Detainees

American Spies on Trial in Italy

Andrew Tilghman | May 29, 2008, 11:52AM

The trial is underway in Italy of 26 Americans, mostly CIA operatives, accused of abducting a radical Egyptian cleric in Italy and whisking him off to Egypt for torture.

They're on trial in absentia, but there's an Los Angles Times reporter there, telling a great story of "spies spying on spies"

Italy's top counterterrorism official, Bruno Megale, took the stand in Milan yesterday to tell how tapping phones helped to blow the lid off the Bush Administration's practice of "extraordinary rendition."

Megale obtained records of all cellphone traffic from the transmission tower nearest the spot where Abu Omar was abducted, for a 2 1/2 -hour period around the time he disappeared. There were 2,000 calls.

Then, using a computer program, Megale was able to narrow down the pool by tracing the phones that had called each other, in other words, an indication of a group of people working together. Seventeen phone numbers, which showed intensifying use around the time of the abduction, were pinpointed. By following all other calls made from those phones, the investigators ultimately identified 60 numbers, including that of a CIA officer working undercover at the U.S. Embassy in Rome.

In his testimony, Megale revealed that one telephone number he recognized was that of Robert Seldon Lady, then-CIA station chief in Milan. Lady and Megale had worked together in counter-terrorism investigations. It was a number, Megale said somberly, that he and his team knew.

Torture

Today's Must Read

David Kurtz | May 22, 2008, 10:10AM

The Washington Post digs deeper into that Justice Department Inspector General's report on the FBI role in detainee interrogations, specifically the contentious high-level Administration disputes over torture:

Two major policy splits are highlighted in the report's account of the long to-and-fro over the tactics. One reflected a clash of cultures between the experienced interrogators at the FBI who were looking to prosecute terrorism crimes, and military and CIA officials who were seeking rapid information about al-Qaeda and were willing to push legal boundaries to do it. The report shows that FBI agents appeared more concerned about the long view, while others wanted detainees to break immediately in the panicked days after Sept. 11, 2001.

The IG report reveals that the FBI was so concerned about the techniques being used that agents began collecting allegations of abuse and placing them in a "war crimes file." Although, as we've previously noted, the FBI ultimately took a hands-off approach to torture, and the file was soon closed with no action taken.

The usual characters -- Addington, Yoo, Ashcroft -- played a role, but the report reveals some new players, mid-level officials who opposed the torture regimen:

Bruce C. Swartz, a criminal division deputy in charge of international issues, repeatedly questioned the effectiveness of harsh interrogation tactics at White House meetings of a special group formed to decide detainee matters, with representatives present from the Pentagon, the State Department and the CIA. ...

Besides Swartz, the others depicted as raising sustained objections are then-FBI assistant general counsel Marion "Spike" Bowman, who documented his concerns in written reports, and Pasquale D'Amuro, then the bureau's assistant director for counterterrorism. Michael Chertoff, who was then assistant attorney general in charge of the criminal division, raised concerns in November 2002 about the effectiveness of the military's methods, although he said later he did not recall hearing assertions that they were illegal.

But with the pressure for harsh interrogation tactics coming from the very highest levels of government, the objections of mid-level officials were barely speed bumps on the road to torture as official U.S. policy.

Must Read

Today's Must Read

David Kurtz | May 21, 2008, 11:53AM

The focus of the news coverage of the report released yesterday by Justice Department Inspector General Glenn Fine has been on what involvement the FBI had, if any, in the "enhanced interrogations" undertaken by the Bush Administration -- and to a lesser extent how the FBI's concerns were ignored at the highest levels of government.

Here's the Wall Street Journal's lede:

A Justice Department inquiry lauded Federal Bureau of Investigation agents for refraining from harsh interrogations of terror suspects but found fault with how senior officials handled agents' concerns about alleged abuses.

But as you dig down into the 370-page report (.pdf), it's most revealing for what it shows the U.S. government was actually doing to detainees. Because of the limited jurisdiction of the DOJ inspector general, the report was focused on the FBI. But in establishing the environment in which the FBI was operating, the report paints a picture of ghastly treatment of detainees by the United States on a consistent long-term basis.

In the course of his investigation, the IG interviewed 450 FBI agents who were detailed to Gitmo at one time or another. Nearly half reported witnessing or hearing about "rough or aggressive treatment of detainees, primarily by military investigators."

