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.

A Valuable Tidbit

Digby quotes an exchange on CNN that is pretty interesting

TODD: Analyst says, if Brennan didn't support harsh interrogation, his
overall ties to the post-9/11 era at the CIA, with the prewar intelligence flap
and all the controversial tactics in the war on terror, would have made him
tough to confirm.Human rights officials are throwing down their gauntlet.
ELISA MASSIMINO, CEO AND EXECUTIVE DIRECTOR, HUMAN RIGHTS FIRST: It really is incumbent on the incoming administration to choose people for those slots who don't have any baggage from the previous policies and can demonstrate a clear break from those policies.
TODD: Elisa Massimino says that doesn't mean everyone who served in the CIA then should be automatically disqualified. But analysts say it will be hard to find a really qualified spy chief who doesn't have some tie-in to that period.A former CIA officer says, if the Obama team can find someone like that:
TYLER DRUMHELLER, FORMER CIA CHIEF OF
EUROPEAN OPERATIONS: They have a unique opportunity to make changes now in the agency, the way the agency fits in to the intelligence community, get back to the real core mission of the service, to recruit agents and have -- collect
intelligence through classic espionage.(END VIDEOTAPE)
TODD: Tyler Drumheller says the ideal person for that would be, not a former analyst, but someone from the operations side of the CIA, the division that actually carries out missions in the field. So, the challenge right now for Obama's team, find someone like that who is not associated with the controversies of the past eight years. Suzanne, it's going to be a very tall order. That really narrows the
field.
MALVEAUX: OK, Brian Todd, thank you so much.

As I wrote in the comments of digby's post, this is actually kind of a good sign - a veteran CIA operative like Drumheller backing up a liberal group like Human Rights First.

I wonder how widespread Drumheller's thinking is. After all, the CIA was not always a jailer & principal interrogator - and Drumheller has made this point before (from Jane Mayer's article The Black Sites):

The C.I.A. knew even less about running prisons than it did about hostile
interrogations. Tyler Drumheller, a former chief of European operations at the
C.I.A., and the author of a recent book, “On the Brink: How the White House
Compromised U.S. Intelligence,” said, “The agency had no experience in
detention. Never. But they insisted on arresting and detaining people in this
program. It was a mistake, in my opinion. You can’t mix intelligence and police
work. But the White House was really pushing. They wanted someone to do it. So
the C.I.A. said, ‘We’ll try.’ George Tenet came out of politics, not
intelligence. His whole modus operandi was to please the principal. We got stuck
with all sorts of things. This is really the legacy of a director who never said
no to anybody.”

Having someone as CIA Director who really believes the CIA needs to redefine its mission and get out of the business of breaking the Geneva Conventions would certainly be positive. Drumheller's criticism is a substantial one - let's remake this place. It synchs up nicely with the stated aims of Obama's administration (end torture, shut down Guantánamo) and the general tendency of his thinking. I would imagine that getting away from his crap would be a relief to a lot of people in the CIA.

Maybe Drumheller is auditioning for the positon. I hope not - like Brennan, he believes renditions have their purpose - they are a "vital tool." This is an interesting interview with Drumheller from Spiegel Online:

SPIEGEL: The renditions program saw the kidnapping of suspected Islamist
extremists to third countries. Were you involved in the program?
Drumheller: I would be lying if I said no. I have very complicated feelings about the whole issue. I do see the purpose of renditions, if they are carried out properly.
Guys sitting around talking about carrying out attacks as they smoke their pipes
in the comfort of a European capital tend to get put off the idea if they learn
that a like-minded individual has been plucked out of safety and sent elsewhere
to pay for his crimes.

SPIEGEL: We disagree. At the very least, you need to be certain that the
targets of those renditions aren't innocent people.
Drumheller: It was Vice President Dick Cheney who talked about the "dark side" we have to turn on. When he spoke those words, he was articulating a policy that amounted to "go out and get them." His remarks were evidence of the underlying approach of the administration, which was basically to turn the military and the agency loose and let them pay for the consequences of any unfortunate -- or illegal -- occurences.

SPIEGEL: So there was no clear guidance of what is allowed in the so called
"war on terrorism"?
Drumheller: Every responsible chief in the CIA knows that the more covert
the action, the greater the need for a clear policy and a defined target. 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.

It is unfortunate that Drumheller believes this, especially in light of his comments elsewhere regarding the countries we rend suspects to - "You can say we asked them not to do it, and they do say that, but you have to be honest with yourself and say there's no way we can guarantee they are not going to do that."

Um, at least his eyes are wide open, I guess.

Ideally the CIA Director will not be trying to incorporate the failures of the Bush administration into the Obama administration. If we insist upon playing by our own rules, it becomes much harder to play with others. Drumheller references this issue in his Spiegel interview - "The guys who attacked the World Trade Center didn't fly from Kabul to New York. They came from Hamburg. So the value in befriending the local intelligence services in Europe instead of alienating them is clear: We need to ensure that they are telling us everything they know."

Again, this is why we need fresh leadership that American citizens and our many allies can trust. If we continue to jeopardize our allies by carrying out illegal renditions on their soil, we are not going to have that trust. As I wrote in yesterday's article, important intelligence leaders in Italy were arrested for kidnapping Abu Omar. Do you think if our guys are never punished, and our "host country" is, that we will continue receiving their help?

The answer - from Michael Hayden of all people - is NO.

From John Prados at TomPaine.com:

General Michael V. Hayden, the current CIA director, was asked a few months ago
about the agency’s foreign intelligence partnerships, given the mounting
investigations of CIA activities. Without touching the controversial U.S.
operations at all, his response was, “If an ally believes—fears—that we can’t
keep such activities private, then that ally is going to be much more reluctant
to deal with us.”

The EU has condemned rendition. It is evidently important to our interests that we condemn it as well.