Things You Should Be Reading

Three things you should be reading:

Two of them are from Daniel Larison. The first is this denouncement of the broad exception that Israel gets regarding international law and wars of aggression. I would advise Israeli hawks to listen to people like Drezner; we Americans know a thing or two about wars of aggression inspired by hyperbolic fears. I agree with his central assertion whole-heartedly though, and have made it somewhere on my blog before; essentially, that we should not concede to the hawks and neocons that the only argument is about the effectiveness of an invasion or assault. We should also be arguing about whether it's right or wrong to go to war. Old-fashioned notions I know.

Speaking of old-fashioned, perhaps you missed the revelation that former British Prime Minister Margeret Thatcher was secretly opposed to German re-unification. This is what Andrew Sullivan refers to as "staggering news", though as Drezner points out it made perfect sense at the time for British realists to be, if not opposed, then at least leery of German reunification. As Drezner explains, Britain had been opposed to the formation of a single strong continental power for centuries, and none of us had any reason to believe in 1989 (or 1991) that things would turn out as peaceful as they have. Of course now we associate Germany with economic progress and stability, but Margeret Thatcher was thinking of World War II. For my part, I was somewhat relieved to read about a nation's leader behaving in a manner that reflect caution and traditional interests. That sort of thing is passe around here these days.

Lastly, there's Glenn Greenwald on Bagram, the new "black hole" for terrorist detainees the world over:

No wonder they want to close Guantanamo: who wants to be bothered with irritating habeas reviews -- 28 out of 33 have resulted in judicial findings that insufficient evidence exists to justify the detention -- when you can just ship them off to the Black Hole of Bagram and imprison them for as long as you want with no court interference? Apparently, what the Bush administration did that was so terrible, the heinous "shredding of the Constitution" they perpetrated, wasn't about the fact that they imprisoned people indefinitely with no charges -- but that they did it in Cuba rather than somewhere else. Who knew that such grave Constitutional transgressions -- such severe denial of fundamental rights -- could be fixed so easily with a little change of scenery?

If I have written about the Obama administration's gradually worsening record on civil liberties and the "war on terror" (you thought it was over, didn't you?) it's only because of a blogging ennui in general, not because I'm giving the Obama administration a pass. As excited as I was about the Obama candidacy, not for one single instant did I believe that the Obama administration would easily surrender powers claimed by the Bush administration. To believe they would do so requires a willful ignorance of Presidential history. No President has ever surrendedered such power without a fight, and so the fight continues.

Threat Levels Politicized

Yeah, nobody predicted that this was the case:

Tom Ridge, the first secretary of homeland security, asserts in a new book that he was pressured by top advisers to President George W. Bush to raise the national threat level just before the 2004 election in what he suspected was an effort to influence the vote.

After Osama bin Laden released a threatening videotape four days before the election, Attorney General John Ashcroft and Defense Secretary Donald H. Rumsfeld pushed Mr. Ridge to elevate the public threat posture but he refused, according to the book. Mr. Ridge calls it a “dramatic and inconceivable” event that “proved most troublesome” and reinforced his decision to resign.

Honestly, wouldn't it have been more of a surprise if Ridge had produced definitive evidence that this has never happened?

And speaking of Bush-era mendacity, the NY Times appears to have uncovered the reason that the CIA and Bush administration was so secretive about that Al Qaeda assassination program; they were paying Blackwater security contractors to help them with it:

The Central Intelligence Agency in 2004 hired outside contractors from the private security contractor Blackwater USA as part of a secret program to locate and assassinate top operatives of Al Qaeda, according to current and former government officials.

Executives from Blackwater, which has generated controversy because of its aggressive tactics in Iraq, helped the spy agency with planning, training and surveillance. The C.I.A. spent several million dollars on the program, which did not successfully capture or kill any terrorist suspects.

The fact that the C.I.A. used an outside company for the program was a major reason that Leon E. Panetta, the C.I.A.’s director, became alarmed and called an emergency meeting in June to tell Congress that the agency had withheld details of the program for seven years, the officials said.

It is unclear whether the C.I.A. had planned to use the contractors to actually capture or kill Qaeda operatives, or just to help with training and surveillance in the program. American spy agencies have in recent years outsourced some highly controversial work, including the interrogation of prisoners. But government officials said that bringing outsiders into a program with lethal authority raised deep concerns about accountability in covert operations.

Uh, yeah. Because as opaque as the CIA's activities in Iraq are, Blackwater is even worse. Though I'm pretty sure that such was also considered a plus of the program by the CIA and Bush officials.

War Criminals

For your reading pleasure, a portrait of "doctors" Jim Mitchell and Bruce Jessen, the two psychologists/quacks who got rich by turning psycho-babble into a program of torture for the CIA:

In December 2001, a small group of professors and law enforcement and intelligence officers gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism. Among them was Dr. Mitchell, who attended with a C.I.A. psychologist, Kirk M. Hubbard.

During a break, Dr. Mitchell introduced himself to Dr. Seligman and said how much he admired the older man’s writing on “learned helplessness.” Dr. Seligman was so struck by Dr. Mitchell’s unreserved praise, he recalled in an interview, that he mentioned it to his wife that night. Later, he said, he was “grieved and horrified” to learn that his work had been cited to justify brutal interrogations.

