The Obfuscation Report

Brian Ross and Richard Esposito Report:

The former CIA intelligence official who went public on ABC News about the agency's use of waterboarding in interrogations, John Kiriakou, apparently will not be the subject of a Justice Department investigation, even though some CIA officials believe he revealed classified information about the use of waterboarding.

"They were furious at the CIA this morning, but cooler heads have apparently prevailed for the time being," a senior Justice Department official told the Blotter on ABCNews.com.

Gen. Michael Hayden, the CIA director, did sent out a classified memo this morning warning all employees "of the importance of protecting classified information," a CIA spokesperson told ABCNews.com.

Kiriakou was not mentioned by name in the memo, according to the spokesperson, who said he could not make it public because it is classified.

The spokesperson would not comment other than to say that "intelligence officers have a lifelong, moral and legal responsibility to safeguard classified information. This continues even after someone leaves the agency."

In his appearance on ABC News and later with other media outlets, Kiriakou revealed that captured al Qaeda figure Abu Zubaydah had been subjected to waterboarding during his interrogation. It was the first time any current or former CIA employee has revealed the use of the technique in public.

"The CIA has not commented on specific interrogation techniques," its spokesperson said. "Disclosing classified information is a violation of the law."

While the use of waterboarding may be classified, its use by the CIA as an approved interrogation technique has been known publicly for at least two years and has been debated in Congress.

Kiriakou said he did not seek CIA approval to appear on ABC News but said he knew "the rules."

Labels: CIA, John Kiriakou, torture, waterboarding

In an interview last night with ABC News, John Kiriakou — the CIA official who headed the team that interrogated al Qaeda leader Abu Zubaydah — said that Zubaydah was waterboarded, but defended those actions as having prevented “maybe dozens” of planned attacks and “probably saved lives.”

But despite his vigorous defense of his past conduct, Kiriakou says he now views what he did as torture and says that he would not recommend those tactics going forward. “We don’t need enhanced techniques to get that nugget of information,” he said in an interview with Matt Lauer this morning on The Today Show.

Lauer asked Kiriakou where the permission was given to carry out torture. “Was the White House involved in that decision?” Lauer asked. “Absolutely,” Kiriakou said, adding:

This isn’t something done willy nilly. It’s not something that an agency officer just wakes up in the morning and decides he’s going to carry out an enhanced technique on a prisoner. This was a policy made at the White House, with concurrence from the National Security Council and Justice Department.

Lauer then referenced an earlier interview he did with President Bush, in which Bush said he was assured by the Justice Department “we were not torturing.” “I disagree,” Kiriakou said.

As evidence increasingly builds for the argument that CIA interrogators carried out illegal acts of torture, the New York Sun reports that President Bush may soon decide to issue pardons:

With talk of a special prosecutor again in the air and the looming prospect of a Democrat taking over the White House, CIA officials involved in prisoner interrogations and the disputed handling of videotapes of those sessions may seek the only ironclad assurance against any criminal prosecution: a presidential pardon. […]

“I think there’s a real possibility one of President Bush’s last acts very well might be granting immunity to certain CIA employees,” a defense attorney who has defended military personnel accused of prisoner abuse, Frank Spinner, said. “I think it depends in part on the election.”

UPDATE: Carpetbagger has more.

Labels: John Kiriakou, torture

by calipygian

Mon Dec 10, 2007 at 02:32:34 PM PST

Labels: torture

Today, a House Judiciary subcommittee is holding an oversight hearing on the “effectiveness and consequences of ‘enhanced’ interrogation.” The Committee had invited Lt. Col. Stuart Couch, a former Guantanamo Bay prosecutor, to testify about his experiences. The Wall Street Journal reports, “Asked last week to appear before the panel, Col. Couch says he informed his superiors and that none had any objection.” But Counch’s appearance was blocked by Cheney-backed Pentagon counsel William Haynes:

Yesterday, however, [Couch] was advised by email that the Pentagon general counsel, William J. Haynes II, “has determined that as a sitting judge and former prosecutor, it is improper for you to testify about matters still pending in the military court system, and you are not to appear before the Committee to testify tomorrow.“

Haynes has been a forceful advocate and key architect for the administration’s harsh interrogation techniques. Couch’s potential testimony posed a serious danger to Haynes’ work.

As a Gitmo prosecutor, Couch had been assigned to prosecute accused al Qaeda operative Mohamedou Ould Slahi, one of fourteen “high value” prisoners. “Of the cases I had seen, he was the one with the most blood on his hands,” Couch said of Slahi. Yet Couch determined he could not prosecute Slahi because his incriminating statements “had been taken through torture, rendering them inadmissible under U.S. and international law.”

In a lengthy Wall Street Journal profile published in March, Couch revealed evidence of torture he witnessed at Guantanamo Bay — images that captured his conscience and forced him to become a critic of the administration’s interrogation system. Couch reported that Slahi “had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated.” Here’s what happened when Couch announced his decision not to prosecute:

In May 2004, at a meeting with the then-chief prosecutor, Army Col. Bob Swann, Col. Couch dropped his bombshell. He told Col. Swann that in addition to legal reasons, he was “morally opposed” to the interrogation techniques “and for that reason alone refused to participate in [the Slahi] prosecution in any manner.”

Col. Swann was indignant, Col. Couch says, replying: “What makes you think you’re so much better than the rest of us around here?”

Col. Couch says he slammed his hand on Col. Swann’s desk and replied: “That’s not the issue at all, that’s not the point!”

