83/92

Marcy Wheeler tells us that the CIA used waterboarding at least 83 times against Abu Zubaydah in August of 2002 and 183 times against KSM in March 2003. As she notes,

"Note, the information comes from the CIA IG report which, in the case of Abu Zubaydah, is based on having viewed the torture tapes as well as other materials. So this is presumably a number that was once backed up by video evidence."

This brings us back again into the pressing need to pursue the CIA for the destruction of these tapes. The torture mess is colossal. The tape destruction at least is digestible.



I went back again and read the WSJ article on the tapes in light of the revelation that Zubaydah was waterboarded 83 times.

"Just a fraction of the tapes showed the two men being questioned, the person
added. 'Most of the tapes were of Abu Zubaydah. A few were of Nashiri,' the
official said. 'Only about a dozen showed actual interrogations. The rest were
basically just them sitting around.'"

The ACLU's Amrit Singh makes a good point in the article - "the number of tapes destroyed indicate[s] a coverup."



Considering how utterly untrustworthy the CIA has been on every factual aspect of waterboarding, it is hard to doubt her logic. How many of those tapes really were just them "sitting around?" We now know enough to be sure that was on the interrogation tapes was chilling. While the appointment of a special prosecutor is still an open question, we do at least have a special prosecutor, John Durham, on this aspect. Dahlia Lithwick profiles him here. I hope he does not share Rahmbo's fear of pressing charges.

Penetrating the Secrecy

Stephen Soldz has a new post up promoting a John Sifton article. It's very good and on one of my favorite subjects: the retention of Bush-era torture enablers and their total lack of accountability. From Sifton/Soldz:

"Take Stephen Kappes. At the time of the worst torture sessions outlined in the
ICRC report, Kappes served as a senior official in the Directorate of
Operations—the operational part of the CIA that oversees paramilitary operations
as well as the high-value detention program. (The directorate of operations is
now known as the National Clandestine Service.) Panetta has kept Kappes as
deputy director of the CIA—the number two official in the agency. One of Kappes’
deputies from 2002-2004, Michael Sulick, is now director of the National
Clandestine Service—the de facto number three in the agency. Panetta’s refusal
to investigate may be intended to protect his deputies. Since the basic facts
about their involvement in the CIA interrogation program are now known,
Panetta’s actions are increasingly looking like a cover-up."

and

"Nonetheless, footnote 9 reveals that the ICRC was informed by the then-director
of the CIA, Michael Hayden, that interrogation plans for detainees were
submitted to the 'CIA headquarters' for approval and as of 2007 were approved by “the Director or Deputy Director of the CIA.” It is likely that this approval process existed at earlier points in 2002-2006.
This is more than an interesting detail. In fact, it could implicate several high-level CIA officials in torture, including previous CIA directors George Tenet (resigned 2004) and Porter Goss (resigned 2006), as well as deputy directors John McLaughlin (resigned 2004) and Albert Calland (resigned 2006). These CIA officials are no longer serving. Kappes, Sulick and others are still there." [emphasis supplied]

This is a point I made during the D/CIA nomination process - don't be naive - if you're in power in the CIA, you knew. You must've known. That was the basis of my "Broader CIA Critique" and Stephen Kappes diaries (1, 2). That's why articles like this one (entitled "Do We Really Have to Call Steve Kappes a Torturer?") by Spencer Ackerman get under my skin:

"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.

But we really don’t know from what’s publicly available the context of
Kappes’ decision. Was this something that his bosses demanded? Did he have
decision-making authority on the rendition? (The Chicago Tribune piece is
extremely complex, as much of this is murky.) What were the alternatives to
handling Abu Omar? What did or didn’t Kappes know? I’m not saying this is
exculpatory, necessarily. I’m saying that we should investigate before we reach
a conclusion.
...
This is partially why I keep calling for an independent congressionally-mandated investigation. There’s just too much that’s unknown to label individual CIA people torturers as a general proposition, so take it easy on that front. Reality-based community and all that."

"Take it easy?" So Kappes signs off on a rendition to Egypt - a country known to torture prisoners - and that makes him...what? A good person? His bosses made him do it? What boss - he was no.2 in the Directorate of Operations at the time. Nobody holds a gun to your head to make you torture. And as a matter of fact, Stephen Kappes eventually did resign from the CIA - but not because of torture, rather because of office politics!

From wiki:

"It had been widely reported in the press that Kappes quit the Agency rather
than carry out a request by Goss to reassign Michael Sulick, his then
deputy[1]. It is also reported that this incident occurred because the chief of staff
admonished the then assistant deputy director for counterintelligence, Mary Margaret Graham (who now works for the DNI John Negroponte) about leaking personnel information[1]. According to some news reports, Sulick had just engaged in a shouting match with Goss’s chief of staff."

Wow, what a principled guy.

Yes, torture is a serious crime. Serious enough that you do not want to besmirch someone's name with it. But it's also serious enough that if you knew what was good for you, you should've run the other direction. Instead, Stephen Kappes was sitting pretty at the top of the CIA before office politics drove him out - and then back in again.

One final point is that it's especially difficult to get at some of these CIA people because they are lovingly protected by Congress. As wiki notes in Stephen Kappes' entry, Democratic Senators Jay Rockefeller and Dianne Feinstein prefered he be selected for the CIA Director post. I mean...it is completely mind-boggling to think that the incoming Senate Intelligence Committee chairwoman, in charge of oversight, would want to place someone so closely tied with deceiving that same committee and carrying out torture policies at the top of the CIA...but there you go. The CIA is deeply and seriously protected by our politicians. And the only way we can change that is by ensuring those politicians are fired...next time we see their name on a ballot.

