has an editorial on Cornyn's request that Holder take prosecutions off the table. They say it crosses an ethical line. I hope Holder has not in fact agreed to cross that line with Cornyn and Bond.

Update: Via mcjoan, apparently Sheldon Whitehouse was not in on the Holder-Bond conversation:

"We came perilously close to seeking a prosecutive commitment from an AG
candidate on an issue he would have to make a decision on. We don't ask
judicial candidates their position on a case, the notion that a person who is a
candidate for AG should have to make a prosecutative decision before he has even
read the file or before he has even been read into the program at question."

Holder Going Forward

Reports suggest that Arlen Specter is prepared to confirm Eric Holder for AG. The Senate Judiciary Committee is scheduled to vote on Holder tomorrow. Specter's statement of support is here.

Specter's ax to grind is not related to torture, torture investigations, or torture prosecutions. Therefore it seems like Holder is well set up to be confirmed without having to go through arm-twisting on the part of some Republicans looking to exact a promise that there won't be torture prosecutions. Specter hasn't been promised such a thing - and he is good to go.

The NYT's liveblog of Holder's confirmation hearing is here. Hopefully Holder didn't promise too much to Republicans by way of prosecutions in the informal exchanges that have happened between his confirmation hearing and now. If he did, let's hope he wrote in pencil. Specter's notification of support today weakens Republican opposition, and decreases the likelihood that Holder will have to tie his hands regarding investigating and prosecuting Bush crimes. Disadvantage, Cornyn.

A great op-ed on the subject by Joseph L. Galloway.

Fear-mongering At Its Finest

Yesterday Alberto Gonazles held forth about torture and prosecutions on NPR. Kate Klonick has the story. Here is Gonzales' statement:

“'One needs to be careful in making a blanket pronouncement like that,' Gonzales
said, suggesting that it might affect the 'morale and dedication' of intelligence officials and lawyers who are attempting to make cases against terrorism suspects.
He said people he knows at the CIA have told him that agents there 'no longer have any interest in doing anything controversial.' And that, Gonzales asserted, means they 'won’t be doing what they need to be doing' to protect the country.

I'm guessing the people that Gonzales knows at the CIA - who are still willing to confide in him, seeing how his crap memos put many at the CIA in legal jeopardy - are probably not big Obama boosters to begin with. And if the CIA truly waterboarded only three times, I doubt Holder calling 'em like he sees 'em is going to massively depress morale.

Nobody has a problem with the CIA taking risks. But it seems simple enough that they should not be allowed to torture. I suspect its Gonzales' morale that is more deeply affected than anyone else's.

Case in point:

“'It’s a great leap forward in terms of respect for human rights,' said John Kiriakou, the retired CIA official who supervised the early interrogation of Al Qaeda detainee Abu Zubaydah in 2002. 'From the very beginning, the CIA should not have been in the business of enhanced interrogation techniques and detentions.' CIA interrogators waterboarded Abu Zubaydah, but not while Kiriakou supervised the interrogation.

...

Kiriakou said that the reaction to Obama’s harmonization of interrogations policy would get 'a very positive reaction' inside the CIA. 'There are people at CIA who engaged in what were certified as enhanced [interrogation] techniques, but were never supportive of it,' he said. 'This should make people very happy. No one wants to be in harm’s way [legally]. Despite what the Bush White House and Bush Justice Department said was legal, I think people at the CIA understood that this was not legal and [the techniques] were torture.'
Tyler Drumheller, a former chief of CIA operations in Europe during the Bush administration’s first term, agreed. 'These people aren’t monsters,' Drumheller said. 'They were doing what they were told, and what was the policy of the [Bush]
administration.'” [emphasis supplied]

Yep, sounds like morale was just crushed.

Guantanamo Case Files

WaPo:

"President Obama's plans to expeditiously determine the fates of about 245
terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military
prison there were set back last week when incoming legal and national security
officials -- barred until the inauguration from examining classified material on
the detainees -- discovered that there were no comprehensive case files on many
of them."

Getting a lot of good information out of these guys, are you?

"Charles D. "Cully" Stimson, who served as deputy assistant defense secretary for
detainee affairs in 2006-2007, said he had persistent problems in attempts to
assemble all information on individual cases. Threats to recommend the release
or transfer of a detainee were often required, he said, to persuade the CIA to
'cough up a sentence or two.'"

One of the interesting aspects of the article is that it points to the fact that Guantanamo poisoned the well for everybody. Regardless of what each agency's operatives were allowed to do, they all used information from Guantanamo for their analyses. It's a tacit acceptance of torture. At the very least.

"In one federal filing, the Justice Department said that 'the record . . . is not
simply a collection of papers sitting in a box at the Defense Department. It is
a massive undertaking just to produce the record in this one case.' In another
filing, the department said that 'defending these cases requires an intense,
inter-agency coordination of efforts. None of the relevant agencies, however,
was prepared to handle this volume of habeas cases on an expedited basis.'"

Again, are we really expected to believe that good information was being collected from those held in Guantanamo? For all of our efforts at centralizing intelligence and information sharing, we are left with this. Probably by design. Either the DoJ is being left out (...a problem), or the intelligence community isn't getting sh*t from these detainees. And really, as Invictus points out, what could they be getting.

Legalese

An Obama answer from This Week -

OBAMA: We're still evaluating how we're going to approach the whole issue of
interrogations, detentions, and so forth. And obviously we're going to be
looking at past practices and I don't believe that anybody is above the law. On
the other hand I also have a belief that we need to look forward as opposed to
looking backwards. And part of my job is to make sure that for example at the
CIA, you've got extraordinarily talented people who are working very hard to
keep Americans safe. I don't want them to suddenly feel like they've got to
spend all their time looking over their shoulders and lawyering (ph).
STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?
OBAMA: We have not made final decisions, but my instinct is for us to focus
on how do we make sure that moving forward we are doing the right thing. That
doesn't mean that if somebody has blatantly broken the law, that they are above
the law. But my orientation's going to be to move forward.

Now, considering the question put to Obama was - "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping" - the fact that he says he does not want CIA agents "lawyering" suggests he will not investigate them. After all, how are you going to conduct an investigation without lawyers present?

