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Wednesday, October 18, 2006

White House Advocates Illegal Waterboarding -- Incompetent In Using Lawful Options

This information contains line of duty determination information related to Executive Branch personnel; and may be of assistance to war crimes prosecutors reviewing illegal policy memos allegedly connected with Haynes, Addington, Bybee, Yoo, and Gonzalez.

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This President advocates illegal options because he fails to comprehend the power of the legal options he has at his disposal. By recklessly managing situations when they were small, the President has backed himself into a corner, leaving him with no legal options. His only option is to unlawfully “legalize” more abuse.

The President is retroactively arguing that illegal abuse is successful because he failed to lawfully use the tools at his disposal when the problems were manageable. This President circularly has uses his recklessness as an excuse to engage in abuse.

Waterboarding is illegally rationalized because of inadequate resources allocated to manage and analyze legally obtained SIGINT. The President for a to be understood reason authorized illegal NSA monitoring prior to Sept 2001 without effect. It remains to be understood what others illegal plans he put into effect to compensate for incompetent, reckless management of lawful options.

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Waterboarding: US Government Story Doesn’t Add Up

ABC News has reportedly been in contact with former CIA personnel who say that waterboarding works, and helped stop fourteen (14) terror plots. Waterboarding is the abusive treatment of prisoners of war, and involves simulated drowning.

The implicit conclusion is that the CIA has proof waterboarding works, no need for any American to worry about illegal violations of the law.

We judge the revelations to be part of a larger disinformation effort and not credible; but evidence of a larger to be understood illegal effort and pattern of Geneva violations.

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Analyzing the Reported CIA Story: Why The Claims about the success of waterboarding don’t add up

Put aside the issue that the debate over torture definitions is a distraction from the illegal abuses. Peter’s analysis well outlines the distraction. He should be commended for pointing out what the Administration has been hiding. [Note closely the diagrams, and you’ll see the sham Administration arguments over torture.]

The problem with the reported ABC story stems from three (3) general defects: (1) Inappropriate disclosure of sensitive information without investigation; (2) Non credible prior statements; and (3) No basis to validate whether the reported numbers are over or understated.

(1) Disclosure of information

Reportedly, former CIA officials involved in the waterboarding assert that because of the illegal abuse, the US learned the identifies of fourteen (14) AlQueda operatives.

For the moment, put aside the issue of whether fourteen (14) is or is not a valid number. When someone has previously engaged in a classified operations, regardless its legality, the last thing one would want to do is reveal you know something.

Even if we were to presume the fourteen (14) number was valid, why would the CIA openly discuss the information; and what is the consequence for revealing this “true” information?

Recall the Bush administration “outrage” over initial revelations of the NSA warrantless monitoring. The focus was on those who disclosed the information, not on the original violation of the 4th Amendment.

It’s unusual for someone, claming to have been associated with the CIA and waterboarding, to make a similar disclosure without fear of retaliation.

Suppose the number is correct – where is the Administration public outcry against the CIA official, and the effort to identify who “leaked” the information? Silence.

It’s more likely that the disclosure of this number, even if fabricated, has been endorsed by the White House, not because of its truthfulness, but because it retroactively justifies something that the White House originally wanted to hide from the courts.

Indeed, if we are to believe that the conduct is appropriate, Addington’s reported concern that the revelations of the abuse and his subsequent desire to squelch public knowledge of that abuse for fear of a backlash suggests the Vice President’s chief legal advisor was concerned that the “OK-program” was not OK, and that he and other policy makers could be prosecuted for failing to stop what they knew was not legal.

Overall, the revelation that someone claims to have been associated with the CIA waterboarding, and can identify a specific number of “prevented” terror plots appears dubious.

(2) Sham London Plot

Consider another problem. There were similar claims that the US and Britain were aware of certain activities to bomb UK airlines. The issue isn’t whether there was or was not a concern, but whether the plots were what the public was led to believe.

There are two general problems with the claims about the London plots, which have bearing on the CIA waterboarding story. First, the people involved did not have the passports needed to implement what the US said were imminent threats; second, even if they did have passports, nobody seems to be able to explain what would keep the liquids sufficiently cool to support the explosion.

With respect to the CIA waterboarding, the question is whether the disclosure of the London Plots and CIA waterboarding “successes” are linked more with a public relations campaign, or with a real effort to prevent terrorism.

If the US had a credible plan in place to fight terrorism, the issue of whether the plans were or were not secret would not be an issue of public debate. Rather, the government would simply do what it planned, without fanfare, and make no comment.

