Vocabulary > Terrorism > USA > CIA
Terry Mosher (Aislin)
The Montreal Gazette
27 August 2009
Central Intelligence Agency
at the Central Intelligence Agency
CIA drone attacks in Pakistan
After the attacks of Sept. 11,
President Bush signed a series of directives authorizing the Central
to conduct a covert war against Osama bin Laden's terrorist network, Al Qaeda.
The directives empowered the agency to kill or capture Al Qaeda leaders.
The C.I.A. began jailing suspects in 2002,
creating a detention and interrogation program from scratch
to deal with so-called "high value detainees" of the war on terror.
Its detention program for Al Qaeda leaders was the most secretive component
of an extensive regime of detention and interrogation
put into place by the United States government
after the Sept. 11 attacks and the war in Afghanistan.
Updated: April 22, 2009
C.I.A. Prisoner Abuse > abuses inside the agency’s secret prisons
CIA report on terrorism suspect interrogations
'enhanced interrogation techniques'
Timeline: CIA rendition
A recent history of the US programme of moving suspects
from one country to
another without due process
CIA rendition flights / extraordinary
CIA rendition programme > Poland
Cagle cartoons > Torture Memos
as an enemy combatant
The San Diego Union-Tribune
31 August 2009
CIA > 'waterboarding' / interrogation tapes
1 September 2009
May 21, 2011
The New York Times
Extraordinary rendition — the abduction of foreigners, often
innocent ones, by American agents who sent them to countries well known for
torturing prisoners — was central to President George W. Bush’s antiterrorism
policy. His administration then used wildly broad claims of state secrets to
thwart any accountability for this immoral practice.
President Obama has adopted the same legal tactic of using the secrecy privilege
to kill lawsuits. So the only hope was that the courts would not permit these
widely known abuses of power to go unchecked.
Last Monday, the Supreme Court abdicated that duty. It declined to review a case
brought by five individuals who say — credibly — that they were kidnapped and
tortured in overseas prisons. The question was whether people injured by illegal
interrogation and detention should be allowed their day in court or summarily
The court’s choice is a major stain on American justice. By slamming its door on
these victims without explanation, it removed the essential judicial block
against the executive branch’s use of claims of secrecy to cover up misconduct
that shocks the conscience. It has further diminished any hope of obtaining a
definitive ruling that the government’s conduct was illegal — a vital step for
repairing damage and preventing future abuses.
The lead plaintiff, an Ethiopian citizen and resident of Britain named Binyam
Mohamed, was arrested in Pakistan in 2002. The C.I.A. turned him over to
Moroccan interrogators, who subjected him to brutal treatment that he says
included cutting his penis with a scalpel and then pouring a hot, stinging
liquid on the open wound.
After the trial court gave in to the secrecy argument, a three-judge panel of
the Ninth Circuit Court of Appeals ruled that the case should proceed. It said
the idea that the executive branch was entitled to have lawsuits shut down with
a blanket claim of national security would “effectively cordon off all secret
actions from judicial scrutiny, immunizing the C.I.A. and its partners from the
demands and limits of the law.”
Last September, the full appeals court, ruling en banc, reversed that decision
by a 6-to-5 vote. The dissenters noted that the basic facts of the plaintiffs’
renditions were already public knowledge. But the majority gave in to the
pretzel logic shaped by the Bush administration that allowing the torture
victims a chance to make their case in court using nonsecret evidence would risk
divulging state secrets.
The Supreme Court allowed that nonsense to stand.
It is difficult to believe there are legitimate secrets regarding the
plaintiffs’ ill treatment at this late date. Last year, a British court released
secret files containing the assessment of British intelligence that the
detention of Mr. Mohamed violated legal prohibitions against torture and cruel
and degrading treatment.
The Supreme Court should have grabbed the case and used it to rein in the
distorted use of the state secrets privilege, a court-created doctrine meant to
shield sensitive evidence in actions against the government, not to dismiss
cases before evidence is produced.
But this is not the first time the Supreme Court has abdicated its
responsibility to hear cases involving national security questions of this sort.
A year ago, the Supreme Court refused to consider the claims of Maher Arar, an
innocent Canadian whom the Bush administration sent to Syria to be tortured. In
2007, the court could not muster the four votes needed to grant review in the
case of Khaled el-Masri, a German citizen subjected to torture in a secret
As President Obama’s first solicitor general, Justice Elena Kagan was in on the
benighted decision to use overwrought secrecy claims to stop any hearing for
torture victims. She properly recused herself from voting on the case. Surely
among the eight remaining judges there was at least one sensitive to the gross
violation of rights, and apparently law. We wish they would have at least
offered a dissent or comment to let the world know that the court’s indifference
was not unanimous.
Instead, what the world sees is rendition victims blocked from American courts
while architects of their torment write books bragging about their role in this
legal and moral travesty. Some torture victims bounced from American courts,
including Mr. Mohamed and Mr. Arar, have received money from nations with
comparatively minor involvement in their ordeals.
