Panetta in Pakistan

From Press TV:

"Central Intelligence Agency Chief Leon Panetta has arrived in Islamabad on
a visit to discuss the US strategy on the war against terror.

Panetta held talks with Premier Yousuf Raza Gilani and Lieutenant General
Ahmad Shuja Pasha, the chief of Pakistan's powerful Inter-Services Intelligence
(ISI), on Saturday."

Do you think this was discussed? And how so?

"Torture is routinely used in Pakistan, both to obtain confessions in
criminal cases and against political and ideological opponents. Most acts of
torture are aimed at producing a confession during the course of a criminal
investigation. However, acts of torture by military and intelligence agencies
often are intended for punishment. Torture often follows illegal abductions or
'disappearances' by Pakistan's notorious Inter-Services Intelligence (ISI)
agency or military. Torture is often used to frighten the detainee into
compliance. If the detainee is released, it is usually on the understanding that
if he fails to do what is demanded or expected of him, a further abduction and
torture will follow. In this manner, the victim of custodial abuse can be kept
in a state of fear often for several years. Most often, the threat of torture is
enough to ensure compliance to the demands of the intelligence agencies.

Neither high social standing nor public profile deters the ISI or other
state agencies from perpetrating torture if they deem it in the interest of
'national security'-the relative anonymity of a victim only simplifies matters
for the torturers."

Panetta Comments on Rendition

From FreeDetainees.org:

"WASHINGTON (AP) — President Barack Obama may limit the countries to which the U.S. sends alleged terrorists to those with good human-rights records, and will
be less inclined to hand prisoners over in general, to help make sure they are
not tortured or abused, CIA Director Leon Panetta said Wednesday.
'If it’s someone we are interested in, there is no purpose to rendering anyone,
particularly if it’s a high-value target,' Panetta said in his first
on-the-record meeting with reporters since his confirmation this month.
Panetta said he believes prisoners should only be handed over to
countries that would have a legal interest in them — their home country or one
where a prisoner has charges pending, for example."

That rendition is kind of pointless - for intelligence purposes - has been mentioned before. An earlier LA Times article that speculated rendition "might be poised to play an expanded role going forward" quoted a former CIA official as saying, "In some ways, [rendition] is the worst option." Even the architect of the Clinton-era renditon program, Michael Scheuer, said in a Congressional Hearing in April 2007 that "I personally don’t think that torture is a very good idea in terms of getting information" (p.34 of the document).

The article becomes more interesting:

"Panetta made headlines during a congressional hearing earlier this month
when he confirmed that Obama intended to continue rendering prisoners captured
in the war on terrorism. He said the administration would get assurances first
from the country that the prisoner would not be tortured or have his human
rights violated.

That has long been U.S. policy. The Bush White House also said it
required assurances of humane treatment from other governments. But some former prisoners subjected to the process during the Bush administration’s anti-terror war contend they were tortured. Proving that in court is difficult because
evidence they are trying to use has been protected by the president’s state
secret privilege.

Panetta said Wednesday that the Obama administration would 'make very
sure' that prisoners are not mistreated after they are rendered. Asked exactly
how that would be done, Panetta was cryptic.

'Well, I guess, you know, A, make sure, first of all, the kind of countries that we render will tell us an awful lot about that,' he said. 'Number 2, I think diplomatically we just have to make sure that we have a presence to ensure that that does not happen.'” [emphasis supplied]

Well, I do appreciate the irony there. We promise to not conduct rendition to torture, but if a detainee claims otherwise, we will not let them have their day in court, protecting ourselves with the state secrets privilege. Reality is simply too difficult to accept. There's only policy - not individual cases, not evidence, not facts. Unfortunately, we still have a bit of that Bush rigmarole when it comes to rendition.

BUT - I am extremely interested to know the criteria that will determine where a detainee is rendered. Is it only countries with good human rights records? Or is rather the two criteria suggested by Panetta in the bolded quote above? Asking the country receiving the rendered person to essentially police their own behavior is not adequate in safeguarding the detainee from torture or otherwise inhumane treatment. Nor is diplomatic pressure, in my opinion. These two criteria come from the world of plausible deniability more than anything else.

If Obama intends to expand the rendition program, or present us with a believably new and more humane version, I would very much like to see some kind of standard set of criteria created and published that describes the countries that can receive a rendered suspect. Or he could rescind his absurd use of the state secrets privilege and we could find out case by case.