The report contains a chart of the conduct FBI agents reported at Gitmo and the manner in which the agents learned of the conduct. You can click on the image for a larger view:

Read more »

Torture

Why Was the 20th Hijacker Not Charged?

David Kurtz | May 20, 2008, 1:26PM

When the Bush Administration rolled out charges against five Gitmo detainees last week for their alleged roles in the 9/11 attacks, there were a lot of questions about why the suspected 20th hijacker was not charged.

The Wall Street Journal today suggests one answer:

An alleged 20th hijacker in the Sept. 11 conspiracy attempted suicide rather than face a Guantanamo Bay military commission and now suffers from such mental impairment that he can't adequately help in his own defense, his civilian lawyer says.

The contention suggests one possible reason the Defense Department last week dismissed charges against Mohammed al-Qahtani, who faced a potential death penalty if convicted in the Sept. 11, 2001, terrorist attacks. At the time, the administrator of the military commissions, Susan Crawford, gave no explanation. Mr. Qahtani remains under indefinite detention, and prosecutors may seek to file amended charges.

In 2002 Mr. Qahtani suffered a severe and prolonged interrogation that a Pentagon review later labeled "abusive and degrading." Some military investigators and prosecutors feared that the coercive treatment had ruined a potential case against Mr. Qahtani, under legal and ethical rules.

Intriguingly, we may yet learn more about al-Qahtani's interrogation, the Journal reports:

Friday, a military judge ordered such an inquiry for Guantanamo defendant Salim Hamdan, Osama bin Laden's former driver, after a psychiatrist hired by the defense reported that Mr. Hamdan was suffering from "major depression" and expressed suicidal thoughts.

If a military judge were to order a similar examination for Mr. Qahtani, it could force the first independent inquiry into his interrogation, which to date has been reviewed by only the Pentagon.

The prospect of two key Guantanamo defendants being incapable of standing trial is another problem for a military commissions system already beset by legal challenges and staff unrest.

Late Update: Speaking today about al-Qahtani's suicide attempt, his lawyer told AP that she didn't learn of his suicide attempts until weeks after it occurred:

Gutierrez said the military did not inform her or al-Qahtani's family of the alleged suicide attempt. She said she learned of it when she went to visit him and noticed three scars on his hand, inside wrist and inner forearm near the elbow.

The prisoner seemed desolate during the meeting, said the attorney, who has met with him more than 20 times.

"This was the worst I have ever seen him in terms of his psychological state," she told The Associated Press. "He just can't take it anymore and just kept threatening to kill himself."

Detainees

DOJ IG Report Takes It Easy on FBI

David Kurtz | May 20, 2008, 12:46PM

The DOJ inspector general's report on the FBI's role in detainee interrogations that we previewed yesterday has now been released -- all 370 pages plus appendices.

You can read the report in its entirety here (.pdf).

As Andrew Zajac at The Swamp notes, "The tortured title of the report -- A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq -- suggests a certain amount of hairsplitting and eggshell-walking."

We'll have more shortly.

Late Update: The bottom line of the report?

In Sum, while our report concluded that the FBI could have provided clearer guidance earlier, and while the FBI and DOJ could have pressed harder for resolution of FBI concerns about detainee treatment, we believe the FBI should be credited for its conduct and professionalism in detainee interrogations in the military zones and in generally avoiding participation in detainee abuse.

Later Update: The ACLU finds the report more troubling than exculpatory:

Jameel Jaffer, national security director for the American Civil Liberties Union, said the report "shows a failure of leadership on the part of senior FBI officials."

"Senior FBI officials knew as early as 2002 that other agencies were using abusive interrogation methods," Jaffer said. "The report shows unequivocally, however, that the FBI's leadership failed to act aggressively to end the abuse."

Detainees

AP: Report on FBI Role in Interrogations to be Released Tuesday

David Kurtz | May 19, 2008, 5:44PM

The Justice Department's inspector general has finally completed its report on the FBI's involvement in detainee interrogations:

Overall, the report gives the FBI fairly positive marks for repeatedly raising concerns between 2001 and 2004 about interrogation methods at three military prisons: Abu Ghraib in Iraq; in Bagram, Afghanistan; and at the U.S. facility at Guantanamo Bay, Cuba.

According to two law enforcement officials who have seen it, the report's twelve chapters touch on a range of issues, including the interrogations of terror suspects who were thought to have high-value information. The officials spoke about the report on condition of anonymity because they were not authorized to discuss it publicly.