Dr. Seligman had discovered in the 1960s that dogs that learned they could do nothing to avoid small electric shocks would become listless and simply whine and endure the shocks even after being given a chance to escape.

Helplessness, which later became an influential concept in the treatment of human depression, was also much discussed in military survival training. Instructors tried to stop short of producing helplessness in trainees, since their goal was to strengthen the spirit of service members in enemy hands.

Dr. Mitchell, colleagues said, believed that producing learned helplessness in a Qaeda interrogation subject might ensure that he would comply with his captor’s demands. Many experienced interrogators disagreed, asserting that a prisoner so demoralized would say whatever he thought the interrogator expected.

Which, as we know, is pretty much what happened. But Jessen and Mitchell were rewarded handsomely for their work:

The business plans of Dr. Mitchell and Dr. Jessen, meanwhile, were working out beautifully. They were paid $1,000 to $2,000 a day apiece, one official said. They had permanent desks in the Counterterrorist Center, and could now claim genuine experience in interrogating high-level Qaeda operatives.

{...}

The company’s C.I.A. contracts are classified, but their total was well into the millions of dollars. In 2007 in a suburb of Tampa, Fla., Dr. Mitchell built a house with a swimming pool, now valued at $800,000.

When asked to comment, Mitchell responded with this:

In a brief e-mail exchange in June, Dr. Mitchell said his nondisclosure agreement with the C.I.A. prevented him from commenting. He suggested that his work had been mischaracterized.

“Ask around,” Dr. Mitchell wrote, “and I’m sure you will find all manner of ‘experts’ who will be willing to make up what you’d like to hear on the spot and unrestrained by reality.”

The irony is unintentional, I'm sure.

More on the Secret CIA Program

Yesterday I was wondering why former VP Cheney would order the CIA to hide a program of targeted assassination from Congress. Via Scott Horton, there's some indication that the nature of the program wasn't one of assassination, but of intelligence-gathering...on American citizens:

The details and specific target of the program have yet to be made public. The New York Times, citing unnamed officials, says that the CIA had plotted since 2001 to find and kill al-Qaeda leaders abroad. Two former CIA officials tell TIME there's another, somewhat less dramatic, possibility: a plan to conduct domestic surveillance. Spying on Americans is outside the CIA's purview and would be highly controversial — good enough reason for Cheney to want it kept under wraps.

Less dramatic perhaps, but far more troubling as such a program is more than "outside the CIA's purveiw"; it's blatantly illegal. And it would explain why Cheney would want so badly to keep it a secret from Congress.

Intelligence Revelations

Over the last week we've learned a few interesting things about intelligence programs being run by the NSA and the CIA, and the participation of Bush administration officials in those programs. Last Wednesday it was revealed that the CIA concealed a top secret program from Congress for eight years. Congress became aware of the program only after they were of informed of it by current CIA director Leon Panetta, who himsefl learned of the program only last month. Over the weekend we learned that the CIA withheld information from Congress on the direct orders of Vice President Cheney, according to testimony before Congress by Leon Panetta. Panetta also indicated that the program had been canceled. And yesterday we learned that the program was an effort to assassinate Al Qaeda terrorists wherever they might be found, including in friendly countries. Now officials say that no assassination was ever carried out and due to legal and logistical problems, the program never left the planning stages. Of course, that leads one to wonder just why there was an effort to keep the program away from Congress completely, especially given that we have been assassinating Al Qaeda terrorists in Pakistan (a "friendly" country) for years now. If anything, one would think that Congress and the public in general would approve of targeted killings, which have the benefit of at least not killing dozens of civilians along with the terrorist you're trying to get. I'm almost willing to bet there's still more about the program we don't know yet, but we'll see.

Also, last Friday saw the release of a report compiled by the various agencies Inspectors General regarding the warrantless wiretapping program whose existence was revealed by the New York Times in late 2005. The report doesn't offer an opinion on the program's legality, but it does discuss the program's effectiveness, finding that most leads generated by the program were dead ends and that this was due in part to the extensive secrecy that surrounded the program.

The report also touches on the other intelligence-gathering program maintained by the Bush administration, the "unprecedented" data mining operation that we learned in December was the cause of a now infamous showdown between the Department of Justice and senior Bush administration officials. The report provides little detail about the program though, so though we are well aware that it existed at one time and was canceled when the DOJ officials threatened to resign over it, we still don't know exactly what it did or where all the data it collected has gone off to.

So, an interesting weekend to say the least.

UPDATE: Via Tim F, Philip Giraldi with an informative post on why the CIA assassination program would be so problematic and thus why it likely never came to fruition.

Obama Administration to Release More Photos of Detainee Abuse

I'm genuinely surprised by this move:

The Obama administration agreed late Thursday to release dozens of photographs depicting alleged abuse by U.S. personnel during the Bush administration of prisoners in Iraq and Afghanistan.

At least 44 pictures will be released on May 28 -- making public for the first time images of what the military investigated as abuse that took place at facilities other than the Abu Ghraib prison in Iraq.

Defense officials would not say exactly what is contained in the photos, but said they are concerned that the release could incite a backlash in the Middle East.

The photos are apparently not as shocking as the photographs from the Abu Ghraib investigation that became a lasting symbol of U.S. mistakes in Iraq. But some show military service members intimidating or threatening detainees by pointing weapons at them. Military officers have been court-martialed for threatening detainees at gunpoint.