Here is a transcript of Panetta's comments in the press meeting yesterday. Some noteworthy sections:

QUESTION: Could you talk to us a little bit about the Obama rendition
program? You said that you'll continue doing it, but your focus will be on, you
know, making sure that nothing bad happens to the prisoners once they are handed
over. That's always been the U.S. policy. How will what you all do be different?
And, can you talk to us a little bit about the problem that we're seeing more
and more, which is people who have been rendered to other countries and released
and are returning to the battlefield? And can you tell us if any prisoners are
ever going back to Gitmo while it's still open? If not, where they're going.

DIR. PANETTA: All right, let me start — (chuckles).

DIR. PANETTA: Please, thank you. (Chuckles.) First of all, on the
rendition issue: Obviously, the executive order that was issued by the President
sets, you know, the ground rules for dealing with that issue. Number one, we are
obligated to follow the Army Field Manual, and we will do that. Secondly, we are
closing black sites, and we are doing that. And thirdly, rendition is still
permitted, but obviously — and it's been used in the past to obviously send
people to countries where there are jurisdictional issues for purposes of trying
individuals. If we render someone, we are obviously going to seek assurances
from that country that their human rights are protected and that they are not
mistreated. And we are going to make very sure that that does not happen. Well,
I guess, you know, A, make sure, first of all, the kind of countries that we
render will tell us an awful lot about that, number one. Number two, I think
diplomatically we just have to make sure that we have a presence to ensure that
that does not happen.

Q: Can I follow, please? Where do you personally stand on enhanced
interrogations? Do you believe there are situations where enhanced
interrogations, aggressive interrogations could be necessary?

DIR. PANETTA: You know, my position is pretty much in line with the
President's. It is in line with the President's. I think the Army Field Manual
gives us all of the capabilities we need in order to interrogate, and that's
based on my own military experience plus having talked to the FBI Director and
others who have direct experience with this. I think, you know, the purpose of
the review is to, obviously, determine how these interrogation techniques are
being used under the Army Field Manual, the quality of the information that's
provided, and whether or not in fact these other enhanced efforts produce that
kind of information, I don't know. I mean, I don't know the answer to that. And
that's why I'm going to participate in that review. But my personal view at this
stage is that the Army Field Manual gives us all of the tools we need.

We're going to do everything necessary to protect the safety of this
country. And as I mentioned in my testimony, obviously, you know, the President,
under Article II, is going to have to — if we ever have that kind of situation
that would require something beyond that, the President has the ability to
review that. But knowing this president and what he said, I think his position
would be we stand by the Army Field Manual.

Q: So would you personally be willing to order enhanced interrogation?

DIR. PANETTA: No.

Q: You would not. So that would have to go to the President?

DIR. PANETTA: Are you kidding me? You better believe it. (Chuckles.)
Under this executive order.

Q: Would you personally recommend to the president enhanced
interrogation?

DIR. PANETTA: No. No, I think at least from — the purpose of the review
process is to look at that and determine just how valid that is. And look, there
are views on both sides. But my sense right now from my position is, I think
what the President has provided in the executive order gives us more than enough
to derive the information.

There is some other interesting stuff in the transcript I will try to blog about later.

Devil in the details [updated]

From Democracy Now (h/t Invictus):

Scott Horton: "Of course, the proof is in the details. I mean, we’re going
to have to see how these rules actually are applied by the CIA, and we’re going
to have to look and see how the commitment not to render torture is applied. The
legal standard is that someone cannot be rendered if it is more likely than not
that the person would be tortured. We saw in the last administration all sorts
of evasions used to get around that. I think we see a break in these executive
orders, but we’re going to have to see, on the basis of individual cases, how
these orders are understood and implemented."

Panetta, Confirmation Hearing, Feb 5 2009:

"If we had the ticking bomb situation and I felt that whatever we were
using wasn't sufficient, I would not hesitate to go to the president and request
any additional authority that we would need."

There's your details - the loopholes were there for a reason. More details:

The Obama administration will not prosecute CIA officers who participated in
harsh interrogations that critics say crossed the line into torture, CIA
Director-nominee Leon Panetta said Friday.
Asked by The Associated Press if that was official policy, Panetta said, "That is the case."
It was the clearest statement yet on what Panetta and other Democratic officials had only strongly suggested: CIA officers who acted on legal orders from the Bush
administration would not be held responsible for those policies. On Thursday, he
told senators that the Obama administration had no intention of seeking
prosecutions for that reason.
Panetta, in an interview with the AP after a second day of confirmation hearings with the Senate Intelligence Committee, said that he arrived at that conclusion even before he began meeting with CIA officials.
"It was my opinion we just can't operate if people feel even if they are following the legal opinions of the Justice Department" they could be in danger of prosecution, he said.