Let's look at the case against investigating the CIA. The issue of legal fees (esp. as they relate to morale), for example:

“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I
want to post all your e-mails, or, well, we’ve got this guy from the bureau who
wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A.
officer from taking risks on behalf of the new president’s policies. “We have no
right to ask this guy to bet his kid’s college education on who’s going to win
the off-year election,” Mr. Hayden said, alluding to legal fees that such a
C.I.A. officer might face.

But actually, according to Newsweek:

In anticipation of just such a scenario, however, the agency some years ago
began encouraging its employees to purchase special liability-insurance policies
from Wright & Co., a Virginia firm that specializes in coverage for
government investigators.

And by federal law, managers can be reimbursed for up to 50% of the cost of professional liability insurance (h/t Rich Stim). The 2006 Military Commissions Act also leaves the door open for the government to provide for legal costs. From wiki:

In 2005, a provision of the Detainee Treatment Act (section 1004(a)) had created a new defense as well as a provision to providing counsel for agents involved in
the detention and interrogation of individuals “believed to be engaged in or
associated with international terrorist activity”. The 2006 MCA amended
section 1004(a) of the Detainee Treatment Act to guarantee free counsel in
the event of civil or criminal prosecution and applied the above mentioned legal
defense to prosecutions for conduct that occurred during the period September
11, 2001 to December 30, 2005. Although the provision recognizes the possibility
of civil and or criminal proceedings, the Center for Constitutional Rights has
criticised this claiming that "The MCA retroactively immunizes some U.S.
officials who have engaged in illegal actions which have been authorized by the
Executive." [34]

It seems to me that, more or less, everything is already in place for the CIA to be investigated. How much more protection could you need? And furthermore, there is evidence that the CIA was willing to go out on the limb for the key psychologists that put together its torture program, James Mitchell and Bruce Jessen:

Attorneys familiar with the interrogation issue told Salon that in recent
months the CIA has moved to hire expensive private counsel to deal with mounting
legal concerns over interrogations. The CIA would not confirm to Salon whether
the agency would pay for private attorneys to represent the two psychologists,
Mitchell and Jessen, who were employed as contractors by the agency. But CIA
spokesman George Little said, "Quite apart from any specific instance, it should
not surprise anyone that the CIA would, in appropriate cases, assist with the
legal fees of those who have worked with the agency."

Working out the problem of legal fees does not seem terribly difficult. You could swap immunity in exchange for testimony for many in the CIA. I don't mind paying that price, provided the immunity is targeted towards those low in the chain of command.

But certain "senior" CIA officials pretend otherwise in order to threaten the interests of national security in the media. Everything is a "witch hunt."

Jan 5 2008:

Some CIA veterans fear the move is tantamount to unleashing an independent
counsel on Langley. "A lot of people are worried," says one former CIA official,
who asked not to be identified talking about sensitive matters. "Whenever you
have the bureau running around the building, it's going to turn up some heads.
This could turn into a witch hunt."

January 8 2009:

Still, some experts said any public fact-finding inquiry could be perceived
within the C.I.A. as a witch hunt.
“If Panetta starts trying to feed people to that commission, his tenure at C.I.A. will be over,” said Mark M. Lowenthal, a former senior C.I.A. official and an adjunct professor at Columbia University.
“If it happens, C.I.A. people are not going to start plotting against the president, but they are going to withdraw from taking risks, and then the C.I.A. becomes useless to the president,” Mr. Lowenthal said.

Again, I am not seeing how this is necessarily true. There are some in the CIA who should be taking risks - but there are others who should be much more conservative and interested in protecting the workforce. LIKE THE CIA'S LAWYERS - Jonathan Fredman for ex.:

They took the top lawyer for the CIA Counterterrorist Center to Guantánamo,
where he explained that the definition of illegal torture was "written vaguely."
"It is basically subject to perception," said the lawyer, Jonathan Fredman, according to meeting minutes that were made public Tuesday at a Senate hearing. "If the detainee dies, you're doing it wrong."

...

The meeting at Guantánamo showed how CIA lawyers believed they had found a
legal loophole permitting the agency to use "cruel, inhuman or degrading" methods overseas as long as they did not amount to torture.

How completely absurd is that? Why wasn't this man fired? Instead, he was sent (by somebody) to spread this legal advice to Guantanamo.

As of June 18, 2008, these revelations about Fredman's role were described as "new evidence." This evidence turned up as a result of the Senate's investigation of the Pentagon.

Imagine what an investigation into the CIA will turn up.

Oh For The Love of God

From War & Piece:

A day before Obama signed executive orders closing Guantánamo Bay and banning
torture, the White House's top lawyer privately indicated to Congress that the new president reserved the right to ignore his own (and any other president's) executive
orders. In a closed-door appearance before the Senate intelligence committee,
White House counsel Gregory Craig was asked whether the president was required by law to follow executive orders. According to people familiar with his remarks, who asked for anonymity when discussing a private meeting, Craig answered that the
administration did not believe he was. The implication: in a national-security
crisis, Obama could deviate from his own rules. A White House official said that
Craig's remarks were being "mischaracterized."

Of course, this is just one of the many reasons that Feinstein's idea of a law codifying the use of the Army Field Manual for interrogations throughout the entire intelligence community is a good one. At least in the limited way of being able to make laws that mean something more than the "get out of jail free" cards that seem so in style in the American presidency. Without question Obama's executive orders must be put into law. Do you trust this gamesmanship for even a second?

I find this disturbing as well:

White House press secretary Robert Gibbs said he would not "prejudge the
executive orders of the commission," but said the Army Field Manual would set
the rules for all interrogations now. "The commission has been tasked with
studying any number of different scenarios relating to detainees and
interrogation," Gibbs said. "And I think what's best is to let that happen and
see what happens when they come back."

Again, this is pretty simple. You either follow international law, or you do not. The Special Task Force must not become a private think-tank that decides upon our trespassing upon international law at their whim. How can an administration remain vigiliant against torture when they are leaving the door open to it? Leaving torture in the political realm is a mistake. If the Special Task Force comes back and says, "torture is wrong," a chorus of torture supporters will malign the Task Force. So appointing a panel of super important responsible people isn't going to solve anything, nor solidify the Obama administration's present anti-torture stance. One by one every person in the Task Force will be discredited - no doubt Hillary Clinton will be discredited in particular. It's easy. For God's sake, just say TORTURE IS WRONG. But I guess with Holder being punished by Republicans for doing so, and Blair unwilling to say waterboarding is torture, and Obama not willing to immediately investigate and prosecute Bush for torture, one's options in terms of principles are limited.