The public commentary on issues which do not add up suggests that there is less of strategy or plan, but more of a public relations effort. PR does nothing to solve problems, it only affects voters.

Yet, recall the reality of the Congress: Despite the Supreme Law to protect the Constitution, this leadership ignores the law. They have no regard for what the public does or doesn’t think about the law. They have claimed absolute power to defy the Supreme Law, pass illegal legislation; there’s no explanation why the President and others are concerned about the public’s view the government’s terrorism response.

(3) Higher real number

If you were in the CIA and wanted to mislead your enemy, the last thing you would want to do is comment on a matter that is true. Once the former CIA official comments on waterboarding, the US is attached to (a) a method; and (b) a finite number.

Suppose the actual number of terror plots was greater than fourteen (14). If the CIA knew it wasn’t sure, the last thing the CIA would want to do is commit to a number that – assuming the actual number of terror plots is higher – the AlQueda would know is wrong.

The enemy, when it heard the (14) number, would know that there are some other plots that have been detected. In effect, the former CIA official could be prosecuted for revealing sensitive intelligence information. However, this threat of prosecution evaporates if we take the opposite position – that the revelation is fabricated; there is no secret; and the information is disclosed not to explain what happened, but to avoid public debate on what is illegal.

Bluntly, we have no evidence or proof that the fourteen (14) is correct or not. Consider Bush’s statements on the LA Building Attacks. This public claim has been discredited.

(4) Lower real number

Let’s consider the opposite possibility: That the CIA revelation of fourteen (14) is deliberately high, and the actual number of plots revealed is smaller, say 6.

Again, the problem is that those involved with the planning, upon hearing of the fourteen (14) number but knowing it was six (6), would know the US government was lying. Are those involved going to say, “No, the actual number is only six (6), not fourteen (14).” They would have no reason.

The more likely objective of the CIA comment isn’t to confirm the merits of waterboarding, but to sell the program to the American public, who are in no position to know anything.

Consider the Questions the Public Cannot Answer

Let’s suppose the fourteen number was mentioned. Put aside the question of whether this number is or is not true. The public has no information to assess whether the number (14) is or is not true; nor do they have the information to assess whether the CIA claim is credible. The only thing we have is a track record of deception, misleading statements, and retroactive justifications for abuses.

Recall the Bybee, Addington, Yoo, and Gonzalez memos. Each of the attorneys expressly asserted that the abuse was lawful. Hamdan reminded the President that Geneva does apply, prompting two general things: (1) US government admission that Eastern European CIA detention centers were not in compliance with Geneva; and (2) Addington’s admission that he knew of the abuses, but didn’t want to change – the change of policy would have been an admission that the abuse was illegal.

Whether the CIA does or does not discuss waterboarding is irrelevant. The legal community privately held the view that the abuse was not legal; and Hamdan presented a real problem, precipitating illegal efforts to retroactively criminalize what was not illegal; and legalizing what was not lawful: Abuse.

If the CIA fourteen (14) number were true, and that waterboarding was effective, there would be no reason to discuss the fruits of that interrogation. Rather the CIA disclosure is a fatal admission that waterboarding is understood, and that the objective of the Administration is to sell the public on the idea of “permissible abuse” not on the idea of “we are ensuring our operations are lawful.”

Questions We Cannot Answer

The public is not in a position to adequately test the merits of the waterboarding program. This is not because of ignorance or lack of sophistication, but because the Administration fails to provide any reasonable basis to believe what they are saying.

- There is no reason to believe the reported plots. The President has already lied about the LA Building attacks.

- There is no reason to believe the motivation of those who are reporting the information:

- We have no information to know the CIA officials’ proximity to criminal activity

- We have no information on their reason to disclose information which may be useful to the enemy

- There is no clear story on why they have released a number, yet there is no investigation into the classification breach; or how this release would confirm other protected information

- We have no basis to know whether the CIA disclosure is a planned disclosure to mislead the public,

- Nor do we have information on the error rates relate dot waterboarding

- We have no information on whether the real number of plots is higher, lower, different, or imaged

- We have no basis to independently review the quality of the information from the person who has been waterboarded; nor a way to know whether the reported information was or was not accurate

- We don’t now the other options that were not used because of the inherent fear of the White House to be linked with illegal NSA activity, or other methods that were not exercised because the advertised NSA-SIGINT capability is far above that what the analysts are capable of supporting

- We haven o way of verifying whether the number of plots is real; whether they are part of a ruse; or whether the Administration is asserting that innocuous behavior is being asserted to be suspicious.

- We have no way of knowing whether the number given was artificially high; or whether those so-accused were or were not the exact matching pool of those involved; whether there were wrong names; or whether other plots were hidden.