So before Panetta met with CIA officials, or had read the memos and internal documents dealing with the work done by the CIA for the executive government...he says, investigation and prosecution is off the table. Details, details.

More details to consider:

"Panetta told the committee that the Obama administration will continue to hand
foreign detainees over to other countries for questioning, but only if it is
confident the prisoners will not be tortured in the process.
That has long been U.S. policy, but some former prisoners subjected to the process — known as 'extraordinary rendition' — during the Bush administration's anti-terror
war contend they were tortured. Proving that in court has proven difficult, as
evidence they are trying to use has been protected by the president's state
secret privilege.
'I will seek the same kind of assurances that they will not be treated inhumanely,' Panetta said during his second day before the Senate Intelligence Committee. 'I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries.'
Some critics worry that any gray area in delineating policy on renditions could allow for abuses."

How is what Panetta says here at all different for what we ripped John Brennan for saying?

From Glenn Greenwald:

"Then there is Brennan's December 5, 2005 appearance on The News Hour
with Jim Lehrer, in which he vehemently defended the Bush administration's use of rendition -- one of the key tools to subject detainees to torture:

'JOHN BRENNAN: I think over the past decade it has picked up some
speed because of the nature of the terrorist threat right now but essentially
it's a practice the United States and other countries have used to transport
suspected terrorists from a country, usually where they're captured to another
country, either their country of origin or a country where they can be
questioned, detained or brought to justice. . . .
MARGARET WARNER: So was Secretary Rice correct today when she called it a vital tool in combating terrorism?
JOHN BRENNAN: I think it's an absolutely vital tool. I have been intimately familiar now over the past decade with the cases of rendition that the U.S. Government has been involved in. And I can say without a doubt that it has been very successful as far as producing intelligence that has saved lives.
MARGARET WARNER: So is it -- are you saying both in two ways -- both
in getting terrorists off the streets and also in the interrogation?
JOHN BRENNAN: Yes. The rendition is the practice or the process of rendering somebody from one place to another place. It is moving them and the U.S. Government will frequently facilitate that movement from one country to another. . .
Also I think it's rather arrogant to think we're the only country that respects human
rights. I think that we have a lot of assurances from these countries that we
hand over terrorists to that they will, in fact, respect human rights.
And there are different ways to gain those assurances. But also let's say an
individual goes to Egypt because they're an Egyptian citizen and the Egyptians
then have a longer history in terms of dealing with them, and they have family
members and others that they can bring in, in fact, to be part of the whole
interrogation process.'

Even when CBS News -- for which Brennan was serving as an intelligence analyst -- was reporting on the dreadful case of Maher Arar, the Canadian citizen whom the
Bush administration abducted at JFK Airport and rendered to Sryia for 10 months
to be tortured only for it to then be revealed that he had no connection whatsoever to terrorism, Brennan was defending the rendition program:

'CBS NEWS: Despite Arar's experience, this former counterterrorism official says
"rendition" does have its place.
Mr. JOHN BRENNAN (CBS News Terrorism Analyst, Former Director, National Counterterrorism Center): I think it allows us to have the option to move a person who is involved in terrorism or terrorism-related activities to a country where they can be effectively questioned or prosecuted.'"

As Greenwald himself put it, the centerpiece of the anti-Brennan argument was "his emphatic advocacy for rendition and 'enhanced interrogation tactics.'"

At present, we have a CIA Director willing to seek "additional authority" in interrogations - despite the fact that the current Army Field Manual approves tactics that can amount to torture. Based on Obama's executive order Ensuring Lawful Interrogations, you might be able to argue, as based on this post, one thinks BTD might, that Appendix M is nothing to worry about - if Appendix M is only applicable to 'unlawful combatants,' as the Center for Constitutional Rights says, then Obama's prohibition against relying upon interpretations of the law "issued by the Department of Justice between September 11, 2001, and January 20, 2009" means 'unlawful combatant' is no longer a category for any detainee. Unless Obama's DoJ restores the category, Appendix M means nothing. [UPDATE: Even if Obama were to maintain the status of unlawful combatant for detainees, they would still under the Geneva Conventions be covered - they could not be subjected to physical or moral coercion, nor "tortured either psychologically or physiologically" - Jane Mayer "The Dark Side" p.83 ]

