The Secrets of American Power: Unitary Executive Theory, Guantánamo Bay Prison, and Extraordinary Rendition

Rep. Ro Khanna, author Jordan Carver, and reporters Charlie Savage and Carol Rosenberg are this week’s guests.

Photo illustration: Elise Swain/The Intercept, Getty Images

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Venezuela says that Washington’s coup attempt failed. This week on Intercepted: As Mike Pence and Elliott Abrams ratchet up U.S. propaganda for regime change, California Rep. Ro Khanna tells us he is ready to invoke the War Powers Act in an effort to stop military action. He also discusses the economic sanctions, Marco Rubio’s Twitter threats against Maduro, and what he believes the U.S. position towards Venezuela should be. Trump’s new Attorney General William Barr has been a major promoter of extreme executive power throughout his career, including advocating for pardoning Iran-Contra criminals. New York Times reporter Charlie Savage discusses the rise of the theory of the unitary executive and how it and Barr could impact the Trump scandals and U.S. national security policy. Did CIA Director Gina Haspel run a secret CIA black site at the Guantánamo Bay prison after 9/11? A newly declassified transcript suggests she did. Carol Rosenberg, the only journalist covering the Guantánamo prison and trials full-time, joins us for a wide-ranging conversation. She discusses 17 years of reporting, controversies around prosecuting detainees, and the evidence that Haspel’s covert career included a stint at GTMO. Jordan Carver, the author of “Spaces of Disappearance: the Architecture of Extraordinary Rendition,” takes us on an audio journey mapping the covert CIA program.

Movie announcer: If it’s a mission no man can survive, he’s the man for the job.

Mike Pence: Hola, I’m Mike Pence. The vice president of the United States.

Dan Hedaya as Arius: Do you think that he is going to give us any problems?

Vernon Wells as Bennett: He’ll do exactly as he’s told.

MP: President Trump asked me to be here on short notice.

[Glass breaks. Guns fire.]

MP: It’s time to stand with the convoy of aid and medicine and demand that it be brought into the nation.

[Bombs explode.]

MP: Pre-positioning truckloads of medicine and food to the border of Venezuela.

[Guns fire.]

Rae Dawn Chong as Cindy: Are you going to tell me what’s going on or what?

MP: Your birthright of ‘libertad.’

Movie announcer: Commando.

MP: Muchas gracias.

[Music interlude.]

JS: This is Intercepted.

JS: I’m Jeremy Scahill, coming to you from the offices of The Intercept in New York City. And this is episode 84 of Intercepted.

Donald J. Trump: I can do it if I want.

Reporter: So you don’t need congressional approval to build the —

DJT: No, we can use the — Absolutely. We can call a national emergency because of the security of our country. Absolutely. No, we can do it. I haven’t done it. I may do it. I may do it.

JS: On today’s show we are going to be talking about extreme executive power, about the possible conclusion of the investigation of Special Counsel Robert Mueller into Donald Trump’s campaign and their alleged relationship with Russia. We’re also going to look at the new Attorney General William Barr and his views on something called the unitary executive theory. This was what the Reagan administration put into action during and after the Iran-Contra scandal and Barr was one of the legal architects and enthusiasts around this policy. We’re going to be talking to Charlie Savage of the New York Times. And, we’re going to discuss the Guantanamo prison with the leading reporter covering GTMO, the trials, the lack of trials. Well, all things GTMO. I’m talking about Carol Rosenberg. She spent the past two decades covering the prison for the Miami Herald. She was just hired by the New York Times to continue that coverage. She’s also going to tell us what we know about reports that CIA director Gina Haspel may have run a black site at Guantanamo in the days after 9/11.

But first, a few thoughts on the unfolding crisis in Venezuela, which we’ve been covering these past weeks on the show. As of this moment, the Venezuelan government is claiming that the U.S. coup attempt has failed. As one senior Venezuelan official told me, the U.S. and its chosen puppet Juan Guaidó thought this was going to be a Mike Tyson fight where Venezuela goes down in the first round. And that’s not what happened. That may be true. But the U.S. is not going to simply just back away. Vice President Mike Pence, who has been representing the regime change coalition in the Americas was in Colombia posing for pictures with Guaidó and telling him that the United States is standing firmly behind the effort to install him as president.

Mike Pence: The day is coming soon when Venezuela’s long nightmare will end and Venezuela will once more be free. When her people will see a new birth of freedom in a nation reborn to libertad.

JS: As Pence campaigns for this coup in progress, the U.S. propaganda campaign is intensifying once again. Washington and its allies did their best to spark major violence on the borders between Venezuela and Colombia and Brazil and Venezuela with this humanitarian aid stunt. There were violent clashes and at least two deaths that were attributed to Venezuelan forces, but overall, it did not result in the level of bloodshed or wanton violence the U.S. seems interested in fomenting.

MP: I say to the members of Venezuela’s armed forces. You can choose to accept President Guaidó’s generous offer of amnesty, to live your life in peace with your families and your countrymen. But if you choose the other path, continuing to support Maduro, you ultimately will be held accountable.

JS: Now I have also been talking with some top Venezuelan officials who say that the CIA and some Venezuelan defectors have been pressuring Venezuelan officials and diplomats around the world to join forces with the United States and Guaidó. In some cases, according to these officials, they are offering money, protection, even cancer treatment for Venezuelan military and government officials or their families if they join the coup effort. The self-declared president Guaidó showed his true colors over the weekend by using the aid stunt to call for “all options” from the U.S. and its allies, including the use of military force to depose Maduro. One of Guaidó’s allies, a member of the parliament, openly admitted that the aid stunt was just that, saying “If the aid gets in, Maduro is shown to have lost control of the situation. If it doesn’t get in, we show that Maduro doesn’t care for the suffering of the people.”

Let’s remember the facts around this whole manufactured crisis about U.S. humanitarian aid and the silly intervention of that wack-o billionaire Richard Branson and his Live Aid scam. First of all, the U.S. is threatening war over around $20 million in so-called aid. The U.S. sanctions are costing Venezuela about $30 million a day in oil revenue, if John Bolton is to be believed. And the fact is that aid is actually coming into Venezuela — humanitarian aid from Russia, China, India, and other countries. But we don’t hear anything about that. The U.N. and the Red Cross have both rejected the U.S. aid effort as not sincere and have, for now, refused to participate in this bad theatrical performance. If the U.S. truly wanted to help suffering Venezuelans, including with aid, they could work with the U.N. or Red Cross. But that’s not the point of this. The point is to cook up a fake reason to escalate the situation, potentially militarily. And that would be a categorical disaster for everyone involved.