"The FBI decided it would not participate in joint interrogations of detainees with other agencies in which techniques not allowed by the FBI were used," the report concluded, according to one law enforcement official who has seen it.

Fine's office also concluded that clearer guidance was needed for FBI agents left wondering what to do when interrogation tactics appeared to violate what would be allowed in the United States -- as opposed to under military law or in overseas detention centers, according to the second law enforcement official.

And the report raps the FBI in some cases for not immediately reporting the questionable interrogations or leaving the room when they were under way, the officials said.

The IG's report has been delayed in part because the Pentagon slow-rolled its review of the report for classified information.

FBI Director Robert Mueller testified to Congress last month that he had "reached out" to the Pentagon and the Department of Justice "in terms of activity that we were concerned might not be appropriate -- let me put it that way." But it was clear from his testimony that the Justice Department's essentially unilateral legalization of torture had prevented the FBI from investigating the abuses its agents witnessed.

Torture

Yoo: Impeach Bush? Why Not?

Paul Kiel | May 13, 2008, 5:54PM

Esquire has posted the transcript of its wide ranging interview with former Justice Department official John Yoo. While Yoo is best known for his time at the Justice Department crafting jaw-dropping legal opinions authorizing torture, the interview shows that he harbors some unexpected opinions. For instance, who knew that the guy who gave the legal green light to the administration to pursue their most controversial policies takes a broad view of impeachment and Congressional oversight?

This is from the interview, where Yoo is speaking about his time as the general counsel on the Senate Judiciary Committee under Sen. Orrin Hatch (R-UT) during the late 1990s:

Read more »

Must Read

Today's Must Read

Paul Kiel | May 13, 2008, 10:15AM

Just in time to run during the Spring sweeps, the Pentagon has rolled out a slate of charges against five Guantanamo Bay detainees for conspiring in the 9/11 attacks. Kudos to the Convening Authority for beating expectations with a well-timed launch.

Unfortunately, the move does come shortly after one of the senior Pentagon officials working on the commissions was disqualified from dealing with Osama Bin Laden's alleged driver Salim Hamdan's case. For some reason, the judge didn't seem to appreciate Brig. Gen. Tom Hartmann's taste for "sexy" cases that grab the public's attention (he's obviously never tried to run a PR campaign himself). It was a black eye surely, but you know the old saying: there's no such thing as bad press. They are riding that wave.

Now, the naysayers will point to the fact that the nascent commissions are sure to drag on for possibly as much as a year before the actual trials begin. There are still plenty of kinks (allegations of torture, politicization, lack of due process, etc.). And then there's the small matter of the Supreme Court, which might overturn the applecart all over again in the near future. You can understand the frustration of the administration: they had hoped to roll out the trials before the 2006 election, and here we are in the run-up to the 2008 election, and the clock is ticking.

But all is not lost. The detainees should be arraigned in June. And there should be frequent opportunities between now and November to remind the public of what's going on down there. Finally, justice is served.

Note: The Convening Authority Susan Crawford had planned to include charges against Mohammed al Qahtani, the supposed 20th hijacker, along with the other five, but Qahtani has been struck from the charging sheet. Now, Qahtani's lawyer has immediately jumped to the conclusion that Crawford's decision to dismiss the charges affirms "that everything he said at Guantánamo was extracted through torture -- or the threat of torture," and that his treatment was "so well documented and unconscionable that he is unprosecutable.'' But I gotta figure that this crew is sharper than that. Crawford can bring those chargers against Qahtani at any time. The 20th hijacker deserves his own unique launch, to be sure. Maybe in October?

Torture

Politicizing Gitmo: A Timeline

Paul Kiel | May 12, 2008, 2:21PM

If you thought the military commissions in Guantanamo Bay couldn't get any uglier, you were wrong. On Friday, the judge presiding over the Salim Hamdan case, Capt. Keith J. Allred, disqualified a top Pentagon official from any more involvement in the case. The reason? His aims seemed too political, his cheerleading for the prosecution too obvious to allow him to remain involved.

The official is Brig. Gen. Thomas Hartmann, the Legal Advisor to the Convening Authority. That office oversees the whole process, meaning both prosecutors and defense attorneys. But as the judge's ruling makes clear, Hartmann wasn't anything close to impartial:

You can read the judge's ruling, which was first reported on by The New York Times, in full here. The judge requires that Hartmann be replaced on the case by someone outside his office.

