The ACLU, meanwhile, has identified an important point about the chronology of the CIA’s internal communications about the tapes. Although the communications remain classified, the dates and summaries of their content provided by the government reveals that a request to destroy the 92 tapes were  made just days after The Washington Post reported on the existence of secret overseas CIA prisons known as “black sites.” Another request was made on the day The New York Times reported that the CIA inspector general had issued a report questioning the legality of the agency’s interrogation methods.

The tapes were destroyed that same day.

One of the concerns raised by the military intelligence source is that some Blackwater personnel are being given rolling security clearances above their approved clearances. Using Alternative Compartmentalized Control Measures (ACCMs), he said, the Blackwater personnel are granted clearance to a Special Access Program, the bureaucratic term used to describe highly classified “black” operations. “With an ACCM, the security manager can grant access to you to be exposed to and operate within compartmentalized programs far above ’secret’–even though you have no business doing so,” said the source. It allows Blackwater personnel that “do not have the requisite security clearance or do not hold a security clearance whatsoever to participate in classified operations by virtue of trust,” he added. “Think of it as an ultra-exclusive level above top secret. That’s exactly what it is: a circle of love.” Blackwater, therefore, has access to “all source” reports that are culled in part from JSOC units in the field. “That’s how a lot of things over the years have been conducted with contractors,” said the source. “We have contractors that regularly see things that top policy-makers don’t unless they ask.”

One thing Jeremy might have added is that JSOC’s current commander, Adm. William McRaven, has emerged as a serious player in Afghanistan-Pakistan strategymaking.

Maj. Nidal Malik Hasan (USUHSy/ZUMA Press)

The new unit created by the Obama administration to interrogate the highest-value terrorism targets is unlikely to play a role in the case of the highest-profile new potential terrorist target in U.S. custody: Army Maj. Nidal Malik Hasan, the alleged Fort Hood shooter.

The director of the new interrogation unit, FBI Special Agent Andrew McCabe — who has not been previously identified in the press as the leader of the High-Value Detainee Interrogation Group (HIG) — referred all questions about the Hasan case to the FBI’s public affairs office and said he would not be able to elaborate on HIG operations beyond an August statement by Attorney General Eric Holder announcing the group’s creation. Still, it is unlikely that the HIG would interview Hasan. Dean Boyd, a spokesman for the Justice Department’s national security division, clarified that the new group is mandated to operate “overseas only.”

Image by: Matt Mahurin

It is not clear whether Hasan ought to be considered a terrorist, and most evidence to date suggests he is better understood as a criminal suspect. An inquiry that began shortly after he allegedly shot and killed 14 people at Fort Hood on Nov. 7 has yet to determine any substantive links to extremist organizations, and reportedly indicates that he acted alone. An FBI spokeswoman, Denise Ballew, declined to comment, and referred all questions about Hasan to the U.S. Army’s Criminal Investigation Division, which is leading the Hasan inquiry with FBI support. Spokespeople for the Criminal Investigation Division did not return phone messages.

But an al-Qaeda affiliated cleric now based in Yemen, Anwar al-Awlaqi, has confirmed to The Washington Post that he communicated with Hasan, and Army psychiatrist, repeatedly before the shooting occurred. While Hasan is convalescing from wounds sustained when police officers stopped the attack, he might shed light on the circumstances that lead a very small minority of radicalized American Muslims to commit acts of extremism and even seek to connect with the broader terrorist infrastructure, which the counterterrorism community refers to as the “self-starter” or “lone-wolf” problem.

In a Senate hearing on Thursday, Sen. Joe Lieberman (I-Conn.) called the shooting a “homegrown terrorist attack,” a point not entirely accepted by his panel’s witnesses. Brian Jenkins, a terrorism expert with the Rand Corporation, testified that while “radicalization and recruitment to terrorism is occurring in the United States and is a security concern,” the small handful of examples of such behavior meant that American Muslim communities are “overwhelmingly unsympathetic to terrorist appeals,” a point Lieberman endorsed.

Individuals close to the HIG had mixed perspectives about whether it should play any role with Hasan. None agreed to speak for attribution, citing both the ongoing investigation into Hasan’s case and the secrecy surrounding the Obama administration’s new interrogation unit. “I can think of a lot of uses I could make of a HIG team while waiting for someone to be captured in Afghanistan,” said one such individual. “There’s no reason the HIG couldn’t be used domestically. There’s a ban on the CIA doing things in country, so they might just have to use FBI interrogators or interviewers. But aside from that I don’t see any other issues.”

A U.S. official involved with the establishment of the HIG said that it remained an open question whether Hasan is a “lone wolf with mental pathology” or someone who “latched onto extremist ideology and influence” like al-Awlaqi. As a result, there is insufficient evidentiary basis for involving the HIG, since it is unclear what actual information Hasan might have that could illuminate aspects of the broader terrorist puzzle. “I also have not seen anything that indicates known or suspected outside influence — other than firebrand al-Awlaqi’s call-to-arms, which is dangerous enough in itself — whether non-state actor or otherwise” is involved in the Hasan case, the official said.

