CIA Tapes

NYT: Destroying CIA Torture Tapes Hamstrung Cases

Paul Kiel | March 28, 2008, 1:03PM

From The New York Times:

When officers from the Central Intelligence Agency destroyed hundreds of hours of videotapes documenting harsh interrogations in 2005, they may have believed they were freeing the government and themselves from potentially serious legal trouble.

But nearly four months after the disclosure that the tapes were destroyed, the list of legal entanglements for the C.I.A., the Defense Department and other agencies is only growing longer. In addition to criminal and Congressional investigations of the tapes’ destruction, the government is fighting off challenges in several major terrorism cases and a raft of prisoners’ legal claims that it may have destroyed evidence.

“They thought they were saving themselves from legal scrutiny, as well as possible danger from Al Qaeda if the tapes became public,” said Frederick P. Hitz, a former C.I.A. officer and the agency’s inspector general from 1990 to 1998, speaking of agency officials who favored eliminating the tapes. “Unknowingly, perhaps, they may have created even more problems for themselves.”...

Despite all the legal complications, those in the C.I.A. who got rid of the videotapes may have achieved one of their presumed goals: preventing a torture prosecution, said Deborah Colson, a senior associate at Human Rights First.

“It may be impossible to reconstruct any criminal conduct that was caught on the tapes,” Ms. Colson said.

You win some, you lose some.

Torture

Human Rights Orgs Oppose Bradbury Nomination

Paul Kiel | March 26, 2008, 4:25PM

For years, Senate Democrats have blocked the nomination of Steven Bradbury to lead the Justice Department's Office of Legal Counsel. That opposition was solidified with the revelation last year that Bradbury had authored two memos, one of which was "an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency."

And Bradbury didn't do himself any favors last month when he explained to the House Judiciary Committee in detail why waterboarding wasn't torture.

And today Human Rights Watch and the Open Society Policy Center wrote to the Senate Judiciary Committee to urge them to oppose Bradbury's nomination. While the groups "rarely take positions on nominations," they write, "we believe that Bradbury’s role in authorizing torture makes this an extraordinary case." You can read the full letter below.

As for Bradbury, he seemed blissfully resigned to his fate in a recent Legal Times interview. The office, as former OLC chief Jack Goldsmith put it -- and Attorney General Michael Mukasey has demonstrated -- has the power to issue "advance pardons" for questionable activity. But Bradbury has effectively run the place since 2004 despite the fact that Senate Dems have repeatedly blocked his nomination (the Department found a nice loophole).

The full letter is below.

Read more »

Torture

Former Gitmo Chief Prosecutor Leaves Military

Paul Kiel | March 26, 2008, 12:13PM

After leaving his post as chief prosecutor for the Gitmo tribunals because the process had become "deeply politicized," Col. Morris Davis added fuel to the fire when he said that William Haynes, the Pentagon official who later oversaw the tribunals, had told him that "we can't have acquittals."

Now Davis is taking a further step, The Washington Post reports: "Col. Morris D. Davis said he submitted retirement papers last week, because of fallout from his criticism of the Guantanamo court and because of family concerns."

Well, I guess now the Pentagon can't keep him from testifying before Congress, can it?

Torture

Administration's Lawyer Lauds "Healthy Process of Back and Forth"

Paul Kiel | March 18, 2008, 4:45PM

Last time we checked in with Steven Bradbury, the guy who tells the administration how far they can legally go (the head of the Justice Department's Office of Legal Counsel), he was explaining to Congress that the waterboarding technique used by the CIA on detainees was nothing at all like the "water cure" technique used by the Spanish Inquisition (it's actually similar to the Khmer Rouge). He also explained in detail his reasoning for why waterboarding was not in violation of the criminal statute barring torture.

This is the guy currently with the power to issue "advance pardons" for administration lawbreaking.

He is clearly not a man who shrinks from airing his views. And in a rare interview (sub. req.) with Legal Times, Bradbury proclaims that he's enjoying the healthy, vigorous debate occasioned by the administration's interrogation and surveillance policies.

Of course, Democrats might have a different way of seeing things. Bradbury has effectively run the office since 2004, even though his nomination has been blocked by Democrats. He has been nominated five times. Dems have even charged that the administration is breaking the law by keeping Bradbury atop the Office of Legal Counsel. The Vacancies Reform Act bars non-Senate-confirmed appointees for holding their jobs for longer than 210 days. But the Justice Department has responded that Bradbury is not breaking the law because he is not the official acting head of the office; he's officially the deputy who's carrying out the duties of the chief because the position is vacant. So voila! no problem.

In his interview, Bradbury proclaims that he "very much respects" the role of the Senate in confirming nominees:

Read more »

Torture

CIA Increases Legal Liability Insurance

Paul Kiel | March 17, 2008, 1:44PM

Preparations begin for the end of the Bush administration.