- If there was an error, and wrong people were abused, there is no method in place to review whether the waterboarding has false positives; nor can we interview those who have been killed, but were innocent – refusing to cooperate with what they could not cooperate with.

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Getting Information

Some might suggest that the core problem with arguments against waterboarding is that there is “no other way” to get the information. This presupposes that there is information to get; and that the “successes” to date are credible.

Consider the ticking time bomb scenario. Some might suggest people “don’t have an answer” to how the information will be obtained through any other means. Indeed, this assertion presupposes that we “just know” that someone has information, but makes no comment on how we know that they know the information.

Consider the waterboarding scenario again. We are asked to believe that there were fourteen (14) names. Are we saying that non-abusive techniques produced zero (0) names? Would the “successes” of waterboarding have been “that much better” if the prisoner had fabricated-implicated innocents, creating a list of 30 or 200?

The problem with the ticking time-bomb scenario is that there is never any mention of “how we just know” that the person we are waterboarding-abusing is the “right person.” There has to be an initial piece of information which tells us that information.

Rather than focus on the person we propose to waterboard, why is there no attention on the person or information which implicated the person we propose to waterboard.

To speculate that someone “deserves to be waterboarded” is presumably premised on an assertion that there is some other information or another source that points us in that direction. That “other information” could be a person, a document, something intercepted through signals intelligence, or a hunch.

(a) A person

Let’s go back to the waterboarding premise laid before us by the CIA. The CIA official is reported to have said using waterboarding produced fourteen (14) names. However, before the decision to waterboard, there had to have been someone who said, “We should waterboard this person.”

However flawed the accusation, that accuser has information, a hunch, or some basis for saying that. The burden of proof falls upon the cooperating source, or the source that has provided the original information.

If waterboarding is successful, why is there public commentary on what works, but not commentary on the waterboarding used against the original informants, or waterboarding directed against the interrogators who have superior knowledge.

The interrogator’s problem is that he has to create the impression that he knows something; while at the same time not admitting the reason he’s using abuse is to find out something he doesn’t know. If the interrogator knows something that “proves” this person should be interrogated, and the CIA says that waterboarding works, the real question is: Why isn’t waterboarding being applied to the CIA officials who have superior knowledge. Absurdly, the answer is that they’re on our side.

There’s no reason to mention waterboarding as a technique, while hoping to make people believe that you will do something extreme.

(b) A document

Let’s consider the other source of information that “proves” that someone should be waterboarded: A document. Rather than abuse someone with waterboarding, why isn’t that document being traced: Where was it created; it is reliable; can we trace the source of the copying and transmission.

A document starts somewhere, and ends somewhere else. Between the starting and ending points is a chain of events. Waterboarding doesn’t have anything to do with speculating on what may or may not be in this chain; rather, waterboarding is based on the premise that you don’t know something, and have to use abuse to fill in the holes. The question is whether the holes you’re filling are accurate; and what are the consequences of using illegal abuse to your larger effort.

To argue that waterboarding is the “only way” to get information misses the issue of the original information – the basis to assert someone should be waterboarded. The fast answer is to choose abuse; the other route is to ask why we know that the person we propose to abuse should be abused; and are there other ways to build off the original information.


There’s another way that someone can be targeted for abuse and waterboarding. This can be electronic interception of data. The data can relate to anything as benign as a timed event, a battery pulse, a circuit activation; all the way up to a satellite transmission, planning event to decrypt information, or a contract-related effort sent through the wires.

Consider waterboarding: Someone has asserted based on SIGINT that someone should be waterboarded. The question becomes: What’s the basis to justify targeting this person.

Suppose we have in custody a leader of AlQueda, and SIGINT indicates that this is the right person. SIGINT involves at least three discrete points: The sender, a transmission route, and a receiver. If the person we propose to waterboard is the subject of that conversation, we still have three unknowns, but are knowable:

(a) Sender: Why are we not gathering information about the sender?

(b) Transmission: Why are we not looking for similar pathways?

(C) Receiver: Why are we not looking for other senders, other pathways, and similar receivers?

If we rely on SIGINT as the basis to waterboard someone, we’re ignoring the other aspects of SIGINT which could be explored: Sender, transmitter, and receiver. Waterboarding doesn’t have anything to do with SIGINT; only with the assertion that waterboarding may fill in the gaps to more SIGINT. But if we’ve used SIGINT to assert that someone needs to be waterboarded, we haven’t made a case that the other three aspects of SIGINT – sender, transmitter, and receiver – have been sufficiently exhausted.

