CIA Admits Presidential Order re: Foreign Detention Facilities

The ACLU reports today (received by e-mail):

In response to an ongoing lawsuit brought by the American Civil Liberties Union, the CIA has acknowledged the existence of two documents authorizing it to detain and interrogate terrorism suspects overseas. For more than two years, the CIA had refused to either deny or confirm the existence of the documents and had argued in court that doing so could jeopardize national security.

....The two documents in question are a directive signed by President Bush granting the CIA the authority to set up detention facilities outside the United States and outlining interrogation methods that may be used against detainees, and a Justice Department legal analysis specifying interrogation methods that the CIA may use against top Al-Qaeda members.

You can view the disclosure letter from the CIA here.

ACLU Executive Director Anthony Romero notes:

"The CIA’s sudden reversal on these secret directives is yet more evidence that the Bush administration is misusing claims of national security to avoid public scrutiny," said ACLU Executive Director Anthony D. Romero.

"Confusion about whether such a presidential order existed certainly led to the torture and abuse scandal that embarrassed America. With a new Congress and renewed subpoena power, we now need to look up the chain of command."

The ACLU continues to press for 21 images "depicting abuse of detainees by U.S. forces in Afghanistan and Iraq."

The CIA's dislcosure of the existence of the documents was sudden.

In legal papers previously filed before the court, the CIA claimed that national security would be gravely injured if the CIA were compelled to admit or deny even an "interest" in interrogating detainees. But in a letter to the ACLU dated November 10, the CIA reversed course and acknowledged that the Justice Department memorandum and presidential directive exist. The CIA continues to withhold the documents.

"We intend to press for the release of both of these documents," said Jameel Jaffer, an ACLU attorney involved in the case. "If President Bush and the Justice Department authorized the CIA to torture its prisoners, the public has a right to know."

I'd really like to see that DOJ legal analysis which outlines permissible interrogation methods. It was sent by the DOJ's Office of Legal Counsel to the CIA's Office of General Counsel.

Any bets on who authored it?

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    That's amazing (none / 0) (#1)
    by hellskitchen on Tue Nov 14, 2006 at 10:39:27 AM EST
    Who would have thought things would turn this swiftly?  Are they worrying about a repeal of the Military Commissions act and who's going to be held responsible?

    re the authors: (none / 0) (#2)
    by scribe on Tue Nov 14, 2006 at 10:49:24 AM EST
    I'm not a bettor, but I'd put money on these folks having the blood and ink on their hands:
    John Yoo
    David Addington
    Jay Bybee
    Peter Keisler
    Wm. Haymes

    Under the direction and leadership of:
    Alberto Gonzales
    I. Lewis Libby

    At the behest of:
    George W. Bush
    Richard Cheney
    Donald Rumsfeld
    Condoleeza Rice

    That pretty well covers the block, no?

    Wow. You really ran the gamut... (none / 0) (#4)
    by Bill Arnett on Tue Nov 14, 2006 at 10:57:34 AM EST
    ...with this list, scribe. I'd still put my money on John Yoo and Abu Gonzales, both of whom have admitted to drawing some really wacky conclusions as to the limits (or lack thereof) of presidential war powers.

    Let's hope they ALL hang collectively.


    Reservations anyone? (none / 0) (#6)
    by Edger on Tue Nov 14, 2006 at 11:14:35 AM EST
    How many cells does the Hague have available, I wonder? If they're booked up over there I'm sure there should be a few available in Gitmo, and I hear the interrogations and evidence gathering goes much quicker there.

    Isn't this very limited disclosure... (none / 0) (#3)
    by Deconstructionist on Tue Nov 14, 2006 at 10:51:33 AM EST
     ... hardly sudden and  a response to losing in the Court of Appeals and being ordered to respond.

       Also, as the CIa merely disclosed the existence of the documents but continues to resist disclosure of the actual documents, How is is this a "sudden" change.


    Shhhh! (none / 0) (#5)
    by Gabriel Malor on Tue Nov 14, 2006 at 11:09:37 AM EST
    Dammit, Decon, they've won something. They're not sure what it is or what it means but, dammit, they've won something. So just hush up with all your words 'n' stuff. Winners don't have to listen...or something, I think.

    Shhhh - Gabriel has something to say... (none / 0) (#7)
    by Edger on Tue Nov 14, 2006 at 11:23:59 AM EST
    Gabriel, perhaps you would be kind enough to offer for us slow learners your interpretation of the legal meaning and ramifications of the term "accessory"?

    Simple murders and atrocities do not constitute the gravamen of the charges in this indictment. Rather, the charge is that of conscious participation in a nationwide, government organized system of cruelty and injustice in violation of every moral and legal principle known to all civilized nations. The Tribunal has carefully studied the record and found therein abundant evidence to support beyond a reasonable doubt the charges against these defendants.