A former U.S. counterterrorism official agreed: “The HIG is for high-value detainees and he’s not a high-vale detainee. He’s a criminal who did a heinous act.” The ex-official went on to say that if information emerged changing that picture, Army CID and FBI investigators have “a process to share information with behavioral analysis groups, [and] share with the HIG, to be careful to watch for other possible wackos.”

There are a number of investigations open into Hasan aside from the main CID-FBI probe. On Thursday, Defense Secretary Robert Gates announced the Pentagon would undertake its own review of the Hasan case to determine if its personnel missed warning signs leading to Hasan’s attack that might have prevented it. The intelligence community is reviewing what it knew about Hasan’s communications with al-Awlaqi or other extremists. Late last week, President Obama directed all relevant agencies to turn over information about those communications to his principle White House counterterrorism and homeland security adviser, John Brennan — who, coincidentally, is also the White House liaison with the HIG.

The big reveal is that Blair, the nominal overall intelligence chief, wants a much bigger role over the CIA’s drone strikes in Pakistan.

Since the CIA’s establishment in 1947, its officers have had a direct line to the National Security Council. No cut-outs, no go-betweens.  Blair and his deputies believed that the CIA’s National Clandestine Service was failing to provide a full picture of several of the agency’s largest covert collection and special activity programs. In particular, the DNI would often find out about CIA-initiated drone strikes in Pakistan well after the fact. The CIA was conscientious about briefing the National Security Council, but did not bother to loop in the DNI.

That won’t happen any longer. The CIA will keep its unfettered access to national security principals, and the DNI still doesn’t have the authority to order covert action programs, but the White House is now requiring the CIA to fully brief the DNI on all covert action programs and will seek from the DNI regular assessments of whether any program fits in with the nation’s intelligence strategy, which is set by Blair. Since Blair briefs Congress more often than Panetta does, it makes sense for Blair to know as much about covert action programs as CIA briefers would.

That might sound like bureaucratic box-checking. But for years, the DNI’s office — long before Blair took over — has quietly absorbed many intelligence analysts who look at long-term geopolitical questions, rather than analyzing the crises of the moment. Since the big question with the drone strikes is whether they ultimately enrage Pashtun Pakistanis by the civilian casualties they create — and therefore raise the question of whether the strikes are counterproductive — it’s not inconceivable that Blair’s office would take a more skeptical view of the program’s value than the CIA does.

But that’s not the only big piece of news Ambinder uncovers. Check this out:

The conflict became public earlier this year, after the CIA protested when the Director of National Intelligence appointed a senior National Security Agency representative to be the DNI’s representative in Kurdistan. Traditionally, the CIA’s chief of station had served as the foreign nation’s principal intelligence representative. But the NSA has a bigger footprint in Kurdistan, and the DNI decided that he would be better served by appointing an NSA officer to be his representative.

The conflict is not new. But the fact that it took place over Iraqi Kurdistan most definitely is. And the additional fact that Kurdistan is home to a National Security Agency presence is big big news. I would bet a lot of money that such a presence is geared toward some serious spying on nearby Iran.

The Italian court convicted in absentia a CIA station chief and 22 other agents for abducting a Muslim cleric and sending him to Egypt, where he was tortured. Similarly, a British court recently ruled that a former detainee and torture victim has the right to obtain documents to prove he was mistreated — despite U.S. objections.

In contrast, in a recent case here in the United States, involving the abduction and extraordinary rendition of Canadian citizen Maher Arar to Syria by U.S. authorities, a federal appeals court ruled that Arar — who turned out to be innocent — has no right to redress.

Arar, as we now know, was arrested based on faulty intelligence at John F. Kennedy airport in New York, denied access to a lawyer, and shipped off to Syria for interrogation under torture. Both the Syrian and Canadian governments have since confirmed that Arar had done nothing wrong, and Arar sued U.S. officials for his unlawful treatment. Yet the Second Circuit Court of Appeals in New York recently ruled that the courts should not interfere in cases involving national security and foreign affairs — that’s for the executive and legislative branches alone.

As The Times notes today in an editorial, the ruling was an abdication of the role of the federal judiciary, which, after all, is the branch of government charged with upholding the rights granted in the U.S. Constitution.  Surely the right to be free from groundless abduction, rendition and torture is among them. As The Times’ editorial board puts it: “The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct.”

What The Times neglects to mention is that another case, filed just yesterday on behalf of a U.S. citizen, raises precisely the same issues — and could meet the same fate. This time, however, as I explained yesterday, the plaintiff is a U.S. citizen, born and raised in New Jersey, abducted by U.S. authorities and held in three different African prisons where, he says, he was tortured and threatened by FBI agents, among others. He was eventually returned home without charge.

