Stalking the CIA

Co-Authored with Debra Burlingame

Last week, Bill Gertz of the Washington Times broke news of a fight between the Central Intelligence Agency and the Department of Justice. The CIA wants Justice to investigate aggressively whether any laws were broken by attorneys working for the John Adams Project, a joint initiative of the ACLU and the National Association of Criminal Defense Lawyers. The lawyers reportedly provided photographs of CIA interrogators to defense attorneys, who then showed them to al Qaeda terrorists held at Guantánamo Bay.

Why would lawyers do that? Gertz says it was done “in an attempt to have the terrorism suspects identify the interrogators in order to call them as witnesses in future trials.” The John Adams Project’s lawyers wanted to use court proceedings intended to try mass-murdering terrorists for another purpose: to put the Bush administration and the CIA on trial.

Although CIA officials say the pictures compromised the agency’s ongoing operations and could potentially lead to reprisals against the interrogators, Attorney General Eric Holder’s department apparently does not think the photos are all that important. During discussions with the CIA, the department’s lawyers have reportedly downplayed the seriousness of the offense. And the CIA is not happy about it.

“Given the events of the past year there is concern in the agency over whether or not someone has their back,” a former senior intelligence official explained to us. “A failure to aggressively follow up these allegations will only worsen that concern.”

Gertz attributes the Justice Department’s reticence to particular lawyers within the department who are “sympathetic to the John Adams Project.” One Justice Department lawyer who is clearly sympathetic is Jennifer Daskal, who previously worked for Human Rights Watch and was appointed by Holder to the Justice Department’s Detainee Policy Task Force last year. Prior to joining the government, Daskal was an outspoken critic of the CIA and the interrogation techniques authorized by the Bush administration.

President Bush “will go down in history as the torture president,” Daskal told the Associated Press in March 2008. “The Bush administration continues to insist that CIA and other nonmilitary interrogators are not bound by the military rules and has reportedly given CIA interrogators the green light to use a range of so-called ‘enhanced’ interrogation techniques, including prolonged sleep deprivation, painful stress positions, and exposure to extreme cold,” Daskal added.

Daskal’s anti-CIA activism was not limited to making hyperbolic statements to the press. Daskal and Human Rights Watch played a significant role in uncovering the CIA’s secret detention facilities in Eastern Europe and Afghanistan, where top terrorists were detained and interrogated.

On November 2, 2005, Dana Priest of the Washington Post reported that the “CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe.” The Post, citing the government’s security concerns, did not name the countries where the facilities were located. But just a few days later, on November 6, 2005, Human Rights Watch revealed the countries in a posting on its website. The organization said it had “collected information that CIA airplanes traveling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania.” The organization encouraged European officials to investigate further, and the Europeans did just that.

In May 2006, the European parliament sent a delegation to Washington to discuss the CIA’s secret detention and interrogation program with various interested parties. The delegation met with Human Rights Watch on May 10. Here is how a document produced by the European parliament describes the meeting:

    The delegation met with John SIFTON (Counterterrorism Researcher) and Jennifer DASKAL (US Advocacy Director) who provided the delegation with circumstantial evidence linking Poland and Romania to secret CIA prisons, including flight records, statements by Polish and Romanian government officials, as well as precise details of specific planes used by the CIA. Both recognized that they do not have formal evidence of these allegations, but stressed the indications of these facts were actually very strong. Their information was that there had been detainees in CIA custody well before the Guantánamo Bay detention center had been established.

Although the Europeans listed Daskal’s colleague, John Sifton, as a “counterterrorism researcher,” he was really researching the CIA—not the terrorists. In The Guantánamo Lawyers, a collection of short, sentimental memoirs written by dozens of lawyers, who sanitized their clients’ histories and glorified their work on behalf of war on terror detainees, Sifton offered an intriguing account of how Human Rights Watch assisted in uncovering details of the CIA’s operations.

