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.

NYT Editorial on the Rule of Law

Two things in particular I liked here:

"But the break does not always seem complete enough. Even as they dropped
the 'enemy combatant' terminology, Mr. Obama’s lawyers did not seem to rule out
indefinite military detentions for terrorism suspects and their allies. They
drew a definition of association with Al Qaeda that is too broad (simply staying
in a 'safe house,' for example). Worse, they seemed to adopt Mr. Bush’s position
that the “battlefield” against terrorism is the planet. That became the legal
pretext for turning criminal defendants into lifelong military captives."

Well put. And this is important too:

"Mr. Obama also should stop resisting an investigation of Mr. Bush’s policies on
terrorism, state secrets, wiretapping, detention and interrogation. We know he
is struggling with many Bush-created disasters — in the economy, in foreign
policy and on and on. But understanding all that has gone wrong is the only way
to ensure that abuses will truly end. That investigation should be done calmly rather than under the pressure of some new, shocking revelation."

With news that three more torture memos are to be released this week, it seems like it's time to stop being side-tracked by media torture revelation rollercoasters. We must simply begin a comprehensive, no-immunity granted investigation. Because we are running out of time, as Daphne Eviatar points out on the Rachel Maddow show:

"MADDOW: So of the big potential crimes that could be investigated from
the Bush era, which of them would pose or could pose statute of limitations
issues?
EVIATAR: Well, the biggest one really is torture.
There is an eight-year statute of limitations when it comes to prosecuting
torture. And we know and there‘s been strong evidence that there was
torture including waterboarding and all sorts of bizarre humiliations of
detainees at Abu Ghraib and possibly also at Guantanamo Bay starting very early
on in 2002.
Now if you give that eight years, that means by 2010 it could be too late to prosecute."

Yes, as Eviatar points out, the statute of limitations could be extended, and John Conyers is working to do that, but it would be better to operate within existing law than hope that Congress will before 2010 vote to extend the statute of limitations. It would take an immense amount of political capital to do that.

If I were cynical...I would suggest that perhaps this is part of the Obama "avoid investigations" strategy - reveal a few memos at a time, and above all take one's time in everything related to detention and interrogation - a year to close Guantanamo, six months to review interrogation and rendition, etc. Before you know it, 2010 rolls around, and the test of integrity - do you have the will to prosecute? - is now null.

We already know that there is some truly f*ked up stuff in those memos, and that the regulatory processes that would normally prevent a CIA torture program were distorted and ignored by the executive branch. Take this for instance from the Newsweek article quoted above:

"'I now know we were not fully and completely briefed on the CIA program,'
Senate Intelligence Committee chairwoman Dianne Feinstein told NEWSWEEK. A U.S. official disputed the charge, claiming that members of Congress received more
than 30 briefings over the life of the CIA program and that Congressional intel
panels had seen the Red Cross report. But the CIA insisted that the report be
treated as if it had higher than top-secret classification, precluding any
public discussion of its contents."

Feinstein versus anonymous? Talk about having no one to root for. Feinstein says "hey, we were completely deceived! Ain't that something!" and the anonymous official (from which Administration? Obama's?) says that people were briefed in detail. Since the role of these intelligence committees is to provide oversight, it is extremely important to lay blame at their feet as well and make sure that future committees are given the tools and privileges they need to actually conduct oversight and blow whistles when needed. Why is it seemingly not a big deal that the intelligence committees completely sucked at their job? We could have put children in the position of Feinstein and co. and they would've done a better job. So I think the role of the intelligence committees must be reevaluated as well.

That there are serious problems in the way we conducted the "war on terror" during the Bush Administration is now clear as day. Instead of waiting for some sort of critical mass of flashy news leaks from the Obama Administration, we should encourage criminal investigations to begin now. It wouldn't be a bad thing to have an independent investigation in charge of what is leaked and what is not, who is tried and who is not, what evidence is revealed and what is not. We really don't need something as shameful, embarrassing and criminal as what happened over these past 8 years controlled by White House spin doctors.

Update/Correction: I thought these three torture memos were going to be released this week. I was wrong and should've read more carefully. Yeesh. According to Newsweek: "But the White House has sided with Holder. Faced with a court deadline in a Freedom of Information Act lawsuit regarding the memos filed by the ACLU, Justice lawyers asked for a two-week extension 'because the memoranda are being reviewed for possible release.'"

