“I appreciate the privilege and opportunity that President Obama has given me to co-chair the President’s Intelligence Advisory Board,” said Senator Hagel. “I look forward to working on behalf of our country to help build a more secure America.  I am particularly grateful to participate in this effort with former Oklahoma Senator and Senate Intelligence Committee Chairman David Boren.  His distinguished record of accomplishment and experience will provide strong and enlightened leadership for the Board.  Working with Senator Boren and the other impressive members of the board we will make every effort to provide thoughtful, informed and independent advice to the President and his team.”

“I am honored by the president’s appointment to co-chair the President’s Intelligence Advisory Board,” said Senator Boren. “I appreciate the opportunity the president has given me to help in the effort to strengthen our national security.  I’m especially pleased that former Republican Senator Chuck Hagel, for whom I have great respect, will serve as the other co-chair.  It is my hope that together, with the other members of the board, we can give candid, thoughtful, and nonpartisan advice, which will be helpful to the country. This part time advisory role, which is uncompensated, will in no way alter my plans to remain as president of the University of Oklahoma.  I see this appointment as a chance to perform my duty as a citizen to serve our country.”

Real talk: this board typically does nothing. George W. Bush appointed Brent Scowcroft, a confidante of his father’s, to the position, which offers advice about the quality and usage of intelligence, and then ignored him. It’s an ignorable job! The most important intelligence adviser in the White House, where these guys won’t even typically be — Boren, as he says, will remain focused on beating the University of Texas in football — will doubtlessly remain John Brennan. But we’ll see what President Obama does with it, since these things rise and fall on the strength of their connections to the president, and Hagel certainly has Obama’s trust.

Marcy digs through the IG report and unearths what the report calls “an undated and unsigned document” that “expanded” the use of those techniques “beyond the interrogation of Abu Zubaydah.” The document, entitled “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel,” has never before been disclosed, and it was apparently written, according to the report, by the CIA’s Office of General Counsel, but “fully coordinated” and “drafted in substantial part by OLC,” the Justice Department’s Office of Legal Counsel. An excerpt, dealing with the legality of specific techniques, reads:

The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.

Marcy’s emphasis. Notice that this language, including the parentheticals, appears verbatim in Tenet’s guidelines for both “standard” and “enhanced” techniques from Jan. 23, 2003. Tenet’s “Standard Techniques”:

Among Standard Techniques are the use of isolation, sleep deprivation not to exceed 72 hours, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainee), deprivation of reading material, use of loud music or white noise (at a decibel level calculated to avoid damage to the detainee’s hearing), and the use of diapers for limited periods (generally not to exceed 72 hours), [REDACTED]

Tenet’s “Enhanced Techniques”:

These techniques are, [sic] the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation beyond 72 hours, the use of diapers for prolonged periods, the use of harmless insects, the water board, and such techniques as may be specifically approved pursuant to paragraph 4 below.

Again, we don’t know when the memo was written — by design, as it’s undated and unsigned, a gigantic blinking red light. A footnote on page 22 of the report indicates that it was attached to a document delivered, apparently, to the inspector general’s office on June 16, 2003. That’s as close as we get to an answer as to the document’s provenance. But the language contained within it appears to be the wellspring for Tenet’s “standard” and “enhanced” interrogations — and apparently the CIA’s general counsel helped write the rules the agency’s personnel would operate within. Attorney General Eric Holder’s new probe is an implicit argument against the wisdom of that decision.

A question that remains unanswered: why did Tenet, the CIA’s general counsel and OLC evidently believe that forcing someone to wear a diaper for “72 hours” should be a “standard” interrogation technique and any longer should be an “enhanced” one?

The Agency eliminated one proposed technique — [REDACTED] — after learning from DoJ that this could delay the legal review.

But an appendix to the report written by former CIA Director George Tenet gives an indication as to what that eleventh technique was — and says that it’s permissible.

Take a look at Appendix E, Tenet’s January 28, 2003 memorandum on guidelines for both “standard” and “enhanced” interrogations. Tenet’s list of “enhanced” techniques, you’ll notice, number eleven:

These techniques are, [sic] the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation beyond 72 hours, the use of diapers for prolonged periods, the use of harmless insects, the water board, and such techniques as may be specifically approved pursuant to paragraph 4 below.

You can see why I bolded the diaper technique. All the others on Tenet’s list were approved by the Office of Legal Counsel in August of 2002. But that diapering technique was never approved by the Justice Department. Tenet considered “the use of diapers for limited periods (generally not to exceed 72 hours)” to be a “standard” technique, as I blogged earlier. But it’s at least conceivable that the Justice Department would have thought reviewing prolonged diapering would have delayed the 2002 review, since the humiliation and health issues of forcing someone to remain in their own filth for over three days raise serious legal issues.