An impassioned debate followed, the prosecutor recalls. Col. Swann said the Torture Convention didn’t apply to military commissions. Col. Couch asked his superior to cite legal precedent that would allow the president to disregard a treaty.

On his first day in Guantanamo, Couch said he saw treatment of a prisoner that “resembled the abuse he had been trained to resist if captured.” Couch’s willingness to tell the truth posed such a threat to the administration that they have prevented him from speaking to Congress. The subcommittee chairman, Rep. Jerrold Nadler (D-NY), said he would consider seeking a subpoena for Couch if the Pentagon maintained its stand.

Labels: Bush Administration, torture

-- Glenn Greenwald

Labels: Bush Administration, torture

By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN

WASHINGTON, Oct. 3 — When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

The classified opinions, never previously disclosed, are a hidden legacy of President Bush’s second term and Mr. Gonzales’s tenure at the Justice Department, where he moved quickly to align it with the White House after a 2004 rebellion by staff lawyers that had thrown policies on surveillance and detention into turmoil.

Congress and the Supreme Court have intervened repeatedly in the last two years to impose limits on interrogations, and the administration has responded as a policy matter by dropping the most extreme techniques. But the 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.

A White House spokesman, Tony Fratto, said Wednesday that he would not comment on any legal opinion related to interrogations. Mr. Fratto added, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within U.S. law” and international agreements.

More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months about the opinions and the deliberations on interrogation policy. Most officials would speak only on the condition of anonymity because of the secrecy of the documents and the C.I.A. detention operations they govern.

When he stepped down as attorney general in September after widespread criticism of the firing of federal prosecutors and withering attacks on his credibility, Mr. Gonzales talked proudly in a farewell speech of how his department was “a place of inspiration” that had balanced the necessary flexibility to conduct the war on terrorism with the need to uphold the law.

Associates at the Justice Department said Mr. Gonzales seldom resisted pressure from Vice President Dick Cheney and David S. Addington, Mr. Cheney’s counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department’s independence.

The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.

Mr. Bradbury defended the work of his office as the government’s most authoritative interpreter of the law. “In my experience, the White House has not told me how an opinion should come out,” he said in an interview. “The White House has accepted and respected our opinions, even when they didn’t like the advice being given.”

The debate over how terrorism suspects should be held and questioned began shortly after the Sept. 11, 2001, attacks, when the Bush administration adopted secret detention and coercive interrogation, both practices the United States had previously denounced when used by other countries. It adopted the new measures without public debate or Congressional vote, choosing to rely instead on the confidential legal advice of a handful of appointees.

The policies set off bruising internal battles, pitting administration moderates against hard-liners, military lawyers against Pentagon chiefs and, most surprising, a handful of conservative lawyers at the Justice Department against the White House in the stunning mutiny of 2004. But under Mr. Gonzales and Mr. Bradbury, the Justice Department was wrenched back into line with the White House.

After the Supreme Court ruled in 2006 that the Geneva Conventions applied to prisoners who belonged to Al Qaeda, President Bush for the first time acknowledged the C.I.A.’s secret jails and ordered their inmates moved to Guantánamo Bay, Cuba. The C.I.A. halted its use of waterboarding, or pouring water over a bound prisoner’s cloth-covered face to induce fear of suffocation.

But in July, after a monthlong debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls “enhanced” interrogation techniques — the details remain secret — and officials say the C.I.A. again is holding prisoners in “black sites” overseas. The executive order was reviewed and approved by Mr. Bradbury and the Office of Legal Counsel.

Douglas W. Kmiec, who headed that office under President Ronald Reagan and the first President George Bush and wrote a book about it, said he believed the intense pressures of the campaign against terrorism have warped the office’s proper role.

“The office was designed to insulate against any need to be an advocate,” said Mr. Kmiec, now a conservative scholar at Pepperdine University law school. But at times in recent years, Mr. Kmiec said, the office, headed by William H. Rehnquist and Antonin Scalia before they served on the Supreme Court, “lost its ability to say no.”

“The approach changed dramatically with opinions on the war on terror,” Mr. Kmiec said. “The office became an advocate for the president’s policies.”

From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?

The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.

Never in history had the United States authorized such tactics. While President Bush and C.I.A. officials would later insist that the harsh measures produced crucial intelligence, many veteran interrogators, psychologists and other experts say that less coercive methods are equally or more effective.

With virtually no experience in interrogations, the C.I.A. had constructed its program in a few harried months by consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture. The agency officers questioning prisoners constantly sought advice from lawyers thousands of miles away.

“We were getting asked about combinations — ‘Can we do this and this at the same time?’” recalled Paul C. Kelbaugh, a veteran intelligence lawyer who was deputy legal counsel at the C.I.A.’s Counterterrorist Center from 2001 to 2003.

Interrogators were worried that even approved techniques had such a painful, multiplying effect when combined that they might cross the legal line, Mr. Kelbaugh said. He recalled agency officers asking: “These approved techniques, say, withholding food, and 50-degree temperature — can they be combined?” Or “Do I have to do the less extreme before the more extreme?”

The questions came more frequently, Mr. Kelbaugh said, as word spread about a C.I.A. inspector general inquiry unrelated to the war on terrorism. Some veteran C.I.A. officers came under scrutiny because they were advisers to Peruvian officers who in early 2001 shot down a missionary flight they had mistaken for a drug-running aircraft. The Americans were not charged with crimes, but they endured three years of investigation, saw their careers derailed and ran up big legal bills.