On this note, waterboarding doesn’t appear to be a credible basis to argue for anything. Rather, waterboarding appears to be an admission that despite the NSA capabilities, we don’t have enough processing power to timely process information, and would rather spend time physically abusing someone, as opposed to directing SIGINT resources at the three knowns we have with the SIGINT: Sender, transmission, receiver.

Consider the issue of the videos the enemy is supposedly loading. Each time the video is loaded, that has to be attached to the internet in a discrete way. The signal is processed in a specific way; and it has a signature, upload point. Attached to that image are discrete patterns, images, and other electronic data that can be analyzed: Lighting, color content, type of video camera, and possibly source of recording equipment and data cartridge purchase.

The video which appears on the internet is uploaded at specific time, place, location; the video is known; the content is from a discrete location in physical space; and the data is attached to a regular website, and communication. Consistently, what we know is that once the video is uploaded, someone communicates through some means to the radio-broadcaster who makes the announcement, then people look at the video.

To communicate with the public that the video exists, someone has to communicate through some means to the media. Waterboarding has nothing to do with answering the question: When does the data get uploaded; and what is the means by which the existence e of the video is known – this information can be obtained in real space. Nobody has to be abused to get this information: The transaction occurs in physical space, either electronically or as a physical transaction; eventually, something happens on the internet.

The issue of waterboarding has nothing to do with an imminent threat, but an admission that the NSA has limited analysis capability to identify electronic signatures; and inadequate sweeping to target specific, known communication channels. SIGINT has been oversold as a means to acquire information; and SIGINT analysis and planning capability are insufficient to appropriately target recurring events. Waterboarding is an admission that the legal methods are beyond what American is willing to do. Waterboarding is expedient.

(d) hunch

Let’s consider another basis to target someone for waterboarding: A hunch. That hunch doesn’t appear out of thin air, but is based on something – a pattern, experience, or something that seems familiar.

The issue is to explore the case studies, then extrapolate from those intelligence lessons learned and ask: Have we exhausted our legal options to verify what may be a wrong hunch?

Hunches can be wrong, very wrong – this is the reason that the judicial branch is involved with warrants: To act as a check on what law enforcement might do.

The idea of Geneva and the laws of war are to act as a similar check. War is not a free for all, contrary to what Addington, Yoo, Gonzalez, and Bybee might suggest. Where the courts are ignored, the executive must be held to account to the law.

This President has ignored both the courts and the law. He relies on hunches. That is not a secret plan, but a reckless plan. Rather than talk about secret plans, if there was a plan he would have implemented it, and we would have victory. We have defeat because the President has no secret plan, and his hunches are not linked with evidence, but with abuse of power.


Consider all four possibilities, and you’ll see that the issue of waterboarding is misdirected. Rather than focus on the person who may or may not have “more” information, the real issue is what is stopping the CIA from going to the original source of the information. The point isn’t to use one source over another; but to contrast one source against another.

Arging, “How else are we going to get the information” is a false question. This presupposes that the information exists only in the mind of the person we propose to waterboard, and ignores the other information we have used to conclude that this person must be waterboarded:

  • A source

  • A transmission line

  • A receiver

  • Upload locations

  • Equipment types

  • Transmission data signatures

  • Another person

  • Physical evidence

    How else will we get the information? The answer is simple: Get better analysts who are competent to solve problems, consider reality, and will follow the law.

    This president and the DOJ Staff have been involved in a propaganda campaign to mislead Americans about what is or is not torture. This debate is irrelevant. Geneva only talks about Abuse. Waterboarding is abuse and a war crime.

    America’s problem is that its Commander is Chief is reckless, ignored his military commanders who told him what problems there would be in Iraq; and he abused the CIA analysts who told him in 2002 what he is learning the hard way.

    This president failed prior to 9-11 to use the already illegal signals intelligence. The question is: What did George Bush know prior to Sept 2001 that triggered him to order the illegal wiretapping. Someone knows.

    Or is the President arguing implicitly, because he supports waterboarding, that he should be waterboarded to find the answers which the American law enforcement, intelligence, and legal community refuse to conduct discovery?

    * * *

    Inconsistent arguments on source

    (a) Time delay vs. ignoring timely sources

    The White House expedience is at odds with their practices in similar situations. The White House regularly conducts pre-departure interviews, reviewing whether there are issues which an outgoing person may or may not have that warrant attention.

    Despite contemporary evidence, intelligence personnel are reticent to give much attention to those who may have evidence of wrong doing. Contrast this with the five-year delay in detaining and abusing a prisoner of war.