The Supreme Court’s action ends an important legal case, but not President
Obama’s duty to acknowledge what occurred, and to come up with ways to
compensate torture victims and advance accountability. It is hard, right now, to
Malign Neglect, NYT,
Pakistan Demands Data on C.I.A. Contractors
February 25, 2011
The New York Times
By JANE PERLEZ
ISLAMABAD, Pakistan — Pakistan’s chief spy agency has demanded
an accounting by the Central Intelligence Agency of all its contractors working
in Pakistan, a fallout from the arrest last month of an American involved in
surveillance of militant groups, a senior Pakistani intelligence official said
Angered that the American, Raymond A. Davis, worked as a contractor in Pakistan
on covert C.I.A. operations without the knowledge of the Pakistanis, the spy
agency estimated that there were “scores” more such contractors “working behind
our backs,” said the official, who requested anonymity in order to speak
candidly about a delicate matter between the two countries.
In a slight softening of the Pakistani stance since Mr. Davis’s arrest, the
official said that the American and Pakistani intelligence agencies needed to
continue cooperation, and that Pakistan was prepared to put the episode in the
past if the C.I.A. stopped treating its Pakistani counterparts as inferior.
“Treat us as allies, not as satellites,” said the official of the Directorate
for Inter-Services Intelligence, or ISI. “Respect, equality and trust are
George Little, a C.I.A. spokesman, said the American spy agency’s ties to the
ISI “have been strong over the years, and when there are issues to sort out, we
work through them.”
“That’s the sign of a healthy partnership,” Mr. Little said.
The arrest and detention of Mr. Davis, 36, after he shot and killed two
motorcyclists in Lahore soured already testy relations between two governments
that are supposed to have a common front in the fight against terrorism.
The top American and Pakistani military leaders, including the chairman of the
Joint Chiefs of Staff, Adm. Mike Mullen, and the leader of the Pakistani Army,
Gen. Ashfaq Parvez Kayani, met this week in Oman, where the Davis case was
According to a report by a former head of the Pakistani Army, Gen. Jehangir
Karamat, who runs a research and analysis center based in Lahore, both sides
agreed to try to “arrest the downhill descent.”
Even so, the Pakistani intelligence community was divided over how quickly to
settle the Davis case and how much to extract from the C.I.A., said a Pakistani
official with intimate knowledge of the situation, who declined to be named
because of the delicacy of the issue.
At a minimum, the ISI wants an accounting of all the contractors who work for
the C.I.A. in roles that have not been defined to Pakistan and a general
rewriting of the rules of engagement by the C.I.A. in Pakistan, the official
In another sign that the two spy services were trying to patch up their
differences, Leon E. Panetta, the director of the C.I.A., spoke on Wednesday
with Lt. Gen. Ahmed Shuja Pasha, the ISI director, about resolving Mr. Davis’s
case, American and Pakistani officials said on Friday. Mr. Davis, who appeared
in handcuffs on Friday for a hearing in a closed courtroom at the jail where he
is being held in Lahore, faces possible murder charges.
The Obama administration insists that Mr. Davis has diplomatic immunity and
should be released. The Pakistani government has left the determination on
diplomatic immunity to the Foreign Office and a hearing before the Lahore High
Court on March 14.
Some senior Pakistani intelligence officers were unwilling to have Mr. Davis
released under almost any circumstances, said the official with knowledge of the
split in the intelligence community.
He said others wanted to use the Davis case as a bargaining chip to get the
withdrawal of a civil lawsuit filed in Brooklyn last year that implicates the
ISI chief, Lt. Gen. Ahmed Shuja Pasha, in the November 2008 terrorist attacks in
The demand for the C.I.A. to acknowledge the number of contractors in Pakistan
was driven by the suspicion that the American spy service had slipped many such
secret operatives into Pakistan in the past six months, the senior ISI official
The increase occurred after a directive last July by the Pakistani civilian
government, which is often at odds with the ISI, to its Washington embassy to
expedite visas without supervision from the ISI or the Ministry of Interior, the
senior ISI official said.
The behavior of people like Mr. Davis is deeply embarrassing to the ISI because
it makes the agency “look like fools” in the eyes of the anti-American Pakistani
public, the ISI official said.
The Davis case made it hard to explain to Pakistanis why the ISI was cooperating
with Washington, he said.
The clampdown on American contractors by the Pakistani authorities appeared to
be under way Friday with the arrest of an American citizen, Aaron Mark DeHaven,
in the northwestern city of Peshawar.
The Peshawar police said Mr. DeHaven was detained because he had overstayed his
business visa after his request for an extension last October was turned down.
There was no immediate accusation that Mr. DeHaven worked for the American
government, a security official in Peshawar said. But the arrest of Mr. DeHaven,
who is married to a Pakistani woman, appears to be a signal that the Pakistani
authorities have decided to expel Americans they have doubts about.
The security official said Mr. DeHaven owned a firm, Catalyst Services in
Peshawar, that rented houses for Americans in the city.
The American Embassy in Islamabad said in a statement that it did not have
details about Mr. DeHaven but that it was arranging consular access for him
through the Pakistani government.
During his first months in Pakistan in early 2010, Mr. Davis, the contractor for
the C.I.A., was attached to the American Consulate in Peshawar and lived in a
house with other Americans in an upscale neighborhood, according to Pakistani
At the 20-minute court hearing on Friday, Mr. Davis told the judge he would not
take part in the proceedings because he had diplomatic immunity, Pakistani
officials told reporters later.
