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.

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.

Quick Links

Some reading for you... Bill O'Reilly is a moron, but you know that ...of interest is his description of Eric Holder as an "anti-agency attorney general." Tom Burghardt wrote an article on future DNI Dennis Blair for the Dissident Voice. And, inspired by Jeff Stein's long and somewhat oddball list of suggestions for CIA Director, I give you this oldie-but-goodie on CIA Inspector General John Helgerson, from Think Progress. The CIA is often discussed in terms of its morale - but in all honesty, I do not see how the status quo - Hayden inspecting his Inspector General - is good for morale at all.

Small wonder that "No Drama Obama" hasn't picked a CIA Director yet. Whoever believes the CIA is free of internal politics (and it's only us liberals who politicize it) is full of it.