But why then does Panetta say he will without hesitation seek additional authority, if needed? He believes he will be rejected, but we learned today that the Obama Administration is invested in preserving at least some of Bush's legal labyrinths. In Daphne Eviatar's words, "the new administration today stood up in a federal appeals court and reiterated the Bush administrations’ arguments that victims of 'extraordinary rendition' and torture should not be allowed to bring their claims in federal court because doing so would reveal 'state secrets' and harm national security."

Where does it end? If the Obama administration wants to preserve massive amounts of executive power, we will not escape from the shadow of torture. Torture could be, torture could not be. It's the executive branch's call.

What does the Obama administration expect? That four years of a Democratic presidency will get us all "used to" not relying on torture? It'll just go away? If you don't punish the people that brought us here, illegally, how is it that it will go away?

If the Obama administration wants to cover its anti-torture bases, it has to do better. Since Obama issued his executive orders, things have all been downhill. Conditions worsening in Gitmo. State secrecy preserved. A once strongly anti-torture CIA nominee within steps of being confirmed, claiming in the same language used by past torturers by proxy that he will "gain assurances;" an almost newly minted CIA Director saying he will ask for additional authority if necessary.

If the plan is to render detainees to third countries, where they can be tried, the plan is not necessarily a good one - as former CIA Michael Scheuer says, “What was clever was that some of the senior people in Al Qaeda were Egyptian.” Ok...so Egypt has an oustanding warrant for these people. What on God's earth are we going to do to get them not to torture? The US legal system allows for renditions into itself - and these renditions are already against international law. We can arrest via "extraterritorial jurisdiction."

The anti-torture left needs to call for immediate clarification into Obama's policy regarding torture. Bush bastardized our language. If you're not going to prosecute, at least let us know in clear words your intentions.

Or I guess we can keep getting surprised, as we were today with the Obama admin's support of state secrecy. But that won't do a damn thing.

Panetta's Answers

While Obama's selection of Leon Panetta for CIA Director was initially hailed by liberals as a rather impressive move, it appears that we all should've waited for Panetta's confirmation hearing to get too excited. The Panetta who wrote that "there is no middle ground" on torture issues said at his hearing “If we had a ticking bomb situation, and obviously, whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need.” The man who wrote "We are sworn to govern by the rule of law, not by brute force" trotted out the same tired BS used to make the US seem to have clean hands when it comes to renditions - from the LA Times:

"The agency no longer will send prisoners to its own secret detention
sites, which are being closed, Panetta said. But, 'there is a second kind of
rendition, where individuals are turned over to a country for purposes of
questioning,' he said. 'There were efforts by the CIA to seek and to receive
assurances that those individuals would not be mistreated.'
Panetta made clear that those renditions would continue, largely unchanged from Bush-era policies."

Panetta's willingness to waver on these issues - and commitment to asking for legal authorization of coercive interrogation if he wants to - is nothing like an end to torture. The Obama administration reserves the right to revert to the past. Panetta's wavering points us to structural problems in the process by which torture is authorized that make it difficult to end torture for good in the US.

The first issue, as I see it, is that the decision to torture rests with three people - the President, the D/CIA, and the AG. The process former AG Mukasey described in a letter to Sen. Leahy (read here) still exists. Obama's executive order does nothing to alter this -

"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."

And in fact reinforces it (from the Executive Order Ensuring Lawful Interrogations):

"(c) Interpretations of Common Article 3 and the Army Field
Manual. From this day forward, unless the Attorney General with
appropriate consultation provides further guidance, officers,
employees, and other agents of the United States Government may, in conducting
interrogations, act in reliance upon Army Field Manual 2-22.3, but may
not, in conducting interrogations, rely upon any interpretation of the law
governing interrogation -- including interpretations of Federal criminal
laws, the Convention Against Torture, Common Article 3, Army Field
Manual 2-22.3, and its predecessor document, Army Field
Manual 34-52 -- issued by the Department of Justice between
September 11, 2001, and January 20, 2009." [emphasis supplied]

Three people in the US government can change torture policy, whenever they so choose. And our national lack of interest in prosecuting Bush shows those in power that they have nothing to fear if they do choose to torture. We will defend poorly written legal opinions - as Panetta did - as long as they come from the people in the right positions inside the halls of power.