He refused to sign the charge sheet presented to him, the officials said. The
Obama administration insists that Mr. Davis acted in self-defense when the two
motorcyclists tried to rob him.
In the charge sheet, the Pakistani police said Mr. Davis shot the motorcyclists
multiple times from inside his car, and then stepped from the car and continued
shooting with his Glock pistol. Mr. Davis then drove from the scene and was
arrested several miles away, the police said.
At Friday Prayers in Lahore and in Islamabad, the capital, anti-American
sermons, in some cases laced with references to Mr. Davis, were common.
Hafiz Saeed, the founder of the militant group Lashkar-e-Taiba, which Mr. Davis
is believed to have been conducting surveillance on, said the American was “a
spy, committing terrorism, helping in drone attacks.”
Banners reading “Hang Davis” and “No immunity to Davis” were strung across the
road adjacent to Mr. Saeed’s headquarters.
Ismail Khan contributed reporting from Peshawar, Pakistan, and
Waqar Gillani from Lahore, Pakistan.
Pakistan Demands Data
on C.I.A. Contractors, NYT, 25.2.2011,
American Held in Pakistan Shootings
Worked With the C.I.A.
February 21, 2011
The New York Times
By MARK MAZZETTI, ASHLEY PARKER, JANE PERLEZ and ERIC SCHMITT
This article was written by Mark Mazzetti, Ashley Parker, Jane Perlez and
WASHINGTON — The American arrested in Pakistan after shooting two men at a
crowded traffic stop was part of a covert, C.I.A.-led team of operatives
conducting surveillance on militant groups deep inside the country, according to
American government officials.
Working from a safe house in the eastern city of Lahore, the detained American
contractor, Raymond A. Davis, a retired Special Forces soldier, carried out
scouting and other reconnaissance missions for a Central Intelligence Agency
task force of case officers and technical surveillance experts, the officials
Mr. Davis’s arrest and detention, which came after what American officials have
described as a botched robbery attempt, has inadvertently pulled back the
curtain on a web of covert American operations inside Pakistan, part of a secret
war run by the C.I.A. It has exacerbated already frayed relations between the
American intelligence agency and its Pakistani counterpart, created a political
dilemma for the weak, pro-American Pakistani government, and further threatened
the stability of the country, which has the world’s fastest growing nuclear
Without describing Mr. Davis’s mission or intelligence affiliation, President
Obama last week made a public plea for his release. Meanwhile, there have been a
flurry of private phone calls to Pakistan from Leon E. Panetta, the C.I.A.
director, and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, all
intended to persuade the Pakistanis to release the secret operative. Mr. Davis
has worked for years as a C.I.A. contractor, including time at Blackwater
Worldwide, the controversial private security firm (now called Xe) that
Pakistanis have long viewed as symbolizing a culture of American gun slinging
George Little, a C.I.A. spokesman, declined to comment.
The New York Times had agreed to temporarily withhold information about Mr.
Davis’s ties to the agency at the request of the Obama administration, which
argued that disclosure of his specific job would put his life at risk. Several
foreign news organizations have disclosed some aspects of Mr. Davis’s work with
the C.I.A., and on Monday, American officials lifted their request to withhold
Since the United States is not at war in Pakistan, the American military is
largely restricted from operating in the country. So the Central Intelligence
Agency has taken on an expanded role, operating armed drones that kill militants
inside the country and running covert operations, sometimes without the
knowledge of the Pakistanis.
Several American and Pakistani officials said that the C.I.A. team in Lahore
with which Mr. Davis worked was tasked with tracking the movements of various
Pakistani militant groups, including Lashkar-e-Taiba, a particularly violent
group that Pakistan uses as a proxy force against India but that the United
States considers a threat to allied troops in Afghanistan. For the Pakistanis,
such spying inside their country is an extremely delicate issue, particularly
since Lashkar has longstanding ties to Pakistan’s intelligence service, the
Directorate for Inter-Services Intelligence, or ISI.
Still, American and Pakistani officials use Lahore as a base of operations to
investigate the militant groups and their madrasas in the surrounding area.
The officials gave various accounts of the makeup of the covert task force and
of Mr. Davis, who at the time of his arrest was carrying a Glock pistol, a
long-range wireless set, a small telescope and a headlamp. An American and a
Pakistani official said in interviews that operatives from the Pentagon’s Joint
Special Operations Command had been assigned to the group to help with the
surveillance missions. Other American officials, however, said that no military
personnel were involved with the task force.
Special operations troops routinely work with the C.I.A. in Pakistan. Among
other things, they helped the agency pinpoint the location of Mullah Abdul Ghani
Baradar, the deputy Taliban commander who was arrested in January 2010 in
Even before his arrest, Mr. Davis’s C.I.A. affiliation was known to Pakistani
authorities, who keep close tabs on the movements of Americans. His visa,
presented to the Ministry of Foreign Affairs in late 2009, describes his job as
a “regional affairs officer,” a common job description for officials working
with the agency.
According to that application, Mr. Davis carried an American diplomatic passport
and was listed as “administrative and technical staff,” a category that
typically grants diplomatic immunity to its holder.
