Not so Fast at the CIA

It looks like the excitement felt on the anti-torture left about Panetta's appointment may be tempered soon by what I would call disturbing staffing choices.

Yesterday, Senators Feinstein and Rockefeller were less than pleased with the pick of Panetta. Glenn Greenwald said this was a good thing - "Few things could reflect better on Panetta's selection than the fact that Feinstein and Rockefeller -- two of the most Bush-enabling Senators -- are unhappy with it."

Unfortunately, today we find that Feinstein and Rockefeller were not just made to suck it up. Instead, they were catered to - Feinstein's choice for the D/CIA position, Stephen Kappes, is going to be invited to stay at the CIA as no.2.

How completely obnoxious. As the Post puts it, "The desire to retain Kappes and Morell, both of whom held senior positions under Tenet as well as with Hayden, however, indicated that Obama does not intend to clean house beyond the top leadership level."

Christy Hardin Smith has a post at Firedoglake referencing today's WSJ. She excerpts:

In particular, at their nomination hearings they're likely to be asked to
support a "truth commission" on the Bush Administration's terrorist
interrogation policies. We hope they have the good sense to resist. And if they
need any reason to push back, they could start by noting the Members of Congress
who would be on the witness list to raise their right hands....

That is some vicious pushback. But allowing Kappes to stay signals that an investigation will not be forthcoming...and I mean that in both senses of the word. Don't expect an investigation soon - and don't expect an investigation that is particularly candid.

I documented in other posts on this site the rendition record of Stephen Kappes. The Times of India documents that one of the 2004 renditons, that of Sharif al-Masri, occured in late August. Joanne Mariner at FindLaw says Sharif al-Masri is believed to have spent time in a secret CIA prison.

I don't know what happens to accountability with Kappes hanging around.

Kappes to Stay: Blarg.

I saw this on Spencer Ackerman's blog this morning. Laura Rozen has it too:

January 07, 2009
Good Post piece
on Hill annoyance at Obama over how Panetta choice handled. And their demands:
"Several committee Democrats made clear that they expect CIA Deputy Director
Stephen R. Kappes and Intelligence Director Michael Morell, the agency's No. 3
official, to be retained for continuity and experience. An Obama transition
official confirmed that both will be invited to stay."

As Ackerman says, Kappes does not have to undergo a confirmation hearing. So no official process will bring to light the renditions he was involved in.

I think this is a big deal that complicates a serious Congressional investigation of the CIA. And it certainly doesn't bode well for Bob Lady (although maybe Obama will help him pay for a lawyer). Looks like the Obama CIA will be protecting its higher ups, just like Bush's did.

Guilty of Torture: Stephen Kappes

Spencer Ackerman links to me today in his piece, "Do We Really Have to Call Steve Kappes a Torturer?" He picks up on the central charge of my post, that Kappes signed off on the rendition of Abu Omar. He writes as follows:

The most serious charge against Kappes, as best I can tell, comes from his role in the abduction and rendition of Abu Omar, the Egyptian cleric taken by the CIA off the streets of Milan and tortured in Egypt. A 2007 article from The Chicago Tribune about the rendition reports briefly that Kappes was “one of those who signed off on the Abu Omar abduction.” (h/t TalkLeft.) No doubt that’s troubling. Extraordinary rendition is legally and morally problematic. Italy is prosecuting in absentia the CIA agents involved in the Abu Omar rendition.

Well, actually, no the Italians are not "prosecuting in absentia the CIA agents involved," because they have not pressed charges against Stephen Kappes, for whatever reason. Nor have they pressed charges against Jeff Castelli, Chief of Station (Rome), who was in favor of the rendition (and by Italian & American accounts most intimately linked to it - see Matthew Cole, and the Chicago Tribune). Kappes and Castelli are quote unquote "the CIA agents involved in the Abu Omar rendition." The Chicago Tribune article makes it pretty clear that Kappes' signature is a significant one. The point of including his name in the article is to show that the renditions were sanctioned at the highest levels of government authority.

Bob Lady - a case officer - is currently on trial in absentia for the rendition of Abu Omar. You can check out the warrant for his arrest here [warning PDF]. If Kappes signed off on the rendition of Abu Omar, he too is party to the crime. He should be on trial as well.

Of course the White House is desperate to keep its hands clean, dirty as they may be. They are not required to sign off on the rendition. Kappes did. Bob Lady was involved too.

