Watching Countdown a few minutes ago, I heard something that made my jaw drop.
One of Keith's guests is lawyer and Daily Beast writer John Sifton, who has investigated the CIA torture. Sifton told Keith that, with the exception of the interrogation of the first CIA detainee, Abu Zubaydah, none of the other "enhanced interrogations" were authorized until much later.
I thought I might not be correctly understanding the implications of what he said, so I went to the Daily Beast to see if he had written anything today about the inspector generals' report. He has, and it is a must read, packed with fascinating information.
But the important point for this diary is that, according to Mr. Sifton's analysis, the absence of authorization for most of the interrogations throws the scope of Durham's investigation wide open.
Transcript of a portion of Countdown interview: (Note - all emphasis in all blockquotes mine)
SIFTON: One of the biggest things coming out of these documents is we now know that, although interrogations were approved for the first CIA detainee, Abu Zubaydah, they were flying blind afterwards. They did not have authorization for Khalid Shaikh Mohammad or [Abd al-Rahim] al-Nashiri.
They essentially used the authorization for Abu Zubaydah, and then tortured everybody else, and then after the fact obtained reauthorizations for those subsequent tortures. They're in a lot of hot water now because of that, and you have to read these memos carefully to see that. But in this, yes, you see that essentially the CIA was flying blind. They were fishing, using torture, and they didn't really have adequate reasons to torture.
KEITH: Well, that certainly does throw what Mr. Durham can and cannot investigate into a cocked hat, doesn't it? Because if there wasn't clear policy from point Minus X rather than from point X, he's got a lot more latitude than people think he does.
SIFTON: That's correct. Once you knock out the legal authorizations, you can really broaden the investigation quite a lot. The fact of the matter is, if you wanted a real investigation, you wouldn't go after interrogators; that's something that Dick Cheney and human rights activists agree on. You want to go after the architects. And the architects are the lawyers in the CIA who set this program up and the OLC lawyers in the White House who helped them do it.
From the Daily Beast article:
Best of all, the report confirms and expands on information from an April 2009 Senate report detailing that Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft helped provide after-the-fact approvals for an expansion of the CIA program from late 2002 through 2003, a point that may be their legal undoing.
There is quite a bit of detail that I'm leaving out in order to avoid fair use violations, but here's one more paragraph that lays it out pretty well:
These are remarkable pieces of information. It was previously unclear how the expansion of torture from Abu Zubaydah to other detainees occurred and whether it was formally authorized at the time. Now we know more: The inspector general is saying that in late 2002 the CIA expanded the use of EIT techniques on other detainees without any real or formal authorization from OLC. . . . The CIA began torturing additional detainees in late 2002, without any real approval for the expansion of EITs (beyond the Abu Zubaydah interrogation). True, the report says the CIA "consulted" with OLC during this period, but it is clear from later parts of the report and from the 2004 Goldsmith letter that no formal opinion was issued or promulgated authorizing the use of EITs on other detainees until at least June 2003, well after most of the worst abuse had occurred. This is a point with major legal ramifications—without formal authorization, how can anyone involved in the subsequent authorization assert that their actions were legally authorized?