    Unlike the White House where a person has just departed but the intelligence community is unwilling to take information, the White House argued the opposite when it comes to prisoners of war: Despite being out of the loop for five years, the White House argues that a prisoner still has valuable information, yet is unable to explain its refusal to respond to information from outgoing staff.

    (b) No method to corroborate whether it works

    There are many unknowns with waterboarding, and there’s no legal scientific research into this abuse. The approach amounts to war crimes, and we are not aware of any scientific data or studies that have shown information is more or less reliable. These studies would be of interest to the war crimes prosecutor. If you hear anyone discussing data proving waterboarding has specific veracity or scientific merit, please request a copy of the peer reviewed journal, and forward this data to the war crimes prosecutor.

    (C) Inconsistent legal positions

    If waterboarding was reasonable, Addington would not be worried about prosecutions; and he would have had not problem with the disclosures related to the change. Addington and Bybee’s problem is that they’ve jointly asserted that abusive techniques – which violate Geneva – have occurred; and they failed to stop them. The issue is not whether something is or is not torture; but whether the treatment is or is not abuse.

    The evidence from Guantanamo is clear. Despite Hamdan in June 2006, prisoners are still being abused. JAG legal counsel has affidavits identifying specific GTMO prison guards located in Camps 5 and 6; and released prisoners have confirmed abused. We can only speculate whether the abuse was worse in Eastern Europe.

    Despite Hamdan, nothing in the 5100.77 DoD Laws of War program appears to have taken hold with the GTMO guards. This is a leadership problem that the Secretary of Defense has not adequately managed; and Hynes as DoD General Counsel could be implicated for war crimes, and his alleged failure to prevent ongoing abuses in spite of the fair warnings in Hamdan. Addington’s reported concern that a change in policy or procedure would amount to an admission of the original abuse is irrelevant: The abuses continue despite the changes.

    * * *

    War Crimes

    Recall Rumsfeld’s problem: When he realized the NSA failed prior to Sept 2001 despite the illegal monitoring, he told the interrogators at Abu Ghraib and Guantanamo to squeeze them harder. This presumed that the enemy was not cooperating. We find that those detained in Guantanamo were in many cases simply swept up during raids. This is by no means a basis to increase pressure on a prisoner – they have nothing to offer; “evidence that they are not cooperating” is not evidence of complicity, but evidence that they may simply have nothing.

    This government consistently asserts agendas, regardless facts. Abuse of power springs from an assertion of reality, however disconnected it is from facts. Rights are inalienable; no government has the power to deny the rights to some, but preserve the rights for those who want to abuse.

    If the President says that any of us are not entitled to all legal protections and privileges, then he is not longer entitled to claim a similar right or protection.


    Waterboarding is an expedient method to abuse people in violation of the laws of war. Those who advocate waterboarding fail to make a case that they have exhausted all lawful methods to acquire information.

    If the President says that abuse is permissible against prisoners, the DOJ Staff should be prepared to make a case why the President might prefer different treatment should he be detained at The Hague.

    It’s more likely that waterboarding has not been a credible source of information, but has been retroactively argued as being credible. If the successes of waterboarding were valid, the CIA cannot explain why it is not punishing those who are revealing specific information related to numbers and method; nor why there has been no high profile investigation to identify the source of the CIA leak related to the waterboarding program.


    US combat capability has been poorly allocated to engage in insurgency warfare. NSA SIGINT capabilities have been mismatched with the events on the ground. There are insufficient NSA-ELINT capabilities to adequately support intelligence analysts. The US has resorted to illegal methods because it has insufficiently assigned personnel and resources to manage, analyze, and use the data it already has.

    The US is violating the Geneva Conventions, and Addington and other lawyers in the DOJ Staff and Executive Branch have a fear they could be prosecuted for assenting to illegal war crimes.

    Waterboarding is an ineffective tool to support combat operations. There is no basis to believe the reported successes of waterboarding. There is no basis to believe the motivation of those who are discussing waterboarding; rather, it appears to be part of an orchestrated public relations effort to retroactively get public support for something that would not require public support.


    The real power in Washington rests within the fabric of the Constitution. The Constitution is based on simple principles of reason, prudence, logic, and soundness. When the law is ignored, reason and logic are cast to the winds. This leadership, in launching a reckless war, has hitched their war crimes to the non-sense abuse of power required to perpetuate what is inherently flawed.

    The question is not what option we have besides waterboarding to get information; the question is whether this President will cooperate with waterboarding if he is lawfully arrested and jailed for war crimes. This President may be given an opportunity to change his position on whether waterboarding is or is not something he chooses to endorse. Fortunately, there remain lawful methods to gather evidence and prove this President is a war criminal.