One senior Venezuelan official told me, “We are not asking for people to support the Bolivarian revolution. We are trying to stop a war.” But on this front it is important for all of us to understand that Venezuela is not going to be like Grenada in 1983. The U.S. is not going to be able to just march in and remove Maduro without a serious deadly fight. As this Venezuelan official told me, they are ready for asymmetric warfare and they’re confident that millions of Venezuelans will fight any military action in the country sponsored by a foreign power. They also believe, for now, that the vast majority of military commanders are going to remain loyal to the Maduro government to the end.

Elliott Abrams, the convicted criminal and a participant in the cover-up of mass murder throughout the 1980s, is the man that Venezuelan officials have been told they have to deal with. And Venezuelan officials tell me that Abrams has made it clear to them that the U.S. position is Maduro must surrender. New elections must be held. This whole situation is very ominous. Ominous because of the threats, but also because leading Democrats in the U.S. have thrown their weight behind Trump on this issue. Ominous because the lies and propaganda are being promoted by virtually every major media outlet in the U.S.

California Rep. Ro Khanna Says He Is Ready to Invoke the War Powers Act in an Effort to Stop Military Action in Venezuela

One of the only members of Congress to stand up to the emerging bipartisan consensus supporting regime change in Venezuela is California Rep. Ro Khanna and he joins me now by phone from the U.S. Capitol. Representative Ro Khanna, thanks again for joining us on Intercepted.

Ro Khanna: I’m glad to be back on.

JS: What is your position right now on Venezuela?

RK: Here’s the reality: we need to learn the lessons of past interventions. I mean the U.S. intervention would ironically be the biggest blessing for Maduro. He would go and rally support from his base saying look the U.S. is intervening. There are two possibilities. Either Maduro would stay because our intervention would be ineffective or if we did manage to topple him, you would have a situation where he still has a large base and you would have chaos and a civil war. So, you can condemn Maduro’s policies. You can say that he’s has failed policies but intervention is not going to improve the situation in Venezuela.

JS: Do you support Nancy Pelosi and other Democrats, Dick Durbin, who have explicitly, openly endorsed Juan Guaidó by calling him the legitimate president of Venezuela?

RK: I don’t. I don’t think it’s for the United States to get involved in trying to mediate and choose sides in an internal dispute. And by the way, the U.S. supporting Guaidó is again actually helping Maduro because he’s going to his base and saying look the U.S. is intervening.

JS: What about the U.S. sanctions that have been imposed? You also are calling for a lifting of those sanctions. Why?

RK: By escalating the inflation, by preventing people from having access to basic food, the sanctions are not making it any better. And here’s the thing. It’s actually leading to a refugee crisis and this is the irony. I mean, for an administration that is obsessed about people coming across the border, they are actually aggravating the refugee crisis in Venezuela.

JS: Do you believe that the U.S. is offering this so-called humanitarian aid in good faith? Because the U.N. and the International Committee of the Red Cross have both declined to participate in the U.S. so-called aid because they said it’s actually being politicized. What’s your position on the aid?

RK: I think Maduro should have allowed the aid in. I think that’s a PR loss for him, but I don’t think that Trump is doing it with good intentions. I mean, what they want — because they’re pretty explicit — they thought that this aid would force the confrontation. I don’t think that Trump’s motives were pure by any stretch of the imagination. Do I think that we should participate in providing aid and Maduro should allow the aid in? Yes, but let’s not be naive about what the Trump administration was trying to do here.

JS: Just so I understand you’re saying that Maduro should have allowed the U.S. to bring in this aid unilaterally even without the Red Cross, U.N., or any other NGO that is recognized by the government of Maduro?

RK: Well, I think Maduro lost the PR battle and he shouldn’t be denying aid to his people. I mean, the United States wasn’t crossing Venezuela’s sovereignty. They were willing to put the aid, give them the aid, and he needed to get it to its people. I would not say that anyone should be depriving folks of their aid but that doesn’t in my view, justify our military intervention.

JS: What options would you have available if the Trump administration indicates that it’s going to use military force in Venezuela or covertly begins it and then Congress finds out later?

RK: Well, we could introduce the War Powers Resolution, which we, you know, we successfully did right now on Yemen. Here’s the thing, Jeremy, look, no one is defending people like Saddam Hussein or Qaddafi or Assad or Maduro as good actors. One can view them, in certain cases, as brutal dictators. One could say that they violated human rights. One could say they have failed policies. The problem is in America, the domestic politics tries to conflate condemnation of people overseas, policies with that need for intervention and the record, at least over the past 20 years, is that intervention has often made matters worse. It’s made the humanitarian situation worse and it has not helped our strategic interests. So we need leaders in Congress that say one can have a moral clarity in condemning some of Maduro’s actions, but still have a diplomatic sophistication and nuance to say that the best solution is to have someone like the Pope or Mexico, Paraguay come to a negotiated settlement and that’s going to avoid bloodbath and in the long-term be a better alternative to military intervention.

JS: Is Elliott Abrams an appropriate person to have running point on Venezuela?

RK: No, Elliott Abrams is about one of the worst people given his history to appoint there. And if the president had any sense of consistency with his own foreign policy restraint, he would never appoint Elliot Abrams.

JS: What do you think of the picture of Gaddafi as he was being beaten, sodomized, and murdered that Rubio tweeted clearly as a threat to Maduro?

RK: Gaddafi and Libya is exactly the argument for why we shouldn’t intervene. I mean, after we toppled Gaddafi even Republicans and hawks admit that there was chaos and bloodshed and no plan afterwards. And the same situation would be there with Maduro. So, for us to be leading, the charge of intervention is just not strategically smart.

JS: Ro Khanna. Thank you very much for joining us.

RK: Thank you.

JS: That was Representative Ro Khanna of California. He is a national co-chair for the Bernie Sanders presidential campaign.

We are going to continue to report on this story in Venezuela as events unfold. I also want to add that I was very disturbed by the account of Univision journalist Jorge Ramos about being detained by Maduro’s security forces during an interview in the presidential palace. People should remember that Donald Trump also had Jorge Ramos thrown out of one of his events as well. Before saying more on this, I want to learn the facts surrounding this incident, but I will say that I am totally against any attempt by any government to detain or harass journalists because they were doing their jobs.

[Music interlude.]

New York Times Reporter Charlie Savage Discusses the Rise of the Theory of the Unitary Executive and How It Could Impact the Trump Scandals

JS: It is extremely difficult to put Donald Trump into an ideological box when it comes to foreign policy.