American officials said that with Pakistan’s government trying to clamp down on
the increasing flow of Central Intelligence Agency officers and contractors
trying to gain entry to Pakistan, more of these operatives have been granted
“cover” as embassy employees and given diplomatic passports.
As Mr. Davis languishes in a jail cell in Lahore — the subject of an
international dispute at the highest levels — new details are emerging of what
happened in a dramatic daytime scene on the streets of central Lahore, a
sprawling city, on Jan. 27.
By the American account, Mr. Davis was driving alone in an impoverished area
rarely visited by foreigners, and stopped his car at a crowded intersection. Two
Pakistani men brandishing weapons hopped off motorcycles and approached. Mr.
Davis killed them with the Glock, an act American officials insisted was in
self-defense against armed robbers.
But on Sunday, the text of the Lahore Police Department’s crime report was
published in English by a prominent daily newspaper, The Daily Times, and it
offered a somewhat different account.
It is based in part on the version of events Mr. Davis told Pakistani
authorities, and it seems to raise doubts about his claim that the shootings
were in self-defense.
According to that report, Mr. Davis told the police that after shooting the two
men, he stepped out of the car to take photographs of one of them, then called
the United States Consulate in Lahore for help.
But the report also said that the victims were shot several times in the back, a
detail that some Pakistani officials say proves the killings were murder. By
this account, after firing at the men through his windshield, Mr. Davis stepped
out of the car and continued firing. The report said that Mr. Davis then got
back in his car and “managed to escape,” but that the police gave chase and
“overpowered” him at a traffic circle a short distance away.
In a bizarre twist that has further infuriated the Pakistanis, a third man was
killed when an unmarked Toyota Land Cruiser racing to Mr. Davis’s rescue, drove
the wrong way down a one-way street and ran over a motorcyclist, killing him. As
the Land Cruiser drove “recklessly” back to the consulate, the report said,
items fell out of the vehicle, including 100 bullets, a black mask and a piece
of cloth with the American flag.
Pakistani officials have demanded that the Americans in the S.U.V. be turned
over to local authorities, but American officials say they have already left the
Mr. Davis and the other Americans were heavily armed and carried sophisticated
equipment, the report said.
The Pakistani Foreign Office, generally considered to work under the guidance of
the ISI, has declined to grant Mr. Davis what it calls the “blanket immunity”
from prosecution that diplomats enjoy. In a setback for Washington, the Lahore
High Court last week gave the Pakistani government until March 14 to decide on
the issue of Mr. Davis’s immunity.
The pro-American government led by President Asif Ali Zardari, fearful for its
survival in the face of a surge of anti-American sentiment, has resisted
strenuous pressure from the Obama administration to release Mr. Davis to the
United States. Some militant and religious groups have demanded that Mr. Davis
be tried in the Pakistani courts and hanged.
Relations between the two spy agencies were tense even before the episode on the
streets of Lahore. In December, the C.I.A.’s top clandestine officer in Pakistan
hurriedly left the country after his identity was revealed. Some inside the
agency believe that ISI operatives were behind the disclosure — retribution for
the head of the ISI, Lt. Gen. Ahmed Shuja Pasha, being named in a New York City
lawsuit filed in connection with the 2008 terror attack in Mumbai, in which
members of his agency are believed to have played a role. General Pasha denied
that was the case.
One senior Pakistani official close to the ISI said Pakistani spies are
particularly infuriated over the Davis episode because it was such a public
spectacle. Besides the three Pakistanis who died at the scene, the widow of one
of the victims committed suicide by swallowing rat poison.
Moreover, the official said, the case was embarrassing for the ISI for its
flagrancy, revealing how much freedom American spies have to roam around the
“We all know the spy-versus-spy games, we all know it works in the shadows,” the
official said, “but you don’t get caught, and you don’t get caught committing
Mr. Davis, bearded and burly at 36, appears to have arrived in Pakistan in late
2009 or early 2010. American officials said he operated as part of the Central
Intelligence Agency’s Global Response Service in various parts of the country,
including Lahore and Peshawar.
Documents released by Pakistan’s foreign office show that Mr. Davis was paid
$200,000 a year, including travel expenses and insurance.
He is a native of rural, southwest Virginia, described by those who know him as
an unlikely figure to be at the center of international intrigue.
He grew up in Big Stone Gap, a small town named after the gap in the mountains
where the Powell River emerges.
The youngest of three children, Mr. Davis enlisted in the military after
graduating from Powell Valley High School in 1993.
“I guess about any man’s dream is to serve his country,” said his sister
Shrugging off the portrait of him as an international spy comfortable with a
Glock, Ms. Wade said: “He would always walk away from a fight. That’s just who
His high school friends remember him as good-natured, athletic, respectful. He
was also a protector, they said, the type who stood up for the underdog.
“Friends with everyone, just a salt of the earth person,” said Jennifer Boring,
who graduated from high school with Mr. Davis.
Mr. Davis served in the infantry in Europe — including a short tour as a
peacekeeper in Macedonia — before joining the Third Special Forces Group in
1998, where he remained until he left the Army in 2003. The Army Special Forces
—known as the Green Berets — are an elite group trained in foreign languages and
cultures and weapons.