Senate Select Committee Launches CIA Investigation

Hooray! The Senate Select Committee has decided to investigate the CIA. Applause here is warranted since it wasn't too long ago that Senator Feinstein was offering the CIA reassurance and minimizing their role in Bush-era terror policy. To quote her from January: "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." Well, I guess we'll find out how true that is.

I have written previously about why an inquiry into the CIA is necessary. If you just read through the Senate Armed Services Committee's report on the treatment of detainees, you find many instance in which the CIA plays a role in pushing policy forward (this post from January provides all the examples). The CIA in this report "seeks policy approval" and "requests" approval for controversial tactics. This is not a passive agency. They appear to play a very active role in the development of these torture policies, and were active in helping other agencies adopt such policies (Invictus has a post on the torture meeting convened at GITMO with the involvement of the CIA as an authority on using torture in interrogations).

I am also interested in finding out more about the culture at the CIA at this time. Matthew Cole in Blowback describes how more or less renditions were "in." Of course the CIA should be willing to "take risks" - but the rendition of Abu Omar was so bungled that it resulted in more than two dozen American CIA officials tried (in absentia) in Italy and a big wrench in Italian-American relations. One of the officials involved, Bob Lady, claims that it would've been much more effective to just continue classic spy work on Abu Omar, then arrest and prosecute - they were only weeks away from having enough evidence to do so. But uh, why not ship someone to Egypt to be tortured instead? Aggressively ignoring the rule of law, as we see quite clearly now, only hurts our cause and energizes terrorists worldwide.

And aggressively ignoring the rule of law was apparently the CIA's style. Funny how we can argue with entire agencies that collectively decided, in the course of two or three years, to completely ignore international law and basic sense - that torture is wrong. We entertain the premise that they might have been right or at least well-meaning when implementing torture policies. We can go on and on and waver on prosecutions and so forth. But the CIA's simple destruction of evidence - the 92 torture tapes - is a bridge too far. It's unclear as to where the CIA found the authority to destroy evidence. Reports suggest that Bush didn't know they were going to do it - but he never knew anything so that means nothing. Apparently Harriet Miers told the CIA not to destroy the tapes.

But as we go through each personal excuse, each justification, each instance of plausible deniability, we need to also continue to press forward with broad investigations into wrongdoing. We need to expose those who supported this lawlessness and tinker with the structure of these agencies (or at the very least tinker - I know some would prefer to abolish the CIA, period). It still boggles my mind that the CIA could torture again at the drop of a hat - request permission from the President and legal authorization from the AG, and you've got yourself all it takes to turn up the music, put someone in a stress position, and carry out torture. This type of structure needs to be studied and changed, and the investigation format can accomplish this even if it is too lame to seek prosecutions.

We have to come to grips with the answers to a lot of questions over the next few years. Hopefully this investigation of the CIA will be a forum that accepts those questions honestly and seeks answers.

NINETY-TWO TAPES?

We find out today that the CIA not only (illegally) destroyed tapes of its "enhanced interrogations" ...but destroyed NINETY-TWO of them.

92 tapes!

AP:

"'The CIA can now identify the number of videotapes that were destroyed,'
said the letter by Acting U.S. Attorney Lev Dassin. 'Ninety two videotapes were
destroyed.'

The tapes became a contentious issue in the trial of Sept. 11
conspirator Zacarias Moussaoui, after prosecutors initially claimed no such
recordings existed, then acknowledged two videotapes and one audiotape had been
made."

More:

"...the CIA is now gathering more details for the lawsuit, including a list
of the destroyed records, any secondary accounts that describe the destroyed
contents, and the identities of those who may have viewed or possessed the
recordings before they were destroyed.

But the lawyers also note that some of that information may be
classified, such as the names of CIA personnel that viewed the tapes.

'The CIA intends to produce all of the information requested to the
court and to produce as much information as possible on the public record to the
plaintiffs,' states the letter."

Ninety-two tapes of stuff that was so rough it had to be destroyed by the CIA to protect the CIA. Ninety-two tapes. I do wonder who watched these tapes, what they saw, how they justified it, how they found it to be in line with the law (even the very distorted version of the law they were given by the Bush DoJ) and if they actually found it to be over the line or not. Who knows what the tapes showed? Interrogators actually breaking even the Yoo/Bybee interpretation of the law? Methods that might've begged the question to a sentient being - hey, this kind of looks like it is probably illegal according to the law? You would think the CIA lawyers would know there are laws, like the Convention Against Torture, laws and treaties that they might actually want to read before blindly swallowing whatever the Bush DoJ told them? Professional ethics, somethin' like that?

As ex-CIA John Gannon said in reference to the tapes:

"Mr. Gannon said he thought the tapes became such an issue because they
would have settled the legal debate over the harsh methods.

'To a spectator it would look like torture,' he said. 'And torture
is wrong.'”

If this is true, how the hell did common sense fly so completely out the window at CIA?

I think the enormity of the tape destruction basically settles the question as to whether there should be a Congressional investigation of the CIA's role, as there was the DoD's. I have called for such an investigation in the past. The Senate Intelligence Committee is planning such an investigation now.

You have to wonder - 92 tapes of harsh interrogations of two detainees. What the hell was on those tapes? Nothing, apparently, that they wanted to ever see the light of day in a courtroom (international or otherwise)!

It seems to me these tapes may've constituted evidence of the extent of the bad faith that went into designing and following the Bush torture laws. We deserve to hear from those who watched the tapes exactly what they contained - and their reactions (along with official CIA reactions) to this content. 92 tapes. That is a lot of tape...

(h/t How Appealing)

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.

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.

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.

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]

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."