DJT: Never been in Iraq. We have destabilized the Middle East…

We’ll be coming out of Syria very soon. Let the other people take care of it now…

You cannot hide from the choice that now confronts you. You can choose to accept President Guaidó’s generous offer of amnesty, to live your life in peace with your families —

JS: Trump’s approach on North Korea and to the wars in Syria and Afghanistan has raised eyebrows among so-called traditional conservatives. But in other areas, they celebrate Trump’s spirit of unilateralism and overt belligerence. On Venezuela, it seems the neocons are in total control and with William Barr coming onboard as attorney general, Trump has in that office a veteran of the Iran-Contra scandal who knows how to argue for and cover up unsavory covert actions by a zealous president intent on ignoring Congress if it’s inconvenient.

William Barr: As you know, if the Senate confirms me this would be my second time I would have the honor of holding this office.

JS: Barr’s return to the Office of the Attorney General comes as Trump is forging ahead with his so-called national emergency plan in an effort to build his wall on the southern border of the United States. Barr’s confirmation as attorney general is significant now because he came to prominence in an era where new executive power theories were being tested. Barr started his career as a C.I.A. analyst. And then after law school, he joined the Reagan White House whose legal team invented the unitary executive theory, which aimed to reduce the authority of Congress in favor of the executive branch. When Barr served as attorney general under George H.W. Bush, he urged the president to pardon half a dozen officials involved in the Iran-Contra scandal because they had been “unjustly treated.”

To learn more about William Barr’s views on executive power as well as to break down the unitary executive theory and how it has evolved from the Reagan Bush era to the Bush-Cheney era and today to Donald Trump, I’m joined by Charlie Savage. He is a Washington correspondent for the New York Times specializing in national security and legal policy issues. Charlie’s also the author of several books. Among those, his first book “ Takeover” examined the Bush-Cheney administration’s efforts to expand presidential power after 9/11. His second book “Power Wars” is an investigative history of national-security and legal policy of the Obama administration. Charlie Savage, welcome back to Intercepted.

Charlie Savage: Oh, thanks for having me again.

JS: So on February 14th, the Senate confirmed William Barr to be the next attorney general and during those confirmation hearings, there was concern raised by some lawmakers over Barr’s views on executive power. First, just lay out your understanding on how William Barr views presidential powers, and the executive branch’s relationship to Congress.

CS: So, to answer that question you have to start by asking which William Barr are we talking about? There’s the William Barr who spent much of his career in the executive branch in the Reagan and then especially the Bush 41 administration and later while out in private practice, clearly a sort of partisan figure in terms of his commentary to news outlets and the op-eds he was writing. And then there’s the William Barr we saw at that confirmation hearing who was a totally different person.

Lindsey Graham: Do the Article II powers, inherent authority of the commander-in-chief give him the ability to take appropriated dollars for the Department of Defense and build a wall?

William Barr: I can’t — Without looking at the statute, I really couldn’t answer that.

LG: I’m not talking about a statute. I’m talking about the inherent authority of the president as commander-in-chief.

WB: That’s the kind of question, I would go to OLC to answer.

CS: The William Barr we saw at the confirmation hearing was projecting a very moderate, centrist, above-the-fray statesmanlike attitude in which he often said things that seemed in line with mainstream understandings of checks and balances and constraints on what a president could do. But the William Barr who left plenty of writings up until that point and especially the one who came of age in the 80s and early 90s was a totally different figure. And that figure was first the head of the Office of Legal Counsel for George H.W. Bush and eventually deputy attorney general and then attorney general heading into Bush’s defeat by Bill Clinton in 1992, was a stalwart robust believer in extremely strong vision of executive power.

He was using those positions to advance the Reagan-Bush legal teams, development of new theories of executive power in that era in the time in which Reagan and the first George Bush were dealing with a Congress that was at least partially controlled by Democrats and was unwilling or resistant to the Reagan-Bush policy agenda both in terms of domestic policy and foreign policy. And they were developing various novel theories for why Reagan and then Bush could do what they wanted to do without Congressional authorization or indeed even in defiance of Congressional prohibition. And those theories including the very famous unitary executive theory saturated William Barr’s earlier stint in the Justice Department and he wasn’t just a member of the team that was advancing those theories, but he was a key philosopher helping develop and advance them.

JS: Let’s talk about some of the specifics of the unitary executive theory particularly, it kind of came to a head or a twilight in the midst of an aftermath of the Iran-Contra scandal. Essentially Congress was prohibiting the Reagan-Bush administration from directly aiding the Contras in Nicaragua and other groups in Central America. The Boland Amendment sought to prohibit that kind of direct aid. Basically what they did was set up an alternative way of financing the Contras but explain what you think is significant for people to know now about Iran-Contra in the context of William Barr ascending once again to the position of attorney general.

CS: Congress, in the form of the Boland Amendment, prohibited spending of funds to aid this group.

Edward P. Boland: It prohibits any agency involved in intelligence activities from obligating or expending funds for the purpose of which would have the effect of supporting directly or indirectly military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.

CS: The Regan team thought that that was a bad foreign policy. They thought it was important to push back against communists in Central America and they found a way around it by selling arms secretly to Iran at inflated prices in part to get hostages out but also in part to acquire a pool of money that had not been appropriated by Congress and then they directed that money to the Contras. And when this came to light, it raised a constitutional crisis of sorts and the question was whether this was illegal, whether this had violated the Boland Amendment and whether this was an attempt to get around constitutional powers given to Congress to decide where the U.S. government would and would not spend its money. And so there evolved out of this foreign policy dispute — what should we do about the contras, if anything? — a legal dispute about the scope and limits of executive power and whether the Boland Amendment itself was a valid exercise of Congress’s constitutional authorities or whether the Boland Amendment had constituted a unlawful or unconstitutional intrusion into the president’s constitutional authority to control the country’s foreign affairs.

And this was all taking place against the backdrop of domestic policy disputes over Reagan and his push for a deregulatory agenda that Congress after 1982, was unwilling to advance. And out of that came something called the unitary executive theory which was the notion that the constitution lets the president control all powers that are executive in nature. Instead of having overlapping system of separation of powers where each branch sort of Venn diagrams with the other branch and can check and balance it and by sharing authority over certain areas, this was the notion that any power that was executive in nature was exclusively the president’s to control whether that was domestic policy or eventually foreign policy. That theory that Congress could not fracture the president’s control of executive power was rejected by the Supreme Court in a famous 1988 case called Morrison V. Olson, which upheld the independent prosecutor law that Congress had passed after Watergate that said that there could be a prosecutor who’s deciding who to prosecute and that’s an executive power that the president did not control. The 7-1 defeat, there was one recusal, of that theory should have been the end of that, of the unitary executive theory, but the Reagan-Bush legal team, including William Barr, remain quite committed to it.