It is unclear when Mr. Davis began working for the C.I.A., but American
officials said that in recent years he worked for the spy agency as a Blackwater
contractor and later founded his own small company, Hyperion Protective
Mr. Davis and his wife have moved frequently, living in Las Vegas, Arizona and
One neighbor in Colorado, Gary Sollee, said that Mr. Davis described himself as
“former military,” adding that “he’d have to leave the country for work pretty
often, and when he’s gone, he’s gone for an extended period of time.”
Mr. Davis’s sister, Ms. Wade, said she has been praying for her brother’s safe
“The only thing I’m going to say is I love my brother,” she said. “I love my
brother, God knows, I love him. I’m just praying for him.”
Eric Schmitt and Mark Mazzetti reported from Washington,
Jane Perlez from
Pakistan and Ashley Parker from Big Stone Gap, Va.
Ismail Khan contributed
reporting from Peshawar, Pakistan,
and Waqar Gillani from Lahore, Pakistan.
American Held in
Pakistan Shootings Worked With the C.I.A., NYT, 21.2.2011,
Obama Said to Fault Spy Agencies’ Mideast Forecasting
February 4, 2011
The New York Times
By MARK MAZZETTI
WASHINGTON — President Obama has criticized American spy
agencies over their performance in predicting and analyzing the spreading unrest
in the Middle East, according to current and former American officials.
The president was specifically critical of intelligence agencies for misjudging
how quickly the unrest in Tunisia would lead to the downfall of the country’s
authoritarian government, the officials said.
The officials offered few details about the president’s concerns, but said that
Mr. Obama had not ordered any major changes inside the intelligence community,
which has a budget of more than $80 billion a year. On Friday, a White House
spokesman said spy agencies had given Mr. Obama “relevant, timely and accurate
analysis” throughout the crisis in the Middle East.
But questions about the recent performance of spy agencies expose a tension that
has played out since the C.I.A.’s founding in 1947: how to balance the task of
analyzing events overseas to warn officials in Washington about looming crises
with the mission of carrying out covert operations around the globe.
Some officials have focused their criticism on intelligence assessments last
month that concluded, despite demonstrations in Tunisia, that the security
forces of President Zine el-Abidine Ben Ali would defend his government.
Instead, the military and the police did not, and Mr. Ben Ali and his family
fled to Saudi Arabia.
One American official familiar with classified intelligence assessments defended
the spy agencies’ Tunisia analysis.
“Everyone recognized the demonstrations in Tunisia as serious,” said the
official, speaking on the condition of anonymity because he was discussing
classified intelligence reports. “What wasn’t clear even to President Ben Ali
was that his security forces would quickly choose not to support him.”
One former American official said that in recent weeks Mr. Obama urged
intelligence officials to ensure that spy agencies were devoting as much effort
to “long-term analysis” as they were to carrying out operations against Al
Qaeda, including the C.I.A.’s bombing campaign using armed drone aircraft.
On Thursday, senior lawmakers pressed a top C.I.A. official on Capitol Hill
about whether Mr. Obama had been given enough warning about the perils of the
growing demonstrations in Cairo, and whether spy agencies had monitored social
networking sites to gauge the extent of the uprising.
The same day, America’s senior military officer said in a television interview
that officials in Washington had been surprised by how rapidly unrest had spread
from Tunisia to Egypt.
“It has taken not just us, but many people, by surprise,” said Adm. Mike Mullen,
chairman of the Joint Chiefs of Staff, during an appearance on “The Daily Show.”
Several American officials said that after Tunisia’s government collapsed,
intelligence analysts renewed their focus on gauging the impact that the chaos
could have on Egypt, America’s most important ally in the Arab world.
Some C.I.A. veterans said it was wrong to conclude that because the spy agency
had stepped up paramilitary operations in recent years, it had lost focus on the
job of analyzing global events for the White House and Congress.
“The Egypt analysts in the C.I.A. aren’t picking targets in Pakistan; that’s
just not the way the agency operates,” said Mark M. Lowenthal, a former C.I.A.
assistant director for analysis.
Still, Mr. Lowenthal said that intelligence officials for decades had to endure
the wrath of American presidents who blamed them for misjudging the events of
the day — and that it was their obligation to accept the criticism.
“If you are an intelligence officer, you say, ‘Yes sir, thank you very much,
sir,’ ” he said.
Obama Said to Fault
Spy Agencies’ Mideast Forecasting, NYT, 4.2.2011,
Torture Is a Crime, Not a Secret
September 8, 2010
The New York Times
Five men who say the Bush administration sent them to other countries to be
tortured had a chance to be the first ones to have torture claims heard in
court. But because the Obama administration decided to adopt the Bush
administration’s claim that hearing the case would divulge state secrets, the
men’s lawsuit was tossed out on Wednesday by the full United States Court of
Appeals for the Ninth Circuit. The decision diminishes any hope that this odious
practice will finally receive the legal label it deserves: a violation of
The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan,
that the plaintiffs said had arranged the rendition flights that took them to
Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed,
had his bones broken in Morocco, where security agents also cut his skin with a
scalpel and poured a stinging liquid into his wounds.
But the merits of the case were never considered because the Bush administration
argued that even discussing the matter in court would violate the state secrets
privilege. Barack Obama told voters in 2008 that he opposed the government cult
of secrecy, but once he became president, his Justice Department also argued
that the case should be dismissed on secrecy grounds.