Now as near as I can tell from this article, the release of the photos is prompted by an ACLU lawsuit. But of course, the Obama administration could simply do what the Bush administration did and refuse to disclose the photos, or fight a court order for years, or simply lose or destroy the photos. So the question is, why is Obama agreeing to release these photos now? It's not as if the furor over the most recent torture revelations will have died down in a month. Is he doing it because he feels it's necessary to air our dirty laundry so we can move on after having a full public accounting of our practices in the war on terror? Does he want to fan the ardor those calling for the prosecution of Bush administration officials (albeit in a back-handed way)? Or does he sincerely believe that the right thing for the government to do is release even the most politically inconvenient information when it's required by law? I'm genuinely puzzled; eight years of Bush malfeasance and Democratic ineptitude has conditioned me to expect the worse I suppose.

The Torture Timeline

Bush administration officials have repeatedly claimed that high-value detainees like Abu Zubaydah were tortured only after the August 1st, 2002 memo from the OLC that gave legal sanction to numerous coercive interrogation techniques. But that timeline simply isn't plausible, as stories like this make clear:

In April 2002, four months before the Justice Department issued its first “torture” memo, an FBI special agent who participated in the interrogation of the first “high-value” detainee captured after 9/11 reported that his treatment by the CIA amounted to “borderline torture,” according to a long forgotten report issued by the Department of Justice last year on the FBI’s role in detainee interrogations.

In recounting how the FBI agent verbally objected to the interrogation methods used against the detainee, Abu Zubaydah, sometime in April or May of 2002 Justice Department Inspector General Glenn Fine wrote in his report that the CIA had told another FBI agent, identified by the pseudonym “Gibson," who was present for the interrogation that the techniques were approved "at the highest levels" of government.

[...]

Fine’s report would appear to seriously undercut assertions by Bush administration officials that “enhanced interrogation” techniques were applied to "high-value" detainees only after the Justice Department’s Office of Legal Counsel issued a memorandum in August 2002 authorizing the CIA to use 10 brutal methods in an attempt to extract information from prisoners about plans to attack the U.S.

There has been speculation for some time that Zubaydah's torture preceded the Justice Department's legal opinion. That question came up during a House Judiciary Committee hearing last year and former Attorneys General John Ashcroft and Michael Mukasey were both asked about it but said they did not know.

[...]

According to Fine’s report, “Thomas” did not see Zubaydah being waterboarded but witnessed other methods being used against him that he said were “borderline torture.”

Agent “Thomas’s” "communicated his concerns about the CIA [interrogation] methods" to the Pasquale D'Amuro, the FBI’s assistant director for counterterrorism, in a telephone conversation in May 2002, according to Fine’s report. D’Amuro told Fine that he brought the agents' complaints to FBI Director Robert Mueller and "stated that his exact words to Mueller were 'we don't do that' and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did not participate in this type of activity."

[...]

According to Fine's report, D'Amuro decided to remove the agents from the interrogations after "Thomas" communicated his concerns in the May 2002 telephone conversation. But "Gibson" said he was not immediately ordered to leave and “remained at the CIA facility until some time in early June 2002, several weeks after 'Thomas' left, and that he continued to work with the CIA and participate in interviewing Zubaydah.”

When he returned to the FBI headquarters in June 2002 to meet with officials about Zubaydah “Gibson” said he had no "moral objection" to the techniques being used against Zubaydah because they were “comparable” to the “harsh interrogation” techniques he “himself had undergone...as part of the U.S. Army Survival, Evasion, Resistance, and Escape (SERE) training.”

Likening the methods used to interrogate Zubaydah’s before to those applied to U.S. military personnel at a SERE facility is the clearest evidence yet that Zubaydah’s was tortured using techniques that were not yet approved in the Aug. 1, 2002 Bybee memo.

In his op-ed today, FBI interrogator Ali Soufan reveals that he was one of the agents who participated in the interrogation of Abu Zubaydah prior to the CIA's taking over of the process. Soufan says he objected to the harsher techniques, a revelation which would seem to correlate with the actions of Agent "Thomas" in Fine's report as detailed above. But Soufan clearly says that "Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August." Soufan is unclear in his op-ed about when he objected to these techniques, but Fine's report makes it clear that Agent "Thomas" objected in early May 2002, implying that at least some level of "enhanced interrogation" techniques were being employed before the August 1st OLC memo was ever drafted.

But that's not the only evidence that detainees in U.S. custody were tortured prior even to the OLC memos authorizing enhanced interrogation techniques. A Tunisian detainee originally captured in in the wake of 9/11 has filed suit against the federal government, alleging he was tortured by agents of the CIA in late 2001:

According to the lawsuit, Alhami was arrested in Iran in November 2001 and taken to Afghanistan to three CIA "dark sites" where "his presence and his existence were unknown to everyone except his United States detainers" and his name was not included on any publicly available list of detainees.

Beginning in December 2001, Alhami was tortured repeatedly, the lawsuit claims.
The methods were varied: At different times Alhami was stripped naked, threatened with dogs, shackled in painful "stress" positions for hours, punched, kicked and exposed to extremes of heat and cold. The suit also alleges Alhami's interrogators sprayed pepper spray on his hemorrhoids, causing extreme pain.

The lawsuit doesn't claim Alhami was waterboarded, a technique that simulates drowning.