Noble, but the slow-going continues.

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."

On the run!

Sorry no postings this week...it's been a busy one, but I will resume this weekend, tapping away at a hopefully much more reliable computer.

I did catch this yesterday though: Darius Rejali "Ice Water and Sweatboxes."

It is interesting to read about the long history of torture, especially as the possibility that torture works or has any redeeming value at all is still a live issue in the media and in the Obama Administration (which is in the middle of a process of figuring out whether torture "works"). Panetta says "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."

Always reinventing the wheel. And, btw, torture is still against the law...

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)

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.

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 question

Is this report to be believed?

"The Guantanamo Bay prison camp was ordered closed by the US president, in
addition a review of the detainees' trials was ordered, along with the
closure of CIA secret prisons and an end to harsh interrogations.
But the orders appear to leave loopholes that could allow some controversial US
practices to continue.
Extraordinary renditions, where 'terror' suspects are apprehended and transferred from countries by US intelligence services or their allies, without going through any
legal process, could still be carried out.
A senior Obama administration official has said the policy of extraordinary rendition would continue while a task force headed by the US attorney general investigates the issue.
The task force will report back to Obama in six months.
The official also said the US would not render anyone to a country that tortures and will gain assurances from the countries that they do send people to that the suspects won’t be tortured."

This is the only place I've read that. I will update later if I find corroboration.

Updated - Holder (seems to) Roll Over

Ackerman quoting the Washington Times:

"President Obama's choice to run the Justice Department has assured senior
Republican senators that he won't prosecute CIA officers or political appointees
who were involved in the Bush administration's policy of 'enhanced interrogations.'
Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.'s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama's Justice Department will not prosecute former Bush officials involved in the interrogations program.
Mr. Holder's promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon."

Prosecutions off the table - even for people like Gonzales and Yoo. So says Eli Lake.

BUT I would like to know exactly what was said to Kit Bond. Bond's actual quoted statements in the article are less severe:

"In the interview Wednesday, Mr. Bond said, 'I made it clear that trying to
prosecute political leaders would generate a political firestorm the Obama
administration doesn't need.'
He added, 'I was concerned about previous statements he made and others had made. He gave me assurances that he would not take those steps that would cause major disruptions in our intelligence system or cause political warfare. We don't need that kind of political warfare. He gave me assurances he is looking forward.'
Mr. Bond also said, 'I believe he will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9-11.'"

IOW, Mr. Bond may believe Holder won't prosecute - but that doesn't mean he won't. There hasn't been a public promise to that effect. Who knows what language Holder used. Being optimistic here.

It doesn't look good for prosecutions, by any stretch of the imagination. But I'm hoping that Bond and the Washington Times are just doing their job as dutiful Republicans causing trouble for Democrats and protecting their own.

The LA Times op-ed page has an editorial on Cornyn's request that Holder take prosecutions off the table. They say it crosses an ethical line. I hope Holder has not in fact agreed to cross that line with Cornyn and Bond.

Update: Via mcjoan, apparently Sheldon Whitehouse was not in on the Holder-Bond conversation:

"We came perilously close to seeking a prosecutive commitment from an AG
candidate on an issue he would have to make a decision on. We don't ask
judicial candidates their position on a case, the notion that a person who is a
candidate for AG should have to make a prosecutative decision before he has even
read the file or before he has even been read into the program at question."

Fear-mongering At Its Finest

Yesterday Alberto Gonazles held forth about torture and prosecutions on NPR. Kate Klonick has the story. Here is Gonzales' statement:

“'One needs to be careful in making a blanket pronouncement like that,' Gonzales
said, suggesting that it might affect the 'morale and dedication' of intelligence officials and lawyers who are attempting to make cases against terrorism suspects.
He said people he knows at the CIA have told him that agents there 'no longer have any interest in doing anything controversial.' And that, Gonzales asserted, means they 'won’t be doing what they need to be doing' to protect the country.

I'm guessing the people that Gonzales knows at the CIA - who are still willing to confide in him, seeing how his crap memos put many at the CIA in legal jeopardy - are probably not big Obama boosters to begin with. And if the CIA truly waterboarded only three times, I doubt Holder calling 'em like he sees 'em is going to massively depress morale.

Nobody has a problem with the CIA taking risks. But it seems simple enough that they should not be allowed to torture. I suspect its Gonzales' morale that is more deeply affected than anyone else's.