That experience shook the Qaeda interrogation team, Mr. Kelbaugh said. “You think you’re making a difference and maybe saving 3,000 American lives from the next attack. And someone tells you, ‘Well, that guidance was a little vague, and the inspector general wants to talk to you,’” he recalled. “We couldn’t tell them, ‘Do the best you can,’ because the people who did the best they could in Peru were looking at a grand jury.”

Mr. Kelbaugh said the questions were sometimes close calls that required consultation with the Justice Department. But in August 2002, the department provided a sweeping legal justification for even the harshest tactics.

That opinion, which would become infamous as “the torture memo” after it was leaked, was written largely by John Yoo, a young Berkeley law professor serving in the Office of Legal Counsel. His broad views of presidential power were shared by Mr. Addington, the vice president’s adviser. Their close alliance provoked John Ashcroft, then the attorney general, to refer privately to Mr. Yoo as Dr. Yes for his seeming eagerness to give the White House whatever legal justifications it desired, a Justice Department official recalled.

Mr. Yoo’s memorandum said no interrogation practices were illegal unless they produced pain equivalent to organ failure or “even death.” A second memo produced at the same time spelled out the approved practices and how often or how long they could be used.

Despite that guidance, in March 2003, when the C.I.A. caught Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, interrogators were again haunted by uncertainty. Former intelligence officials, for the first time, disclosed that a variety of tough interrogation tactics were used about 100 times over two weeks on Mr. Mohammed. Agency officials then ordered a halt, fearing the combined assault might have amounted to illegal torture. A C.I.A. spokesman, George Little, declined to discuss the handling of Mr. Mohammed. Mr. Little said the program “has been conducted lawfully, with great care and close review” and “has helped our country disrupt terrorist plots and save innocent lives.”

“The agency has always sought a clear legal framework, conducting the program in strict accord with U.S. law, and protecting the officers who go face-to-face with ruthless terrorists,” Mr. Little added.

Some intelligence officers say that many of Mr. Mohammed’s statements proved exaggerated or false. One problem, a former senior agency official said, was that the C.I.A.’s initial interrogators were not experts on Mr. Mohammed’s background or Al Qaeda, and it took about a month to get such an expert to the secret prison. The former official said many C.I.A. professionals now believe patient, repeated questioning by well-informed experts is more effective than harsh physical pressure.

Other intelligence officers, including Mr. Kelbaugh, insist that the harsh treatment produced invaluable insights into Al Qaeda’s structure and plans.

“We leaned in pretty hard on K.S.M.,” Mr. Kelbaugh said, referring to Mr. Mohammed. “We were getting good information, and then they were told: ‘Slow it down. It may not be correct. Wait for some legal clarification.’”

The doubts at the C.I.A. proved prophetic. In late 2003, after Mr. Yoo left the Justice Department, the new head of the Office of Legal Counsel, Jack Goldsmith, began reviewing his work, which he found deeply flawed. Mr. Goldsmith infuriated White House officials, first by rejecting part of the National Security Agency’s surveillance program, prompting the threat of mass resignations by top Justice Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at the attorney general’s hospital bedside.

Then, in June 2004, Mr. Goldsmith formally withdrew the August 2002 Yoo memorandum on interrogation, which he found overreaching and poorly reasoned. Mr. Goldsmith left the Justice Department soon afterward. He first spoke at length about his dissenting views to The New York Times last month, and testified before the Senate Judiciary Committee on Tuesday.

Six months later, the Justice Department quietly posted on its Web site a new legal opinion that appeared to end any flirtation with torture, starting with its clarionlike opening: “Torture is abhorrent both to American law and values and to international norms.”

A single footnote — added to reassure the C.I.A. — suggested that the Justice Department was not declaring the agency’s previous actions illegal. But the opinion was unmistakably a retreat. Some White House officials had opposed publicizing the document, but acquiesced to Justice Department officials who argued that doing so would help clear the way for Mr. Gonzales’s confirmation as attorney general.

If President Bush wanted to make sure the Justice Department did not rebel again, Mr. Gonzales was the ideal choice. As White House counsel, he had been a fierce protector of the president’s prerogatives. Deeply loyal to Mr. Bush for championing his career from their days in Texas, Mr. Gonzales would sometimes tell colleagues that he had just one regret about becoming attorney general: He did not see nearly as much of the president as he had in his previous post.

Among his first tasks at the Justice Department was to find a trusted chief for the Office of Legal Counsel. First he informed Daniel Levin, the acting head who had backed Mr. Goldsmith’s dissents and signed the new opinion renouncing torture, that he would not get the job. He encouraged Mr. Levin to take a position at the National Security Council, in effect sidelining him.
Mr. Bradbury soon emerged as the presumed favorite. But White House officials, still smarting from Mr. Goldsmith’s rebuffs, chose to delay his nomination. Harriet E. Miers, the new White House counsel, “decided to watch Bradbury for a month or two. He was sort of on trial,” one Justice Department official recalled.

Mr. Bradbury’s biography had a Horatio Alger element that appealed to a succession of bosses, including Justice Clarence Thomas of the Supreme Court and Mr. Gonzales, the son of poor immigrants. Mr. Bradbury’s father had died when he was an infant, and his mother took in laundry to support her children. The first in his family to go to college, he attended Stanford and the University of Michigan Law School. He joined the law firm of Kirkland & Ellis, where he came under the tutelage of Kenneth W. Starr, the Whitewater independent prosecutor.