Ackerman's piece attempts to establish breathing room for those unnamed individuals who may've resisted the Bush torture regime in some significant way. But I wonder why he poses the question regarding Kappes, and not Bob Lady. Regardless, and despite the fact that he opposed the rendition, Bob Lady still helped to coordinate it. That's why he's on trial. If he had reservations, he managed them. As did Kappes when signing the authorization. Actually, Kappes must've done better than manage his reservations - as part of the CIA elite, his opposition might actually have carried some weight. Too bad I guess. He did not lend it. It's difficult to imagine which signatures could be more important than his, the no.2 in Operations. And it's difficult to deny that the rendition turned into an absolute sh*tshow.

Ambinder lists as one of the 6 challenges facing Panetta "Upcoming legal battles over retroactive immunity for CIA officers involved in the Bush Administration's Bad Stuff. Will Panetta fight on their behalf? The CIA will argue, quite strenuously, that prosection of case officers would be disastrous for morale and would convince managers to err on the side of extreme caution, always."

Setting this up as "Obama might go after case officers! Oh noes!" is a misstatement. As Bob Lady's case makes clear, those case officers weren't protected during the Bush Administration. What do they have to fear from Obama? Frank Naif has discussed how officers take out professional liability service now, because their superiors don't have their backs.

Bob Lady is on trial in Italy for kidnapping. A particular kidnapping that took the victim to Egypt to be tortured. Yes, that makes Bob Lady a torturer. And unless the Chicago Tribune is somehow inaccurate, it makes Stephen Kappes a torturer as well. He can certainly make the case that he is not - in Italy, or in the United States, in the same setting as Bob Lady. As the Deputy Director of Operations (no.2) he has a lot of explaining to do. To the American people, to the people who suffered torture by our hands, to the people of Italy.

For background information into this case, I suggest reading Matthew Cole's GQ piece. And these articles from the Chicago Tribune 1 & 2.

[Crossposted at Talk Left]

Updated to include the comment I added at TL:

On the off-chance (none / 0) (#1) by lilburro on Tue Jan 06, 2009 at 10:58:11 PM EST
that readers might not find the Chicago Tribune sufficient, consider the following:
Stephen Kappes was named Assistant Deputy Director of Operations in June 2002. [cite] This is the number 2 position in Operations.
From June 2002 to June 2004 the CIA reportedly rendered 28 persons and waterboarded KSM.
Kappes was named the successor of Jim Pavitt on June 4 2004. This would make him no. 1 in Operations. Between June 2004 [btw August 2004 was when Kappes officially took over] and November 2004, when Kappes left the CIA, the CIA rendered 2 persons.
I will add more later.

How bout that Panetta?

Scott Horton likes the Panetta selection. I do too. That he chose a former Presidential Chief of Staff suggests to me that maybe Obama wants - needs - someone as savvy as Panetta at the table when he goes about dismantling the Bush intelligence policy with his legal team.

Still, it's quite interesting that Obama did not select from his transition team, which, again, as quoted in Rozen includes:

John Brennan, Rand Beers, "Former CIA deputy director John McLaughlin, former
senior CIA operations officers Art Brown and Jack DeVine, retired Ltn. Gen.
Claudia Kennedy, retired Ltn. Gen. and former head of the Defense Human
Intelligence Service Donald Kerrick, former CIA lawyer and special advisor to
the CIA director Kenneth Levitt, former CIA general counsel Jeff Smith, former
CIA Near East division chief Robert Richer, and former CIA officer Valerie
Plame Wilson."

Back in September, the tone set by the group was as follows:

One participant described the group's priorities for a prospective Obama
administration to me this way: "The intelligence community is a complete mess.
Intelligence reform—try to fix it. Improve morale. CIA is dysfunctional. Rectify
a lot of stuff that was done by executive order in secrecy, and bring more
transparency. Better protection of civil liberties. Improve oversight of CIA on
these activities."

That sounds very much like John Brennan. It very well might have been. Thank goodness, it does not sound like Panetta, who recognizes that it is not about increased oversight of controversial CIA programs - it is about total elimination.

Leon Panetta is CIA Director

For a while now I have advocated Rand Beers, a Campaign to Ban Torture member, for the CIA Director position. Actual advocacy counts, in my book. And apparently, and happily, it counts in Obama's as well.

Panetta contributed an article to the Washington Monthly feature, "No Torture. No Exceptions" - the same series Beers contributed to. It is a good read and I suggest you check it out. It is a less gritty perspective than Beers', perhaps - but he makes the argument against torture eloquently.

Michael Goldfarb at The Weekly Standard makes a decent point though - if you can trace it. "Panetta's term as White House chief of staff coincided with the first serious use of extraordinary rendition by the Clinton administration." The Chief of Staff is not addressed in the rendition memo; might he have known? During the Clinton administration, is he in the circle intimately enough for it to matter?

I found the NYT's brief article on the rumored appointment interesting - particularly the end.

