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Those CTC Lawyers Lying to OLC

I’ve been thinking a lot about the OPR report’s description of who cooperated and who didn’t with its report (those not bolded in the table). In addition to the most important White House players–particularly David Addington, as well as Tim Flanigan–they list at least four CounterTerrorism Center lawyers who refused to cooperate. (On PDF 13; get a searchable copy here)

Some witnesses declined to be interviewed. Former AG Ashcroft did not respond to several interview requests but ultimately informed us, through his attorney, that he had declined our request. CIA Counter Terrorism Center (CTC) attorneys [two or three names redacted] refused to meet with us on the advice of counsel, but we were able to review brief summaries of their interviews with the CIA’s Office of the Inspector General (CIA OIG) in connection with CIA OIG’s investigation and May 7, 2004 report entitled “Counterterrorism Detention and Interrogation Activities September 2001 – October 2003)” (the CIA
OIG Report). CTC attorney [one name redacted] also refused our request for an interview, as did former CTC attorney [one name redacted] although [one name redacted] spoke briefly with us by telephone. Finally, former Counsel to the Vice President David Addington and former Deputy White House Counsel Timothy Flanigan did
not respond to our requests for interviews.

OPR is saying that of the 21 most important witnesses for this investigation, at least four are or were lawyers in CIA’s CounterTerrorism Center. And at least two of them were warned not to cooperate on the advice of their attorneys.

Particularly given how much transparently false information was given to OLC to generate their memos, that’s a notable detail. It means that OPR doesn’t even begin to capture the problems with the memos that CIA contributed, because it could not really explain how that false information got introduced into the process.

The CTC lawyer who wrote the “Effectiveness Memo”

By way of example, consider the one known role of CTC lawyer(s) in the torture memos. A CTC lawyer or lawyers wrote the “Effectiveness Memo” and “Briefing Notes” that Steven Bradbury used to justify his claim that torture worked. As Michael Isikoff pointed out, OPR focused closely on the Effectiveness Memo’s errors.

But a just released report by the Justice Department’s Office of Professional Responsibility into the lawyers who approved the CIA’s interrogation program could prove awkward for Cheney and his supporters. The report provides new information about the contents of one of the never released agency memos, concluding that it significantly misstated the timing of the capture of one Al Qaeda suspect in order to make a claim that seems to have been patently false.

The memo also omitted any references to a notorious incident in which another high level CIA detainee, Ibn Al-Shaykh al-Libi,  provided “false information” about Al Qaeda’s supposed connections to Iraq in order to stop his Egyptian interrogators from abusing him, the Justice report states.  (Al-Libi was transfered by the CIA to Egyptian custody under the agency’s “extraordinary rendition” program.)

The CIA memo, called the Effectiveness Memo, was especially important because it was relied on by  Steven G. Bradbury, then the Justice Department’s acting chief of the Office of Legal Counsel, to write memos in 2005 and 2007 giving the agency additional legal approvals to continue its program of “Enhanced Interrogation Techniques.”  The memo reviewed the results of the use of EITs – which included waterboarding, sleep deprivation, and forced nudity – mainly against two suspects” Abu Zubaydah and Khalid Sheikh Mohammed, the report states.  One key claim in the agency memo was that the use of the CIA’s enhanced interrogations of Zubaydah led to the capture of suspected “dirty bomb’ plotter Jose Padilla.   “Abu Zubaydah provided significant information on two operatives, Jose Padilla and Binyam Mohammed, who planned to build and detonate a ‘dirty bomb’ in the Washington DC area,” the CIA memo stated, according to the OPR report. “Zubaydah’s reporting led to the arrest of Padilla on his arrival in Chicago in May 2003 [sic].”

But as the Justice report points out, this was wrong.

I wrote about the errors in these memos–and the obviously fraudulent way they were used–last April.