The torture continued after Alhami was transferred to the U.S. Naval base in Guantanamo Bay, Cuba, in January 2003, where he currently is held, according to the suit.

Now it's most interesting to that Alhami is filing suit now, in the wake of the release of the Senate Armed Services Committee report and the OLC memos last week. The article says the allegations were "pieced together from Alhami's recollections, declassified documents and information from human rights organizations." Would those declassified documents be the recently declassified OLC memos? I'd sure like to know.

Who Lied?

Marc Thiessen seems willing to take at face value assertions the CIA made to the OLC that traditional (non-torturous) interrogation techniques were of little use in the interrogation of Abu Zubaydah. But FBI Special Agent Ali Soufan directly contradicts that notion; he says flat-out that he was getting "important actionable intelligence" before he was whisked away, allegedly as a result of his unwillingness to tie Al Qaeda to Saddam Hussein. This has Spencer Ackerman wondering exactly who was telling CIA attorneys Scott Muller and John Rizzo that traditional interrogations weren't working with Zubaydah. Ackerman speculates that SERE psychologist James Mitchell had something to do with it. Why? Mitchell wanted to get paid:

...is it too cynical to suggest that Mitchell also had an interest in saying that Soufan and the FBI’s (and apparently, in part, CIA’s) non-brutal techniques failed? From page 24 of the Senate Armed Services Committee report:

Subsequent from his retirement from DoD [the Department of Defense], Dr. Jessen joined Dr. Mitchell and other former JPRA [Joint Personnel Recovery Agency, which oversees SERE] officials to form a company called Mitchell Jessen & Associates. Mitchell Jessen & Associates is co-owned by seven individuals, six of whom either worked for JPRA or one of the service SERE schools as employees and/or contractors. As of July 2007, the company had between 55 and 60 employees, several of whom were former JPRA employees.

Science may be science, but money is money.

Is that unbelievable? Not to me, and not for someone like Mitchell, who sounds like a real piece of work.

Senate Intelligence Torture Memos "Narrative" Released

McClatchy has this report out about a "narrative" released by the Senate Intelligence Committee that purports to provide an overview of the legal advice provided to the CIA from the OLC regarding torture. As McClatchy explains, the narrative makes clear that lawyers for the DOJ were operating under the guidance of senior Bush administration officials:

A newly declassified narrative of the Bush administration's advice to the CIA on harsh interrogations shows that the small group of Justice Department lawyers who wrote memos authorizing harsh interrogation techniques were operating not on their own but with direction from top administration officials, including then-Vice President Dick Cheney and National Security Adviser Condoleezza Rice.

At the same time, the narrative suggests that then-Defense Secretary Donald H. Rumsfeld and then-Secretary of State Colin Powell were largely left out of the decision-making process.

Specifically, the narrative states:

In the spring of 2003, the DCI [Director of Central Intelligence] asked for a reaffirmation of the policies and practices in the interrogation program. In July 2003, according to CIA records, the NSC [National Security Council] Principals met to discuss the interrogation techniques employed in the CIA program. According to CIA records, the DCI and the CIA’s General Counsel attended a meeting with the Vice President, the National Security Adviser, the Attorney General, the Acting Assistant Attorney General for the Office of Legal Counsel, a Deputy Assistant Attorney General, the Counsel to the President, and the Legal Adviser to the National Security Council to describe the CIA’s interrogation techniques, including waterboarding. According to CIA records, at the conclusion of that meeting, the Principals reaffirmed that the CIA program was lawful and reflected administration policy.

According to CIA records, pursuant to a request from the National Security Adviser, the Director of Central Intelligence subsequently briefed the Secretary of State and the Secretary of Defense on the CIA’s interrogation techniques on September 16, 2003.

In addition to these and other revelations, the narrative is useful to anyone who's having trouble keeping up with the bevy of OLC memos and other factoids that have come to light in the last several years. It's a short document, and I recommend reading it.

Quite frankly, it's astonishing, the amount of information that has been revealed in only a week about the crafting of the torture policies. Between the OLC memos, the Senate Armed Services Committee report and this narrative from the Senate Intelligence Committee, we now have a far more comprehensive portrait of the evolution of the legal advice regarding torture, as well as the role of various members of the Bush administration in the crafting of that policy. And I don't see how this news doesn't continue to add to the building momentum for the investigation/prosecution of those involved in torture.

Torture Fallout

Daphne Eviatar writes in today's Washington Independent that the release of the OLC memos last week, and the Senate Armed Services Committee report on detainee abuse, are building momentum for prosecution of Bush administration officials involved in crafting torture policy:

On Tuesday, President Obama did not rule out that Holder might prosecute the legal architects of the abusive interrogation policies, and said he was open to a bipartisan congressional commission investigating the Bush administration’s use of harsh interrogation techniques and how the policies were developed. And European and U.N. officials are increasingly saying that if the United States does not prosecute what appears to be a violation of the Convention Against Torture, to which the United States is a signatory, then European prosecutors may initiate prosecution themselves.

The release on Tuesday of the complete Senate Armed Services Committee report makes turning a blind eye to the past even more difficult. That’s because the report concludes that in many respects, Bush administration officials ignored prevailing domestic and international law and the legal advice of U.S. military lawyers in developing the abusive interrogation policies.

[...]