Case in point:

“'It’s a great leap forward in terms of respect for human rights,' said John Kiriakou, the retired CIA official who supervised the early interrogation of Al Qaeda detainee Abu Zubaydah in 2002. 'From the very beginning, the CIA should not have been in the business of enhanced interrogation techniques and detentions.' CIA interrogators waterboarded Abu Zubaydah, but not while Kiriakou supervised the interrogation.

...

Kiriakou said that the reaction to Obama’s harmonization of interrogations policy would get 'a very positive reaction' inside the CIA. 'There are people at CIA who engaged in what were certified as enhanced [interrogation] techniques, but were never supportive of it,' he said. 'This should make people very happy. No one wants to be in harm’s way [legally]. Despite what the Bush White House and Bush Justice Department said was legal, I think people at the CIA understood that this was not legal and [the techniques] were torture.'
Tyler Drumheller, a former chief of CIA operations in Europe during the Bush administration’s first term, agreed. 'These people aren’t monsters,' Drumheller said. 'They were doing what they were told, and what was the policy of the [Bush]
administration.'” [emphasis supplied]

Yep, sounds like morale was just crushed.

Guantanamo Case Files

WaPo:

"President Obama's plans to expeditiously determine the fates of about 245
terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military
prison there were set back last week when incoming legal and national security
officials -- barred until the inauguration from examining classified material on
the detainees -- discovered that there were no comprehensive case files on many
of them."

Getting a lot of good information out of these guys, are you?

"Charles D. "Cully" Stimson, who served as deputy assistant defense secretary for
detainee affairs in 2006-2007, said he had persistent problems in attempts to
assemble all information on individual cases. Threats to recommend the release
or transfer of a detainee were often required, he said, to persuade the CIA to
'cough up a sentence or two.'"

One of the interesting aspects of the article is that it points to the fact that Guantanamo poisoned the well for everybody. Regardless of what each agency's operatives were allowed to do, they all used information from Guantanamo for their analyses. It's a tacit acceptance of torture. At the very least.

"In one federal filing, the Justice Department said that 'the record . . . is not
simply a collection of papers sitting in a box at the Defense Department. It is
a massive undertaking just to produce the record in this one case.' In another
filing, the department said that 'defending these cases requires an intense,
inter-agency coordination of efforts. None of the relevant agencies, however,
was prepared to handle this volume of habeas cases on an expedited basis.'"

Again, are we really expected to believe that good information was being collected from those held in Guantanamo? For all of our efforts at centralizing intelligence and information sharing, we are left with this. Probably by design. Either the DoJ is being left out (...a problem), or the intelligence community isn't getting sh*t from these detainees. And really, as Invictus points out, what could they be getting.

Oh For The Love of God

From War & Piece:

A day before Obama signed executive orders closing Guantánamo Bay and banning
torture, the White House's top lawyer privately indicated to Congress that the new president reserved the right to ignore his own (and any other president's) executive
orders. In a closed-door appearance before the Senate intelligence committee,
White House counsel Gregory Craig was asked whether the president was required by law to follow executive orders. According to people familiar with his remarks, who asked for anonymity when discussing a private meeting, Craig answered that the
administration did not believe he was. The implication: in a national-security
crisis, Obama could deviate from his own rules. A White House official said that
Craig's remarks were being "mischaracterized."

Of course, this is just one of the many reasons that Feinstein's idea of a law codifying the use of the Army Field Manual for interrogations throughout the entire intelligence community is a good one. At least in the limited way of being able to make laws that mean something more than the "get out of jail free" cards that seem so in style in the American presidency. Without question Obama's executive orders must be put into law. Do you trust this gamesmanship for even a second?

I find this disturbing as well:

White House press secretary Robert Gibbs said he would not "prejudge the
executive orders of the commission," but said the Army Field Manual would set
the rules for all interrogations now. "The commission has been tasked with
studying any number of different scenarios relating to detainees and
interrogation," Gibbs said. "And I think what's best is to let that happen and
see what happens when they come back."