Mr. Hamilton said that if confirmed, Mr. Panetta will have the advantage of
moving to the agency headquarters in Langley, Va. with a strong relationship to
Mr. Obama, which can translate into influence within the broader intelligence
community. He said Mr. Panetta’s lack of hands-on intelligence experience can be
supplemented by others.

“You have to look at the team,” he said. “You clearly will want
intelligence professionals at the highest levels of the C.I.A.,” he said.

The estimable Lee Hamilton says look at the team. If that's one of the best quotes you can come up with for Panetta, you either feel he is icky (viable possibility) or you think the people below Panetta are going to have a lot of latitude.

More extensive quotes from Hamilton in this CQ article:

Hamilton said Panetta would I do need top deputies from the intelligence community. “It’s a complicated, arcane business,” he noted. But he added, “What his strength will be is he brings an outsider’s pespective to the intelligence community.”

Uh...figurehead anybody? Panetta will be in charge of picking his own Deputy Director. What will the top intelligence staff look like? Fairly decent people, like John Gannon? Or are people like Stephen Kappes going to be allowed to stay on by virtue of their experience - despite their crimes? If you put someone at the top who says torture is simply wrong...what consequences does that have for the officers below? If they kick the CIA leadership out on their butts, well, worse things have happened!

I would expect Jami Miscik to get a position under Panetta. Look again at Laura Rozen's article for Mother Jones - The Spies Who Love Obama. Rand Beers did coordinate the intelligence working group for the campaign. I think he'll get a little payback. Art Brown and Jack Devine are also advisors. A total overhaul is not going to happen - but again, does Obama want to go to the mat for a guy, Stephen Kappes, whose renditions have sullied his name?

Ambinder identifies 6 challenges for Panetta:

What confronts Panetta immediately:
(A) The building. Panetta is an outsider, like the dreaded John Deutch. Does he make an effort to learn the lore, the lingo and the culture? Does he remain aloof? Does Obama appoint a strong deputy with IC experience in order to bridge the perception gap?
(B) Upcoming legal battles over retroactive immunity for CIA officers involved in the Bush Administration's Bad Stuff. Will Panetta fight on their behalf? The CIA will argue, quite strenuously, that prosection of case officers would be disastrous for morale and would convince managers to err on the side of extreme caution, always.
(C) How to integrate CIA and DoD human intelligence collectors and their respective operations. The current regime -- CIA director Michael Hayden and SecDef Robert Gates -- have made progress here, but acute problems remain.
(D) Collection. Some elements of the special NSA collection program set up by, well, David Addington and Hayden remain in place. Are they dismantled? Legally modified?
(E) The bureaucracy. Why does the Director of National Intelligence have such a large staff? What do they do? How do they enhance or detract from the analytical project?
(F) Secrecy. Panetta's spoken out against excessive government classification and information restrictions. But momentum will be against him.

He also identifies a seventh, which will probably not amount to much, but:

It is common custom in Washington to notify committee chairs before the press.
Sen. Dianne Feinstein's prerogatives as incoming chair of the Senate Select
Committee on Intelligence aren't to be trifled with. The Obama folks know this.
The leak gives the impression that the Obama team wanted to do an end-run
around Feinstein. She never truly expected to be given a say in the
choice; she just wanted the courtesy of knowing about it.

Frank Naif writes on the challenges the IC faces as well. The contracting issues seem like a good fit for Panetta - contracting has never made a great deal of sense to me, long-term. And we are entering the long-term. But I think this is a good companion to Ambinder's noted concern for "case officers":

Throwing Spies Under the Bus: One chronic problem is senior intelligence leaders who can't or won't stand behind their troops. For example, CIA has all but turned its back on Bob Lady, formerly their man in Milan, who is on trial Italy (in absentia) for kidnapping of an Islamic cleric that was almost certainly ordered by the White House and blessed by intelligence chiefs up and down the chain of command. Intelligence officers now routinely purchase special professional liability insurance to cover potential legal costs, because they cannot count on their uncourageous leaders to stand up and take responsibility when intelligence operations go wrong. Why can't Lady get his bosses to lend him a hand? Why do intelligence officers need to buy insurance to protect themselves from their own cowardly managers?

Bob Lady doesn't even have help from the CIA when it comes to his legal bills. The problem is not the case officers; the problem is with the higher-ups who authorized, sold, and got the very highest to sign off on, some really stupid and poorly planned renditions. If Bob Lady and the CIA officers purchasing insurance are people to go by, the case officers have been waiting to be screwed for a long time. I address this in an earlier post. Stephen Grey writes in Ghost Plane:

"The refusal to confirm the CIA's renditions helps protect those who gave the orders-but not the individual CIA officers and pilots who carried out the
renditions." [p.267]

Panetta's appointment is a good step in the direction of an overall investigation of the CIA - similar to the one Durbin recently spearheaded - and the possibility of prosecutions. I wonder what the current CIA staff thinks of the appointment of someone whose hands are almost 100% squeaky clean.