The Justice Department team, in which Bill Barr was a key figure in 1989, going forward continued to look for ways to explicitly, they wrote memos talking about it, looking for ways to push back against Congressional intrusions, into what they saw as the rightful power of the presidency, to try to limit the impact of that Supreme Court ruling that had rejected their theory and that’s the separation of powers/partisan stew that was the formative experience of William Barr back in the day.

JS: In one of those memos in 1989, Barr outlined how Congress in his view, “intrudes or attempts to intrude into the functions and responsibilities assigned by the Constitution to the executive branch.” He wrote also “only by consistently and forcefully resisting such Congressional incursions can executive branch prerogatives be preserved.” Talk about the other players involved with the modern Republican party embrace when they’re in executive power of the unitary executive, particularly people like Dick Cheney and Donald Rumsfeld.

CS: I mean all these theories that we’re talking about, later in the Bush 43, the George W. Bush administration, get revived and fused with a very strong notion of what the president as commander-in-chief has the inherent authority to do and that’s the core of the famous John Yoo memos about torture and about warrantless surveillance.

Steve Cohen: You articulated a definition of illegal conduct and interrogations explaining that it must “shock the conscience.” Is that, do you remember that? Is that accurate?  

John Yoo: Sir, I believe you’re referring to the memo that was sent by the Justice Department to the Department of Defense in 2003 that defined cruel inhuman and degrading treatment.

SC: Yeah, what’s the answer? Yes, or no? Do you remember that? “Shock the conscience.”

JY: I’m just saying that —

CS: Taking the notion that the commander-in-chief has broad unwritten powers to do what he thinks is necessary to protect national security even if there’s no statute that explicitly says he can do that thing and fusing it with this unitary executive theory that says if the executive has control over something, it has exclusive control or preclusive control and Congress can’t place limits on it, or regulate it, or say that some other person lower in the executive branch gets to decide in their expertise what to do or what not to do. It’s really a decade later in the 9/11 era where all these things get brought together. I’ve likened it to a Reese’s Peanut Butter Cup where the chocolate of the unitary executive theory gets fused with the peanut butter of inherent commander-in-chief power to create this new thing that was more powerful than the sum of its parts.

David Addington, who was the lawyer who worked for Dick Cheney in the Bush 43 administration and in some ways was the most important lawyer in the Bush administration at the time of 9/11 and its aftermath. He controlled not on paper but in practice the Bush 43 legal team and he had worked with Dick Cheney when Cheney was a congressman in the 80s and was on the special committee that investigated the Iran-Contra affair. And while that committee, including Republicans on that committee, in the majority condemned the Reagan administration and said this went too far and this was a violation of the law and the spirit of the Constitution and so forth, there was a minority view in that era of Reagan defenders, chief among them Rep. Dick Cheney, who thought the real scandal was that Congress had passed this Boland Amendment in the first place. In the minority report they wrote is an early sign of where you can see some of these theories starting to emerge that the president is beyond the reach of Congress when it comes to things like what he chooses to do in foreign policy.

Dick Cheney: The vital importance of keeping the Nicaraguan democratic resistance alive until Congress could reverse itself and repeal the Boland Amendment. The fact that for the president and most of his key advisors these events did not loom as large at the time they occurred as they do now; congressional vacillation and uncertainty about our policies in Central America and finally, a congressional track record of leaks of sensitive information sufficient to worry even the most apologetic advocate and an expansive role for the Congress in foreign policy making.

CS: David Addington was a staffer on that committee working for Dick Cheney, comes back with him into power after the 2000 election and uses that position to take these things that were just the academic musings of the minority views report in the Iran-Contra committee and put them into practice essentially. And out of those notions of a presidency that’s beyond the reach of Congress to regulate come things like the torture program, like the warrantless wiretapping program and not just the notion that these steps were necessary as a matter of policy to deal with the threat that became apparent on 9/11, but how they chose to put those policies into place which is to say in secret without going to Congress to ask them to change the law to make torture legal, to make warrantless wiretapping legal. But to just say the president as commander-in-chief and head of the unitary executive is not bound by laws that prohibit things like that and he can just secretly ignore them.

JS: You mentioned earlier John Yoo, the deputy assistant attorney general. He wrote several of the most important legal opinions on the use of so-called enhanced interrogation techniques or torture. Yoo and Addington were both questioned about the Bush administration’s legal justification for torture in front of the House Judiciary Subcommittee in 2008 and this is how Addington defined his view of the unitary executive. He said:

David Addington: The use of the word unitary by me has been in the context of unitary executive branch and all that refers to is — I think it’s the first sentence of Article II of the Constitution, which says all of the executive power is vested in a president United States one president, all of the executive power. Not some of it, not part of it, not the parts Congress doesn’t want to exercise itself. That’s all it refers to.

JS: Explain how they use the unitary executive theory to justify what many people call torture, the enhanced interrogation program.

CS: The move made by the Bush-Cheney legal team around 9/11 was to take that notion that if a power is executive in nature, it’s exclusively the president’s to control. Congress lacks the authority to regulate it in any way. And apply it to the notion that the president as commander-in-chief has unwritten authority when it comes to national security matters. Once the president claims that authority under his inherent unwritten, you know, derivative of the notion that he’s the commander-in-chief and therefore he must be able to do things that are commander-in-chief-y, Congress can’t, Congress can’t place limits on it because of — it’s that two-part move. And once you do that, you have a president who’s beyond the reach of law when it comes to national security matters. That Congress can’t pass a law that says “Thou shalt not torture.” Congress can’t pass a law that says if you’re wire tapping on domestic soil, you’ve got to go to a court and get a judge to agree that the target is probably an agent of a foreign power or has created, you know committed some wrongdoing that justifies this intrusion into his privacy because the president himself gets to decide.

Obviously there are some places where the president has exclusive powers because those are written into the Constitution and everyone can see them. The president can pardon people, you know, period full stop. But what they did was they said because the president is the commander-in-chief of the armed forces, we’re going to read into that that he’s not just the top general in the hierarchy, but that he controls national security-related decisions across this entire sphere, especially in the war on terror sphere that includes, you know, security steps on domestic soil or handling of foreign prisoners and so forth.