Some of the facts set out in the report strongly suggest that further investigation is warranted as to whether the legal conclusions were reached in good faith by the lawyers, and whether policymakers acted reasonably in relying on them. That’s critical to the defense put forward by Bush administration officials such as former Attorney General Michael Mukasey and Vice President Dick Cheney, who have consistently defended the Bush administration’s conduct by saying they all reasonably relied on the good-faith advice of government lawyers.

The Senate Armed services report repeatedly calls that “good faith” into question.

“The report talks about Haynes disregarding the advice from JAGS [Judge Advocates General], and disregarding other legal opinions,” said Michael Ratner, president of the Center for Constitutional Rights who has been calling for years for appointment of an independent prosecutor to investigate the Bush administration’s interrogation policies. “If you’re a prosecutor, that gives you something. That questions good faith.”

That's because crafting a legal opinion that ignores legal precedent, and ignoring legal advice that's inconvenient, do not constitute "good faith."

Also Ali Soufan, a former FBI special agent who interrogated Abu Zubaydah, takes to the pages of the NY Times to criticize the torture policies as not only ineffective but counter-productive:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.

One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the C.I.A. and F.B.I., similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.

Of course as we know, what the Bush administration really wanted out of Zubaydah was proof that Al Qaeda and Saddam Hussein were collaborating, which naturally they didn't get because no such collaboration existed. Zubaydah's unwillingness to provide politically convenient false testimony is what got him waterboarded 83 times.

Apologists

In the avalanche of stories and commentaries that are following from the release the Armed Services Committee report last night, torture apologists are seizing on two in particular to argue that torture was effective and thus justified. First, Marc Thiessin, former Bush speech-writer, repeats the claim that the torture of Khalid Sheikh Mohammed disrupted a plot to attack the Library Tower in Los Angeles:

Consider the Justice Department memo of May 30, 2005. It notes that "the CIA believes 'the intelligence acquired from these interrogations has been a key reason why al Qaeda has failed to launch a spectacular attack in the West since 11 September 2001.' . . . In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including [Khalid Sheik Mohammed] and Abu Zubaydah, without these enhanced techniques." The memo continues: "Before the CIA used enhanced techniques . . . KSM resisted giving any answers to questions about future attacks, simply noting, 'Soon you will find out.' " Once the techniques were applied, "interrogations have led to specific, actionable intelligence, as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates."

Specifically, interrogation with enhanced techniques "led to the discovery of a KSM plot, the 'Second Wave,' 'to use East Asian operatives to crash a hijacked airliner into' a building in Los Angeles." KSM later acknowledged before a military commission at Guantanamo Bay that the target was the Library Tower, the tallest building on the West Coast. The memo explains that "information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemmah Islamiyah cell tasked with executing the 'Second Wave.' " In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.

An astute reader will note that the OLC memos merely repeat claims being made by the CIA about intelligence that they allegedly obtained from Mohammed, so this can hardly be considered any kind of definitive "proof" as to torture's usefulness (never mind that the purpose of the memos was to justify torture, making them doubly dubious.) But as Timothy Noah at Slate points out (via Andrew Sullivan) this claim that torture foiled the Library Tower attack-a claim that has been made repeatedly by torture apologists-is just wrong:

What clinches the falsity of Thiessen's claim, however (and that of the memo he cites, and that of an unnamed Central Intelligence Agency spokesman who today seconded Thessen's argument), is chronology. In a White House press briefing, Bush's counterterrorism chief, Frances Fragos Townsend, told reporters that the cell leader was arrested in February 2002, and "at that point, the other members of the cell" (later arrested) "believed that the West Coast plot has been canceled, was not going forward" [italics mine]. A subsequent fact sheet released by the Bush White House states, "In 2002, we broke up [italics mine] a plot by KSM to hijack an airplane and fly it into the tallest building on the West Coast." These two statements make clear that however far the plot to attack the Library Tower ever got—an unnamed senior FBI official would later tell the Los Angeles Times that Bush's characterization of it as a "disrupted plot" was "ludicrous"—that plot was foiled in 2002. But Sheikh Mohammed wasn't captured until March 2003.

Torture apologists will also cite to this NY Times story about a memo that current Director of Intelligence Admiral Dennis Blair sent to his staff last week when the OLC memos were released, in which he states that the "enhanced interrogation" techniques produced "high value information":

“High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday.

It would be interesting to know exactly what information was produced, and exactly how useful it was, especially as Blair himself goes on to say:

“The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means,” Admiral Blair said in a written statement issued last night. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

Which is essentially the point that opponents of torture have been making all along. Naturally, torture apologists will look for the tiniest scrap of evidence that torture produced actionable intelligence of even the most insignificant nature and attempt to use that to justify a program that exceeded even the flimsy legal boundaries established by the OLC, while completely dismissing the harm that torture has done to our national security. But I think that's rather obviously a losing argument.

Torture Tactics Predate OLC Memos

There's an awful lot of information to unpack in the Senate Armed Services Committee report, but the headline of this Washington Post story, "Harsh Tactics Readied Before Their Approval", raises a rather obvious point that bears repeating:

Intelligence and military officials under the Bush administration began preparing to conduct harsh interrogations long before they were granted legal approval to use such methods -- and weeks before the CIA captured its first high-ranking terrorism suspect, Senate investigators have concluded.