    There are those in our own country too who today speak of the "protection of country" -- of "survival." A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient -- to look the other way.

    Well, the answer to that is "survival as what?" A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult!

    Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.

    Democratic CORE VALUES (none / 0) (#8)
    by Edger on Tue Nov 14, 2006 at 11:25:24 AM EST
    justice, truth, and the value of a single human being

    Be careful with the movie quotes... (none / 0) (#11)
    by Gabriel Malor on Tue Nov 14, 2006 at 11:51:17 AM EST
    Edger, I'd be careful about learning the law from a movie.

    Re: learning (none / 0) (#12)
    by Edger on Tue Nov 14, 2006 at 11:56:48 AM EST
    While you're researching "accessory", you might also look up "analogy".

    George W. Bush ordered, in writing, that the CIA torture people...It's only a matter of time

    To 'borrow' a statement from a few years ago that you'll probably remember as well: "we [will] not distinguish between the terrorists and those who harbor or support them"


    And it might serve you well... (none / 0) (#13)
    by Bill Arnett on Tue Nov 14, 2006 at 12:07:33 PM EST
    ...to go back and read about the Nuremberg Trials and the striking similarities of war crimes and crimes against humanity committed in WWII that have been repeated by the bush maladministration.

    It has nothing to do with learning law from a movie.

    The rest of the world now views us as a poor substitute for the formerly great America and are growing ever more weary of Americans, CIA or not, violating their laws, kidnapping their citizens, sending to places to be tortured, and our blatant recision of habeas corpus, which makes us the only major civilized country where a person cannot appeal their incarceration.

    Italy has outstanding warrants for CIA agents for kidnapping and I'd wager they will not be the last to prosecute American lawbreakers. Germany is a fine example, and it may not be long before Great Britain listens to its citizens and stops illegal entrapment of their citizens by the CIA.

    That makes the matter of who authorized what and when very important.


    Actually, (none / 0) (#14)
    by Gabriel Malor on Tue Nov 14, 2006 at 12:27:14 PM EST
    Bill, my work this semester includes editing and preparing for publication a book about Nuremberg and Justice Jackson. I've been working on it since August. (Incidentally, that's why I've been quoting from Jackson so much--he's on my mind!)

    There are few "striking similarities" between the Bush Administration and the Nazis, but kudos to you for discovering such a rare and insightful analogy.

    The outrage with which portions of the rest of the world now view us doesn't seem to have hurt our economy or diplomatic efforts. Anecdotal, I know, but for what it's worth, I lived and worked in London (Little Arabia, no less) and didn't have any trouble at all.

    Finally, your insistence that persons have no right to appeal is explicitly denied by the MCA 2006. (I'm assuming that you're referring to military detainees since you referenced habeas.)

    Section 950c requires automatic appeal to the Court of Military Commission Review of any commission decision which results in a finding of guilty.

    Section 950e then gives convicted detainees the right to appeal to the US Court of Appeals for the District of Columbia.


    I said nothing particular to Nazis... (none / 0) (#18)
    by Bill Arnett on Tue Nov 14, 2006 at 01:41:23 PM EST
    ...and there ARE striking similarities. Two quick ones:

    Japan claimed they "preemptively" attacked America under the false believe that we were preparing to attack them. The court held that such "wars of aggression" contain both all the elements of the crime and that actually attacking the US clearly proved the crime.

    Second, and I don't remember if it was a Japanese or German troop, a sentence of 15-years of incarceration was meted out for "waterboarding" American soldiers, and that act was deemed a war crime and crime against humanity.

    And you really don't see any STRIKING similarities there? I'm not being flippant; I'm genuinely amazed that anyone cannot see that these war crimes have been repeated by America under bush.


    Different cases. (none / 0) (#19)
    by Gabriel Malor on Tue Nov 14, 2006 at 04:24:34 PM EST
    Pre-emption alone has never been considered a punishable act. The phrase "wars of agression" came up at Nuremberg in the definition of Count Two against the Nazis, that is "crimes against peace."

    A crime against peace was defined as "the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing..."

    Unfortunately, no definition of "war of aggression" has ever been adopted (of especial relevance to our conversation, the UN and the ICC are still fighting over definitions to use). In lieu of a definition of "war of aggression" most states have conducted themselves in accordance with the second definition of crime against peace, "a war in violation of international treaties, agreements or assurances."

    Neither the Afghanistan War nor the Iraq War disturbs this second definition. Given that, it's going to be very difficult to convict anyone in the Bush Administration for a crime against peace.