More on this tomorrow.

Update: In the Draft Guidelines issued September 4, 2003 by the CIA’s Office of Medical Services, there’s another list of both “standard” and “enhanced” interrogation techniques. This time, under “enhanced” techniques, there are only ten listed techniques, with all of them being those listed in the original 2002 request to OLC  — though “insects” has been removed, Pharoahonically — except for “prolonged diapering.” Diapering is also listed under “Standard measures,” like in Tenet’s guidelines from earlier that year, and again the difference between its “standard” and “enhanced” application is time: “standard” diapering is “generally for periods not greater than 72 hours,” while “enhanced” diapering has no specified time restrictions.

When did CIA get approval from the Justice Department to do this? In the IG report, the only listed amendment between 2002 and 2004 to the CIA enhanced interrogation regimen comes on July 29, 2003, when Attorney General John Ashcroft “confirmed that DoJ approved of the expanded use of the various EITs, including multiple applications of the waterboard.” There is no reference in that passage of the report to any diapering, prolonged or otherwise, and no redactions that could suggest it. Even if there were, Tenet wrote his guidelines approving the “prolonged diapering” technique seven months before Ashcroft’s legal blessing.

According to [REDACTED] the hard takedown was used often in interrogations at [REDACTED] as “part of the atmospherics.” For a time it was the standard procedure for moving a detainee to the sleep deprivation cell. It was done for shock and psychological impact and signaled the transition to another phase of the interrogation. The act of putting a detainee into a diaper can cause abrasions if the detainee struggles because the floor of the facility is concrete. The [REDACTED] stated he did not discuss the hard takedown with [REDACTED] managers, but he thought they understood what techniques were being used at [REDACTED] stated that the hard takedown had not been used recently. [REDACTED] After taking the interrogation class, he understood that if he was going to do a hard takedown, he must report it to Headquarters. Although the DCI [Director of Central Intelligence] and OMS [Office of Medical Services] Guidelines address physical techniques and treat them as requiring advance Headquarters approval, they do not otherwise specifically address the “hard takedown.”

So the Hard Takedown involved putting a detainee into a diaper and preparing him for sleep deprivation, which was done through placing a detainee in painful contorted positions. And those who performed it believed they merely needed to report it to CIA headquarters. Obviously no one thought he was doing anything above and beyond the approved techniques. Another operative tells the inspector general that “they are authorized and believed they had been used one or more times at [REDACTED] in order to intimidate a detainee.” (That’s a direct quote of the IG report, not the CIA operative.) And why not? Sleep deprivation wasn’t even considered an enhanced technique by then-CIA Director George Tenet, and clearly “headquarters” knew what the Hard Takedown was if officials were reporting its use — and could have stopped it. It’s harder and harder to argue these abuses weren’t the direct outgrowth of policy, even if the Justice Department didn’t explicitly order such techniques.

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These techniques include, but are not limited to, all lawful forms of questioning employed by U.S. law enforcement and military interrogation personnel. Among standard interrogation techniques are the use of isolation, sleep deprivation not to exceed 72 hours [reduced in December 2003 to 48 hours' maximum], reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainee), deprivation of reading material, use of loud music or white noise (at a decibel level calculated to avoid damage to the detainee’s hearing), the use of diapers for limited periods (generally not to exceed 72 hours), [REDACTED] at moderate psychological pressure. The DCI [Director of Central Intelligence] Interrogation Guidelines do not specifically prohibit improvised actions. A CTC/Legal officer has said, however, that no one may employ any technique outside specifically identified standard techniques without Headquarters approval.

Before then-Defense Secretary Donald Rumsfeld began the process of expanding the definitions of what military interrogation personnel were allowed to do in November 2002 and culminating in April 2003 — a process significantly based, in chicken-and-egg fashion, on what the CIA was already doing to detainees — none of these listed techniques would have been acceptable for U.S. military interrogators. And FBI interrogators (like Ali Soufan) objected to similar treatment of detainees witnessed in 2003 at Guantanamo Bay. It’s unclear what basis Tenet had for thinking that keeping someone in a diaper for up to three days was acceptable for non-CIA interrogators. But it’s also an example of how torture, once adopted, spreads — and becomes normative. Remember, these techniques aren’t even “enhanced” ones.