Previously secret memos and interviews show CIA and Pentagon officials exploring ways to break Taliban and al-Qaeda detainees in early 2002, up to eight months before Justice Department lawyers approved the use of waterboarding and nine other harsh methods, investigators found.

[...]

The report shows Pentagon officials reaching out to the military agency for advice on interrogations as early as December 2001 and finding some specialists eager to help. By late 2001, counterterrorism officials were becoming frustrated by the paucity of useful leads coming from interrogations -- a meager showing that was linked, according to one Army major, to interrogators' insistence on "establishing a link between al-Qaeda and Iraq," the report said.

[...]

The school instructors conducted a training seminar for intelligence officials in early July 2002. At the seminar, two "agency legal personnel" told the group that harsh measures were already deemed acceptable, even though Justice Department approval was still a month away.

"They [interrogators] could use all forms of psychological pressure discussed, and all the physiological pressures with the exception of the 'water board,' " the lawyers were quoted as saying at the seminar. Waterboarding might also be permitted, but the interrogators "would need prior approval," the report said.

The Senate report confirms participation by SERE officials in the interrogation of Abu Zubaida, an al-Qaeda associate who was the first high-level CIA detainee and the first to be subjected to waterboarding.

"At some point in the first six months of 2002, JPRA assisted with the preparation of a [redacted name], sent to interrogate a high level al Qaeda operative," according to the Senate report. A June 20, 2002, memo described the assistance as "training" and noted that the JPRA psychologist suggested "exploitation strategies to [redacted] officer."

They wanted torture, and they got torture, even before the Bybee memo was authored. Given what was happening, can you see anyone at the OLC concluding that torture was in fact, illegal? Yeah, me neither.

Torture Is Useful

A passage from the Time story that I linked to last night:

The final irony: the torture techniques around which the SERE training was devised were used by Chinese interrogators during the Korean War, not to gather actionable intelligence but to force false confessions from captured U.S. soldiers — confessions that could then be used in anti-American propaganda.

Well, not that ironic:

The Bush administration put relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein's regime, according to a former senior U.S. intelligence official and a former Army psychiatrist.

[...]

A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that intelligence agencies and interrogators find evidence of al Qaida-Iraq collaboration.

"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.

"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubeida at least 83 times in August 2002 and Khalid Sheik Mohammed 183 times in March 2003 — according to a newly released Justice Department document.

"There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney's and Rumsfeld's people to push harder," he continued.

"Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies."

Senior administration officials, however, "blew that off and kept insisting that we'd overlooked something, that the interrogators weren't pushing hard enough, that there had to be something more we could do to get that information," he said.

The article also includes this quote from Army psychiatrist Maj. Charles Bunney, taken from the Armed Services Committee report released last night:

"While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not successful in establishing a link between al Qaida and Iraq," Burney told staff of the Army Inspector General. "The more frustrated people got in not being able to establish that link . . . there was more and more pressure to resort to measures that might produce more immediate results."

Throughout history torture has been employed to coerce false confessions. Many times that has been it's exact purpose. The torturers frequently insist that what they have acquired from the torture victim is the truth, even if that truth happens to be what the torturers have wanted to hear all along. This was no different. Senior Bush administration officials wanted a link between Al Qaeda and Iraq because that would help to justify the invasion. They believed that the link existed, and they had detainees in our custody tortured to "prove" it. So, our elected and appointed officials employed torture illegally, to justify a war of aggression that had no basis in legitimate national security concerns. It is not possible to conclude that these are anything other than war crimes, and war crimes of an egregious nature; the sort that would result in a trial at the Hague and lengthy prison sentences were we talking about leaders of a smaller, less powerful nation than ours. Such is unlikely in this case because frankly, only the leaders of two-bit nations end up on trial at the Hague for war crimes. But if we fail to investigate torture fully, and prosecute those who authorized it's use, then a grave injustice will go unpunished and our nation will be the lesser for it.

More Torture Revelations

You may recall that in December, the Senate Armed Services Committee released an executive summary containing the key conclusions of a report the committee authored on the treatment of terrorist suspects in American custody, specifically, the use of torture against those suspect detainees. This evening the Committee has released the full report, which provides more detail than ever about how the methods of torture used against detainees at Guantanamo Bay (and later against detainees in Iraq and Afghanistan) evolved and proliferated. I haven't yet read the full report myself (it totals 232 pages) but already the report is being processed by various media outlets. Time has a relatively short (but informative) summary here, which is as good a place to start as any. But for the best break down of the report I recommend Spencer Ackerman, who explains exactly how officials at the Pentagon "reverse-engineered" techniques first developed to train U.S. military personnel to resist torture, techniques which they then went on to apply detainees at Guantanamo Bay.

Throughout it all, it becomes clear that senior Bush administration officials were well aware of what was going on. Says Democrat Carl Levin of the report's conclusions:

“The record established by the Committee’s investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the Committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.”

Coincidentally (I presume) the NY Times published an article today which reveals the apparent thoughtlessness with which senior officials of the Bush administration approved these various torture techniques, without-amazingly-ever being quite aware that many of these techniques were descended from methods that the Chinese used to extract false confessions from American prisoners during the Korean War:

Overwhelmed with reports of potential threats and anguished that the agency had failed to stop the Sept. 11 attacks, Mr. Tenet and his top aides did not probe deeply into the prescription Dr. Mitchell so confidently presented: using the SERE tactics on Qaeda prisoners.