Again, this is pretty simple. You either follow international law, or you do not. The Special Task Force must not become a private think-tank that decides upon our trespassing upon international law at their whim. How can an administration remain vigiliant against torture when they are leaving the door open to it? Leaving torture in the political realm is a mistake. If the Special Task Force comes back and says, "torture is wrong," a chorus of torture supporters will malign the Task Force. So appointing a panel of super important responsible people isn't going to solve anything, nor solidify the Obama administration's present anti-torture stance. One by one every person in the Task Force will be discredited - no doubt Hillary Clinton will be discredited in particular. It's easy. For God's sake, just say TORTURE IS WRONG. But I guess with Holder being punished by Republicans for doing so, and Blair unwilling to say waterboarding is torture, and Obama not willing to immediately investigate and prosecute Bush for torture, one's options in terms of principles are limited.

What are they thinking by just dragging this out? Feinstein should step in and get a law against torture passed immediately. Glorifying executive power is not the answer to stopping torture. And better to pass a law now, when the Dems have the majority, than to wait until Republicans or another oppositional party can catch up a bit.

Invictus has posted about how the AFM may still codify torture. That is where our argument should be right now - whether the AFM is strict enough. I personally will try to devote more attention to it. But instead of arguing about the AFM, we are currently in a position where, as a sop to Republicans, the door has been left open for torture under the assumption that torture might at some time serve the needs of our country. Where is this assumption being strongly supported? The intelligence community. Why are they supporting it if not to cover their asses for 8 years of criminal mistreatment of detainees?

President Obama's strokes of the pen this week were a great step toward righting our policy. But torture-related issues must be taken out of the realm of the executive branch, and placed squarely into the realm of law that we may all be judged by. Nobody should be able to torture, and whether we do or not should not be dependent upon changing interpretations of executive powers. Torture isn't an issue for the executive branch.

President Obama Ends CIA Special Program

From NYT. Well done Obama:

As he signed three orders, 16 retired generals and admirals who have fought for
months for a ban on coercive interrogations stood behind him and applauded. The
group, organized to lobby the Obama transition team by the group Human Rights First, did not include any career C.I.A. officers or retirees, participants said.

One of Mr. Obama’s orders requires the C.I.A. to use only the 19 interrogation methods outlined in the Army Field Manual, ending President Bush’s policy of permitting the agency to use some secret methods that went beyond those allowed to the military.

I look forward to reading the Executive Order for this, and for the closing of Guantánamo, later on his website.

Big News

from DK - mcjoan and others on Russell Tice's appearance on Keith Olbermann. Yes, you are being watched.

Kula 2316 on prisons and interrogations:

"Now this headline in the New York Times makes me very happy indeed: Obama to Close Foreign Prisons and Guantanamo. I knew Obama would close Guantanamo eventually, so I was more worried about what would happen to the overseas detention centers that we might not even know about. How many foreign prisons do we have? Michael Hayden once said it was 'fewer than 100'":

'President Obama is expected to sign executive orders Thursday directing the
Central Intelligence Agency to shut what remains of its network of secret
prisons and ordering the closing of the Guantánamo detention camp within a year,
government officials said.'

also:

'And the orders would bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.'

A few weeks ago, mcjoan wrote a post speculating about a potential "loophole" that would allow the CIA to continue using "techniques" not authorized by the military. The New York Times reports that there may indeed be a loophole:

'A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other the 19 techniques allowed for the military.'

This paragraph doesn't really make sense, maybe because there is a typo. (Hello, New York Times, are you looking for a proofreader because I need a job!) I guess it is supposed to read 'other than the 19 techniques allowed for the military.'"

Finally, Elana Schor at TPM on the reason for the Holder holdup - to protect torturers.

That's a lot of news in 24 hours. I am glad we did not wait until Obama took office to criticize him and make clear that torture is unacceptable. We must continue to pay close attention.

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]

Amped Up American Exceptionalism

Hi everyone. I have been out of town for a few days. I still have to catch up on my reading. But I caught this AP article from Big Tent Democrat over at TalkLeft:

WASHINGTON (AP) — President-elect Barack Obama is preparing to prohibit the use of waterboarding and other harsh interrogation techniques by ordering the CIA to follow military rules for questioning prisoners, according to two U.S. officials
familiar with drafts of the plans. Still under debate is whether to allow exceptions in extraordinary cases.
The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said. The plans would also have the effect of shutting down secret "black site" prisons around the world where the CIA has questioned terror suspects — with all future interrogations taking place inside American military facilities.
However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

A loophole? No, no no. More:

The CIA also banned waterboarding in 2006 but otherwise has been secretive about
how it conducts interrogations. In the past, its methods are believed to have
included sleep deprivation and disorientation, stress positions and exposing
prisoners to uncomfortable cold or heat for long periods. It's also believed
that some prisoners have been forced to sit in cramped spaces with bugs, snakes,
rats or other vermin as a scare tactic.