What are they thinking by just dragging this out? Feinstein should step in and get a law against torture passed immediately. Glorifying executive power is not the answer to stopping torture. And better to pass a law now, when the Dems have the majority, than to wait until Republicans or another oppositional party can catch up a bit.

Invictus has posted about how the AFM may still codify torture. That is where our argument should be right now - whether the AFM is strict enough. I personally will try to devote more attention to it. But instead of arguing about the AFM, we are currently in a position where, as a sop to Republicans, the door has been left open for torture under the assumption that torture might at some time serve the needs of our country. Where is this assumption being strongly supported? The intelligence community. Why are they supporting it if not to cover their asses for 8 years of criminal mistreatment of detainees?

President Obama's strokes of the pen this week were a great step toward righting our policy. But torture-related issues must be taken out of the realm of the executive branch, and placed squarely into the realm of law that we may all be judged by. Nobody should be able to torture, and whether we do or not should not be dependent upon changing interpretations of executive powers. Torture isn't an issue for the executive branch.

The Word on Investigations

Jason Leopold summarizes the week in Bush torture investigations. The outlook is much sunnier than it was just a while ago:

"Senate Majority Leader Harry Reid said he would support funding and staff for additional fact-finding by the Senate Armed Services Committee";

"Levin, D-Michigan, also said he intends to encourage the Justice Department and incoming Attorney General Eric Holder to investigate torture practices that took place while Bush was in office";

"Democratic Majority Leader Steny Hoyer of Maryland told reporters: 'Looking at what has been done is necessary'”;

"On Jan. 18, two days before Obama’s inauguration, House Speaker Nancy Pelosi expressed support for House Judiciary Committee Chairman John Conyers’s plan to create a blue-ribbon panel of outside experts to probe the 'broad range' of policies pursued by the Bush administration 'under claims of unreviewable war powers'”;

"Conyers urged the Attorney General to 'appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance'”;

"Levin also indicated that he expects to release the full Armed Services Committee report – covering an 18-month investigation – in about two or three weeks. Levin added that he would ask the Senate Intelligence Committee to conduct its own investigation of torture as implemented by the CIA."

(all quotes from Jason Leopold).

This is excellent news all around. I still think there will be hitches in investigating Bush torture policies because Obama has kept on some of the players - people like John Brennan and Stephen Kappes. Regardless of what you think they did, it is not going to look good for them.

An important name missing from Leopold's article is Dianne Feinstein. Feinstein commented on January 10th:

"'They (the CIA) carry out orders and the orders come from the (National
Security Council) and the White House, so there's not a lot of policy debate
that goes on there," she said. "We're going to continue our looking into the
situation and I think that is up to the administration and the director.'

Feinstein declined to comment on whether her committee would take specific
action to offer legal cover to those involved in harsh interrogations that some
critics say amount to torture."

This is a simplified view that offers a lot of cover to the CIA.

I would like to see Feinstein support the efforts that are brewing to investigate our intelligence agencies. Sure, it's not as exciting as investigating Obama inauguration tickets, but it's her job as well.

On Going Forward

In The Washington Monthly's Nov/Dec 2008 issue, Charles Homans has an interesting proposal on how to investigate the CIA. He proposes the following:

"We don’t know who exactly destroyed the tapes or what else may have been or is
in danger of being destroyed, but Congress or an investigatory commission might
be able to guard against losing what’s still intact by granting immunity to
interrogators. Establishing the responsibility of officials higher up in the
Bush administration is far more important than prosecuting those who carried out
their actions in the field." [emphasis mine]

This is an interesting concept. I am not in favor of prosecuting interrogators and case officers here in the United States. The case in Milan against Bob Lady & co. targets the wrong people, in my opinion - although it is certainly reasonable that they are being targeted.

But what are the consequences of granting immunity to that many people? How high in the CIA chain of command would you stop? The immunity would have to be conditioned upon cooperation with an investigation. Here it seems possible that a Truth & Reconciliation Commission would work. At higher, policy-making levels, it might not, as Philippe Sands suggests in this NPR interview. If you aren't willing to apologize and assume guilt, the Commission is ineffective.

Homans makes a very good point later:

Even if techniques can’t be disclosed, Congress or a commission could usefully
address the scope and results of the interrogations, something that would be far
harder to block on national security grounds: how many detainees were subjected
to extreme techniques, how many of them were ultimately cleared of wrongdoing,
and whether any useful information was extracted from those who weren’t. Most of
the techniques that interrogators are believed to have derived from the SERE
methods originated with the KGB, which used them to extract false confessions;
ethics and legality notwithstanding, many intelligence veterans have questioned
their usefulness for obtaining accurate information. As president, Obama should
reiterate his campaign statement that "Torture is how you create enemies, not
how you defeat them. Torture is how you get bad information, not good
intelligence." And if the evidence suggests the latter is true, it should be
made public to preempt the next Dick Cheney who suggests otherwise.
[emphasis mine]

The interesting thing about the last point is that even if evidence suggested it was not true, that might not prevent torture from happening again in this country. It would certainly help those who wish to push back on torture advocacy, but there is some sort of superstition held by many in American political circles that torture could work - there could be a time where it was worth doing. For example, Obama's executive order yesterday. While on the whole the order was positive, it nonetheless embraced that "torture could work" feeling. From Greg Sargent:

"But Ratner pointed to the following lines in the executive order that, he said,
provided a possible loophole by creating a Task Force to study the issue:

'The mission of the Special Task Force shall be:
(1) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2-22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies …'

The key there, Ratner says, is that the exec order appears to allow for an evaluation as to 'whether' — a key word — the Army Field Manual techniques are sufficent to 'protect the nation.' That, he says, allows for the Task Force to find after studying the issue that there may be cases where it’s acceptable to go beyond the Army Field Manual."

As a practical matter, it leaves the door open for torture. It's possible, I suppose, that this is a political ruse designed to demonstrate that torture does not work. But I doubt it. And the Special Task Force should not become our private high court when it comes to matters of torture. This information should all be made public. Discovering, revealing, and discussing the information must all be done in a public context. That is the proper way to move forward.