As the Times reports, the ruling will open the flood gates to new challenges to the process from lawyers for other detainees.

Even beyond the judge's conclusion, the ruling is a remarkable document because it involves a blow-by-blow account of the politicization of the process. Mainly this information comes from Col. Morris Davis, who was the chief prosecutor for the commissions until he resigned because of the meddling of Hartmann and former Pentagon general counsel William Haynes. But other attorneys involved in the commissions provided similar accounts. Davis, called by Hamdan's lawyers, testified there late last month.

Below is an abbreviated timeline of efforts by Hartmann, Haynes and other Pentagon officials to use the Gitmo trials for political gain, as well as their efforts to squelch Davis' complaints about Hartmann's interference. It is all culled from the judge's ruling.

August, 2005 -- During Col. Davis' interview to be the chief prosecutor for the Gitmo military commissions, Pentagon general counsel William Haynes told Davis "We can't have acquittals. We've got to have convictions. We can't hold these men for five years and then have acquittals."

Read more »

Torture

GOP Senator Floats Compromise Torture Measure

Paul Kiel | May 8, 2008, 6:01PM

Senate Dems are still pushing a measure that would limit CIA interrogators to methods approved in the Army Field Manual -- this would effectively ban waterboarding and other "enhanced interrogation" techniques.

President Bush and a number of Senate Republicans, including Sen. John McCain (R-AZ), have opposed that measure, saying that it is too restrictive for the CIA, and Bush vetoed the bill after it passed Congress. Now Sen. Kit Bond (R-MO) is floating a compromise, reports the AP:

Rather than prescribe what the intelligence agency is allowed to do in an interrogation, Bond wants to write into law only what the CIA cannot do: force detainees to be naked, perform sexual acts, or pose in a sexual manner; have hoods or sacks placed over their heads or duct tape over their eyes; be beaten, shocked, or burned; threatened with military dogs; exposed to extreme heat or cold; subjected to mock executions; deprived of food, water, or medical care; or waterboarded.

There's no word in the piece of how Dems are reacting to the proposal.

Torture

Senators Call for Investigation of Alleged Drugging of Detainees

Paul Kiel | May 8, 2008, 11:05AM

As The Washington Post reported late last month, a host of former detainees have come forward to say that they were drugged by CIA and military interrogators. Put that together with the fact that John Yoo's 2003 torture memo authorized the use of drugs on detainees, and you have plenty of grounds for suspicion.

Today Sens. Carl Levin (D-MI), Joe Biden (D-DE) and Chuck Hagel (R-NE) followed up and signed letters to both the CIA and Defense Department inspectors general calling for an investigation. The letter to the DoD IG is below.

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Dick Cheney

Conyers Issues Subpoena to Addington

Paul Kiel | May 7, 2008, 6:14PM

Mark your calendar: June 26th, Vice President Dick Cheney's Chief of Staff David Addington will testify to the House Judiciary Committee about the administration's interrogation policy. Chairman John Conyers (D-MI) made it official in a subpoena issued to Addington today. Addington has indicated that he will show up, but I'll believe it when I see him in the witness chair.

Torture

Lawsuit Mars Abu Ghraib Contractor's PR Blitz

Paul Kiel | May 6, 2008, 12:04PM

Talk about bad timing! Just as CACI International was ramping up for its book tour -- the company's CEO has penned "Our Good Name," which according to the flap copy is "CACI's story of facing one of the biggest scandals in recent history...and coming out honorably with its head high" -- an Iraqi man has sued CACI, saying that employees tortured him when he was held in Abu Ghraib.

Cruelly, the lawyers for Emad al-Janabi, which include lawyers from the Center for Constitutional Rights, have used CACI's own book against the company. The suit alleges that the book reveals that CACI's internal investigation failed to include any interviews of detainees or of a former employee whistleblower. The suit was filed in Los Angeles in order to target former CACI contractor Steven "Big Steve" Stefanowicz.

Note: For those looking for another beach read this summer from the same genre (self glorifying autobiography by an infamous contractor's CEO), there's also Erik Prince's "We Are Blackwater."

Torture

Yoo, Feith, Ashcroft Agree to Testify

Paul Kiel | May 6, 2008, 10:47AM

Earlier this morning, the House Judiciary Committee authorized a subpoena for David Addington, Vice President Cheney's Chief of Staff, to testify about the administration's torture policy.