Vesting three individuals with the power to abuse and torture detainees is not an effective end to torture. We must agitate for:

1. transparency. As a state Senator, Obama pushed for a law requiring all police interrogations to be videotaped. This would be a great device by which to ensure our operatives are in compliance with the law.

2. prosecutions. Sorry, my faith in "the rule of law" has been kind of busted over the past 8 years. The efforts people in the Obama administration have been making to legitimize Bush policy and Bush legal opinion give me little confidence in their commitment to the rule of law - for example, Panetta: “Those individuals operated pursuant to a legal opinion… [and they] ought not to be prosecuted or investigated, [since] they acted pursuant to the law as it was presented by the attorney general.” Protecting Bush legal opinions only makes me wonder if you are doing so to preserve that type of power for yourself, in the future. Investigations and prosecutions of our little band of torturers are necessary to dispel these doubts.

3. new process. I believe that a law must be passed in Congress providing for the use of the AFM, minus its coercive provisions and Appendix M, in all of our federal agencies. Executive orders - which can be reversed at will - are not sufficient. Let Congress pass a law dictating anti-torture interrogation policy - and when a President wants to go against it, they can have it out in the courts. The right wing isn't going anywhere - and I do not want to see them undo Obama's executive orders (nor do I want to see Obama undo his own orders) in 2012, or 2016. Whether we torture or not should not be a political question - D/CIA and AG are both political appointees, and the President is of course elected.

There is much, much more to be said about Panetta's confirmation hearing. Guantánamo has apparently gone to shit: see Invictus and TalkLeft. Who in the Obama administration is going to step up and enforce the executive orders? Because this:

"But first, Bradley, a US military attorney for 20 years, will reveal that Mohamed, 31, is dying in his Guantánamo cell and that conditions inside the Cuban prison camp have deteriorated badly since Barack Obama took office. Fifty of its 260 detainees are on hunger strike and, say witnesses, are being strapped to chairs and force-fed, with those who resist being beaten. At least 20 are described as being so unhealthy they are on a 'critical list', according to Bradley."

Does not sound like this:

(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340-2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all
circumstances be treated humanely and shall not be subjected to violence to life
and person (including murder of all kinds, mutilation, cruel treatment, and
torture), nor to outrages upon personal dignity (including humiliating
and degrading treatment), whenever such individuals are in the custody or
under the effective control of an officer, employee, or other agent of the
United States Government or detained within a facility owned, operated, or
controlled by a department or agency of the United States.

(Force-feeding detainees has also been described here, amongst other places).

There needs to be immediate action on the part of the Obama administration to investigate these allegations and prosecute those who continue to mishandle detainees. The conduct of the Joint Task Force at Guantánamo appears to be in flagrant violation of US law.

Update - Sorry, That's Not Exactly Anti-Torture: Panetta on the Ticking Time Bomb

We are in the "ticking time bomb" section of Panetta's confirmation. I will provide exact quotes when the transcript appears on the Senate Intelligence Committee site later. But he basically said, in a ticking time bomb situation, if he felt the techniques were not working, he would go to the President to seek additional authority. But he didn't think the President would go beyond the law.

So that's just greeeaaat. This is a perfect argument for passing a law in Congress that codifies the use of a standard - something like the Army Field Manual without Appendix M and other loopholes - that governs all interrogations in every agency. Maybe this will light the fire under Senator Feinstein's feet and she'll get her much talked about law passed. From the Media Matters link:

FEINSTEIN: I've met with Greg Craig about the executive order on two
occasions now. The Intelligence Committee will be providing oversight over it.
And, as you know, I have a bill to close Guantánamo, to end contractors doing
interrogations, to have one standard across -- which is the Army Field Manual --
the executive order coalesces with this bill. And we need time to really address
the fine points of the executive order and see if it's sufficient or if we need
to codify some of this.

Of course it's not sufficient. If the President can reverse it overnight (and he can), an executive order against torture is not sufficient.