The Ninth Circuit was sharply divided, voting 6 to 5 to dismiss the case and
overturn a decision to let it proceed that was made by a panel of three circuit
judges last year. The majority said it reached its decision reluctantly and was
not trying to send a signal that secrecy could be used regularly to dismiss
lawsuits. But even though it is public knowledge that Jeppesen arranged the
torture flights, the majority said any effort by the company to defend itself
would pose “an unacceptable risk of disclosure of state secrets.”
That notion was demolished by the five-judge minority that dissented from the
ruling, pointing out that the plaintiffs were never even given a chance to make
their case in court using nonsecret evidence, including a sworn statement by a
former Jeppesen employee about the company’s role in what he called “the torture
flights.” The case should have been sent back to the district court to examine
which evidence was truly secret; now it will have to be appealed to a Supreme
Court that is unlikely to be sympathetic to the plaintiffs.
The state secrets doctrine is so blinding and powerful that it should be invoked
only when the most grave national security matters are at stake — nuclear
weapons details, for example, or the identity of covert agents. It should not be
used to defend against allegations that if true, as the dissenting judges wrote,
would be “gross violations of the norms of international law.”
All too often in the past, the judges pointed out, secrecy privileges have been
used to avoid embarrassing the government, not to protect real secrets. In this
case, the embarrassment and the shame to America’s reputation are already too
Torture Is a Crime, Not
a Secret, NYT, 8.9.2010,
Court Dismisses a Case Asserting Torture by C.I.A.
September 8, 2010
The New York Times
By CHARLIE SAVAGE
WASHINGTON — A federal appeals court on Wednesday ruled that former prisoners
of the C.I.A. could not sue over their alleged torture in overseas prisons
because such a lawsuit might expose secret government information.
The sharply divided ruling was a major victory for the Obama administration’s
efforts to advance a sweeping view of executive secrecy powers. It strengthens
the White House’s hand as it has pushed an array of assertive counterterrorism
policies, while raising an opportunity for the Supreme Court to rule for the
first time in decades on the scope of the president’s power to restrict
litigation that could reveal state secrets.
By a 6-to-5 vote, the United States Court of Appeals for the Ninth Circuit
dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary accused
of arranging flights for the Central Intelligence Agency to transfer prisoners
to other countries for imprisonment and interrogation. The American Civil
Liberties Union filed the case on behalf of five former prisoners who say they
were tortured in captivity — and that Jeppesen was complicit in that alleged
Judge Raymond C. Fisher described the case, which reversed an earlier decision,
as presenting “a painful conflict between human rights and national security.”
But, he said, the majority had “reluctantly” concluded that the lawsuit
represented “a rare case” in which the government’s need to protect state
secrets trumped the plaintiffs’ need to have a day in court.
While the alleged abuses occurred during the Bush administration, the ruling
added a chapter to the Obama administration’s aggressive national security
Its counterterrorism programs have in some ways departed from the expectations
of change fostered by President Obama’s campaign rhetoric, which was often
sharply critical of former President George W. Bush’s approach.
Among other policies, the Obama national security team has also authorized the
C.I.A. to try to kill a United States citizen suspected of terrorism ties,
blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits
challenging the basis for their imprisonment without trial, and continued the
C.I.A.’s so-called extraordinary rendition program of prisoner transfers —
though the administration has forbidden torture and says it seeks assurances
from other countries that detainees will not be mistreated.
The A.C.L.U. vowed to appeal the Jeppesen Dataplan case to the Supreme Court,
which would present the Roberts court with a fresh opportunity to weigh in on a
high-profile test of the scope and limits of presidential power in
It has been more than 50 years since the Supreme Court issued a major ruling on
the state-secrets privilege, a judicially created doctrine that the government
has increasingly used to win dismissals of lawsuits related to national
security, shielding its actions from judicial review. In 2007, the Supreme Court
declined to hear an appeal of a similar rendition and torture ruling by the
federal appeals court in Richmond, Va.
The current case turns on whether the executive can invoke the state-secrets
privilege to shut down entire lawsuits, or whether that power should be limited
to withholding particular pieces of secret information. In April 2009, a
three-judge panel on the Ninth Circuit adopted the narrower view, ruling that
the lawsuit as a whole should proceed.
But the Obama administration appealed to the full San Francisco-based appeals
court. A group of 11 of its judges reheard the case, and a narrow majority
endorsed the broader view of executive secrecy powers. They concluded that the
lawsuit must be dismissed without a trial — even one that would seek to rely
only on public information.
“This case requires us to address the difficult balance the state secrets
doctrine strikes between fundamental principles of our liberty, including
justice, transparency, accountability and national security,” Judge Fisher
wrote. “Although as judges we strive to honor all of these principles, there are
times when exceptional circumstances create an irreconcilable conflict between
Ben Wizner, a senior A.C.L.U. lawyer who argued the case before the appeals
court, said the group was disappointed in the ruling.
“To this date, not a single victim of the Bush administration’s torture program
has had his day in court,” Mr. Wizner said. “That makes this a sad day not only
for the torture survivors who are seeking justice in this case, but for all
Americans who care about the rule of law and our nation’s reputation in the
world. If this decision stands, the United States will have closed its courts to
torture victims while providing complete immunity to their torturers.”