The judges who decided the Arar case earlier this month didn’t uniformly agree that he ought not be allowed to make his case in court. In fact, the 7-4 opinion spawned four dissenting opinions that are among the most eloquent statements on the role of the judiciary in upholding the U.S. Constitution that I’ve ever read.

As Judge Barrington Parker wrote, the court’s decision “risks a government that can interpret the law to suits its own ends, without scrutiny.” Parker cited a memo from former Deputy Assistant Attorneys General John Yoo and Robert Delahunty in the Bush Justice Department’s Office of Legal Counsel advising the top lawyer at the Pentagon in 2002 that the President enjoys “complete discretion” in conducting operations overseas, and that the Constitution’s Bill of Rights — such as the Fifth Amendment right to due process and the Eighth Amendment’s prohibition on “cruel and unusual punishment” — do not apply to overseas interrogations.

Students of Hoekstra know that this kind of recklessness is nothing new. In 2006, when he chaired the House Permanent Select Committee on Intelligence, the man actually wrote in The Wall Street Journal that unnamed members of the U.S. intelligence community were “perhaps” leaking classified information to the press to “help al Qaeda.” I confronted him about it back then, and here’s how that went:

I asked Hoekstra about his charge that certain members of the intelligence community seek to “help Al Qaeda,” he stood by it. But, curiously, he couldn’t finger any specific Al Qaeda sympathizers in the CIA. “If I were aware of anyone by name or by position that I believe at this point in time was there because their intent was to help those who might attack us, they wouldn’t be there,” he assured.

Then why make the claim?

“You have to hold that out as a possibility,” Hoekstra explained. “I mean, every day–not every day, but on occasion, and more frequently than what we would like–we find out that the intelligence community has been penetrated, not necessarily by Al Qaeda, but by other nations or organizations that we are spying on. And so to rule out the possibility that there are people in the intelligence community that are doing this to help Al Qaeda, I think, would be naive.”

Hmm. So then it’s naive to rule out the possibility that Hoekstra, now in the business of leaking classified information to the press about al-Qaeda sympathizers being surveilled, is “doing this to help al-Qaeda.” Good to know.

In February, Feinstein began a probe into the CIA’s detention and interrogation practices, and not a lot has leaked out since then. Feinstein said in April that the committee had finished a review into the cases of two al-Qaeda detainees subject to enhanced interrogation, and indicated in a letter to President Obama that month that her study would last “six to eight months.” Which would mean it should be wrapping up now-ish.

But it’s going to continue until “sometime early next year,” according to Feinstein spokesman Phil LaVelle. Dealing as the review does with highly classified information, LaVelle declined to provide many specifics, or to elaborate on the reasons for the delay. But he said that “additional staff have been hired and are working full-time” on the review — he wouldn’t provide a specific number — who are “moving through the cases of the detainees,” a task that involves reviewing “millions of documents.” LaVelle added that the review is “not related to DOJ investigation,” although that doesn’t evidently foreclose the prospect of Durham reviewing the Feinstein panel for potential prosecutorial action.

Will the public be able to see the results of the committee’s inquiry? It hasn’t held any public hearings this year. “There will be a final report,” LaVelle said, and “the committee will made a determination on what declassified information can be released.”

Asked for a comment on Feinstein’s panel and the CIA’s role in it, CIA spokesman George Little said only, ” We continue to cooperate with the investigation.”

U.S. intelligence agencies were aware months ago that Army Major Nidal Malik Hasan was attempting to make contact with people associated with al Qaeda, two American officials briefed on classified material in the case told ABC News.

It is not known whether the intelligence agencies informed the Army that one of its officers was seeking to connect with suspected al Qaeda figures, the officials said.

The story sidesteps the question of whether Hasan actually made contact with al-Qaeda. The reporting so far indicates investigators believe he was acting alone. I think here I should go easier on Sen. Joe Lieberman (I-Conn.), though the concerns about how his investigation may proceed still stand.

How could U.S. intelligence have not communicated this information to the Army? On the presumption that the intel side did not — which is not proven in the piece — I guess an explanation would be that the intel people were gathering information for future use, but that’s divorced from any actual evidence I possess. Still, there is an extensive apparatus for surveilling people in this country with minimal-to-no judicial oversight precisely for the warning signs of their connections to extremist organizations. How’s that working out for us?

The BAU, explained elsewhere in documents released on Friday, is “comprised of Supervisory Special Agents with an average of 18 years of experience in criminal and counterintelligence investigations.”

The memo lays out clearly and simply what the interrogation experts at the FBI knew about interrogations of terror suspects, what would or would not work on them, and what sort of conduct was illegal. And it reads much like the sorts of arguments we’re now hearing from the America Civil Liberties Union and other civil and human rights organizations arguing that senior defense department officials and lawyers who approved abusive techniques ought to be criminally investigated.