And this is completely illogical:

For Obama, who repeatedly insisted during the 2008 presidential campaign and the
transition period that "America doesn't torture," a classified loophole would
allow him to follow through on his promise to end harsh interrogations while
retaining a full range of presidential options in conducting the war against
terrorism.
The proposed loophole, which could come in the form of a classified annex to the manual, is designed to satisfy intelligence experts who fear that an outright ban of so-called enhanced interrogation techniques would limit the government in obtaining threat information that could save American lives. It would also preserve Obama's flexibility to authorize any interrogation tactics he might deem necessary for national security.

The conflict appears to be between Eric Holder and the John Brennans on Obama's team. Both are powerful:

Senate Democrats aren't likely to support a classified annex. Holder on Thursday
said the interrogation methods outlined in the Army manual would be just as
effective as those used by the CIA.
"I'm not convinced at all that if we restrict ourselves to the Army field manual that we will be in any way less effective in the interrogation of people who have sworn to do us harm," Holder said.

BTD makes a good point, borrowing from Glenn Greenwald: war crimes via loopholes are still...war crimes.

But I also find it interesting that the CIA wants to apply public pressure to so many aspects of Obama's policy, yet take none of the blame for the creation of that policy. John Brennan goes on TV and defends rendition - but he reassures the Obama team that he had nothing to do with "enhanced interrogation" policy construction, and they nod their heads in agreement. The CIA doesn't want to be investigated - they were just following orders (which as BTD says, does not excuse war crimes as per Article 2 - "3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . ."). They nonetheless openly condone and put pressure on the Obama administration to continue torture and rendition. From the AP article:

Speaking with reporters Thursday, outgoing CIA Director Michael Hayden said
harsh interrogation tactics have been needed to get information from the most
hardened terror suspects. He and some other U.S. intelligence
officials oppose limiting the CIA to the Army manual, which was written
specifically for military interrogations and may not be effective on the most
dangerous detainees.

"It is an honest discussion to talk about what techniques we should use,
but to assume automatically that the Army Field Manual would suit the needs of
the republic in all circumstances is a shot in the dark," Hayden said.
[emphasis mine]

Are we really supposed to believe that the U.S. intelligence community bears no culpability for the torture regime? Everytime Hayden, Brennan, and others open their mouth to cheerlead for the Bush administration's policies, they put the lie to that theory and suggest that things may've been more complicated than they seem.

Mark Lowenthal's B.S. is a little tired. And apparently Obama's hedging on This Week was intentional. If Obama somehow continues any aspect of the Bush torture regime, I would be hardpressed to see how pressure from the intelligence community was not largely to blame.

The Need for an Inquiry into the CIA

The New York Times, in writing about the appointment of Leon Panetta, captures some of the internal sentiment regarding an investigation into the CIA:

On the day he walks into his seventh-floor office, if confirmed by the Senate, Mr. Panetta will be managing employees who are under federal investigation for participating in the destruction of videotapes recording the interrogations of two prisoners suspected of being members of Al Qaeda. The prosecutor in the case, John H. Durham, recently told a federal judge that he would need until the end of February to interview witnesses as he considers whether to bring criminal charges in the case.

Beyond that inquiry, Mr. Panetta is facing the prospect that Democratic lawmakers might establish an independent commission tasked with looking into the Bush administration’s counterterrorism policies, including the roles played by C.I.A. employees.

The number of employees who would be targets of such a commission is relatively small, and many within the agency were never comfortable with C.I.A. officers acting as jailers. 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.

It is fairly astonishing, coming weeks after the publication of the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, that the CIA is this threatened by an independent commission. Or that it might seem at all avoidable. Let's look at the way the CIA is described in the Senate Armed Services Inquiry Report:

From page 5:


(U) Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members of the President’s Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed. 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.

from page 6:


(U) 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. While the full list of techniques remains classified, a publicly released CIA document indicates that waterboarding was among those analyzed and approved. CIA Director General Michael Hayden stated in public testimony before the Senate Intelligence Committee on February 5, 2008 that waterboarding was used by the CIA. 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."