Mr. Bradbury belonged to the same circle as his predecessors: young, conservative lawyers with sterling credentials, often with clerkships for prominent conservative judges and ties to the Federalist Society, a powerhouse of the legal right. Mr. Yoo, in fact, had proposed his old friend Mr. Goldsmith for the Office of Legal Counsel job; Mr. Goldsmith had hired Mr. Bradbury as his top deputy.

“We all grew up together,” said Viet D. Dinh, an assistant attorney general from 2001 to 2003 and very much a member of the club. “You start with a small universe of Supreme Court clerks, and you narrow it down from there.”

But what might have been subtle differences in quieter times now cleaved them into warring camps.

Justice Department colleagues say Mr. Gonzales was soon meeting frequently with Mr. Bradbury on national security issues, a White House priority. Admirers describe Mr. Bradbury as low-key but highly skilled, a conciliator who brought from 10 years of corporate practice a more pragmatic approach to the job than Mr. Yoo and Mr. Goldsmith, both from the academic world.

“As a practicing lawyer, you know how to address real problems,” said Noel J. Francisco, who worked at the Justice Department from 2003 to 2005. “At O.L.C., you’re not writing law review articles and you’re not theorizing. You’re giving a client practical advice on a real problem.”
As he had at the White House, Mr. Gonzales usually said little in meetings with other officials, often deferring to the hard-driving Mr. Addington. Mr. Bradbury also often appeared in accord with the vice president’s lawyer.

Mr. Bradbury appeared to be “fundamentally sympathetic to what the White House and the C.I.A. wanted to do,” recalled Philip Zelikow, a former top State Department official. At interagency meetings on detention and interrogation, Mr. Addington was at times “vituperative,” said Mr. Zelikow, but Mr. Bradbury, while taking similar positions, was “professional and collegial.”

While waiting to learn whether he would be nominated to head the Office of Legal Counsel, Mr. Bradbury was in an awkward position, knowing that a decision contrary to White House wishes could kill his chances.

Charles J. Cooper, who headed the Office of Legal Counsel under President Reagan, said he was “very troubled” at the notion of a probationary period.

“If the purpose of the delay was a tryout, I think they should have avoided it,” Mr. Cooper said. “You’re implying that the acting official is molding his or her legal analysis to win the job.”
Mr. Bradbury said he made no such concessions. “No one ever suggested to me that my nomination depended on how I ruled on any opinion,” he said. “Every opinion I’ve signed at the Office of Legal Counsel represents my best judgment of what the law requires.”

Scott Horton, an attorney affiliated with Human Rights First who has closely followed the interrogation debate, said any official offering legal advice on the campaign against terror was on treacherous ground.

“For government lawyers, the national security issues they were deciding were like working with nuclear waste — extremely hazardous to their health,” Mr. Horton said.

“If you give the administration what it wants, you’ll lose credibility in the academic community,” he said. “But if you hold back, you’ll be vilified by conservatives and the administration.”
In any case, the White House grew comfortable with Mr. Bradbury’s approach. He helped block the appointment of a liberal Ivy League law professor to a career post in the Office of Legal Counsel. And he signed the opinion approving combined interrogation techniques.

Mr. Comey strongly objected and told associates that he advised Mr. Gonzales not to endorse the opinion. But the attorney general made clear that the White House was adamant about it, and that he would do nothing to resist.

Under Mr. Ashcroft, Mr. Comey’s opposition might have killed the opinion. An imposing former prosecutor and self-described conservative who stands 6-foot-8, he was the rare administration official who was willing to confront Mr. Addington. At one testy 2004 White House meeting, when Mr. Comey stated that “no lawyer” would endorse Mr. Yoo’s justification for the N.S.A. program, Mr. Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: “No good lawyer,” according to someone present.

But under Mr. Gonzales, and after the departure of Mr. Goldsmith and other allies, the deputy attorney general found himself isolated. His troublemaking on N.S.A. and on interrogation, and in appointing his friend Patrick J. Fitzgerald as special prosecutor in the C.I.A. leak case, which would lead to the perjury conviction of I. Lewis Libby, Mr. Cheney’s chief of staff, had irreparably offended the White House.

“On national security matters generally, there was a sense that Comey was a wimp and that Comey was disloyal,” said one Justice Department official who heard the White House talk, expressed with particular force by Mr. Addington.

Mr. Comey provided some hints of his thinking about interrogation and related issues in a speech that spring. Speaking at the N.S.A.’s Fort Meade campus on Law Day — a noteworthy setting for the man who had helped lead the dissent a year earlier that forced some changes in the N.S.A. program — Mr. Comey spoke of the “agonizing collisions” of the law and the desire to protect Americans.

“We are likely to hear the words: ‘If we don’t do this, people will die,’” Mr. Comey said. But he argued that government lawyers must uphold the principles of their great institutions.

“It takes far more than a sharp legal mind to say ‘no’ when it matters most,” he said. “It takes moral character. It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country.”

Mr. Gonzales’s aides were happy to see Mr. Comey depart in the summer of 2005. That June, President Bush nominated Mr. Bradbury to head the Office of Legal Counsel, which some colleagues viewed as a sign that he had passed a loyalty test.

Soon Mr. Bradbury applied his practical approach to a new challenge to the C.I.A.’s methods.
The administration had always asserted that the C.I.A.’s pressure tactics did not amount to torture, which is banned by federal law and international treaty. But officials had privately decided the agency did not have to comply with another provision in the Convention Against Torture — the prohibition on “cruel, inhuman, or degrading” treatment.