From the AP:

The CIA announced Monday that it will now pay the full cost of legal liability insurance for about two-thirds of the agency workforce....

One shift is already looming: A change in administrations could make it more likely lawsuits will be filed against CIA interrogators for a controversial program approved by the Bush White House — the use of harsh interrogation techniques and the secret movement of prisoners, known as extraordinary rendition.

The insurance comes from private companies to cover legal expenses that arise out of actions undertaken in the course of a CIA officer's official duties. It is meant to cover potential litigation expenses including damages. It covers legal expenses associated only with those activities undertaken after liability insurance is taken. The reimbursement program began in 2000.

Agency Director Michael Hayden on Monday announced that he had expanded the pool of those eligible to be reimbursed for insurance to include all employees involved in covert activities, not just those involved in counterterrorism and counterproliferation.

As the president of one of the companies that provides the insurance to CIA agents and other government officials put it, "The things that help us are any negative events related to the federal government, and there have been plenty.”

Torture

House Bid to Override Bush Anti-Torture Veto Fails

Paul Kiel | March 11, 2008, 7:01PM

The House just voted down an attempt to override the President's veto of the intelligence authorization bill late last week. The final tally was 225-188 (with five Republicans voting for the override and three Dems voting against) about sixty votes short of the two-thirds needed.

So Republicans stood strong behind the president. Almost all Republicans, including Sens. John McCain (R-AZ) and Lindsay Graham (R-SC), have agreed with his take that robbing the CIA of its battery of "enhanced interrogation" techniques (which have included waterboarding and inducing hypothermia) "could cost American lives." Of course, a number of military officials and the FBI have a different take.

The bill would have restricted the CIA to the Army Field Manual's guidelines for interrogation.

Torture

House to Vote to Override Bush Veto on Anti-Torture Bill

Paul Kiel | March 11, 2008, 1:42PM

This afternoon, the House is set to attempt an override of President Bush's veto of the intelligence authorization bill late last week. Bush vetoed the bill, remember, because it would have prevented the CIA from using "enhanced interrogation" techniques. Critics -- Dems, military and national security experts among them -- say that the CIA's program has accomplished nothing more than destroying the U.S.'s image in the world.

The House, of course, would require a two-thirds majority to override the veto. We'll let you know how it goes.

Torture

Bush: Limiting CIA Interrogations "Could Cost American Lives"

Paul Kiel | March 8, 2008, 10:33AM

From President Bush's radio address today, where he announced that he'd vetoed the Senate authorization bill, which would have effectively outlawed waterboarding and other "enhanced interrogation" techniques for the CIA by limiting the CIA to the Army's guide for interrogations, the Army Field Manual:

The bill Congress sent me would take away one of the most valuable tools in the war on terror -- the CIA program to detain and question key terrorist leaders and operatives. This program has produced critical intelligence that has helped us prevent a number of attacks. The program helped us stop a plot to strike a U.S. Marine camp in Djibouti, a planned attack on the U.S. consulate in Karachi, a plot to hijack a passenger plane and fly it into Library Tower in Los Angeles, and a plot to crash passenger planes into Heathrow Airport or buildings in downtown London. And it has helped us understand al Qaida's structure and financing and communications and logistics. Were it not for this program, our intelligence community believes that al Qaida and its allies would have succeeded in launching another attack against the American homeland....

If we were to shut down this program and restrict the CIA to methods in the Field Manual, we could lose vital information from senior al Qaida terrorists, and that could cost American lives.

Nowhere in his speech did Bush mention waterboarding, only at one point alluding to it: "The bill Congress sent me would not simply ban one particular interrogation method, as some have implied."

There are a number of Dem responses to the veto. Reid emphasizes that "the President has substituted his own judgment for that of dozens of bipartisan military and foreign policy experts – including Gen. Petraeus – who agree that torture is counterproductive." Feingold, a member of the Senate intelligence committee, says that the CIA's program is "morally reprehensible and legally unjustified and it has not made our country any safer."

But Senate intelligence committee Chairman Jay Rockefeller's (D-WV) response is the closest to a direct refutation of Bush's claims about the success of the CIA's program:

“The CIA's program damages our national security by weakening our legal and moral authority, and by providing al Qaida and other terrorist groups a recruiting and motivational tool. By continuing this interrogation program, the President is sacrificing our strategic advantage for questionable tactical gain.

“As Chairman of the Senate Intelligence Committee, I have heard nothing to suggest that information obtained from enhanced interrogation techniques has prevented an imminent terrorist attack. And I have heard nothing that makes me think the information obtained from these techniques could not have been obtained through traditional interrogation methods used by military and law enforcement interrogators. On the other hand, I do know that coercive interrogations can lead detainees to provide false information in order to make the interrogation stop.