“Central to the gathering of reliable, admissible evidence is the manner in which it is obtained,” the authors write to the General. “Interrogation techniques used by the DHS [Defense Human Intelligence Services, part of DoD] are designed specifically for short term use in combat environments where the immediate retrieval of tactical intelligence is critical. Many of DHS’s methods are considered coercive by Federal Law Enforcement and [Uniform Code of Military Justice] standards. Not only this, but reports from those knowledgeable about the use of these coercive techniques are highly skeptical as to their effectiveness and reliability.”

Most of the detainees at Guantanamo Bay had already been interviewed repeatedly overseas by the DHS, so the FBI recommended a different approach be taken at Guantanamo.

The FBI favors the use of less coercive techniques — ones carefully designed for long-term use in which rapport-building skills are carefully combined with a purposeful and incremental manipulation of a detainee’s environment and perceptions.

The BAU staff explain:

FBI/CITF agents are well trained, highly experienced and very successful in overcoming suspect resistance in order to obtain valuable information in complex criminal cases, including the investigations of terrorist bombings in East Africa and the USS Cole, etc. FBI/CRT interview strategies are most effective when tailored specifically to suit a suspect’s  or detainee’s needs or vulnerabilities. Contrary to popular belief, these vulnerabilities are more likely to reveal themselves through the employment of individually designed and sustained interview strategies rather than through the haphazard use of prescriptive, time-driven approaches. The FBI/CITF strongly believes that the continued use of diametrically opposed interrogation strategies in GTMO will  only weaken our efforts to obtain valuable information.

The memo goes on to list the interrogation techniques being used, and then to list which ones are “not permitted by the U.S. Constitution.” Those include: the use of stress positions for more than four hours; hooding; 20-hour interrogation segments; stripping a detainee of all clothing; and exploiting individual phobias, such as fear of dogs, to induce stress. They also include the use of scenarios designed to convince a detainee that death or severe pain is imminent for him or his family; waterboarding (here called “use of wet towel and dripping water to induce the misperception of drowning”); and exposure to cold weather or water.

All of those techniques, we now know, continued to be used by the Defense Department.

The FBI also warned that the use of such techniques would make any evidence derived inadmissible in federal court and if admissible in a military commission, likely to be given “little or no weight.”

The FBI drafters of the memo further explained that most of those techniques, particularly the last four, would also violate the U.S. anti-torture statute. It recommended that they not be used.

We know that the Pentagon and CIA went ahead and used them anyway. Instead of relying on their top experts in the FBI, they relied on a plan developed by a couple of private psychologists with no experience whatsoever in interrogating terror suspects and who cribbed much of their plan from a study of Chinese Communist techniques used to obtain false confessions from American prisoners during the Korean war. Senior U.S. officials then sought legal opinions from the Office of Legal Counsel that would tell them that these techniques, contrary to the FBI’s opinions, were not illegal. Conveniently, those opinions did cast the techniques described in a completely different light.

The most recently released memos have not gotten much attention, as torture fatigue sets in and the Bush torture program becomes old news. But the FBI memo is important because it adds to the growing body of evidence that senior defense department and CIA officials deliberately ignored the opinions of the best trained and most experienced people in the government about interrogations that abusive interrogations would not work and were not legal. Add that to the rest of the evidence that senior Bush administration officials did not act in good faith in relying on the Office of Legal Counsel memos that justified the techniques the Defense Department and CIA were using, and this latest declassified memo adds weight to the argument that something fishy was going on at the highest ranks of government that demands further investigation.

This latest memo also sheds light on why some in the Defense Department and some Republicans are now so eager to try Guantanamo detainees in military commissions rather than in Article III federal courts. They know that the evidence extracted from the prisoners under the “enhanced” methods Cheney is still defending doesn’t stand a chance in front of an independent U.S. federal court judge.

Wow, who could that be? Remember this:

Well, you think, for example, in the intelligence arena. We ask those people to do some very difficult things. Sometimes, that put their own lives at risk. They do so at the direction of the president, and they do so with the — in this case, we had specific legal authority from the Justice Department. And if they are now going to be subject to being investigated and prosecuted by the next administration, nobody’s going to sign up for those kinds of missions.It’s a very, very devastating, I think, effect that it has on morale inside the intelligence community. If they assume that they’re going to have to be dealing with the political consequences — and it’s clearly a political move. I mean, there’s no other rationale for why they’re doing this — then they’ll be very reluctant in the future to do that.

Back in the real world, former Vice President Dick Cheney’s decisions to embrace illegality and instruct CIA operatives to carry it out have resulted in the actual convictions in absentia of 23 people. What do you think the odds are that Cheney will pay deSouza’s legal bills with all his oil money?