Now that loophole was about to be closed. First Senator Richard J. Durbin, Democrat of Illinois, and then Senator John McCain, the Arizona Republican who had been tortured as a prisoner in North Vietnam, proposed legislation to ban such treatment.

At the administration’s request, Mr. Bradbury assessed whether the proposed legislation would outlaw any C.I.A. methods, a legal question that had never before been answered by the Justice Department.

At least a few administration officials argued that no reasonable interpretation of “cruel, inhuman or degrading” would permit the most extreme C.I.A. methods, like waterboarding. Mr. Bradbury was placed in a tough spot, said Mr. Zelikow, the State Department counselor, who was working at the time to rein in interrogation policy.

“If Justice says some practices are in violation of the C.I.D. standard,” Mr. Zelikow said, referring to cruel, inhuman or degrading, “then they are now saying that officials broke current law.”

In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo.

Relying on a Supreme Court finding that only conduct that “shocks the conscience” was unconstitutional, the opinion found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said.

In a frequent practice, Mr. Bush attached a statement to the new law when he signed it, declaring his authority to set aside the restrictions if they interfered with his constitutional powers. At the same time, though, the administration responded to pressure from Mr. McCain and other lawmakers by reviewing interrogation policy and giving up several C.I.A. techniques.
Since late 2005, Mr. Bradbury has become a linchpin of the administration’s defense of counterterrorism programs, helping to negotiate the Military Commissions Act last year and frequently testifying about the N.S.A. surveillance program. Once he answered questions about administration detention policies for an “Ask the White House” feature on a Web site.

Mr. Kmiec, the former Office of Legal Counsel head now at Pepperdine, called Mr. Bradbury’s public activities a departure for an office that traditionally has shunned any advocacy role.
A senior administration official called Mr. Bradbury’s active role in shaping legislation and speaking to Congress and the press “entirely appropriate” and consistent with past practice. The official, who spoke on the condition of anonymity, said Mr. Bradbury “has played a critical role in achieving greater transparency” on the legal basis for detention and surveillance programs.

Though President Bush repeatedly nominated Mr. Bradbury as the Office of Legal Counsel’s assistant attorney general, Democratic senators have blocked the nomination. Senator Durbin said the Justice Department would not turn over copies of his opinions or other evidence of Mr. Bradbury’s role in interrogation policy.

“There are fundamental questions about whether Mr. Bradbury approved interrogation methods that are clearly unacceptable,” Mr. Durbin said.

John D. Hutson, who served as the Navy’s top lawyer from 1997 to 2000, said he believed that the existence of legal opinions justifying abusive treatment is pernicious, potentially blurring the rules for Americans handling prisoners.

“I know from the military that if you tell someone they can do a little of this for the country’s good, some people will do a lot of it for the country’s better,” Mr. Hutson said. Like other military lawyers, he also fears that official American acceptance of such treatment could endanger Americans in the future.

“The problem is, once you’ve got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?” he asked.

Labels: Bush Administration, torture

Whistleblowers on Fraud Facing Penalties
By DEBORAH HASTINGS

One after another, the men and women who have stepped forward to report corruption in the massive effort to rebuild Iraq have been vilified, fired and demoted.

Or worse.

For daring to report illegal arms sales, Navy veteran Donald Vance says he was imprisoned by the American military in a security compound outside Baghdad and subjected to harsh interrogation methods.

There were times, huddled on the floor in solitary confinement with that head-banging music blaring dawn to dusk and interrogators yelling the same questions over and over, that Vance began to wish he had just kept his mouth shut.

He had thought he was doing a good and noble thing when he started telling the FBI about the guns and the land mines and the rocket-launchers - all of them being sold for cash, no receipts necessary, he said. He told a federal agent the buyers were Iraqi insurgents, American soldiers, State Department workers, and Iraqi embassy and ministry employees.

The seller, he claimed, was the Iraqi-owned company he worked for, Shield Group Security Co.

"It was a Wal-Mart (nyse: WMT - news - people ) for guns," he says. "It was all illegal and everyone knew it."

So Vance says he blew the whistle, supplying photos and documents and other intelligence to an FBI agent in his hometown of Chicago because he didn't know whom to trust in Iraq.

For his trouble, he says, he got 97 days in Camp Cropper, an American military prison outside Baghdad that once held Saddam Hussein, and he was classified a security detainee.

Also held was colleague Nathan Ertel, who helped Vance gather evidence documenting the sales, according to a federal lawsuit both have filed in Chicago, alleging they were illegally imprisoned and subjected to physical and mental interrogation tactics "reserved for terrorists and so-called enemy combatants."

Corruption has long plagued Iraq reconstruction. Hundreds of projects may never be finished, including repairs to the country's oil pipelines and electricity system. Congress gave more than $30 billion to rebuild Iraq, and at least $8.8 billion of it has disappeared, according to a government reconstruction audit.

Despite this staggering mess, there are no noble outcomes for those who have blown the whistle, according to a review of such cases by The Associated Press.

"If you do it, you will be destroyed," said William Weaver, professor of political science at the University of Texas-El Paso and senior advisor to the National Security Whistleblowers Coalition.

"Reconstruction is so rife with corruption. Sometimes people ask me, `Should I do this?' And my answer is no. If they're married, they'll lose their family. They will lose their jobs. They will lose everything," Weaver said.