And now the AP reports that John Yoo, probably the most infamous of the infamous characters that walked the halls of the Justice Department during the Bush administration, has agreed to testify as well without compulsion. That's a departure from his original position, when he said that he could not testify about his role in authorizing the use of torture because he had not received the green light from the DoJ.

The AP adds: "Former Attorney General John Ashcroft, former Under Secretary of Defense Douglas Feith, and former Assistant Attorney General Dan Levin have also agreed to give testimony at a future hearing. Former CIA Director George Tenet is still in negotiations with the committee."

Torture

Today's Must Read

Paul Kiel | May 6, 2008, 10:13AM

Forget about the frustration at the slow pace of the military commissions at Guantanamo Bay. You know it's got to really burn the administration to miss a good chance for a PR coup.

But as The Washington Post reports this morning, things are moving at such a glacial pace down in sunny Guantanamo that it seems impossible at this point that any of the September 11th suspects will begin trial before the election -- or even before the Bush administration leaves office.

You know that's got to burn because of comments made by the Pentagon officials heading up the trials. The former chief prosecutor there testified that he was told that he should really push to land plea deals or indictments before the election. And another member of the prosecution team said the Pentagon's top legal adviser in its commissions office wanted to pursue certain cases ahead of others because they would "seize the imagination of the American public" and make a splash.

But the only case that seems at all likely to go to trial before the election is that of Salim Ahmed Hamdan, the alleged driver for Osama bin Laden. And the pretrial hearings for that have been far from pretty -- with Gitmo's former chief prosecutor testifying about the politicization of the system, and Hamdan, who says he has been addled by torture and prolonged solitary confinement, himself proclaiming that he won't participate in what he sees as a rigged system.

The apparent problem is that it just takes a long time to work out the kinks of a made-up process. As a lawyer from Human Rights Watch puts it, "Every little detail ends up being contested, because it's an entirely new system of justice."

But administration officials are trying to keep their chins up, their eyes on the prize. In answering criticisms that the process will be occasionally and arbitrarily shielded from the press, Air Force Brig. Gen. Thomas Hartmann, the top legal authority in the Pentagon's Office of Military Commissions and the man who was, according to those prosecutors referenced above, so keen on landing indictments before the elections, is unapologetic. Certain things have to be blocked from the press to ensure that classified or sensitive information is not disseminated, he says. And besides, who needs publicity?

Hartmann said that within the military commissions process, "the principal obligation is not to the press," and that the cases are full, fair and open because of the rights afforded to the defendants. "That's what we do in the American system of justice," he said.

Congressional Subpoenas

House Panel Votes to Authorize Subpoena to Addington

Paul Kiel | May 6, 2008, 9:47AM

The next step in the House Judiciary Committee's attempts to hear from the architects of the administration's interrogation policy: the panel just voted to authorize a subpoena for David Addington. Last week, Addington indicated that he might appear to testify if the committee subpoenaed him. It's not clear yet when that hearing might be.

The committee also is seeking to hear from John Yoo, John Ashcroft, Doug Feith, former CIA Director George Tenet, and former lawyer in the Office of Legal Counsel Daniel Levin. The committee continues to negotiate with all of those possible witnesses about appearing in the future, according to a press release yesterday. During the vote just now, Rep. Jerrold Nadler (D-NY) said that "most" of the witnesses the committee wanted to hear from had agreed to appear.

Torture

Senate GOP Blocks DOJ IG From Investigating Torture

Paul Kiel | May 5, 2008, 4:17PM

From The National Law Journal:

Congress is close to enacting the most significant boost in three decades in the independence of the cadre of government watchdogs -- federal inspectors general -- but the lawmakers have retreated from a key change involving the U.S. Department of Justice.

The Senate on April 23 approved, by unanimous consent, S. 2324, the Inspector General Reform Act of 2008. But the bill passed only after the lawmakers agreed to an amendment by Senator Jon Kyl, R-Ariz., which, among other items, deleted a provision giving the Justice Department's Office of Inspector General (OIG) jurisdiction to investigate misconduct allegations against department attorneys, including its most senior officials.

Unlike all other OIGs who can investigate misconduct within their entire agency, Justice's OIG must refer allegations against department attorneys to the department's Office of Professional Responsibility (OPR). The latter office, unlike the OIG, is not statutorily independent and reports directly to the attorney general and the deputy attorney general....

President Bush had threatened to veto the House bill for a variety of reasons. The Kyl amendment to the Senate bill was seen by many as a vehicle for the White House's objections.