What was radical about this vision was that you know, for 200 years the notion that Congress sets the rules, sets rules that establish what executive powers exist in terms of what the government is doing beyond those things that are explicitly granted to the president alone in the constitution. They erased that first step and it’s basically the president sets his own rules when it comes to national security. But that was the John Yoo, David Addington, Bush-Cheney administration legal team. By that point, William Barr has been out of government for a decade and the question is — which we’ll find out now because he’s attorney general as these things come up — is to what extent was he on board for that second maneuver that took these theories he helped develop in the 80s and applied them to the national security realm and to what extent does he see that as a perversion of what they were trying to do back in the 80s and early 90s?

JS: What are some of your concerns about Barr coming on board or not necessarily concerns, but what people should look for with Trump openly pressuring the Justice Department to stop investigating his associates? Now, he’s invoking this emergency power to build his border wall. We think that the Mueller report, maybe at some point delivered soon, Barr will have great influence over how much of that at least initially the public or even Congress will see. How could this play out right now, Charlie, with everything that you know, not just about — this isn’t just about William Barr — about this administration and also the historical context with all these other scandals or programs were talking about?

CS: So, this gets back to what I said at the beginning of this conversation, which was who is William Barr? Is he the guy who left these writings and records and played certain roles back in the 80s and early 90s? And even seemed to be saying very partisan things as recently as a year ago, when he was, you know, denouncing the notion that there was any reason to investigate whether there was collusion between the Trump campaign and Russia; and saying he saw more reason to investigate Hillary Clinton over the debunked conspiracy theory about the Uranium One deal.

WB: I didn’t necessarily think the foundation was, should be criminally investigated, but I did —

Richard Blumenthal: Well, you did say that in the email.

WB: I did, criminally?

RB: Well, let me read that part of the sentence again. “I have long believed that the predicate for investigating the uranium deal, as well as the foundation is far stronger than any basis for investigating so-called collusion.”

CS: You don’t necessarily want an attorney general who invokes that stuff as if it’s real, you know, that’s just part of the noise of the political moment we’re in but you want an attorney general who’s a very serious person and you know ignores stuff that’s obviously a conspiracy theory that’s unrelated to the real world. The Bill Barr in his confirmation hearing was presenting himself as a serious sober person believed in the institution of the Justice Department and the rule of law and was explicitly saying I am going to resist any improper, you know, pressure I might get to shutdown an investigation for corrupt reason. I want Mueller to finish his report. I’m not going to fire him over some concocted reason if I don’t think that there’s a real reason to do so.

Ben Sasse: There’s probably a list of issues where you can imagine needing to resign because of what you were asked to do in the space of so-called protecting the president?

WB: If I, if I was ever asked to do something that I thought was unlawful and directed to do that, I wouldn’t do it and I would resign rather than do it.

CS: The things he was saying and the tone he was striking and the things he was choosing to emphasize and not emphasize were that of a very sober and serious person who did not have you know, esoteric hobby-horse theories that he was going to use his position to advance about the scope of presidential authority that goes beyond mainstream understandings of it. So, of course, he was wanting to get confirmed and get through. What will matter will be what he does when push comes to shove including behind closed doors rather than with the television cameras turned on. You know, we don’t know.

JS: What are the potential paths that this takes once William Barr is given the final report from Robert Mueller?

CS: At some point, we know from the regulations that Mueller is following that he does have to deliver something to the attorney general at the conclusion of his investigation at the very least saying what prosecution decisions he made. And the attorney general then under these regulations has to notify Congress separately that the investigation is over. And if the attorney general has rejected any proposed step the special counsel wanted to take, the attorney general at that point has to notify Congress that that happened and explain why. So in his confirmation hearing William Barr kept saying I’m going to follow the regulations. I’m going to follow the regulations.

WB: That certainly is my goal and intent. It’s hard for me to conceive of a conclusion that would, you know, run afoul of the regs as currently written but that’s certainly my intent.

CS: If he follows what’s envisioned by the regulations, Congress may not get very much here. While the rules do not envision a lengthy narrative report from the special counsel that goes to Congress and becomes public, they also don’t prohibit that. One thing to watch is when he decides to give whatever he gets from Mueller to Congress or his own account of it, does he point to those rules and say, you know, I’m not allowed to give you more than this? Or when he says he’s going to lean toward, err towards transparency and so forth, maybe he’ll say that he can do more than that. When he was talking in his confirmation hearing about, you know, he refused to commit to give them everything but he said he would lean towards transparency, at that point, he himself probably didn’t know what Mueller is planning. He was not read in yet to the conversations between Mueller and Rod Rosenstein about how to bring this counterintelligence, not just criminal investigation, in for a landing. How do we answer the mail here about the desire for the public and Congress to understand what happened in 2016? Whether or not there were also indictable crimes that arose from that very complicated moment in history.

JS: You know, obviously we have the indictments. We have several people that have gone to prison but with the exception of the Russians who have been indicted, it doesn’t seem like there have been any prosecutions or convictions that centered around any sort of a conspiracy between known Russian agents, Russian government personnel and the Trump campaign. Am I wrong in that, Charlie, that it doesn’t seem like there is a single prosecution of a Trump person that is centered around conspiracy to impact the results of the election between Russia and the Trump campaign?

CS: We don’t know what Mueller has found. He’s clearly been holding back all this stuff for some kind of finale. And even these more recent maneuvers with Roger Stone and Jerome Corsi surrounding, trying to get at the question of what kind of advanced knowledge did the Trump campaign have that Wikileaks was going to dump out the stolen emails when they did and trying to prepare the ground for them? All that is getting at the more central question of you know, what were the links between the Trump campaign? What was the knowledge? What were the conversations between the Russian intelligence operation and American political actors? And you know, he’s not done yet. So A, you’re right. None of the indictments so far have been of Americans for conspiracy in the Russian intelligence operation.

You know, it’s premature to say he’s found nothing or what he did find fell short of a prosecutable offense. And of course, he’s not allowed to indict Trump himself. That’s a complication here. That’s why some people want a report even though the Justice Department normally doesn’t talk about what they find about the actions of people that are choosing not to indict because Trump is un-indictable while he’s in office, according to the Justice Department. The confusion or the conflation of the criminal investigation aspect of this with the counterintelligence aspect of it — counterintelligence investigations being aimed at understanding the actions of foreign powers U.S. soil, the motivations behind it, what they did and why, whether or not there’s some criminal statute at the end of the day you can point to and say was violated — is a value unto itself in making sense of the world whether or not someone goes to jail at the end of the day.

JS: Important point. Charlie Savage, thanks so much for always being meticulous and an absolute stickler about the facts no matter how small they are. Thanks for joining us.

CS: Thank you, Jeremy.

JS: Charlie Savage is a Washington correspondent for the New York Times. He specializes in national security and legal policy issues. You can find him on Twitter @charlie_savage.

[Music interlude.]