They have been fired or demoted, shunned by colleagues, and denied government support in whistleblower lawsuits filed against contracting firms.

"The only way we can find out what is going on is for someone to come forward and let us know," said Beth Daley of the Project on Government Oversight, an independent, nonprofit group that investigates corruption. "But when they do, the weight of the government comes down on them. The message is, 'Don't blow the whistle or we'll make your life hell.'

"It's heartbreaking," Daley said. "There is an even greater need for whistleblowers now. But they are made into public martyrs. It's a disgrace. Their lives get ruined."

Bunnatine "Bunny" Greenhouse knows this only too well. As the highest-ranking civilian contracting officer in the U.S. Army Corps of Engineers, she testified before a congressional committee in 2005 that she found widespread fraud in multibillion-dollar rebuilding contracts awarded to former Halliburton (nyse: HAL - news - people ) subsidiary KBR (nyse: KBR - news - people ).

Soon after, Greenhouse was demoted. She now sits in a tiny cubicle in a different department with very little to do and no decision-making authority, at the end of an otherwise exemplary 20-year career.

People she has known for years no longer speak to her.

"It's just amazing how we say we want to remove fraud from our government, then we gag people who are just trying to stand up and do the right thing," she says.

In her demotion, her supervisors said she was performing poorly. "They just wanted to get rid of me," she says softly. The Army Corps of Engineers denies her claims.

"You just don't have happy endings," said Weaver. "She was a wonderful example of a federal employee. They just completely creamed her. In the end, no one followed up, no one cared."

But Greenhouse regrets nothing. "I have the courage to say what needs to be said. I paid the price," she says.

Then there is Robert Isakson, who filed a whistleblower suit against contractor Custer Battles in 2004, alleging the company - with which he was briefly associated - bilked the U.S. government out of tens of millions of dollars by filing fake invoices and padding other bills for reconstruction work.

He and his co-plaintiff, William Baldwin, a former employee fired by the firm, doggedly pursued the suit for two years, gathering evidence on their own and flying overseas to obtain more information from witnesses. Eventually, a federal jury agreed with them and awarded a $10 million judgment against the now-defunct firm, which had denied all wrongdoing.

It was the first civil verdict for Iraq reconstruction fraud.

But in 2006, U.S. District Judge T.S. Ellis III overturned the jury award. He said Isakson and Baldwin failed to prove that the Coalition Provisional Authority, the U.S.-backed occupier of Iraq for 14 months, was part of the U.S. government.

Not a single Iraq whistleblower suit has gone to trial since.

"It's a sad, heartbreaking comment on the system," said Isakson, a former FBI agent who owns an international contracting company based in Alabama. "I tried to help the government, and the government didn't seem to care."

One way to blow the whistle is to file a "qui tam" lawsuit (taken from the Latin phrase "he who sues for the king, as well as for himself") under the federal False Claims Act.

Signed by Abraham Lincoln in response to military contractors selling defective products to the Union Army, the act allows private citizens to sue on the government's behalf.

The government has the option to sign on, with all plaintiffs receiving a percentage of monetary damages, which are tripled in these suits.

It can be a straightforward and effective way to recoup federal funds lost to fraud. In the past, the Justice Department has joined several such cases and won. They included instances of Medicare and Medicaid overbilling, and padded invoices from domestic contractors.

But the government has not joined a single quit tam suit alleging Iraq reconstruction abuse, estimated in the tens of millions. At least a dozen have been filed since 2004.

"It taints these cases," said attorney Alan Grayson, who filed the Custer Battles suit and several others like it. "If the government won't sign on, then it can't be a very good case - that's the effect it has on judges."

The Justice Department declined comment.

Most of the lawsuits are brought by former employees of giant firms. Some plaintiffs have testified before members of Congress, providing examples of fraud they say they witnessed and the retaliation they experienced after speaking up.

Julie McBride testified last year that as a "morale, welfare and recreation coordinator" at Camp Fallujah, she saw KBR exaggerate costs by double- and triple-counting the number of soldiers who used recreational facilities.

She also said the company took supplies destined for a Super Bowl party for U.S. troops and instead used them to stage a celebration for themselves.

"After I voiced my concerns about what I believed to be accounting fraud, Halliburton placed me under guard and kept me in seclusion," she told the committee. "My property was searched, and I was specifically told that I was not allowed to speak to any member of the U.S. military. I remained under guard until I was flown out of the country."

Halliburton and KBR denied her testimony.

She also has filed a whistleblower suit. The Justice Department has said it would not join the action. But last month, a federal judge refused a motion by KBR to dismiss the lawsuit.

Donald Vance, the contractor and Navy veteran detained in Iraq after he blew the whistle on his company's weapons sales, says he has stopped talking to the federal government.

Navy Capt. John Fleming, a spokesman for U.S. detention operations in Iraq, confirmed the detentions but said he could provide no further details because of the lawsuit.

According to their suit, Vance and Ertel gathered photographs and documents, which Vance fed to Chicago FBI agent Travis Carlisle for six months beginning in October 2005. Carlisle, reached by phone at Chicago's FBI field office, declined comment. An agency spokesman also would not comment.

The Iraqi company has since disbanded, according the suit.

Vance said things went terribly wrong in April 2006, when he and Ertel were stripped of their security passes and confined to the company compound.

Panicking, Vance said, he called the U.S. Embassy in Baghdad, where hostage experts got on the phone and told him "you're about to be kidnapped. Lock yourself in a room with all the weapons you can get your hands on.'"