OPR, which reports to the attorney general, is currently conducting a variety of very sensitive investigations for the administration. The office is probing the Department's approval of the administration's warrantless wiretapping program. And recently it announced that it is investigating the Department's legal memos authorizing the use of waterboarding and other forms of torture by CIA and military interrogators.

It is conducting those probes because Inspector General Glenn Fine cannot. The bill which passed the House would have changed that, as Fine himself pointed out in a letter (pdf) to Sen. Sheldon Whitehouse (D-RI) and Dick Durbin (D-IL) back in February, when he told them that he could not investigate the Department's authorization of torture because "under current law, the OIG does not have jurisdiction to review the actions of DOJ attorneys acting in their capacity to provide legal advice." Fine added: "Legislation that would remove this limitation has passed the House and is pending in the Senate, but at this point the OIG does not have jurisdiction to undertake the review you request."

And with Kyl's amendment, it appears that Fine won't be getting that jurisdiction any time soon.

The National Law Journal quotes a former DoJ IG on why some people want to tie Fine's hands:

Read more »

Must Read

Today's Must Read

Paul Kiel | May 2, 2008, 10:05AM

Can it really be true? Will the high priest of executive privilege actually submit to a Congressional subpoena?

When House Judiciary Committee Chair John Conyers (D-MI) invited a slate of current and former administration officials to testify about the authorization of torture, I was skeptical that he would meet much cooperation. But when it came to David Addington, Dick Cheney's chief of staff and longtime consigliere, the idea seemed downright ludicrous. If Addington has spoken publicly or even given an interview in the last eight years, I'm unaware of it.

But in a letter (pdf) to the committee yesterday, the vice president's counsel Kathryn Wheelbarger signaled a willingness to cooperate. It was, for sure, a long way from the original reply, which I summarized at the time as, "You're asking the wrong person, but even if you were asking the right person, you couldn't make him show up, and even if he did show up, he wouldn't say anything."

Yesterday's letter is a change of tone. Because the committee has signaled that it will limit the range of its inquiries (this is Addington only speaking for himself, he can't speak about communications with the Vice President or President, he has the right to invoke "applicable legal privileges), Addington seems to be leaning towards showing up.

That doesn't mean that the vice president's office has changed their mind about whether he has to show up, mind you. The courts would agree that Addington is "immune from compulsion," Wheelbarger writes. But Addington might show up out of the goodness of his heart, "as a matter of comity," as the letter puts it.

The letter falls short of saying that Addington will definitely show up to Tuesday's hearing, but Wheelbarger does write that "the Chief of Staff to the Vice President is prepared to accept timely service of a Committee subpoena for testimony for a hearing on May 6, 2008." When the Politico asked Cheney's spokeswoman whether this meant that Addington would comply, she said "Since he hasn't been issued a subpoena, it would be a little premature to comment on whether he would comply." He is a coy one, that Addington.

Must Read

Today's Must Read

Paul Kiel | May 1, 2008, 9:59AM

You know those secret legal opinions by the Justice Department that tell the administration how far it can go without breaking the law? After all the hullabaloo over John Yoo's five year-old torture authorization memo, Attorney General Michael Mukasey assured Congress that the Justice Department really was working on releasing other memos. But he made no promises.

And yesterday, during a hearing on secret law held by Sen. Russ Feingold (D-WI) before the Senate Judiciary Committee, an official from the Office of Legal Counsel promised that the Department would allow members of the intelligence committees to see them -- but lawmakers won't be able to keep paper or electronic copies. The Department says that it's thinking really hard about whether the Senate Judiciary Committee can see them as well. For some reason, Feingold and his peers didn't seem satisfied.

The man who was the top classification official until January of this year appeared at the hearing and testified that the Department's decision to mark Yoo's torture memo "secret" and keep it classified for years after it was withdrawn showed "either profound ignorance of or deep contempt for" classification rules.

But as Donald Rumsfeld put it, there are known unknowns and unknown unknowns. And with this group, it's always a toss-up which is more worrying:

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration's legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearance remain in force....

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration's contention that it can selectively modify executive orders "turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret."

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department's view that the president has the power to change executive orders.

Mr. Whitehouse said, "There's an important piece missing from that, which is not telling anybody and running a program that's completely different from the executive order."

Only seven more months of the Bush administration to go, and plenty more to find out.