+++

Over at Talkleft, Edger quotes the film "Judgment at Nuremberg," which establishes the appropriate context:

"What about those of us who knew better, we who knew the words were lies
and worse than lies? Why did we sit silent? Why did we take part? Because we
loved our country. What difference does it make if a few political extremists
lose their rights? What difference does it make if a few racial minorities lose
their rights? It is only a passing phase. It is only a stage we are going
through. It will be discarded sooner or later. Hitler himself will be discarded
-- sooner or later. The country is in danger. We will march out of the shadows!
We will go forward. FORWARD is the great password."

Recalling what Biden said on "This Week" in December.

CIA In Motion

Spencer Ackerman gets a great scoop today about Obama's executive orders:

“It’s a great leap forward in terms of respect for human rights,” said John
Kiriakou, the retired CIA official who supervised the early interrogation of Al
Qaeda detainee Abu Zubaydah in 2002. “From the very beginning, the CIA should
not have been in the business of enhanced interrogation techniques and
detentions.” CIA interrogators waterboarded Abu Zubaydah, but not while Kiriakou
supervised the interrogation.

You may know Kiriakou from the right-wing defenses of torture that you see and hear every day. He claimed that torture saved lives and prevented attacks. And also said we need to stop enhanced interrogation. [Transcript] If your goal is to imagine someone who more perfectly fits the image of mixed bag, it's hard to top Kiriakou.

But to Ackerman he says:

"Kiriakou said that the reaction to Obama’s harmonization of interrogations
policy would get 'a very positive reaction' inside the CIA. 'There are people at
CIA who engaged in what were certified as enhanced [interrogation] techniques,
but were never supportive of it,' he said. 'This should make people very happy.
No one wants to be in harm’s way [legally]. Despite what the Bush White House
and Bush Justice Department said was legal, I think people at the CIA understood
that this was not legal and [the techniques] were torture.'”

Contrast Hayden - "If the techniques used are said to be legal, should they not be used?" (NYT).
Got some questions? Me too. Let's investigate.

Hayden responded to Obama's executive order today here.

Update: Sorry, it's creepy.

From Hayden's statement:

The legal and policy landscape under which the Agency has conducted itself in
the global war on terror has changed in the past and we have consistently and
scrupulously adjusted our efforts to reflect these changes. [emphasis mine]

From the Senate Armed Services Committee report on the treatment of detainees:

Secretary of State Condoleezza Rice, who was then the National Security Advisor,
said that, "in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." (pg.5) [emphasis mine]

The other OLC opinion issued on August 1, 2002 is known commonly as theSecond
Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics. (pg.6) [emphasis mine]

Mr. Bellinger, the NSC Legal Advisor, said that "the NSC’s Principals reviewed
CIA’s proposed program on several occasions in 2002 and 2003" and that he
"expressed concern that the proposed CIA interrogation techniques comply with
applicable U.S. law, including our international obligations." (pg.6) [emphasis mine]

Again...I do not understand this. Hayden and many other CIA management officials wish to collapse the whole process of obtaining legal authorization into an extremely simple interaction. It was assuredly not. Was it impossible for the CIA to request a copy of the Geneva Conventions? Was it impossible for CIA lawyers to do the lightest amount of research necessary to know that something was fishy with the memos that almost everyone in the legal community has dumped upon? Knowing if someone was told to shut up, or if someone decided to shut up, would be important. Last I checked, the Office of Legal Counsel is not the last word on the Law of the Land. The CIA would be within its rights to contest certain interpretations. There is a clear failure here, beyond the CIA's convenient mythologizing of its role. Determining the nature of that failure is essential to the interests of the country. If future Bushes are insistent upon torturing, let them waterboard their own suspects. Right now we do not have those conditions in place. We ought to.

President Obama Ends CIA Special Program

From NYT. Well done Obama:

As he signed three orders, 16 retired generals and admirals who have fought for
months for a ban on coercive interrogations stood behind him and applauded. The
group, organized to lobby the Obama transition team by the group Human Rights First, did not include any career C.I.A. officers or retirees, participants said.

One of Mr. Obama’s orders requires the C.I.A. to use only the 19 interrogation methods outlined in the Army Field Manual, ending President Bush’s policy of permitting the agency to use some secret methods that went beyond those allowed to the military.

I look forward to reading the Executive Order for this, and for the closing of Guantánamo, later on his website.

Big News

from DK - mcjoan and others on Russell Tice's appearance on Keith Olbermann. Yes, you are being watched.

Kula 2316 on prisons and interrogations:

"Now this headline in the New York Times makes me very happy indeed: Obama to Close Foreign Prisons and Guantanamo. I knew Obama would close Guantanamo eventually, so I was more worried about what would happen to the overseas detention centers that we might not even know about. How many foreign prisons do we have? Michael Hayden once said it was 'fewer than 100'":

'President Obama is expected to sign executive orders Thursday directing the
Central Intelligence Agency to shut what remains of its network of secret
prisons and ordering the closing of the Guantánamo detention camp within a year,
government officials said.'

also:

'And the orders would bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.'

A few weeks ago, mcjoan wrote a post speculating about a potential "loophole" that would allow the CIA to continue using "techniques" not authorized by the military. The New York Times reports that there may indeed be a loophole:

'A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other the 19 techniques allowed for the military.'

This paragraph doesn't really make sense, maybe because there is a typo. (Hello, New York Times, are you looking for a proofreader because I need a job!) I guess it is supposed to read 'other than the 19 techniques allowed for the military.'"

Finally, Elana Schor at TPM on the reason for the Holder holdup - to protect torturers.

That's a lot of news in 24 hours. I am glad we did not wait until Obama took office to criticize him and make clear that torture is unacceptable. We must continue to pay close attention.

Hayden's Words

Don't let the door hit you on the way out...

"Arguing that Department of Justice lawyers had issued several legal
decisions ruling on the CIA's interrogation methods, Hayden said the agency was
motivated by duty, not 'enthusiasm.' 'If the techniques used are said to be
legal, should they not be used?' he asked, adding that interrogations produced
the 'maximum amount of information' from the first groups of detainees captured
after the 9/11 attacks."

US News



I would think it would be up to the CIA management to determine how the CIA ought to operate. How far they ought to go, if it is worthwhile, if torture is working. Just because it's in some way legal doesn't mean it's a good idea. You know - “ninety per cent of the information was unreliable.”



As far as the potential for real investigations goes, there are contradictory accounts. From WaPo:

"President-elect Barack Obama has privately signaled to top U.S. intelligence
officials that he has no plans to launch a legal inquiry into the CIA's past use of waterboarding and other harsh interrogation techniques, agency director Michael V. Hayden said yesterday."