The military sent a Special Forces team to rescue them, Vance said, and the two men showed the soldiers where the weapons caches were stored. At the embassy, the men were debriefed and allowed to sleep for a few hours. "I thought I was among friends," Vance said.

The men said they were cuffed and hooded and driven to Camp Cropper, where Vance was held for nearly three months and his colleague for a little more than a month. Eventually, their jailers said they were being held as security internees because their employer was suspected of selling weapons to terrorists and insurgents, the lawsuit said.

The prisoners said they repeatedly told interrogators to contact Carlisle in Chicago. "One set of interrogators told us that Travis Carlisle doesn't exist. Then some others would say, 'He says he doesn't know who you are,'" Vance said.

Released first was Ertel, who has returned to work in Iraq for a different company. Vance said he has never learned why he was held longer. His own interrogations, he said, seemed focused on why he reported his information to someone outside Iraq.

And then one day, without explanation, he was released.

"They drove me to Baghdad International Airport and dumped me," he said.

When he got home, he decided to never call the FBI again. He called a lawyer, instead.

"There's an unspoken rule in Baghdad," he said. "Don't snitch on people and don't burn bridges."

For doing both, Vance said, he paid with 97 days of his life.

Labels: Donald Vance, Iraq, torture, whistleblower

WASHINGTON, June 18 — In the months after the Sept. 11 attacks, at a time when the Central Intelligence Agency had long been out of the interrogation business, senior C.I.A. officers scrambled to build a program to question terror suspects in secret jails abroad.

To check on the legality of the harsh interrogation techniques they proposed, they turned to John A. Rizzo, who was then acting as the agency’s top lawyer.

On Tuesday, Mr. Rizzo will go before the Senate Intelligence Committee for a confirmation hearing to become the C.I.A.’s general counsel, giving the new Democratic majority its first chance at a public airing of agency practices that drew condemnation abroad and set off a prolonged debate at home.

Mr. Rizzo has been acting general counsel off and on for most of the last six years, serving without Senate confirmation. He was first nominated to the position last year, but a confirmation hearing was delayed.

In a report last month, the committee questioned whether the C.I.A. program was “necessary, lawful and in the best interests of the United States,” particularly in view of “the damage the program does to the image of the United States abroad.”

Mr. Rizzo, an agency lawyer for three decades who is known for his dapper dress and his discretion, will probably be questioned in open and closed sessions about the most contentious policies: holding terror suspects in secret; subjecting them to tough physical treatment, including the simulated drowning technique called waterboarding; and delivering some to countries that routinely practice torture.

“He’ll be the piñata,” said A. B. Krongard, executive director of the C.I.A. from 2001 to 2004, who remains a strong defender of the detention and interrogation program.

Mr. Krongard said Mr. Rizzo worked hard to see that the program was lawful, insisting on written legal opinions from the Justice Department.

“He did everything possible to get it right,” Mr. Krongard said. For any legal faults, he added, “Rizzo can be held accountable, I guess, but nowhere near as much as the Justice Department.”

Committee Democrats said they planned tough questioning for Mr. Rizzo, who was a crucial link between the interrogators and the Justice Department lawyers who gave their approval.

“I have serious concerns about this nomination,” said Senator Dianne Feinstein, Democrat of California, who said she wanted to gauge Mr. Rizzo’s precise role in what she believed were deeply flawed legal justifications.

Gen. Michael V. Hayden, C.I.A. director since May 2006, strongly defended the program and Mr. Rizzo’s role in shaping it.

Paul Gimigliano, an agency spokesman, said, “Mr. Rizzo knows better than anyone the full range of complex legal issues that influence intelligence operations in a democracy.”

Mr. Rizzo has earned a reputation for helping overseas operatives find a legal way to do what they feel is necessary. But officials said he did reject some proposed interrogation methods as excessive and illegal.

John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 but is critical of the detention program, said Mr. Rizzo “bears a share of responsibility” for the program and perhaps should have counseled against actions that were “technically legal but wrongheaded.”

But Mr. Radsan said top Bush administration officials deserved greater blame “for asking to push things right to the point of illegality.”

Mr. Rizzo, who is not granting interviews before his confirmation hearing, is no stranger to the agency’s legal controversies. A graduate of Brown University and the George Washington University Law School, he joined the agency in 1976, when the Church Committee of the Senate had just unearthed the agency’s involvement in assassination plots.

In the 1980s, he worked for the C.I.A.’s inspector general, investigating accusations of wrongdoing at agency stations abroad. He later became the agency’s point man for outside investigations into the Iran-contra affair, in which three agency officers were charged with crimes.

Since 1995, as senior deputy general counsel, Mr. Rizzo has often filled in as acting general counsel for months at a time. That was the case from November 2001 to October 2002, when top C.I.A. officials were negotiating the placement of secret jails abroad.

Interrogation was uncharted territory for most serving C.I.A. officers. A 1963 agency interrogation manual described the infliction of pain, including the use of electrical shock, but such techniques were banned by the 1980s, and by 2001, few C.I.A. officers had any experience in questioning suspects.

Mr. Krongard said deciding the limits of interrogation for Al Qaeda’s top operatives was not easy. “Can you slap someone in the face? Maybe,” he said. “But can you hit them as hard as you can? Maybe not.”

The approved options were first applied after the capture in March 2002 of Abu Zubaydah, a senior Qaeda figure. Mr. Rizzo was responsible for the legal advice to the officers holding him in Thailand as they escalated physical and mental pressure.