Carol Rosenberg Discusses the Evidence That Gina Haspel’s Covert Career Included a Stint at GTMO

JS: You don’t hear very much about it these days but the Pentagon-operated prison at Guantanamo Bay, Cuba remains open and, now, new details involving Gina Haspel’s covert past seem to place her at the notorious prison in the early days of the so-called “War on Terror.”

Over the 17 long years of the prison’s use for detention of prisoners merely suspected of having something to do with terrorism: 780 men have passed through its walls. Today, 40 of those men remain. Some of them, like Khalid Sheikh Mohammed, known as KSM, the alleged mastermind of the 9/11 attacks, passed through a secret CIA-operated outpost within the military base, known as a black site.

Although we are told that the CIA black site program has now ended, it was revealed last month that the current CIA director, Haspel, may have had a stint running a CIA outpost at Guantanamo. This is according to a recently declassified transcript from a secret court hearing last year during which Khalid Sheikh Mohammed’s defense lawyer argued that Haspel’s past involvement at the prison makes a fair trial impossible.

We know about this story from the dogged and important work of Miami Herald reporter Carol Rosenberg. She is the only reporter covering Guantánamo Bay full-time. She was there in 2002 when the first 20 detainees arrived. Today, under the Trump administration, more than half of the men who remain at GTMO are still being held indefinitely without a charge or any trial in the near horizon.

When the first 20 men from various countries arrived at Guantanamo, blindfolded, shackled, kept in outdoor cages, Carol Rosenberg was there from day one. She’s been reporting on this very unique beat for close to two decades, and she’s done an incredible public service reporting daily the events unfolding in this secretive world. From the treatment of prisoners, their names and stories, to the complicated military trials, Carol has reported on every aspect of life at Guantanamo. She was just hired by the New York Times, in fact, to continue work on this vital story about this dark chapter in U.S. history.

Carol Rosenberg, thanks for joining us on Intercepted.

Carol Rosenberg: Not a problem.

JS: So, I want to start from the very beginning. Explain how you started covering the Guantanamo prison.

CR: Quite honestly, the Pentagon outfit down here in Miami, the southern command, which I had developed a reporting relationship with called me up and said we’re getting into the prison business. Are you interested in coming along? Before the prisoners ever arrived as you may recall, Donald Rumsfeld was at the Pentagon podium talking about how they were just overwhelmed with these prisoners in Afghanistan after the invasion and that they were looking for an alternative site to put them.

Donald Rumsfeld: I would characterize Guantanamo Bay, Cuba as the least worst place we could have selected.

CR: And he mentioned Guam or Guantanamo and the Guantanamo mention sort of little lights here at The Herald.

JS: What was the strategy? What would have been the benefit of taking prisoners from one side of the world flying them to Guantanamo in the Western Hemisphere? Why not hold them elsewhere or take them into the federal justice system in the United States to put them on trial for their connection to terrorism?

CR: There was no suggestion at that moment that these were criminals. These men were held as the equivalent of prisoners of war in an irregular war. So they didn’t call them POWs. They called them enemy combatants. They weren’t initially planning to charge people. They were “removing them from the battlefield” to make them available for what became, you know, these horribly harsh and cruel interrogations.

DR: Once we’ve interviewed them and figured out what kind of intelligence information they have, if other countries of their nationality are interested in having them for the purpose of prosecution for their behavior and will keep them off the streets so that they don’t go right back and start flying airplanes into our buildings and killing thousands of Americans —

CR: At the very beginning, these planes arrived with these men and young boys who had been captured in Pakistan and in parts of Afghanistan by Pakistanis and allies and handed over to the Americans. If you close your eyes and imagine a photo of twenty men on their knees in orange jumpsuits with blinders on their face, that’s a picture taken the first day by a Navy combat cameraman of the first 20 men in.

Newscaster: Seven hundred men have come through GTMO since the beginning of the war on terror when these pictures of shackled and hooded men shocked the world. Some say past allegations of waterboarding and hunger strikes have turned this place into a terrorist recruiters dream.

CR: And what remains at Guantanamo today, if you’re interested is 40 detainees — five of whom are cleared for arrangements to go, nine of whom have been charged at these military commissions and the rest are what we call the forever prisoners,  the administration calls them law of war prisoners. People who can be held as prisoners of this war for whom there is no one to surrender on the other side. If the war on terror is a war, they are law of war prisoners of that war. They can be held for the duration of whatever constitutes the war on terror.

JS: What do we know of what happened to some of these prisoners these men before they were taken to Guantanamo, but after they were taken into custody by either U.S. allied forces or were sold to other people? Because not all of them were just taken straight from the Pakistani interlocutors with the U.S. and then put on a plane to Guantanamo. Some of them had other stops first including with the CIA.

CR: I did an analysis of how many countries that came from where they were captured before they reached Guantanamo. The common denominator was, with the exception of the people who came straight from CIA black sites, they were all fed through Afghanistan, Bagram. But they were captured in places like Thailand, Georgia, Azerbaijan, Mauritania. I think that’s a pretty famous well-known case, right, of Mohamedou Ould Slahi.

Dominic West reading Mohamedou Ould Slahi’s writing: One of them hit me hard across the face and quickly put the goggles on my eyes, ear muffs on my ears, and a small bag over my head. They tightened the chains around my ankles and my wrists. Afterwards, I started to bleed. I thought they were going to execute me.

CR: Some of the cruelest treatment by the U.S. military of a detainee at Guantanamo.

JS: I wanted to ask you about one of the recent pieces that you did that relates to Gina Haspel, of course Gina Haspel nominated and then confirmed as CIA director, nominated by President Trump. And according to the story that you did for McClatchy, in conjunction with the Pulitzer Center on Crisis Reporting, you say that an attorney for the accused architect of the September 11th attacks told the judge in a secret session last year that CIA director Gina Haspel ran a secret agency outpost at Guantanamo. Explain what you know about Gina Haspel and this other agency outpost at Guantanamo.

CR: The black sites of Guantanamo are one of the many secrets that the CIA keeps still about the RDI program, the black site program. We know it was there. We don’t know who ran it. So, there was the secret prison within a prison. In parallel over at the 9/11 trial —

Newscaster: The Pentagon says six detainees at Guantanamo Bay in Cuba being held for the September 11th terrorist attacks may face the death penalty. Among those held at Guantanamo and expected to be charged is Khalid Sheikh Mohammed, the suspected mastermind of the attack six years ago.