    Regarding waterboarding during World War II, that case is distinguishable for three reasons. First, Asano (the fellow in question) was convicted of beating and clubbing prisoners, "water torture", burning with cigarettes, and (oddly enough) strapping prisoners head down on a stretcher. Second, Asano's victims were Prisoners of War. Third, Asano stole from supplies intended for the POWs (this crime was itself a crime against the laws of war).

    It is therefore inaccurate to say that 15 years were meted out for waterboarding. Rather, a man accused of numerous crimes including "water torture" was given 15 years hard labor and confinement.


    Not a War of Agression? (none / 0) (#20)
    by Ernesto Del Mundo on Tue Nov 14, 2006 at 05:40:53 PM EST
    How is our invasion of Iraq not specifically a war of aggression, under any definition?

    In order to come up with a definition where it isn't, then you have certainly defined the term into irrelevance!


    Not a war of agression (none / 0) (#21)
    by Gabriel Malor on Tue Nov 14, 2006 at 06:39:07 PM EST
    Well, for starters, a state of war already existed between Iraq and the US at the start of what we've been referring to as "the Iraq War."

    Facts (none / 0) (#22)
    by jimakaPPJ on Tue Nov 14, 2006 at 06:55:11 PM EST
    Damnit Gabe, will you please quit spoiling the party with facts??

    Movie Trivia (none / 0) (#15)
    by Gabriel Malor on Tue Nov 14, 2006 at 12:39:33 PM EST
    And, though not directly on point for our purposes, I think it's fair to point out that "Judgment at Nuremberg", which Edger quotes from upthread is not about the the Nuremberg War Crimes Trials as they are typically understood, but rather a fictionalized account of "the Doctors Case" which took place later and was an American military tribunal and not an international tribunal. FYI.

    Accessory (none / 0) (#16)
    by Edger on Tue Nov 14, 2006 at 12:55:15 PM EST
    Usually there isn't a point you can't miss when you try hard enough Gabriel.

    But this time it might be helpful to throw away the shovel. You're digging too deep a hole, man. Go easy on yourself.

    You can always claim you didn't know. Or just say you were nowhere near the scene. You know... on the other side of town or something.

    They'll believe a honest guy like you Gabe. No?


    Besides... (none / 0) (#17)
    by Edger on Tue Nov 14, 2006 at 12:58:10 PM EST
    ...it's not a crime if you don't get caught, right?

    your point has some merit, but (none / 0) (#9)
    by scribe on Tue Nov 14, 2006 at 11:27:19 AM EST
    if you go and actually read the CIA letter, you will see they particularly identify the documents as (1) a legal memorandum prepared by the Office of Legal Counsel of DoJ and sent to CIA and (2) a memorandum from President Bush to the Director of CIA.

    As to (1), I'm suspecting it's some riff on the theme promulgated in the Gonzo-Bybee-Yoo torture memo, which we've already seen.

    As to (2), a Presidential memo to a department head (any department head) says one of three things.  It's either "thou shalt do X", "thou shalt not do X", or "please inform me on X" (the last really being a subspecies of "thou shalt").

    Given what we know already about the way people have been treated when in CIA captivity, I think the only reasonable conclusion is that (2) told the CIA either to torture people (though couched so as not to use the word "torture") or delegated to the head of CIA the authority to determine whether to use torture on detainees.  Whether there were named detainees who were the subject of this memo or this was a general delegation, is interesting but probably irrelevant compared to the main issue - that it seems fairly certain George W. Bush ordered, in writing, that the CIA torture people.

    It's only a matter of time, now, before the actual memo comes out.


    update: I told you so (5.00 / 1) (#23)
    by scribe on Wed Nov 15, 2006 at 08:08:58 AM EST
    ...it seems fairly certain George W. Bush ordered, in writing, that the CIA torture people.

    The NYT Company reports, through its subsidiary the International Herald Tribune, that the memo from Bush to CIA actually said what I concluded it did.  From the article:

    The contents of the documents were not revealed, but one document, as described by the ACLU, is "a directive signed by President Bush granting the CIA the authority to set up detention facilities outside the United States and outlining interrogation methods that may be used against detainees."

    I'm not sure what the source of the factual support is, though we (or at least I) have not seen the document production requests in issue.  

    Why is that important?  A look back at the CIA letter indicates that they respond in that letter to two requests by number (I think they're #22 and #68 or 69).  Normal civil discovery practice, particularly in extended discovery disputes in extensive cases (like this one), is that one party, here ACLU, sends discovery requests, and the other party responds by saying "#37.  Appended are documents "A", "B", and "C".  Documents "M" and "N" are responsive, but excluded from discovery because of privilege(s)."  Then one goes on to discuss the general outlines of what documents "M" and "N" are, their provenance, etc., and which privileges allegedly apply.  It's called a privilege log.