Bradbury primarily cites two documents to make his claim that the interrogation program was effective (along with some older intelligence reports):

  • Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [redacted], DCI Counterterrorist Center, Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques (March 2, 2005) [“Effectiveness Memo”]
  • Fax from [redacted], DCI Counterterrorist Center, Briefing Notes on the Value of Detainee Reporting (April 15, 2005) [“Briefing Notes”]

The descriptions make clear that both these documents were created for him. And, both these documents were created in the months leading up to this memo. In other words, these documents appear to have been created precisely to give Bradbury what he needed–the ability to argue the program was effective.

And largely based on these two documents, Bradbury provides a page and a half of specific intelligence derived from enhanced interrogation of KSM and Abu Zubaydah. Even in that page and a half, there are factual problems with Bradbury’s description. There’s information included that we know was available prior to their detention; there’s information included that was reportedly collected through persuasive rather than coercive interrogation; much of it relates to and came from lower level detainees; it includes the Padilla dirty bomber claim.

So there are one or two CTC lawyers who produced knowingly false information so Steven Bradbury could refute what was in the CIA IG Report. Presumably, these are two of the lawyers who refused to cooperate with OPR (note that in early drafts, OPR recommended OPR do a further review of Bradbury’s memos, but Mukasey squelched that recommendation).

The (?) CTC lawyer who ordered up the August 1, 2002 Techniques memo

It’s also possible that a CTC lawyer made the request that OLC do a “Techniques” memo in August 2002, in addition to the more general memo. This email, sent from Jennifer Koester, refers to a female person at CIA, so it’s clear that OLC was dealing with someone beyond just John Rizzo.

I got a message from [redacted] said the agency wants written approval rather than just oral approval. She said that this did not need to be in the form of a written opinion, but could be some sort of short letter that tells them that they have the go ahead.

This says someone else, probably at CIA, besides just John Rizzo, was working on the Techniques memo. (Note that 1.5 pages in the pages previous to this comment is redacted; some of this pertains to CIA’s request to approve mock burial, but some of the rest more closely appears to tie to the Tehcniques memo.) If this person is one of the unnamed CTC lawyers, it raises the question of whether a lot of the known false claims given to OLC–particularly regarding Abu Zubayadah and the claims about information he had and the role in al Qaeda he played–came from these CTC lawyers (particularly since we know the later false claims given to Steven Bradbury came from CTC).

Where else?

Those are two other places–one definite, and one possible–where CTC lawyers had a key role in the development of the memos.

But there are a number of other areas where OPR might have wanted to question CTC officials: The background of the CIA torture program (note the redactions on PDF pages 35 and 37) and the early discussions of what the Bybee One memo should include (see the redactions on PDF pages 46 though 48, plus the indication that CIA Memos for the Record form part of the basis for discussions of those meetings). In addition, OPR’s reliance on the CIA IG report suggests some of that information, suggests material in there may have been part of the discussion (note OPR has long discussions of the abuses with some detainees).

These are all areas where the OPR report is–presumably–badly incomplete.

Criminal referrals

Finally, there’s one more area where CTC’s lawyers were almost certainly involved: criminal referrals to DOJ. This section–which is not unsurprisingly heavily redacted–starts on PDF page 96. And, after six pages of redactions, about the only thing we get to read is this conclusion:

Accordingly, we recommend that the declination decision with respect to [several words redacted] be reexamined. Primarily because of the changed legal landscape, we further recommend that the other declination decisions made by CTS and the EDVA be reexamined as· well.

We know that reading this report (and this recommendation) is one of the things that convinced Holder to reopen torture investigations. And presumably, the CTC lawyers would have been at the core of discussions with potential defendants (and would have been in charge of earlier, verbal, authorizations, perhaps passed on from the White House).

Presumably, John Durham (who may have had to speak to some of the same lawyers in his never-ending torture tape investigation) would have subpoena power to force these same CTC lawyers to testify.

But I do wonder if that’s the primary issue that OPR would have talked to the CTC lawyers about?

Update: As this post makes clear, OPR had to have spoken with Jonathan Fredman at some point, so he must be the CTC attorney who spoke to them briefly by phone.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.