CR: They hold these secret sessions in which they discuss classified information, lockout the defendants, lockout the public and through a lot of effort by frankly, myself and other reporters and other people who are interested in transparency, we got an accommodation from the court that they would take the transcripts of these secret sessions and un-redact the part that was not classified. In the transcript, one of the attorneys for Khalid Sheik Mohammed tells the judge, you know, because of the secrecy and all of the regulations and restrictions on defense attorneys, who by the way have these top-secret clearances, can know the nation secrets, are bound to keep them, but because of these additional restrictions, we can’t even ask people if they recognize Gina Haspel when she was here running the black sites.

And I look at the words on the page and I’m like Gina Haspel ran a black site at Guantanamo? It’s been widely reported that she certainly ran a black site in Thailand and the Guantanamo episode continues to be you know, really mysterious. And then I begin, I go on a mission to try and figure out the truthfulness of this and as you would know, Jeremy, those who know for sure can’t say but those who know the program have a context where they can talk about it. I’m not saying it’s a fact. I’m saying this piece of information was declassified. The CIA won’t confirm it. They won’t deny it. One of the reasons it makes perfect sense is that what they have acknowledged is that she had a number of covert short-term assignments that they will not describe throughout her career and that would fit perfectly within it.

JS: If this is true about Gina Haspel, in your view, what is the significance of it now that she is CIA director?

CR: Let me answer that but let me just say one thing — It is well within her power to answer that question. It is not that she is bound by any sort of classification. She just wants to be both the director of the CIA and in solidarity with the people who are still undercover saying, I’m not going to say what I did because then you can feel safe that I’m not going to say what you’ve done. But the significance would be and that was the point of the argument in the secret session is that whatever they told the people in the black sites is not admissible at a trial, certainly not admissible at a death-penalty trial and not admissible at a military commission. And the defense attorneys who are trying to disqualify statements that these men made as either tortured, unreliable, unlawful, inadmissible want the details of who did what when, including at Guantanamo and one of the people that stands between them knowing it and them being able to use it in court is Gina Haspel who controls what information is made public about the black sites. There has been a lot of debate about what she did. She’s a proud member of the agency. She says in her testimony, you know, the agency is not getting back into the prison business, the black site business.

Gina Haspel: I can offer you my personal commitment clearly and without reservation that under my leadership, on my watch CIA will not restart a detention and interrogation program.

CR: If she is leading an agency that is turning the page on the past and trying to convince those who are concerned about human rights and the rule of law, that we are going forward, I think she should let us know what she did. The CIA black sites there and who came through there and what was done there and where it was done, is a really important chapter and it bleeds over into these death penalty trials all the time. The USS Cole case — there’s a Saudi man named Abd al-Rahim al-Nashiri who’s accused of putting together the bombing of the USS Cole.

JS: Just to remind people this was in the year 2000 in the Gulf of Aden off of Yemen’s coast. You had an attack on a U.S. ship that killed 17 sailors.

Thomas W. Hartmann: The charges which will be translated and served on Mr. al-Nashiri allege facts surrounding his involvement in the attack on the USS Cole in Yemen on October the 12th, 2000.

CR:  Abd al-Rahim al-Nashiri is brought to Guantanamo and then taken away and when he comes back in 2006 and is eventually charged and gets attorneys, his attorneys litigate where they can meet with him. Because one of the arguments is the CIA may have let these people go, given them over to military custody, and allowed them to see lawyers, but they are either constantly re-traumatized by what was done to them. He was waterboarded. He was held nude. He was threatened with a drill at his head while he was hooded. He was packed into a little coffin style box to drive him mad and the argument is there are things at Guantanamo that re-traumatize them that make it impossible for him to participate in his defense. The CIA’s role at Guantanamo before they got there and after they got there according to the defense attorneys overshadows everything.

I’ll give you one example. Early on some years ago, they were doing some oral arguments in the court. The public hears the court on a 40 second delay in case somebody spills a secret like names an agent who’s not, the public can’t know. So there’s a security officer inside the court who has a kill switch, a mute button as does the judge and if something is said, he can hit the button. With the 40-second delay, we hear white noise and whatever was the national security secret doesn’t get spilled. That’s the way it’s supposed to work. Well, one day the lawyer for KSM is arguing about access to information about the black sites. There’s nothing secret about it. But when he utters the title, we don’t know this till later, somebody switches off the audio. Someone hits the mute button.

[White noise.]

CR: And we watch the judge look at the security officer, the security officer look at the judge and neither of them did it. Somebody outside that court had the ability to silence the court. Have you ever heard of a court where the judge doesn’t even know or is not in control of what the public can hear or know? By the end of the week, the judge has ordered them to unplug. If anyone out there is out there, unplug. And then the defense attorneys continue to want discovery on this episode and the defense attorneys continue to argue for information on it. And what they learn leads one of them to tell me many months later — the story’s written with his name attached — that was the CIA on the other end of the button. How he knows that, why he knows that, I can’t tell you. This is the thing about Gina Haspel and so many things that go on in Guantanamo. As a reporter, you want to be able to demonstrate that it’s more than someone saying something but if it’s going to be someone saying something and there’s no second source, they’ve got to say it with their name attached.

That’s the way I report. But the reason I report which is what I wanted to talk to you about was the Miami Herald decided that if the Bush administration was going to build a court and a prison out of reach of the American people, it would not be out of reach of American journalism. The American media industry is not committing to that level of detail of coverage to almost any story anymore. We cover the story so far as a full-time commitment because it is an American enterprise. It is not the Pentagon’s court and the Pentagon’s prison. The United States did this. The United States owns this. Readers should be able to know what’s going on down there. It’s the right thing to do. And so, if I don’t do it, somebody should do it, right?

JS: I think both you and the Miami Herald deserve so much credit. I want to make sure that we explain to people what’s going on in the trial and case of Khalid Sheikh Mohammed. You’ve continued to report on his case. Explain a bit about his journey, how he ended up there, what we know about his alleged involvement in 9/11, and also the challenges and the difficulties that his legal defense team has been facing.

CR: The bottom line is he gets captured in March 2003.

Newscaster: Pakistani authorities have finally found Khalid Sheikh Mohammed. A joint Pakistani-U.S. operation led to Mohammad’s arrest. Authorities believe he’s the mastermind behind the September the 11th terrorist attacks.

CR: He’s carried off to a series of black sites. We know that he gets waterboarded 183 times.

Newscaster: Khalid Sheikh Mohammed was strapped to a board, tilted, head down, a cloth placed over his face and water poured over his mouth to give the sensation of drowning, but Rodriguez tells Stahl that Mohammad was tough. They had to pour the water more than 180 times.