The New York Times reports that a different OPR report, prepared for Attorney General Eric Holder, has advised re-opening investigations of CIA interrogators who tortured detainees. That clears the way for the investigation that Holder is widely expected to announce as early as today. But without the OPR inquiry on the Office of Legal Counsel — which Holder has pledged to declassify — the CIA inspector general report will present stories outside of the context that gave rise to them. The CIA constantly went back and forth with the Justice Department during the Bush administration to ensure that the valued interrogation program had the cover of law. Without that context, it won’t be possible to understand what drove interrogators to enter those interrogation chambers, even if the torture they applied was more severe than what the department’s lawyers specified was acceptable.

All of which leads Marcy Wheeler to conclude:

If it is, indeed, DOJ’s plan to release all the other torture documents save the OPR report, it will have the effect of distracting the media with horrible descriptions of threats with power drills and waterboarding, away from the equally horrible description of lawyers willfully twisting the law to “authorize” some of those actions. It will shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways. It will hide the degree to which torture was a conscious plan, and the degree to which the oral authorizations for torture may well have authorized some of what we’ll see in the IG Report tomorrow.

If it is, indeed, DOJ’s plan to release the IG Report and announce an investigation without, at the same time, releasing the OPR report, it will serve the goal of exposing the Lynndie England’s of the torture regime while still protecting those who instituted that regime.

According to the former DCI [Director of Central Intelligence] Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP [President's Surveillance Program] and did not know how the threat assessments would be used. …

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP.

Then the agency lawyers would vet the assessment to determine whether there was “a compelling case for reauthorization of the” surveillance. Tenet or his deputy, John McLaughlin, would sign it. Then the Department of Justice lawyers would get involved. By 2005, owing to bureaucratic changes, the responsibility for approving this threat assessment every 45 days passed to the Office of the Director of National Intelligence, and the responsibility for drafting it went to the National Counterterrorism Center

By the way, White House counterterrorism czar John Brennan was indeed Tenet’s chief of staff in 2001, but he had moved on before 9/11, becoming deputy executive director in spring 2001. John Moseman was Tenet’s chief of staff on 9/11 and afterwards.

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That problem is coming to pass. Last month, reports Mark Mazzetti at The New York Times, McConnell’s successor, Dennis Blair, told the community that he, and not CIA Director Leon Panetta, would select the top intelligence official overseas, possibly from agencies other than the CIA. Panetta told the CIA to ignore Blair. The White House is now working to adjudicate the dispute, but to some degree, the turf battle is the result of vagaries in the 2004 law that created the director of national intelligence. According to Mazzetti, Blair has greater congressional support:

“We need to move intelligence away from the cold war mind-set, and the C.I.A. has a problem to some extent accepting that,” said Senator Dianne Feinstein, the California Democrat who is chairwoman of the Intelligence Committee.

Blair appears not to be fighting for control of Pentagon-based intelligence assets — like the spy satellites of the National Reconnaisance Office or the vast cryptological apparatus of the National Security Agency — with Defense Secretary Bob Gates, even though the Pentagon is estimated to control between 85 and 90 percent of the intelligence budget. Frequent battles for intelligence-community supremacy between CIA Director George Tenet and Defense Secretary Donald Rumsfeld characterized President George W. Bush’s first term. Gates and McConnell attempted to resolve the inherent bureaucratic tension by making the Pentagon’s chief of intelligence and the director of national intelligence’s chief of defense intelligence the same person, a retired Air Force general named James Clapper, who continues to serve as undersecretary of defense for intelligence.

Speculation: This may be a case where the dispute is resolved — temporarily at least — by John Brennan, the White House’s counterterrorism adviser, whom President Obama initially wanted to become CIA director before Glenn Greenwald and other progressives questioned his commitment to ending torture. If so, Brennan will demonstrate that while Blair and Panetta fight it out, he’s the actual center of gravity within the intelligence community.

Perhaps. But according to the Senate Select Committee on Intelligence’s declassified narrative on torture, Rice, as national security adviser in 2002, was the highest-ranking Bush official to approve torture as a “policy” matter. That approval came on July 17, 2002, before the Justice Department’s Office of Legal Counsel gave its legal imprimatur to the torture of Abu Zubaydah. Now, people change their minds all the time, so maybe that’s what happened to Rice, particularly as she became secretary of state and saw what the international outcry from Abu Ghraib meant for U.S. diplomacy. But that’s conjecture. How did the Rice of 2002 evolve into the Rice of 2005 on the issue?

I asked Zelikow after the hearing ended, but he was circumspect. “I did not interrogate Dr. Rice about anything she did in the first Bush administration,” he replied. But he said it would be “useful to find out how the [CIA interrogation] program was understood” by Bush administration policymakers, adding that his experience suggested it was “sold incrementally” to them. The implication — sympathetic as it is to Zelikow’s former boss — is that Rice may not have fully understood what CIA Director George Tenet was asking her to approve.