(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released. Judge Bybee also recalled discussing detainee interrogations in a meeting with Attorney General John Ashcroft and John Yoo in late July 2002, prior to signing the OLC opinions. 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."

An entire section of the Report is entitled, "JPRA and CIA Influence Department of Defense Interrogation Policies (U)"

from page 7:


(U) JPRA was not the only outside organization that provided advice to GTMO on aggressive techniques. On October 2, 2002, Jonathan Fredman, who was chief counsel to the CIA’s CounterTerrorist Center, attended a meeting of GTMO staff. Minutes of that meeting indicate that it was dominated by a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding, which was discussed in relation to its use in SERE training. Mr. Fredman’s advice to GTMO on applicable legal obligations was similar to the analysis of those obligations in OLC’s first Bybee memo. According to the meeting minutes, Mr. Fredman said that "the language of the statutes is written vaguely… Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality." Mr. Fredman said simply "It is basically subject to perception. If the detainee dies you’re doing it wrong."

from page 16:

Conclusion 2: Members of the President’s Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.

Conclusion 6: The Central Intelligence Agency’s (CIA) interrogation program included at least one SERE training technique, waterboarding. Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques. Legal opinions
subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC) interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques. Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel.

[emphasis supplied]
+++++

The Inquiry report contradicts the somewhat passive role of the CIA forwarded by CIA folks and people like Senator Feinstein (who is rapidly emerging as an enemy of change). The AP quotes Feinstein today:

"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.'"

There are at least three issues I have with that statement. One - the Senate Armed Services Committee's report suggests that the CIA played an active role - perhaps it was the CIA who sought permission to use torture on detainees. The CIA requested a legal opinion on its interrogation techniques. And the report says that, according to Condoleezza Rice, "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." And someone must have authorized CIA lawyer Fredman's meeting with GTMO staff. The Report makes it seem at least plausible that the CIA actively crafted policy with the administration.

My second issue is with those who developed and approved Standard Operation Procedures (SOPs) for interrogation within the CIA ranks. The Senate Armed Services' report describes the process on the military/GTMO end on page 10:

Following the Secretary’s December 2, 2002 authorization, senior
staff at GTMO began drafting a Standard Operating Procedure (SOP)
specifically for the use of SERE techniques in interrogations. The draft SOP
itself stated that "The premise behind this is that the interrogation tactics
used at U.S. military SERE schools are appropriate for use in real-world
interrogations."

[emphasis supplied]

Obviously to ensure the success and "legality" of their maneuvers, CIA staff would have had to create a set of rules and routines for case officers and their staff to follow. In doing so, the staff involved should have appreciated their serious level of responsibility. We need to find out who wrote SOPs for the CIA and who approved them. We have a meager understanding of how this happened in the military; if only in the spirit of fairness, we must discover how similar events transpired in the CIA.

My third issue is with the complete unwillingness of Feinstein to apply the "command responsibility" standard. If the Executive Branch suggests an entire agency should ignore international law, is no one in that agency to be held responsible for the agency's complete capitulation? If a military commander is responsible for the behavior of her unit, is not SOMEONE in the CIA responsible for the behavior of an entire agency?

The principle of command responsibility "holds a superior legally responsible for human rights abuses by subordinates if the official knew or should have known about them and failed to prevent them or punish those who committed them." (Foreign Policy in Focus). Examine this chart of the CIA's chain of command (pre 9/11 commission reforms). This chart suggests that we lay all that happened under the umbrella of Operations at the feet of the Executive Secretary, the Deputy Executive Director and the Executive Director, and the Deputy Director and Director of the CIA. They implemented Bush policies, and they monitored their failures and successes.

Finally, it is in the long term political interest of the CIA to support a Congressional inquiry into their involvement in Bush interrogation policy. You may've noticed the source that suggests the CIA came to the NSC looking for approval was Rice. Cheney's narrative is similar, in recent interviews:

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."

If the CIA would like its view that it was ignored and abused by the Bush admin. to be supported by anything more than wishful thinking, it will encourage an official investigation into how we went to war in Iraq and how our interrogation and detention policy developed. Otherwise the CIA's political enemies will make whatever claims they wish to make - and no official record will be there to call them out.

A full investigation of the CIA is necessary. It should begin early this year, and we must demand that it begins early this year.