Update: I did hear correctly. A quote from The Guardian:

"Pressed by Democrat Ron Wyden of Oregon about a 'human ticking time-bomb'
scenario, in which a terrorist knows of an imminent attack on the US, Panetta
said he believed torture would not be necessary to extract information.
'I'm of the view that when you look at the FBI and the US military, that they have
been able to show that it is possible to get the information that's needed to
protect our nation's security," he said.
However, he added: 'If we had the ticking bomb situation and I felt that whatever we were using wasn't sufficient, I would not hesitate to go to the president and request any additional authority that we would need.'" [emphasis supplied]

As someone from the "no torture, no exceptions" school, I find this appalling. It's an opening for those in our country who like torture. Under the current structure, the CIA would have to request that kind of authority from the President and also the AG. And that power nexus is a little scary. That's one of the reasons I posted a few days ago on Mukasey's letter to Sen. Leahy. The power to torture is in the hands of three US government officials.

But note that to approve a torture technique the "Attorney General would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed." In this era where Bush, Yoo, Cheney and Gonzales look like they might get away with all of it, that is a particularly awe-inspiring power. After all, the law is anything you want it to be. We need to prosecute Bushco so that we can limit that sort of fantasy interpretation of the law. Our laws are weakened by a refusal to investigate and prosecute our big name criminals.

Conflicts of Interest & the Intel Community

In anticipation of Leon Panetta's confirmation hearing today, questions have been raised in the media about Panetta's business relationships and finances. In the context of Obama's rules and the recent problems with Daschle and others, these may present a problem for Panetta. The AP runs a story with details - and Mark Silva at The Swamp has even more information. The most interesting charges to me are these: "a $28,000 honorarium from the Carlyle Group" and "a $60,000 'governmental advisor fee' from the Pacific Maritime Association."

Mark Silva has a quote from the Carlyle Group: "Chris Ullman, told Bloomberg that Panetta spoke at an annual investors' conference, 'which is unrelated to any of our portfolio companies,' such as Booz Allen Hamilton, an intelligence contractor for the government."

Well, we shall see how true that is. I'd like to see the topic of discussion, a list of the investors' present, etc.

Silva also says the Pacific Maritime Association "lobbies the federal government on terrorism laws." Although my knowledge of which laws the PMA is trying to influence is nonexistent, a look at their organization suggests they would be very homeland-security specific. Their site says "The principal business of the Pacific Maritime Association is to negotiate and administer maritime labor agreements with the International Longshore and Warehouse Union.
Our member companies are cargo carriers, terminal operators and stevedores that operate at West Coast ports, where overall cargo movement supports 8 million U.S. jobs." PMA is not, for example, a defense contractor. Questions should be asked of course.

Now let's compare Panetta to the candidate scorned, John Brennan. I have documented in various posts his extremely intimate dealings with intelligence businesses. And by extremely intimate, I mean that in November of 2008 he was still the CEO of The Analysis Corp., an intelligence contractor! And not only that, as of November 2008, Brennan was the chairman of the most influential trade association in intelligence contracting - the Intelligence and National Security Alliance! Read more about TAC (The Analysis Corp.) and INSA here and here.

To excerpt from my diary at Talkleft on INSA:

"INSA's joint programs with the DNI have alarmed some intelligence veterans, who
wonder if INSA has become a way for contractors and intelligence officials to create policy in secret, without oversight from Congress. 'Evidently, DNI McConnell has made it an early priority to stand up INSA as the preeminent nonprofit association serving the ODNI,' an industry insider told me, on condition of anonymity. 'While INSA has created multiple levels of memberships and a large connected board of both government and industry leaders, the real control remains with the big-dollar founding primes. I wonder if it's even legal for these officials to sit on an actual board of an industry trade association.'

"That is not entirely clear. Scott Amey, the counsel for the Project on Government Oversight, a public interest group that monitors federal contracting, said the DNI's relationship with INSA certainly raises serious ethical questions. If government officials are attending INSA meetings on a regular basis, he said, those meetings may be subject to open meeting rules, which would require them to be open to the public. The fact that contractors and intelligence officials are meeting under the cover of a business association - despite the fact that they are supposedly there as individuals - points to the need to expand the oversight of intelligence to include contracting." Tim Shorrock, "Spies for Hire," p.70-71 [emphasis supplied]

Now that's a real scandal. This may be why Brennan actually stepped away from the D/CIA position. Who knows. But I am glad at least that Panetta is farther removed than Brennan from this culture which made big bucks on the Bush terror regime.

Obama's Laws

Although Obama's executive orders pertaining to rendition may permit such renditions as would violate international law (in other words, renditions outside of extradition agreements - see Valtin's comment to this post), those orders are presently domestic law.