Public Record's Jason Leopold suggests Obama staff think otherwise:

"But when asked on Friday to respond Hayden’s statements, two high-level
aides on Obama’s National Security transition team who were privy to details of
Hayden and Obama’s briefings disputed the CIA chief’s comments, saying that
Obama did not make any such assurances to Hayden or anyone else in the Bush
administration about not investigating interrogation practices. The aides
requested anonymity because they said they were not cleared to speak
publicly."

"'That is a wholly inaccurate characterization of their conversation' said
one of the aides on the National Security team. 'President-elect Obama did not
make any promises to Mr. Hayden nor did President-elect Obama engage in a
discussion about investigations of any sort, about any past policies, with Mr.
Hayden or anyone in the Bush administration.'”

"In fact, both aides said as much as Obama would like to 'look ahead' and
deal with what they said were more pressing issues, such as economic turmoil,
unemployment, healthcare, and the housing crisis, they said the fact that Obama
will inherit two ongoing investigations that began under Bush’s presidency into
torture policies means the issue revolving around torture will remain on the
front-pages and in the headlines and makes it all the more likely that
Obama’s Justice Department will be forced to undertake some sort of
investigation." [emphasis mine]

Leopold looks into the IG Helgerson's report on torture and rendition:

"Another matter Hayden discussed, the aides said, and was particularly
concerned about, was the findings of a classified CIA inspector general’s report completed in May 2004 about the agency’s techniques used on terrorist detainees between 2001 and 2003 that is said to be brutal in its detailed description of interrogation methods. The report, prepared by Inspector General John Helgerson, concluded that certain methods used by CIA interrogators 'appeared to constitute cruel, inhumane and degrading treatment, as defined by the International Convention Against Torture.'"

'In his report, Mr. Helgerson raised concern about whether the use of the
techniques could expose agency officers to legal liability,' according to a Nov.
9, 2005, story in The New York Times. 'They said the report expressed skepticism
about the Bush administration view that any ban on cruel, inhumane and degrading
treatment under the treaty does not apply to CIA interrogations because they
take place overseas on people who are not citizens of the United States.'"

More:

"According to Mayer, Vice President Dick Cheney stopped Helgerson from fully
completing his investigation. That proves, Mayer contends, that as early as 2004
'the Vice President’s office was fully aware that there were allegations of
serious wrongdoing in The [interrogation] Program.'”

...

"In October 2007, Hayden ordered an investigation into Helgerson’s office,
focusing on internal complaints that the inspector general was on 'a crusade
against those who have participated in controversial detention programs.'”

I would be extremely interested to know the contents of that IG review. Hayden claims waterboarding stopped after 2003.


We know renditions did not stop in 2003. And other practices that may've been specified in Helgerson's report likely did not either.


Hayden's gone now. I wonder how loudly he will continue to make a fool out of himself. He seems to be suggesting Addington & Yoo ran the entire country. Not really true.

No Torture Pardons

Well, the day passed and Bush issued no torture pardons. The door is open for us to move forward.

Best of luck to President Obama!

Investigate Now

On the subject of the CIA, Digby writes a very good piece on torture - referring to a piece by BTD "Why The Torture Issue Can't Be Swept Under the Rug." To quote mutual source Hayden from the LA Times again:

"These techniques worked," Hayden said of the agency's interrogation program
during a farewell session with reporters who cover the CIA. "One needs to be
very careful" about eliminating CIA authorities, he said, because "if you create
barriers to doing things . . . there's no wink, no nod, no secret handshake. We
won't do it."

Give them an inch, they'll take a mile. And again it makes you wonder - if the only way the CIA tortures is through rules (at least by their logic - Digby points out that the CIA has been torturing for a long time) and we now have the appropriate authorization for torture...well, how exactly DID that authorization come about? Go searching for material that exonerates the CIA, and you'll likely only find the quotes from CIA sources - saying it wasn't their fault. Meanwhile, other material suggests the CIA asked for authorization to implement "its" programs.

To quote from the recent official Senate Armed Services Committee report on the treatment fo detainees :

page 5:

Secretary of State Condoleezza Rice, who was then the National Security
Advisor, said that, "in the spring of 2002, CIA sought policy approval from the
National Security Council (NSC) to begin an interrogation program for high-level
al-Qaida terrorists." Secretary Rice said that she asked Director of Central
Intelligence George Tenet to brief NSC Principals on the program and asked the
Attorney General John Ashcroft "personally to review and confirm the legal
advice prepared by the Office of Legal Counsel." She also said that Secretary of
Defense Donald Rumsfeld participated in the NSC review of CIA’s program. [emphasis mine]

page 6:

The other OLC opinion issued on August 1, 2002 is known commonly as the
Second Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics.

...

And Steven Bradbury, the current Assistant Attorney General of the OLC,
testified before the House Judiciary Committee on February 14, 2008 that the
CIA’s use of waterboarding was "adapted from the SERE training program."

...

Mr. Bellinger, the NSC Legal Advisor, said that "the NSC’s Principals
reviewed CIA’s proposed program on several occasions in 2002 and 2003" and that he "expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations." [emphasis mine]

Some of these sources are most certainly implicated in the worst of what the Bush administration authorized (Rice? Bradbury?). That said, is the picture that emerges of the CIA any more flattering? We know that Cofer Black came up with a lot of ideas - the CIA was able to feed the Bush Administration's thirst for blood. Now as the Bush Administration leaves, the CIA is left alone, pushing to further institutionalize that thirst for blood.

As has been said again and again, this is not about case officers. This is about taking a serious look at the conduct of senior management in the CIA. I can't think of any law that would say that is inappropriate. There are so many good reasons to do it:


1. Investigate the CIA now so we at least know. The CIA should welcome this opportunity to air their dirty laundry. If they are secondary, we will find out that they are, and how. Otherwise future political opponents will accuse them of being the masterminds behind all of this. See Dick Cheney:

Soon after the Sept. 11 attacks, Cheney said, the CIA "in effect came in and
wanted to know what they could and couldn't do. And they talked to me, as well
as others, to explain what they wanted to do. And I supported it."