A little research on the origin of those methods would have given reason for doubt. Government studies in the 1950s found that Chinese Communist interrogators had produced false confessions from captured American pilots not with some kind of sinister “brainwashing” but with crude tactics: shackling the Americans to force them to stand for hours, keeping them in cold cells, disrupting their sleep and limiting access to food and hygiene.

“The Communists do not look upon these assaults as ‘torture,’ ” one 1956 study concluded. “But all of them produce great discomfort, and lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture.”

Worse, the study found that under such abusive treatment, a prisoner became “malleable and suggestible, and in some instances he may confabulate.”

[...]

One former senior intelligence official who played an important role in approving the interrogation methods said he had no idea of the origins and history of the SERE program when the C.I.A. started it in 2002.

“The agency was counting on the Justice Department to fully explore all the factors contributing to a judgment about legality, including the surrounding history and context,” the official said.

But it was the C.I.A. that was proposing the methods, and John Yoo, the Justice Department official who was the principal author of a secret August 2002 memorandum that authorized the interrogation program, was mostly interested in making a case that the president’s wartime powers allowed for the harsh tactics.

In other words, the OLC gave the CIA exactly what they wanted, which was basically permission to employ whatever techniques they thought they needed to against the detainees. I think it's appropriate to excerpt this snippet from Brian Tamahana's post regarding the circular reasoning of the OLC memos:

Here is the circularity in the analysis: Time and again the OLC memos conclude that the use of these interrogation techniques do not amount to the intentional infliction of severe physical or mental suffering (the torture standard) based upon the CIA’s own finding that these techniques don’t cross that line. But that is precisely the legal question the CIA (purportedly) is posing to the OLC: Do the interrogation techniques violate the anti-torture statute?

Presumably, the OLC cannot answer the legal question by relying upon the CIA’s own determination that these techniques do not violate the torture statute. That is, however, exactly the analysis in the torture memos. This circularity is explicit in the following passage (March 10 memo), opining on the combination of sleep deprivation with other techniques:

This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.

To summarize the above passage: the OLC concluded—as a legal matter—that the CIA’s combination of techniques does not violate the torture statute based upon the CIA’s assurance that it combines the techniques in a way that does not violate the torture statute. It doesn’t get more circular than that.

Of course, this was all possible because the conclusion was already pre-ordained; the OLC's job was merely to find a way to "legalize" it all. The Bush administration "knew" that torture would work, so there was really no need to debate the issue; especially not with CIA Director George Tenet running around claiming that Al Qaeda was getting ready to deply biological, chemical or nuclear weapons. They just needed the methods, and they needed somebody to say that it was legal to employ them. And they got both, without too much trouble, and without any messy inquiry into whether the approved techniques were actually useful in getting real information out of detainees (as opposed to just convincing them to say whatever the interrogator wanted to hear)or whether there was actually any legal precedent that argued against the use of torture.

I think it's also interesting to note from both Spencer Ackerman and the NY Times' stories how eager some SERE interrogators and psychologists were to get in on the action, only to balk at the various methods being employed in the coming months and years. But the genie was already out of the bottle at that point, and the methods they had helped to devise were already being employed in places as far away as Abu Ghraib and Bagram and, presumably, the CIA's secret detention facilities the world over.

If this can be easily summarized in anyway, it would be to say that Pentagon staffers, members of the military, and agents and contractors for the CIA and the DOD, put much thought, time and consideration into the exact methods of torture they would employ against recalcitrant detainees. Senior members of the Bush administration on the other hand, did not. And thus were terrorists suspects being detained indefinitely in various facilities and black sites around the world tortured in the name of national security. 

More Truth

The Obama administration will release three DOJ memos that provide the rationale for "enhanced interrogation" techniques (i.e., torture) utilized in the war on terror.

ICRC Report Details Torture

In December of 2006 officials with the Red Cross were permitted by the Bush administration to interview several high-value detainees, including Abu Zubaydah and Khalid Sheikh Mohammed, about their treatment in captivity, provided the report was kept secret and turned over only to government officials. Of course it didn't take long for elements of the report to leak to the public, including allegations of torture. For the first time though Mark Danner, writing for the New York Review of Books, publishes excerpts of interviews with some of those detainees, in which the detainees recount torture at the hands of CIA personnel at unknown "black sites." That these various detainees were tortured is not news; accounts of their treatment at the hands of American interrogators have leaked in one form or another over a period of several years now. Nonetheless it's informative to read the accounts of torture in the detainees' own words. Of course defenders of torture will claim that the detainees lied about their treatment, but there's a very simple way to confirm their stories; release the various logs that were kept regarding their treatment, as well as the communications that took place between senior administration officials in Washington and CIA personnel at the black sites (communications which Danner makes clear took place.) With more revelations like these, it seems more and more likely that a "truth commission" aimed at getting to the bottom of what was done in the "war on terror" will be launched, if fitfully. 

Tortured Reasoning

Brian Tamahana explains exactly how atrocious the legal reasoning is in the OLC memos authored by Yoo, Bybee and (to a lesser extent) Delahunty. Here's an example:

Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

Now, I don't think you have to be a lawyer to see the massive leap to a conclusion at the end of that paragraph, but trust me, Tamahana is not at all misconstruing the argument with his simplicification. This is an argument that essentially amounts to "Well, if the President can do one crazy-ass thing with one amendment of the Constitution, surely he can do another crazy-ass thing with that same amendment!"