Therefore, they would be binding upon all renditions performed. So when Spencer Ackerman writes today, of the Panetta nomination:

"For instance, the orders demand the CIA shut down the so-called 'Black Sites,'
or secret prisons run by the agency or through its foreign-intelligence
partners. But they do allow for CIA to hold detainees on 'a short-term,
transitory basis' before transferring them to another government agency. But how
long should that period be? Hours? Days? Weeks? What procedures should be in
place to determine humane treatment of those detainees during a time when
they’re not likely to have access to human-rights monitors like the
International Committee of the Red Cross?"

It seems to me that Obama's executive order, Sec 4. part b, suggests that, if a detainee were to be rendered to another country's government, before passing to that country, their name would have to be released to the International Committee of the Red Cross - and the Red Cross would also be given access to the detainee:

"All departments and agencies of the Federal Government shall provide the
International Committee of the Red Cross with notification of, and timely access
to, any individual detained in any armed conflict in the custody or under the
effective control of an officer, employee, or other agent of the United States
Government or detained within a facility owned, operated, or controlled by a
department or agency of the United States Government, consistent with Department of Defense regulations and policies."

Hilzoy makes this very point: "His executive order also precludes any kind of secret detention of prisoners, and thus 'secret abductions and transfers of prisoners'...Note that this has no exceptions for short-term detainees whom we quickly hand off to someone else." The executive order states that the International Committee of the Red Cross will have access to any individual detained - any and all. No more "Camp NAMA"s. The International Committee of the Red Cross will apparently have a record of our detainees that matches, in very important ways, our record. Accountability in real-time (hypothetically), at least when it comes to the subject of our detainees in our custody.

This is all well and good. But other measures could improve accountability considerably. I would think it none too difficult to deceive/mislead the International Comm. of the Red Cross. As an Illinois State Senator, Obama pushed for a law to videotape all police interrogations. He could presumably issue an executive order dictating the same in all of our detainee interrogations. All of them - interrogations in temporary holding cells, interrogations domestically.

But is a videotaped interrogation much consolation to someone who has been kidnapped? Let me go out on a limb here and say NO.

I plan to post on the legal issues regarding rendition later this week. Unfortunately I don't have the time to give to the problem that it deserves today. Apologies for the delay.

The Not So Great Convergence

When Panetta was selected, I wrote the following:

"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?"

It's only been a few days, but the portrait of Panetta in those years has been significantly developed. The Telegraph blog asks the same question I do - Did Leon Panetta know about 'extraordinary renditions' under Clinton? Most interestingly, Fred Kaplan at Slate gets a response from Richard Clarke to this question:

"Richard Clarke, who was the White House counterterrorism director under Clinton(and, briefly, under Bush before resigning and then emerging as a celebrated critic), wrote in an e-mail today:

'Leon was in all of the important national security meetings for years, both as [Office of Management and Budget] director and as chief of staff. He made substantive contributions well outside of his job description. And as OMB director, he was one of a very few people who knew about all of the covert and special-access programs.'"

Kaplan elaborates on the special-access programs, but I find it odd, especially in light of the criticism that will come, and has been coming from the Right for the purpose, I assume, of yelling hypocrite and protecting the Bush legacy, that he doesn't elaborate on the covert programs section of Clarke's statement. Panetta was Chief of Staff until January 20, 1997. Clinton's rendition directive is dated June 21, 1995 - about a year into his Chief of Staff tenure. Clarke appears to be saying, yeah, Panetta knew.

Maybe we should thank Kaplan for not contributing to what will probably develop - the Panetta as renditionist narrative. Some accounts suggest Clinton renditions and Bush renditions are different animals. It's worth discovering how true that is. But a narrative developing of Panetta as renditionist is not going to help end rendition, at all. Hence, the not-so-great convergence. It is worth noting that Panetta has not said anything (to my knowledge) about rendition. Someone needs to ask him about it. See, this is why I like the Campaign to Ban Torture people.

Kaplan is wrong on all counts about Kappes though:

"Kappes was the longtime deputy director of clandestine operations until Bush named Rep. Porter Goss to run the CIA in 2004, at which point he resigned in disgust—along with many other professional agency veterans—over the heavy-handed campaign, by Goss and his goons, to turn Langley into a cheering section for Bush's policies. When Goss left in disgrace two years later, one of the first moves that his successor, Gen. Michael Hayden, made was to bring back Kappes as his deputy-which did much to restore morale. (Bonus: In part because of his absence, Kappes eluded association with Bush's darkest deeds—or so it is believed.)"