Some plaintiffs in the case said they were tortured by C.I.A. interrogators at
an agency “black site” prison in Afghanistan, while others said they were
tortured by Egypt and Morocco after the C.I.A. handed them off to foreign
The lead plaintiff is Binyam Mohamed, an Ethiopian citizen and legal resident of
Britain who was arrested in Pakistan in 2002. He claimed he was turned over to
the C.I.A., which flew him to Morocco and handed him off to its security
Moroccan interrogators, he said, held him for 18 months and subjected him to an
array of tortures, including cutting his penis with a scalpel and then pouring a
hot, stinging liquid on the open wounds.
Mr. Mohamed was later transferred back to the C.I.A., which he said flew him to
its secret prison in Afghanistan. There, he said, he was held in continuous
darkness, fed sparsely and subjected to loud noise — like the recorded screams
of women and children — 24 hours a day.
He was later transferred again to the military prison at Guantánamo Bay, Cuba,
where he was held for an additional five years. He was released and returned to
Britain in early 2009 and is now free.
There were signs in the court’s ruling that the majority felt conflicted. In a
highly unusual move, the court ordered the government to pay the plaintiffs’
legal costs, even though they lost the case and had not requested such payment.
Judge Fisher, who was a senior Justice Department official before President Bill
Clinton appointed him to the bench in 1999, also urged the executive branch and
Congress to grant reparations to victims of C.I.A. “misjudgments or mistakes”
that violated their human rights if government records confirmed their
accusations, even though the courthouse was closed to them.
He cited as precedent payments made to Latin Americans of Japanese descent who
were forcibly sent to United States internment camps during World War II. But
the five dissenting judges criticized the realism of that idea, noting that
those reparations took five decades.
“Permitting the executive to police its own errors and determine the remedy
dispensed would not only deprive the judiciary of its role, but also deprive
plaintiffs of a fair assessment of their claims by a neutral arbiter,” Judge
Michael Daly Hawkins wrote.
After the A.C.L.U. filed the case in 2007, the Bush administration asked a
district judge to dismiss it, submitting public and classified declarations by
the C.I.A. director at the time, Michael Hayden, arguing that litigating the
matter would jeopardize national security.
The trial judge dismissed the case. As an appeal was pending, Mr. Obama won the
2008 presidential election. Although he had criticized the Bush administration’s
frequent use of the state-secrets privilege, in February 2009 his weeks-old
administration told the appeals court that it agreed with the Bush view in that
In September 2009, Attorney General Eric H. Holder Jr. issued a new
state-secrets privilege policy requiring high-level approval, instructing
officials to try to avoid shutting down lawsuits if possible, and forbidding its
use with a motive of covering up lawbreaking or preventing embarrassment.
The administration told the court that using the privilege in the Jeppesen
Dataplan case complied with that policy.
Judge Fisher agreed that “the government is not invoking the privilege to avoid
embarrassment or to escape scrutiny of its recent controversial transfer and
interrogation policies, rather than to protect legitimate national security
Jeppesen Dataplan and the C.I.A. referred questions to the Justice Department,
where a spokesman, Matthew Miller, praised its new standards.
“The attorney general adopted a new policy last year to ensure the state-secrets
privilege is only used in cases where it is essential to protect national
security, and we are pleased that the court recognized that the policy was used
appropriately in this case,” Mr. Miller said.
Court Dismisses a Case
Asserting Torture by C.I.A., NYT, 8.9.2010,
Report Shows Tight C.I.A. Control on Interrogations
August 26, 2009
The New York Times
By SCOTT SHANE and MARK MAZZETTI
WASHINGTON — Two 17-watt fluorescent-tube bulbs — no more, no less —
illuminated each cell, 24 hours a day. White noise played constantly but was
never to exceed 79 decibels. A prisoner could be doused with 41-degree water but
for only 20 minutes at a stretch.
The Central Intelligence Agency’s secret interrogation program operated under
strict rules, and the rules were dictated from Washington with the painstaking,
eye-glazing detail beloved by any bureaucracy.
The first news reports this week about hundreds of pages of newly released
documents on the C.I.A. program focused on aberrations in the field: threats of
execution by handgun or assault by power drill; a prisoner lifted off the ground
by his arms, which were tied behind his back; another detainee repeatedly
knocked out with pressure applied to the carotid artery.
But the strong impression that emerges from the documents, many with long
passages blacked out for secrecy, is by no means one of gung-ho operatives
running wild. It is a portrait of overwhelming control exercised from C.I.A.
headquarters and the Department of Justice — control Bush administration
officials say was intended to ensure that the program was safe and legal.
Managers, doctors and lawyers not only set the program’s parameters but dictated
every facet of a detainee’s daily routine, monitoring interrogations on an
hour-by-hour basis. From their Washington offices, they obsessed over the
smallest details: the number of calories a prisoner consumed daily (1,500); the
number of hours he could be kept in a box (eight hours for the large box, two
hours for the small one); the proper time when his enforced nudity should be
ended and his clothes returned.