2. To restore the moral authority of the CIA and the US. See Jack Devine on human rights and the CIA.

3. Because the CIA is not just accountable to the executive branch -they are accountable to us.

Each side has a story. Cheney deserves a thorough investigation. The CIA does as well. Hayden has been very forthcoming about his side of the story:

Hayden said the agency did not undertake the controversial program of rendition
and interrogations out of "enthusiasm, it did it out of duty and it did it with
the best legal advice it had."

Are you effing kidding me? The CIA, as it represents itself, is a massively conservative organization - so much so that the lightest investigation would decimate their operational capacity - they can't be interrupted or interfered with - and yet their best legal advice was, screw the Geneva Conventions, let's go for broke? Scott Horton, in my mind, effectively debunked that in December in an interview with Professor Mary Ellen O’Connell, who said:

As I told one former CIA lawyer who asked me about the “good faith” defense in
these cases, the quality of the memos is so poor, the process of producing them
so at odds with government standards, and the general knowledge is so high that
torture and cruelty are prohibited, that it difficult to see how good faith
could possibly provide a defense.

Hayden has basically been terrorizing the Media, Congress, and (in a few hours) President Obama over the past few days. See the NYT:

“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I
want to post all your e-mails, or, well, we’ve got this guy from the bureau who
wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A.
officer from taking risks on behalf of the new president’s policies.
“We have no right to ask this guy to bet his kid’s college education on who’s going
to win the off-year election,” Mr. Hayden said, alluding to legal fees that such
a C.I.A. officer might face.

But it's not case officers we want - it's you, Hayden. Oh, and wasn't the CIA going to cover appropriate legal fees?

This is an appallingly pathetic display. If only to avoid a future where managers of the intelligence community spend their time hiding behind operatives who actually do the grunt work, we must investigate the CIA. Again, Bob Lady has gone all this time without the help of the CIA. The legal fees have all fallen on HIM as far as I know. Tell me again, who are they - the senior management of the CIA -looking out for? Themselves. That's all this is. It's the same as the private sector. Investigate now.

[Crossposted at TalkLeft]

Amped Up American Exceptionalism

Hi everyone. I have been out of town for a few days. I still have to catch up on my reading. But I caught this AP article from Big Tent Democrat over at TalkLeft:

WASHINGTON (AP) — President-elect Barack Obama is preparing to prohibit the use of waterboarding and other harsh interrogation techniques by ordering the CIA to follow military rules for questioning prisoners, according to two U.S. officials
familiar with drafts of the plans. Still under debate is whether to allow exceptions in extraordinary cases.
The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said. The plans would also have the effect of shutting down secret "black site" prisons around the world where the CIA has questioned terror suspects — with all future interrogations taking place inside American military facilities.
However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

A loophole? No, no no. More:

The CIA also banned waterboarding in 2006 but otherwise has been secretive about
how it conducts interrogations. In the past, its methods are believed to have
included sleep deprivation and disorientation, stress positions and exposing
prisoners to uncomfortable cold or heat for long periods. It's also believed
that some prisoners have been forced to sit in cramped spaces with bugs, snakes,
rats or other vermin as a scare tactic.

And this is completely illogical:

For Obama, who repeatedly insisted during the 2008 presidential campaign and the
transition period that "America doesn't torture," a classified loophole would
allow him to follow through on his promise to end harsh interrogations while
retaining a full range of presidential options in conducting the war against
terrorism.
The proposed loophole, which could come in the form of a classified annex to the manual, is designed to satisfy intelligence experts who fear that an outright ban of so-called enhanced interrogation techniques would limit the government in obtaining threat information that could save American lives. It would also preserve Obama's flexibility to authorize any interrogation tactics he might deem necessary for national security.

The conflict appears to be between Eric Holder and the John Brennans on Obama's team. Both are powerful:

Senate Democrats aren't likely to support a classified annex. Holder on Thursday
said the interrogation methods outlined in the Army manual would be just as
effective as those used by the CIA.
"I'm not convinced at all that if we restrict ourselves to the Army field manual that we will be in any way less effective in the interrogation of people who have sworn to do us harm," Holder said.

BTD makes a good point, borrowing from Glenn Greenwald: war crimes via loopholes are still...war crimes.

But I also find it interesting that the CIA wants to apply public pressure to so many aspects of Obama's policy, yet take none of the blame for the creation of that policy. John Brennan goes on TV and defends rendition - but he reassures the Obama team that he had nothing to do with "enhanced interrogation" policy construction, and they nod their heads in agreement. The CIA doesn't want to be investigated - they were just following orders (which as BTD says, does not excuse war crimes as per Article 2 - "3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . ."). They nonetheless openly condone and put pressure on the Obama administration to continue torture and rendition. From the AP article:

Speaking with reporters Thursday, outgoing CIA Director Michael Hayden said
harsh interrogation tactics have been needed to get information from the most
hardened terror suspects. He and some other U.S. intelligence
officials oppose limiting the CIA to the Army manual, which was written
specifically for military interrogations and may not be effective on the most
dangerous detainees.

"It is an honest discussion to talk about what techniques we should use,
but to assume automatically that the Army Field Manual would suit the needs of
the republic in all circumstances is a shot in the dark," Hayden said.
[emphasis mine]

Are we really supposed to believe that the U.S. intelligence community bears no culpability for the torture regime? Everytime Hayden, Brennan, and others open their mouth to cheerlead for the Bush administration's policies, they put the lie to that theory and suggest that things may've been more complicated than they seem.

Mark Lowenthal's B.S. is a little tired. And apparently Obama's hedging on This Week was intentional. If Obama somehow continues any aspect of the Bush torture regime, I would be hardpressed to see how pressure from the intelligence community was not largely to blame.

Listening to Cofer Black

Cofer Black, Men's Journal Interview Oct 2008:

After 9/11 the CIA was given unprecedented freedom to fight a clandestine war in Afghanistan. Was it enough?
"The contrast between my job at CTC before 9/11 and after was dramatic. Before, it was encumberment and bureaucracy; after, with the support of the president, we had the resources we needed to do the job, and we got the approvals we needed. We had plans, we had experience, we were highly motivated, and, frankly, we had been chained to the ground like a junkyard dog. Now the chain was cut."

Why wasn’t the CIA more accommodating with the Northern Alliance in their fight against the Taliban? Was it out of deference to Pakistan’s hegemony?
"The CIA executes. It can propose options, but other people make decisions. This has to do with the national command authority and the National Security Council. We were great proponents of advancing that relationship with the Northern Alliance..