Kappes was the deputy director of operations for a few months - August-Nov 2004. He was the associate (or, assistant) deputy director - aka no.2 in operations - for about two years. And believe me, enough horrible sh*t happened before November 2004 to make it impossible to say Kappes' "eluded association of Bush's darkest deeds" - Zubaydah's waterboarding comes to mind. Oh, and how about that rendition Kappes authorized?

If people believe Kappes is clean, it is because of incompetent reporting like this. Kaplan has great sources - but regarding Kappes, he is seriously wrong.

Update: Ambinder has an interesting interview with rumored D/CIA candidate Tim Roemer. He asks Roemer about possible prosecutions of CIA case officers. I can tell you now, if Kappes stays as Deputy Director, case officers have nothing to worry about. Unless Obama wants to continue the Bush position - leave case officers (Bob Lady) hanging out to dry, protect the higher-ups.

Culture Shock?

Jeff Stein writes:

Am I the only person who sees some irony in the demands of some key
Democrats that Steve Kappes be kept at the CIA as the price of their support for
Leon Panetta to run the spy agency?

To be sure, Kappes, now the CIA's No. 2, is "highly regarded," as
everyone keeps saying, inside and outside the CIA. He has been a station chief
in Moscow and Kuwait and in recent years pulled off a Hollywood-like secret
operation to get Libya's Muammar Qadaffi to ditch his nuclear weapons program.
His subordinates virtually gush over him.

...

But if the choice of Panetta is meant to signal a complete break with the
Bush administration's CIA, why would Democrats like Sen. Diane Feinstein,
D-Calif., the incoming chairwoman of the Senate Intelligence Committee, intimate
that her price for supporting Obama's pick of Panetta' was to keep Kappes as his
deputy?

One reason is obvious: Outside of listening in on intelligence
briefings as Bill Clinton's chief of staff, and reviewing CIA spreadsheets as
OMB director, Panetta can't seriously be said to have "intelligence experience,"
no matter how furious the Obama team's spinning.

...

Many close observers of the agency have cautioned that Panetta should avoid
bringing along an outside retinue to staff his executive offices at Langley,
like Goss did when he imported his staff from the House Intelligence Committee,
where he was chairman.

For that reason alone, Feinstein and others say Panetta needs
"experienced intelligence professionals" to show him the ropes.

...

When Goss came in, "Talented officers refused to take on leadership roles
simply because they were annoyed that their choice for DCI, John McLaughlin, was
not chosen by the President," he said.

Which all means Panetta is going to get a quick education in the CIA's
culture even before he turns to the Global War on Terror.

Panetta, said another official from the Goss era, "is doomed with this
arrangement, one way or the other. He should be insisting, if "change" is
really what the Obama administration wants at CIA, that he gets to clean house.
Otherwise, he will be managing and working against cross purposes with
those who carried out the very policies they believe to be inhumane and
improper."

Now, Goss was notoriously terrible. And the perspective of the last quoted source sounds extremely sympathetic to Goss. The source may just be trying to push an anti-Kappes line. But it's worth considering how the people from the torture, pre-torture, and post-torture eras (presuming we get a post-torture era) will get along.

There must be some opportunities for Obama to win over the CIA to his side. After all, how many CIA operatives are really wishing they could have 8 more years of taking out professional liability insurance? 8 more years of being undercut and manipulated by the Executive Branch? Do operatives really want to engage in renditions that could leave them at the mercies of international justice systems? Does the CIA want to persist in its newfounded jailer role? Obama should really be able to offer a lot to an agency that has been stretched thin and on top of all this, devalued - almost every report I've read suggests the CIA is not happy to be under the ODNI.

So why are the press reports tending to be so negative? That might be a question that has more to do with the media than anything else. Regardless, there are criticisms that are good and criticisms that need to be totally set aside - boxed away as irrelevant, aggressive neo-con holdover speak. For instance, from The Washington Post:

"But one former senior intelligence official noted that many of the people
Panetta will be expected to lead would have participated in implementing the
interrogation policy. Obama and Panetta 'should think twice about pledges they
make now' about the handling of terrorism detainees, another former senior
official said, 'because they may come back to haunt them in the future if some
dire circumstances occur.'"

This isn't a torture apologist. This is a torture advocate. Obama doesn't need to concede anything to these people. Nor should he.