“Our government needs to have clear standards for interrogations, and that standard should be the tried and true methods in the Army Field Manual. These methods have been used by military and law enforcement interrogators for decades, often in life and death situations on the battlefield and in counter-terror investigations.

“The President is out of step with Congress, the American people, the world, and our own national security requirements. While disappointed, I remain committed to bringing all U.S. interrogation practices under the rule of law."

Another perspective from Senate Judiciary Committee Chair Patrick Leahy (D-VT):

As I have said all along, the provision adopted by both the Senate and House of Representatives was not needed to outlaw waterboarding or other forms of torture. Such techniques are already clearly illegal. However, this administration has chosen to ignore the law. The positions that they have taken publicly on waterboarding offend the core values of this nation, and have the potential to threaten the safety and wellbeing of Americans around the world. I supported this provision because a clear, public rejection of those positions was – and still is – needed.

Torture

Scalia on Torture: "Not Everything That Is Bad Is Unconstitutional"

Paul Kiel | March 6, 2008, 11:27AM

Last month, Supreme Court Justice Antonin Scalia pronounced in an interview with the BBC that it was "extraordinary" to think that "so-called torture" might be prohibited by the Constitution.

Well, to the quotes from that memorable interview ("You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good'" and "Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?") you can add this, from Scalia's speech at the University of Central Missouri yesterday:

Of torture, Scalia said: "It’s a bad thing to do. But not everything that is bad is unconstitutional."

I guess torture is different from "so-called" torture. So to review your lesson in Scalia jurisprudence for the day: so-called torture, i.e. face-smacking, "sticking something under the fingernails," and one presumes, waterboarding, inducing hypothermia, and the like -- that's OK. Not only is it Constitutional, it's "absurd" to say you can't do it. Torture, on the other hand, is "a bad thing to do" -- presumably because it's against the law. But still A-OK by the Constitution. Class is adjourned.

Via ThinkProgress.

Torture

Canada Drops Testimony Given by Waterboarded Detainee

Paul Kiel | March 6, 2008, 10:30AM

From Newsweek:

The Canadian government is no longer using evidence gained from CIA interrogations of a top Al Qaeda detainee who was waterboarded.

According to documents obtained by NEWSWEEK, the Canadian Security Intelligence Service (CSIS), the country's national-security agency, last month quietly withdrew statements by alleged Al Qaeda leader Abu Zubaydah from public papers outlining the case against two alleged terror "sleeper" operatives in Ottawa and Montreal....

Asked why the statements from Zubaydah had been dropped from the dossiers..., Bernard Beckhoff, a spokesman for Canada's public safety ministry, which oversees CSIS, said he could not comment on developments in either case because they are both still before the courts. But he then added, pointedly: "The CSIS director has stated publicly that torture is morally repugnant and not particularly reliable. CSIS does not knowingly use information which has been obtained through torture."

It's worth recalling that the Canadians aren't the only ones with a problem with Zubaydah's credibility. There's also the FBI.

Torture

FBI Chief: No Waterboarding Here

Paul Kiel | March 5, 2008, 12:58PM

This month, President Bush is expected to veto a Senate bill that would restrict the CIA to using interrogation techniques approved by the Army Field Manual. That would unequivocally outlaw waterboarding, the inducement of hypothermia, sensory deprivation, and other "enhanced interrogation" techniques that have been in the CIA's arsenal.

The veto is likely to survive an attempt by Senate to override because ever since 9/11, the administration and Republicans (including Sen. John McCain) have preferred to keep legal restraints on CIA interrogators loose.

But the FBI, which, unlike the CIA had ample experience with interrogation, took a different tack. During today's hearing before the Senate Judiciary Committee, Chairman Patrick Leahy (D-VT) asked FBI Director Robert Mueller why:

LEAHY: And you have a policy, as does the military, the military handbooks, not to use coercive techniques like waterboarding. Why do you have that policy?

MUELLER: There are a number of reasons that probably contributed to the development of that policy years ago. Generally, our questioning has been, in the past, done in the United States, and the results of our questioning often end up in a court. Whereas, you and other who have been prosecutors know the question of voluntariness is at issue for the admissibility of information you have.

And, consequentially, the policy was established, I would imagine, given our particular unique mission here and the operation under the Constitution, the applicable statutes and the attorney general guidelines.

It also is a result, I believe, of the analysis of our Behavioral Science Unit as to effective use of particular techniques where we believe that the rapport-building technique is particularly effective.

Mueller also acknowledged that the "rapport-building" approach apparently was quite successful with Saddam Hussein.

Remember that down in Guantanamo Bay, FBI and military interrogators (the "Clean Team") had to re-examine detainees because the techniques used by CIA interrogators meant that the testimony would not hold up in court. Not that the director of national intelligence has any doubt that "enhanced interrogation" techniques produce reliable information ("we can tell in minutes if they are lying"). I guess it's just a different way of doing things.