So you think the renditions and interrogations of Al Qaeda suspects have been successful?
"I like to think we are brainy enough to know that if something isn’t working we stop it and try something else. We didn’t have the luxury of being inefficient. It is standard procedure in a combat zone to interrogate prisoners of war. I think at last count the CIA is accused of waterboarding three guys. The waterboarding was done legally, with the Department of Justice signing off on it. I’m an operations guy, and I’m not a big fan of interrogations, but you know, life’s tough and there are no easy answers. The American people have to decide if they want interrogations done or not. If not, the repercussions will have to be on someone else’s conscience."

Let’s talk in more general terms about how you do your work. What does the CIA do right?
"Intelligence involves the collection of information and analysis. Both functions are vital. Our newspapers are full of 'CIA did this…' and 'CIA did that.…' In reality the CIA executes instructions to collect, and on comparatively rare occasions takes 'covert action' at the direction of the National Security Council and the president. “Covert action” activities most often seem a stopgap, last-resort effort to right a difficult or even failed U.S. government policy. The odds against the operator in such situations are often stark, but in a surprisingly large number of occasions, CIA achieves the goals set for them — although success does not make much of a stir, whereas failure gets the full attention of the media as well as congressional and Senate oversight committees. Over a 28-year career at CIA, I was never invited to testify before a congressional committee regarding a 'success.'" [emphasis supplied]

Cofer Black, Frontline "Bush's War" March 7 2006:

Were you able to speak truth to power in the Oval Office? Were they listening to you?
"I was a public servant; you join the Central Intelligence Agency to serve in a special capacity." When asked, I have told every superior exactly what I think. I execute the legal orders given to me. If I don't agree with them, I go back, and I say, "Sir, I believe I have the sufficient authority, and it's legally acceptable under authorities." After that, you have to soldier on or quit; you have a choice. It's pretty straightforward.
And Tenet, could he do it?
"... I think you should ask Director Tenet. Everyone has their own view. Mine is very simplistic and very old school. My own personal view is that we're here to serve the American people, to protect. ..." [emphasis supplied]

Now Cofer Black is someone whose aggressiveness post-9/11 requires a serious critical look by Congress. His answers over these two interviews suggest totally different things about management culpability and leadership roles. The CIA proposes options, he claims - it is up to others to make decisions.


Let's take a look again at the Chicago Tribune article that makes up the core of my criticism of Stephen Kappes:

Under guidelines established after Sept. 11, each proposed rendition must be
approved at several levels within the CIA, but not by the White House itself.
The veteran senior CIA official said one of those who signed off on the Abu Omar
abduction was Stephen Kappes, at the time the agency's associate deputy director
for operations and currently its No. 2 official.

So the Bush administration set up a policy in which only CIA signatures were on the war crime paperwork? Well, what kind of idiot at the CIA agreed to that? This contradicts Cofer Black's sense of what the CIA does and how it interacts with the Executive Branch (btw, I do know that Tenet and others kept Rice and others on their end aware of the various renditions that went on).

Not investigating the CIA would be a disaster. If Congress punts on this, I would expect the Intelligence Committees to call the whole thing off and dissolve themselves. The concept of oversight was created for moments like this.

More of the Same from Lowenthal

The New York Times expands a little bit on the This Week interview with Obama yesterday. Mark Lowenthal pops up again. Why do they continue using this one source who is vehemently anti-torture investigation?

NYT: Obama Signals His Reluctance to Look into Bush Policies

Moreover, any effort to conduct a wider re-examination would almost certainly
provoke a backlash at the country’s intelligence agencies.
Mark Lowenthal, who was the assistant director for analysis and production at the C.I.A. from 2002 to 2005, said if agents were criminally investigated for doing something that top Bush administration officials asked them to do and that they were assured was legal, intelligence officers would be less willing to take risks to protect the country.
“There are just huge costs to the day-to-day operation of intelligence,” Mr. Lowenthal, now the president of the Intelligence and Security Academy, said of a potential investigation. He added that he saw no benefit to such an effort because, he said, the public was not clamoring for it.

What a surprise that the "assistant director for analysis and production" at the CIA would not want us to look into the activities of senior management! Do you think he's got something to hide?

Again - we are not talking about officers on the ground. This is about senior management, that complied and perhaps even actively cooperated with George W. Bush and his cronies as they set up their detention system and "special programs." This is about Cofer Black and George Tenet. And it is laughable that Lowenthal - who clearly demonstrates a great capacity to threaten and oppose the will of a President (or at least a President-Elect) - wants us to believe that the CIA is a wholly obedient servant to the President. When the President says jump, the CIA jumps. Except of course when it doesn't want to.

A full investigation of the CIA is necessary. Don't let Lowenthal fool you.

Update: D'oh. I wrote "Conrad" instead of "Cofer."

Obama Buys the B.S.

Obama was on ABC's This Week this morning. It was definitely a mixed bag. Edger at Docudharma has the video. ABC has the transcript.

STEPHANOPOULOS: How about them taking that to the next step. Right now the CIA has a special program, would you require that that program -- basically every government interrogation program be under the same standard, be in accordance with the army field manual?
OBAMA: My general view is that our United States military is under fire and has huge stakes in getting good intelligence. And if our top army commanders feel comfortable with interrogation techniques that are squarely within the
boundaries of rule of law, our constitution and international standards, then
those are things that we should be able to (INAUDIBLE)
STEPHANOPOULOS: So no more special CIA program?
OBAMA: I'm not going to lay out a particular program because again, I thought that Dick Cheney's advice was good, which is let's make sure we know everything that's being done. But the interesting thing George was that during the campaign, although John McCain and I had a lot of differences on a lot of issues, this is one where we didn't have a difference, which is that it is possible for us to keep the American people safe while still adhering to our core values and ideals and that's what I intend to carry forward in my administration.

Wow. Obama punts on a basic, simple question - is the CIA going to have a special program? One that breaks international laws? If you can say no to torture, you can say no to the CIA special programs. Because those programs ARE torture. More:

STEPHANOPOULOS: The most popular question on your own website is related to
this. On change.gov it comes from Bob Fertik of New York City and he asks, "Will
you appoint a special prosecutor ideally Patrick Fitzgerald to independently
investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping."
OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).
STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?
OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.
STEPHANOPOULOS: So, let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?
OBAMA: What I -- I think my general view when it comes to my attorney general is he is the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he's going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.