But colleagues said Mr. Rizzo insisted on Justice Department approval for actions they knew might be second-guessed.

“We were always conscious in the agency that we are judged not by the standards of today, but by the standards of tomorrow,” said Robert Richer, who retired in 2005 as second in command of the C.I.A.’s clandestine service.

The intelligence officers’ conviction that the political and legal winds would shift has proved accurate. A Justice Department memorandum in 2002 declared that nothing short of the pain associated with organ failure constituted illegal torture; the department later withdrew it and Congress set new limits on interrogation last year with the Military Commissions Act.

Since then, the C.I.A. has awaited White House approval for a new set of interrogation methods. It will again be up to Mr. Rizzo, if he is confirmed, to tell the agency what is and is not permitted.

Labels: CIA, interrogation, John A Rizzo, torture, War on Terror, waterboarding

by mcjoan

This was, hands down, the most frightening display at last night's Republican debate:

[C]andidates were asked whether they would support the use of waterboarding — a technique, defined as torture by the Justice Department, that simulates drowning and makes the subject "believe his death is imminent while ideally not causing permanent physical damage."

Both former mayor Rudy Giuliani and Rep. Tom Tancredo (R-CO) suggested they would support using the technique. Specifically asked about waterboarding, Giuliani said he would allow "every method [interrogators] could think of and I would support them in doing it." Tancredo later added, "I’m looking for Jack Bauer," referencing the television character who has used torture techniques such as suffocation and electrocution on prisoners.

Bad enough that Giuliani and Tancredo are such enthusiastic proponents of torture, but the really frightening part was the bloodlust in the audience, who went wild after these statements. In contrast, the one candidate who could speak with true authority on the issue, John McCain, was met with stony silence when he expressed his opposition to torture.

Watch the response to Giuliani here:

Labels: Republicans, Rudy Giuliani, torture

By Peter Spiegel
Times Staff Writer

March 30, 2007

WASHINGTON — Defense Secretary Robert M. Gates said Thursday that he had been pressing others in the Bush administration to move war crimes trials of suspected terrorists from Guantanamo Bay, Cuba, to courts inside the U.S. because the military tribunals may appear tainted in the eye of the international community.

No matter how open the trials are under a new law, Gates said, they may not be deemed credible by the outside world because of prior military practices at the U.S. naval prison at Guantanamo, which included interrogation techniques that involved physical coercion.

"My own view is that because of things that happened earlier at Guantanamo, there is a taint about it," Gates testified before the House Appropriations Committee's defense subcommittee.

He continued: "I felt that no matter how transparent, no matter how open the trials, if they took place at Guantanamo, in the international community they would lack credibility."

Gates repeated his support for closing down the prison and has expressed concern before that abuses there have harmed America's reputation abroad. But his comments come at an awkward time for the administration, with the trials resuming this week after a year's hiatus.

The first man to plead guilty in the trials, Australian David Hicks, is scheduled to appear before a tribunal at Guantanamo today to admit to specific crimes and receive his sentence. Hicks, a 31-year-old former kangaroo skinner, will be asked about 24 specific allegations on a Pentagon charge sheet, which involve weapons and tactics training with reputed terrorist groups in Albania, Pakistan and Afghanistan, as well as meetings with Osama bin Laden and would-be "shoe bomber" Richard Reid.

Hicks entered a plea of guilty Monday in a surprising reversal after his lawyers spent more than four hours wrangling with the military judge, Marine Col. Ralph H. Kohlmann.

The administration cites Hicks' conviction as a sign the new tribunals are legitimate, but Gates' comments could hamper the effort.

Gates has been widely credited by senior Pentagon officials and members of Congress for a more open and pragmatic style than his predecessor, Donald H. Rumsfeld.

His views on Guantanamo have been the most visible example of substantive differences. By some accounts, his stance on treatment of terrorism suspects may be the most significant policy break from Rumsfeld in Gates' tenure.

Within weeks of taking office in December, Gates killed a $102-million plan to build a large courthouse facility at Guantanamo, a proposal first made while Rumsfeld was still in charge at the Pentagon. Gates called the proposal "ridiculous" and instead ordered existing buildings to be refurbished, at about a tenth of the cost.

His views on the military tribunals could be more consequential. In the past, top administration lawyers have pushed for retaining most existing procedures, including the use of evidence gathered through coercion, despite adverse court rulings.

But Rumsfeld and his chief lieutenant on detainee issues, Stephen A. Cambone, both have left. That leaves Atty. Gen. Alberto R. Gonzales — who, as White House counsel, urged Bush to ignore the Geneva Convention when dealing with detained Al Qaeda suspects — increasingly isolated on the issue.

In his Capitol Hill testimony, Gates said there were "some number of people at Guantanamo that, frankly, based on their own confessions, should never be released."

"Now, I'm not the attorney general; I'm not a lawyer," Gates noted, saying he wanted to work with Congress to find a way to use the military prison system for some Al Qaeda suspects.

"It may be that it requires some kind of a statutory approach to deal with it in terms of how do you keep these people — who are self-confessed terrorists, who will come back and attack the United States if they're ever released — for the long term."

---

peter.spiegel@latimes.com

Times staff writer Carol J.

Williams in Guantanamo Bay, Cuba, contributed to this report.

Labels: Geneva Convention, George W Bush, Guantanamo Bay, international community, Robert M. Gates, torture

Labels: George W Bush, Iraq, Pentagon, protests, Rocky Anderson, torture