And in case you think Tamahana has an ideological axe to grind, don't forget who authored the memo that repudiated all of these wild claims.

CIA Admits to Number of Tapes Destroyed

We learned in late 2007 that the CIA destroyed in 2005 hundreds of hours of tapes documenting the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, recordings that documented the use of torture during the interrogations. Yesterday the CIA revealed that they destroyed a total of 92 tapes, though they argue that many of the tapes were simply of the detainees sitting in their cells. Although a special prosecutor was appointed in January 2008 to determine if the destruction was criminal in nature, it is appearing unlikely that anyone will be charged and prosecuted:

Federal prosecutor John "Durham appears unlikely to secure criminal indictments against Rodriguez and other agency operations personnel involved in the conduct," three sources told the Post. "In recent months, the prosecutor has focused special attention on CIA legal advisers who reviewed court directives and on agency lawyers who told Rodriguez that getting rid of the recordings was sloppy and unwise but that it did not amount to a clear violation of the law, the sources said.

In the Bush administration then it would appear that so long as you could get an attorney to tell you it was okay, you're in the clear. This is only further evidence that attorneys working for the government apparently believe that their job is to give legal cover to what their bosses already want to do. In fact,  a fair comparision can be made between government attorneys and attorneys working for another large, criminal organization.

Bush OLC Memos Released

The Obama administration decided to release the DOJ OLC memos relating to the war on terror that the Bush administration had previously fought to keep secret. Unsurprisingly, the nine memos claim vast and sweeping powers on the part of the President to deal with any matter related to terrorism. Essentially, the memos claim, so long as the President was taking action to fight terrorism, he could literally not be constrained by the Cosntitution in any meaningful and substantial way. Neil Lewis of the NY Times focuses on one memo in particular, dealing with the deployment of the military within the United States:

The opinion authorizing the military to operate domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.

The use of the military envisioned in the Yoo-Delahunty reply appears to transcend by far the stationing of troops to keep watch at streets and airports, a familiar sight in the wake of the Sept. 11 attacks. The memorandum discussed the use of military forces to carry out “raids on terrorist cells” and even seize property.

“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.

The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.

Those aren't the only clams advanced by the Bush administration in those early days:

In another of the opinions, Mr. Yoo argued in a memorandum dated Sept. 25, 2001, that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.

Still another memo, issued in March 2002, suggested that Congress lacked any power to limit a president’s authority to transfer detainees to other countries, a practice known as rendition that was widely used by Mr. Bush.

The Bush administration also claimed the authority to curtail the First Amendment, stating plainly in one memo that "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Reaction to these memos has been predictable. Scott Horton, referring first to the surveillance memo:

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

These memos gave the President the ability to authorize the torture of persons held at secret overseas sites. And they dealt in great detail with the plight of Jose Padilla, an American citizen seized at O’Hare Airport. Padilla was accused of being involved in a plot to make and detonate a “dirty bomb,” but at trial it turned out that the Bush Administration had no evidence to stand behind its sensational accusations. Evidently it was just fine to hold Padilla incommunicado, deny him access to counsel and torture him–in the view of the Bush OLC lawyers, that is.

Orin Kerr, on the surveillance memo:

If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.

If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.

I suppose it's harder to ignore Congressional intent when Congress essentially says "No, we really did mean what we said there" but it seems odd to me to introduce new legislation in response to a twisted interpretation by the executive of already existing law.

Steven Schwin, on the detainees memo:

There's a lot of shocking language in these memos; here's just one gem from the June 27, 2002, memo:

As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.

Emphasis mine. Justice Jackson's opinion in Youngstown isn't even mentioned. (Recall that John Yoo's 2002 "Torture Memo" was heavily criticized for omitting any reference to Jackson's famous framework.)

And finally, Jack Balkin with the summary:

...two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.

These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.

Most interestingly, we learn that the OLC repudiated these early claims in a memo written by Steven Bradbury in the waning days of the Bush administration. In fact, Bradbury insists that many of these memos were never relied upon, that they were in fact "hypothetical." Which to me sounds like no more than a last-ditch and pathetic effort to avoid accountability at either the hands of historians or the hands of Obama DOJ investigators for actions taken in reliance upon the egregious claims of executive authority put forth in these memos. 

Files in "Disarray"

Following up on former Gitmo Prosecutor Darrel Vandeveld's complaints, the team Obama has charged with undoing Guantanamo are finding that case files on detainees are disorganized, haphazard and incomplete:

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.

Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner. They said that the CIA and other intelligence agencies were reluctant to share information, and that the Bush administration's focus on detention and interrogation made preparation of viable prosecutions a far lower priority.

Justice Department lawyers responding in federal courts to defense challenges over the past six months have said repeatedly that the government was overwhelmed by the sudden need to assemble material after Supreme Court rulings giving detainees habeas corpus and other rights.

[...]

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."

Right. Never mind that they had years, and any moron could see which way the wind was blowing up at the Supreme Court. The truth is the Bush administration never had any intent of seriously trying these detainees (kangeroo courts hardly need well-organized evidence) and and so preparation for such was completely absent. The Obama team will spend the next year just trying to clean up after some the former administration's wastefulness and incompetence.