What's interesting is that the media rarely attempts to apply the concept of command responsibility to the situation of CIA sponsored torture. It's presented instead as a witchhunt for individual torturers and case officers. But the international precedent is to prosecute the top - people like Brennan, Tenet, and Kappes.
Obama doesn't want people "looking over their shoulders and lawyering" - but it's not the little guys who should even be in that position. The CIA command - the very top - SHOULD and SHOULD HAVE been looking over their shoulders and lawyering - determining if what they wanted to do and set as policy was truly legal and sound. It was not. It was their job to do that for their staff. They failed.
Why Obama buys so much of the CIA B.S., I don't know. It's obvious (the Abu Omar case is the best example) that the CIA officials at the top are worried only about their skins, not their operatives'. To hold the senior management accountable is not going to detract from the work done by operatives across the globe. Obama should stop framing the case against the CIA this way - it's deliberately misleading and demonizes the left.

News Recap

Lots of interesting articles from this past week. David Ignatius on Panetta. Lewis Shepherd says swap Panetta and Blair. Three good ones from IntelNews - Baer for Panetta, CIA Insiders Issue Political Threats & Panetta's CIA Nomination Part of Broader Obama Plan.

Spencer Ackerman suggests John Brennan is set to have a lot of power. ThinkProgress on McConnell's new role in the Obama administration.

And this is worth reading again - Feinstein on prosecution and investigation of CIA officers.

The media furor over Panetta will die down this week. That furor was very pro-status quo - lots of quotes from ex or senior CIA officials discrediting Obama and Panetta's anti-torture ideas.

It'll be interesting to see what kind of stories are planted over the next two weeks. I believe Panetta will be a competent D/CIA. It will take strong leadership on his part and Obama's to rid the government of state-sanctioned torture. For an investigation to happen, we will need the support of Congress on top of those two.

omg

all my criticisms aside, every once in a while I am reminded of the touching moments that will hopefully dominate our view of the Obama family, hopefully justly.

As always, no matter how old we are, we do it for the kids.

[img borrowed from Tiffeany Roderick at Smooth Political] UPDATE: Please click on her link to see the full-size. I found the image to be distracting so I shrunk it.

Brennan's B.S.

The Washington Post turns in a remarkably loving portrayal of John Brennan here. It's not all their fault though - apparently the Obama staffers love them some Brennan too. And love is blind.

Is it really too much to ask that writers actually report the full extent of John Brennan's resume? From the Post article cited:

"His remarks and his tenure -- he was chief of staff to then-CIA Director George J. Tenet from 1999 to 2001 and director of National Counterterrorism Center from 2004 to 2005 -- provoked an open complaint against his nomination as CIA director from 200 psychologists."

Really? Why not tell your readers that Brennan was D/EXDIR, no.4 in the CIA between 2001 and 2004? You know, when they decided to torture and accelerate the rendition program? Not relevant to you that he oversaw all that?

And this is completely laughable:

"Obama aides said the president-elect accepted Brennan's assurances that he
played no role in setting abusive interrogation practices at the CIA and that he
had expressed some private dissent about the practices. They said Obama also
accepted the judgment of transition team advisers that Brennan was separated
from any questionable practices by Global Strategies, which formally purchased
Brennan's firm in 2007.

'No one has been more critical of private security contractors than Barack Obama,' said Denis McDonough, a senior foreign policy adviser to the president-elect. McDonough said transition aides looked closely at the governing structure of Brennan's company and its parent and concluded that there was no way Brennan was involved with or 'could be accountable' for the actions of Global Strategies' London-based division."

Let's think about this. Brennan says he played no role in setting the interrogation practices. Despite being no.4 in the CIA - and in the direct line of command between Operations and the Director of the CIA. Well, that is pretty creative. And expressing dissent internally? We have, again, no proof of that (unless we get a Congressional investigation) and damningly enough, he expressed SUPPORT for Bush policy - after he left the CIA! "Rendition is a vital tool." What an appallingly low bar set by the Obama administration.

It's unfortunate that the Obama transition team didn't apply its keen eye to the CIA's "governing structure." Because the CIA's governing structure puts Brennan right in the thick of things. And Global Strategies aside, it should be enough, if I interpret the Obama transition team correctly, that he was involved with a business with current contracts with the US government's intelligence agencies. From change.gov:

Close the Revolving Door on Former and Future Employers: No political appointees
in the Obama-Biden administration will be permitted to work on regulations or
contracts directly and substantially related to their prior employer for two
years. And no political appointee will be able to lobby the executive branch
after leaving government service during the remainder of the administration.

According to this source, Analysis Corp (TAC) has entered into several long-term contracts:

Last October [in 2005] TAC won a contract from the Defense Intelligence Agency (DIA) to add its terrorist data base to that of NCTC. The FBI awarded it a $60 million, long-term contract in 2004 to provide technical support to its Terrorist Screening Center.

Here is a summary of their 2007 contracts.

And this is kind of weird - but it is the nature of the new private/public intelligence community:

Since the election, Brennan -- who retains all his top security clearances
-- has been conducting briefings for Obama on the CIA's ongoing covert actions,
and aides said he won Obama's support in those meetings as a "straight shooter"
whom agency officials trust. He has "unrivaled integrity" and a "great
understanding of how all the parts of official Washington are affected by
intelligence," McDonough said.

Shadow intelligence community come to life, I guess. And here is another damning paragraph:

Brennan, who has been on unpaid leave from the firm, plans to resign Jan. 19 and
will have no further financial ties to it, according to a transition official.
Two months ago, the firm won a large five-year contract to provide "intelligence
expertise and support services" to the FBI.

Obama has wantonly betrayed his principles - unless of course Brennan spends the next 22 months avoiding all contact with the FBI in his role as deputy national security adviser. Honoring in that ascetic way the Obama principle that one must not work "on regulations or contracts directly and substantially related to their prior employer for two years."

The media will say what they will, but they are wrong, and Obama is wrong, on Brennan.

If Obama at all falters in keeping his promises regarding torture and rendition, as he has faltered in keeping his public/private lobbying promises, we'll know where to look. We may not be able to prevent Brennan's appointment - but we can certainly try to drive him out of Washington, if Obama does not deliver on his promises.

[crossposted at TalkLeft]