“Throughout the years after 2001, journalists, human rights investigators, and lawyers managed to obtain a surprising amount of information about U.S. detention and interrogation operations,” Sifton wrote. He elaborated (emphasis added):

    Amnesty International, Human Rights Watch, and the [New York] Times found and interviewed former CIA detainees. FOIA litigation by the Associated Press, the ACLU, and the Center for Constitutional Rights produced information about former CIA detainees at Guantánamo—lower-level prisoners who had been kept short-term in CIA detention. Every piece of the story seemed to come from a different source. .  .  .

       Lawyers and human rights groups worked together, sharing “intelligence” to uncover what intelligence agencies were doing with detainees. When I was working at Human Rights Watch, I managed to piece together a good deal of information about the CIA’s detention facilities in Afghanistan by collecting accounts from former CIA detainees at Guantánamo, mostly from notes provided by habeas attorneys. I called and met with numerous Guantánamo attorneys to inquire whether their clients had been in CIA custody. In several instances, attorneys I reached were not aware that their clients had been in CIA custody until I explained that their clients’ own accounts matched those of other CIA detainees. In one notable example, I spoke with one of the editors of this book, Mark Denbeaux, after I came to suspect his client had been in a secret site in Afghanistan—the detainee had described one of his earlier places of detention in ways that closely matched other detainees’ descriptions of a CIA site in Afghanistan. The next time Mark went to Guantánamo, he confirmed this previously secret fact with the detainee.

Human Rights Watch published Sifton’s investigation of the CIA’s detention facilities in Afghanistan in a February 2007 report entitled “Ghost Prisoner.” The report draws on graphic descriptions offered by former detainees. That same report was “reviewed and edited” by Jennifer Daskal.

What’s particularly striking about Sifton’s description is the role played by the Gitmo habeas attorneys. These lawyers were supposed to be helping their clients file habeas petitions with federal courts. Instead, they went far beyond that legal representation, working to expose the CIA’s activities during a time of war. This involved violations of a 2004 protective order that prohibits detainee attorneys from discussing military operations, arrests, intelligence, or current events with their clients. Nor were they allowed to discuss information about other detainees who are not their own clients.

The cabal described by Sifton worked to uncover not only the location of the CIA’s secret sites, but also the identities of the CIA personnel charged with transporting (via special flights), detaining, and interrogating terrorists. In The Guantánamo Lawyers, Sifton explained how CIA personnel were identified:

    CIA aviation operations were handled by corporate front companies, some of which were hidden by oddly thin veneers. Pilots’ aliases could be cracked by searching FAA records for real persons with characteristics matching those of the aliases. CIA officers passing through Europe also broke their aliases, for instance, by calling their homes from hotels. Police records from Italy and France, revealing these calls, could later be used to confirm officers’ identities.

It also proved possible for investigators to confirm that personnel were CIA: Public-records searches for CIA officers would typically reveal a set of overseas State Department or U.S. military base postings and post office-box addresses in Northern Virginia.

Some of the Gitmo lawyers have no problem with exposing the CIA’s secret detention facilities or stalking CIA operatives and then showing their pictures to top al Qaeda terrorists. It is all part of the investigation and potential prosecution of the CIA, which Jennifer Daskal has long advocated.

“It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it,” Daskal told the New York Times in January 2009. She was referring to comments made by Holder during his confirmation hearings, in which he compared CIA interrogation techniques to atrocities committed by the Japanese in World War II and by the Khmer Rouge. “Waterboarding is torture,” Holder flatly stated. “We prosecuted our own soldiers for using it in Vietnam.” The clear implication was that the CIA’s interrogators could be prosecuted as well.

While Holder has been willing to denigrate CIA interrogators, he is  apparently not eager to investigate the people who stalked and photographed CIA interrogators and then exposed them and their families to admitted al Qaeda killers. Instead, Holder has hired lawyers like Daskal, who opposed the CIA’s role in countering the terrorist threat and worked to expose the agency’s detention and interrogation operations.

Debra Burlingame, a former attorney, is a co-founder of Keep America Safe. Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.