    So, it may well be that request #68 or #69 asked for (something like) "all directives from Bush to any agency of the government which allow or direct the establishment of any facilities anywhere for the detention of any persons...."  or something very similar.*  If so, then the admission that such a document exists (which is what the CIA and gov't fought - only relenting when the 2d Cir. told them to give it up - to avoid making in the first place) is tantamount to saying "yes, there is a smoking gun in Bush's hand.  But we won't let you see what make, model and serial number."  We'd have to see the discovery request - but I strongly doubt the IHT/NYT Co. or the ACLU would say what's in the article, if the discovery request didn't support it.

    So, my conclusion stands.

    Now, why was this published in the IHT and not the NYT?

    *  There's no little bit of art in drafting discovery requests - too narrow, and the adversary can play definition games about what the document is or is not and thereby avoid disclosure.  Too broad, and you miss the nugget in the tons of gravel that get produced.  Or, the adversary dumps tons of gravel and keeps the nugget in their pocket.  And, in the rough form of discovery request I sketched out, probably every word has been the subject of extended definitions at the beginning.  By way of example, my form discovery requests usually start off: "1.  Identify all persons with knowledge of any facts pertaining to this matter.  2.  Identify all documents you believe may pertain to this matter."
    My form definitions include the words "identify", "persons", "documents", "knowledge", "you";  the definitions for "identify" and "documents each are more than a two pages long, double-spaced.


    Thanks... (none / 0) (#25)
    by Edger on Wed Nov 15, 2006 at 08:22:38 AM EST
    ...for all your digging and detailed analysis on this, scribe.

    I found the document request, courtesy ACLU (none / 0) (#26)
    by scribe on Wed Nov 15, 2006 at 10:13:03 AM EST
    at this address (it's number 61, at page 13 of 15 on the .pdf)

    Here's what they asked for:

    Directive signed by President Bush that grants CIA, the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against Detainees

    Source:  John Barry, Michael Hirsch, and Michael Isikoff, et. al, The Roots of Torture, Newsweek, May 24, 2004.

    I think it is probably beyond reasonable* controverting that Bush ordered secret prisons and torture, in writing.  That he did so in writing speaks volumes to the level of arrogance and belief in being above the law - any law - which infects the current admin.

    *Wingnuts will still deny it, but they are, by definition, unreasonable and unreasoning)


    Yes, well... (none / 0) (#27)
    by Edger on Wed Nov 15, 2006 at 10:35:42 AM EST
    ...wingnuts are.

    What else can you say about them? ;-)



    There have been recent reports... (none / 0) (#10)
    by Bill Arnett on Tue Nov 14, 2006 at 11:42:58 AM EST
    ...that Donald Rumsfeld took a great deal of interest in the torturing of the so-called "20th hijacker", interest beyond that of mere curiosity and into the details of what types of torture were being used and whether they were vicious and cruel enough to obtain the info he believed the man possessed.

    Only in bushworld is a chain of command allowed to escape punishment for authorizing actions carried out by subordinates.

    This alone has irreparably damaged our credibility with the world.

    I swear, every time I hear bush say, "We don't torture people" I can hear millions of voices crying out "HYPOCRITE! LIAR!" all in unison.


    We won't know until we see it... (none / 0) (#24)
    by Deconstructionist on Wed Nov 15, 2006 at 08:21:53 AM EST
     and I agree that sooner or later it will likely be ordered disclosed, but would any President (even tbis one) be dumb enough to outline in writing interrogation methods that may be used by making specific reference to the methods?

      Were it me  and someone,  even my boss the VP, handed me such a document to sign I'd say:

     Are you nuts? I'm not signing that. Redraft that so the specific references to methods are deleted and have it read that I authorize methods which counsel has determined to be in accordance with international law and that include those delineated in [reference to voluminous frequently revised documents of which  I as President can plausibly deny having complete knowledge].


    point is, this Preznit did sign it (none / 0) (#28)
    by scribe on Wed Nov 15, 2006 at 04:28:45 PM EST
    Remember, CIA and the gov't tried very, very hard to avoid ever answering #61, which I quoted in my earlier comment.  They refused to produce any answer. The continued in that refusal until the Second Circuit compelled them to answer, i.e., after an appeal decided in favor of the ACLU.

    And, the ACLU's request was a very direct one.

    Once the CIA and gov't admitted that, yes, the document exists, the rest is inescapable.  We know people were sent to secret prisons.  We know they were subjected to treatment there which is called "torture" by any rational person.  We know, now, that Bush personally signed an order to CIA authorizing all that.

    And, in the two-plus years since publication of the article upon which the ACLU's request was based, a whole lot more about the torture of people in custody of the CIA has come out.  Like how Khalid Sheikh Mohammed was, in fact, waterboarded and earned the respect of his captors by holding out for a relatively long (a couple minutes) time.

    This is all one of the darkest chapters in American history, and the end has not yet been written.