Ali al-Marri

Adam Liptak has an article in the NY Times yesterday :

WASHINGTON — Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.

The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

Many legal experts say that all of the new administration’s options in Mr. Marri’s case are perilous. Intelligence officials say he is exceptionally dangerous, making deportation problematic.

Trying him on criminal charges could be difficult, too, in part because some of the evidence against him may have been obtained through torture and would not be admissible. And staying the course in the Marri case would outrage civil libertarians.

“If they adopt the Bush administration position, or some version of it,” said Brandt Goldstein, a professor at New York Law School, “it is going to be a moment of profound disappointment for everyone in the legal community and Americans generally who believe that the Bush administration has tried to turn the presidency into a monarchy.”

In a statement, a spokeswoman for Mr. Obama, Brooke Anderson, said he “will make decisions about how to handle detainees as president when his full national security and legal teams are in place.” [emphasis mine]

If Obama assumed these positions during the campaign, I am sure he took them as a result of serious and lengthy consideration of the issues. So there's no good reason to believe he would change his mind.

But now it's no longer solely a matter of what Obama himself believes - it is the politics involved in getting it done. It would be beneficial to this process if Obama has someone in the D/CIA position who was uninvolved in delievering fear-mongering to the public and false/flimsy intelligence to the Bush administration.

More on Al-Marri v. Wright from Greenwald. Also from Greenwald, the subsquent 2008 Fourth Circuit ruling.

Meanwhile Carol Gee at TPM Cafe addresses Adm. Blair.

More on Jack Devine

Since Clinton authorized extraordinary renditions during his second term, I thought I would take a look at our CIA candidates a little more closely, since some of them have significant Clinton-era experience.

One of the early Clinton-era renditions is described by Jane Mayer in her book, "The Dark Side." It occured on Sept 13 1995. US agents took Talaat Fouad Qassem, captured by Croatian police, to Egypt where he had been sentenced to death in absentia.

An old article at Obsidian Wings by Katherine R. describes a 1998 rendition. At the end she makes an important distinction:

"Whether or not we could have broken up this terrorist cell by lawfully charging these men under the Albanian criminal code, I have no idea. It is conceivable that we had to break the law to prevent these men from killing innocent people. It is not conceivable that we had to send them to a prison where they had electric shocks applied to their genitalia."

I agree with that. Obama has said he will end renditions, period. But it's important to make sure we don't fall into the trap of "if Clinton can, then Obama can..."

Since Jack Devine was heavily involved in Clinton-era operations, I thought I would cross-check the dates of his service with the germination of rendition policy. From May 14, 1995, Devine was Acting Deputy Director of Operations. Not great for him - the renditions program was hatched in 1995 [link via wiki]. Stephen Grey in his book Ghost Plane discusses a classified (and thus redacted) section of the June 21 1995 memo. This section was summarized in a 9/11 commission staff report:

"If extradition procedures were unavailable or put aside, the United States
could seek the local country's assistance in a rendition, secretly putting the
fugitive in a plane back to America or some third country for trial." p.136

Grey says that some at the CIA would say, "at least at the outset, the purpose was not to torture, even if it was a certain outcome." [p.136]

That is pretty interesting.

On August 1 1995 David Cohen was chosen as the Deputy Director of the CIA. Devine became the CIA senior representative at the US Embassy in London. So he is gone before the first extraordinary rendition happens in September. But since Devine was there - at the top of CIA Operations - when the program was hatched, I wonder what he thought then.

A letter writer to Salon, ondelette, commenting on Greenwald, draws distinctions between Bush and Clinton era renditions that I will have to address further later.

"The terms originally meant 'rendition to justice' as in bringing, in this
case terrorists, to justice by trial and charges. It was a covert and
extraordinary process because it bypassed extradition, or circumvented the lack
of extradition treaties.

Olshansky states that the program was changed to include interrogation
and indefinite preventive detention by the Bush administration within days after
September 11."

Something to think about.

Also worth thinking about - not to get all Bill Ayers on you. But Brennan and Devine are both on the board of Global Strategies Group, an intelligence/military contractor. They've both been advising Obama anyway.

Here at History Commons has a timeline for renditions. As does PBS and Mother Jones.

IMO this stuff is relevant esp. because Devine considers himself a "covert ops" guy. Of course Devine didn't implement any of Bush's abuses. I am just keeping an eye on all concerned in the hopes that we will have strong leaders who can nip said Bush abuses in the bud.