The detainee “finds himself in the complete control of Americans; the procedures
he is subjected to are precise, quiet and almost clinical, ” noted one document.
The records suggest one quandary prosecutors face as they begin a review of the
C.I.A. program, part of the larger inquiry into abuse cases ordered Monday by
Attorney General Eric H. Holder Jr. Any prosecution that focuses narrowly on
low-level interrogators who on a few occasions broke the rules may appear
unfair, since most of the brutal treatment was authorized from the White House
“The documents underscore how closely supervised the program was by officials in
Washington,” said Jameel Jaffer of the American Civil Liberties Union, whose
Freedom of Information Act lawsuit forced disclosure of the records. “Any
investigation that began and ended with the so-called rogue interrogators would
be completely inadequate.”
A 2004 background paper the C.I.A. sent to the Justice Department gives the
fullest account to date of the oversight of every step that followed the capture
of a man suspected of being a top member of Al Qaeda — an HVD, in agency
parlance, for high-value detainee.
Brought to the “black site” in diapers, the paper says, the prisoner’s head and
face were shaved, he was stripped and photographed and sleep deprivation and a
diet limited to Ensure Plus, a dietary drink, began.
“The interrogators’ objective,” the background paper says, “is to transition the
HVD to a point where he is participating in a predictable, reliable and
sustainable manner.” The policy was to use the “least coercive measure” to
achieve the goal. The harsh treatment began with the “attention slap,” and for
three prisoners of the nearly 100 who passed through the program, the endpoint
Waterboarding might be an excruciating procedure with deep roots in the history
of torture, but for the C.I.A.’s Office of Medical Services, recordkeeping for
each session of near-drowning was critical. “In order to best inform future
medical judgments and recommendations, it is important that every application of
the waterboard be thoroughly documented,” said medical guidelines prepared for
the interrogators in December 2004.
The required records, the medical supervisors said, included “how long each
application (and the entire procedure) lasted, how much water was used in the
process (realizing that much splashes off), how exactly the water was applied,
if a seal was achieved, if the naso- or oropharynx was filled, what sort of
volume was expelled, how long was the break between applications, and how the
subject looked between each treatment.”
When the doctors gauged what a drenching in a cold cell might do to a prisoner,
they did their research, consulting a textbook entitled “Wilderness Medicine,”
in particular Chapter 6 on “accidental hypothermia,” as well as a Canadian
government pamphlet, “Survival in Cold Waters,” according to footnotes.
Lawyers at the Justice Department’s Office of Legal Counsel, likewise, were
immersed in the details of investigations.
A week before he completed the first major legal opinion that authorized the use
of physical pressure, John C. Yoo, the national security specialist in the
counsel’s office, was faxed a six-page C.I.A. “psychological assessment” of the
first man the brutal methods would be used on, Abu Zubaydah. “Subject is a
highly self-directed individual who prizes his independence,” the assessment
In 2004, when Daniel B. Levin, then the acting assistant attorney general in the
counsel’s office, sent a letter to the C.I.A. reauthorizing waterboarding, he
dictated the terms: no more than two sessions of two hours each, per day, with
both a doctor and a psychologist in attendance. In 2007, Steven G. Bradbury,
then in charge of the office, wrote a two-page letter simply to extend the
authorization for use of a particular technique — its name is redacted — for an
extra day, until “1700 E.S.T., November 8, 2007.”
Tom Parker, policy director for counterterrorism and human rights at Amnesty
International USA, said the documents were “chilling.”
“They show how deeply rooted this new culture of mistreatment became,” he said.
But defenders of the program say the tight rules show the government’s attempt
to keep the program within the law. “Elaborate care went into figuring out the
precise gradations of coercion,” said David B. Rivkin Jr., a lawyer who served
in the administrations of Ronald Reagan and George H. W. Bush. “Yes, it’s
jarring. But it shows how both the lawyers and the nonlawyers tried to do the
As leaks about the program led to public accusations of torture, court rulings
and Congressional action, the paperwork flowing between nervous C.I.A. and
Justice officials steadily grew.
In June 2006, the Supreme Court ruled that prisoners who were members of Al
Qaeda were entitled to the Geneva Conventions’ protections against humiliating
and degrading treatment, and “outrages on personal dignity.” John A. Rizzo, the
C.I.A.’s top lawyer, asked the Justice Department whether treatment at the
agency’s secret prisons passed that test.
Mr. Bradbury of the Office of Legal Counsel wrote a 14-page response, assuring
the agency that none of the conditions — the blindfolding and shackling, the
involuntary shaving and the white noise — violated the Geneva Conventions’
“These are not conditions that humans strive for,” Mr. Bradbury wrote. “But they
do reflect the realities of detention, realities that the Geneva Conventions
accommodate, where persons will have to sacrifice some measure of privacy and
liberty while under detention.”
Soon the assurances were no longer necessary. Worries about the legality of the
C.I.A. program had reached the highest levels of the Bush administration. Two
weeks after Mr. Bradbury sent his letter, President George W. Bush emptied the
prisons, ordering the C.I.A.’s remaining 14 prisoners transferred to the
American military’s detention center at Guantánamo Bay, Cuba.
Report Shows Tight
C.I.A. Control on Interrogations, NYT, 26.8.2009,
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