CR: We know that he arrives at Guantanamo, a U.S. military officer acting as his representative reads a statement by KSM in which he says “I ran the 911 operations from A to Z,” and that takes place in ’07. He’s currently facing trial with four other men, capital trial, death penalty trial on charges and an arraignment that happened in May 2012. During the Bush administration, there was a failed effort to mount a trial. They wanted to plead guilty, they say. They didn’t allow them to plead guilty. The military commission created by Congress doesn’t allow someone at a death penalty case to say, “yeah, I did it. Kill me now.” The argument would be that the CIA so thoroughly programmed them to own up to behavior. It’s not a valid confession that comes later because we are incapable of knowing what’s truth and what’s been planted. We are way in the pre-trial proceedings. There is no trial date. We’re on our second judge. So much of what the defense attorneys have been doing is arguing for access to information that the CIA won’t give them because they’re considered national security secrets.

And so what’s gone on for these years is this kind of balancing act. Do you want justice? Or do you want to keep your secrets? Can you have both? What should defense attorneys who have top secret clearances and can’t tell the public but can tell a judge with a top secret security clearance — What are they entitled to know?

Well, the CIA has basically said over and over again “we won’t let them know it.” This is an ambitious death penalty trial in an expeditionary setting using a law that was just created and has never handled a death penalty case. I don’t have any idea when we’re going to get to even discussion of jury assembly. Getting there has been so complicated by location, the nature of the new court, and frankly, that those three and four years when they took the defendants and disappeared them into the dark sites rather than taking them to New York City and charging them in federal court.

JS: What does it mean that Guantanamo is still open, holding prisoners? Is this prison, as we have known its existence post-9/11, is it ever going to close?

CR: Because Congress has said that you can’t move them to the United States and forbidden anyone who’s held as a detainee at Guantanamo to be transferred to the United States for any reason for trial, for detention, for medical care. The reality is it sounds very much like it’ll exist until the last detainee dies and they can shut it down. If you hold people as indefinite detainees in the war on terror, don’t charge them with crimes, or if you have a lifetime convict like Ali Hamza Bahlul, it doesn’t go away. Many of these men aren’t chargeable. They’re not accused of being criminals. They’re accused of being foot soldiers for an enemy force which currently has no leader to surrender. You know, that’s the way war’s end. So, if you’re asking how Guantanamo ends, I have no idea. What is Guantanamo today? Guantanamo today is 40 detainees, one of them convicted, and a revolving force of about 1,400 U.S. troops, mostly National Guard coming down there without family on nine-month tours going to the beaches and bars of the base on weekends and then going home and going back to their lives. And it’s a temporary prison, which really has no capacity to be shut down.

JS: Well, Carol, I want to thank you very much for all of the incredible work that you’ve done and the dedication that your colleagues and editors at the Miami Herald had very, very early on in this story. Thank you so much for joining us.

CR: Thank you.

JS: Carol Rosenberg is the only reporter covering Guantanamo full time. She’s been doing this work for many years at the Miami Herald. She was recently hired by The New York Times and she’s going to continue to report on Guantanamo.

[Music interlude.]

Jordan Carver, the Author of “spaces of Disappearance: The Architecture of Extraordinary Rendition,” Takes Us on an Audio Journey Mapping the Covert CIA Program

JS: The German political philosopher Hannah Arendt posited that true democracy occurs in the open where it can be seen, in what she called “spaces of appearance.” But what happens when those spaces are intentionally hidden away from the public?

It’s clear that U.S. forever-wars have relied on constructing regimes of secrecy in order to circumvent democratic processes — to “operate on the dark side,” as Dick Cheney once infamously said. In these hidden spaces, anything is possible: the Geneva Convention is rendered meaningless, and a vast network of systematic kidnappings and brutal torture can blossom in remote corners of the globe.

There’s a new book that explores this dichotomy of spaces, both real and political. It’s called “Spaces of Disappearance: the Architecture of Extraordinary Rendition.” Its author, Jordan Carver, is a writer, researcher and the Henry M. MacCracken Doctoral Fellow in American Studies at New York University. Carver has a formal background in architecture and he seeks to create an understanding of the dark side by making it visible. “Spaces of Disappearance” is a comprehensive visual history of the Bush administration’s detention and interrogation program. The spatial layouts of CIA black sites, interrogation rooms, and prison cells are rendered in architectural diagrams, recreated from the account of prisoners held in those sites. Alongside other visual elements — satellite images of the black sites in Romania and Afghanistan, snippets of the insidiously bureaucratic memos justifying torture, and photographs of the actual prisoners of this program — the book places the reader in these once unknowable spaces, to make an incomplete history seem slightly less incomplete.  

To guide us into the spaces of disappearance, here is Jordan Carver.

Newscaster: Yeah, this just in you are looking at obviously, a very disturbing live shot there. That is the World Trade Center and we have unconfirmed reports this morning that a plane has crashed into one of the towers of the World Trade Center. CNN Center right now is just beginning to work on this story obviously calling our sources and trying to figure out exactly what happened but clearly something —

Jordan Carver: The moment of September 11th had a very unique aesthetic register in the way that the public or even the government understood the attacks and then the aftermath.

Newscaster: So this looks like it is some sort of a concerted effort to attack the World Trade Center that is underway in downtown New York.

Newscaster: We will see that scene again just to make sure we saw —

JC: There was these images that we understood with terrorism writ large but also America’s involvement in these conflicts through redactions, through government reports, through a layer of secrecy. Secrecy itself as a type of aesthetic experience. So, when we think about these black sites, they’re unknown. The redactions on the page all have a way of mystifying and of blurring what we understand about what’s going on, what the government says it’s doing versus what we know and that allows for all sorts of activity to happen all sorts of nefarious things. And I think that the enhanced interrogation techniques program was one of those things that existed underneath this blanket of secrecy.

DR: Reports that say there’s that that something hasn’t happened are always interesting to me because as we know there are known knowns. There are things we know we know. We also know there are known unknowns. That is to say we know there’s some things we do not know. But there are also unknown unknowns the ones we don’t know we don’t know.  

JC: The idea of the unknown known, the known known, these are choices that were made. This framework of knowledge and unknowing was specifically generated. It was designed in that there were documents produced. There were sites, methods of construction that all required a lot of thinking, required a lot of thought. But it was also designed in a way to forgo a political contest. So, when things are hidden when things are subverted, democratic processes can’t play out.

George W. Bush: Now, this war will not be like the war against Iraq a decade ago with a decisive liberation of territory and a swift conclusion. It will not look like the air war above Kosovo two years ago, where no ground troops were used and not a single American was lost in combat. Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle but a lengthy campaign unlike any other we have ever seen.

JC: So, shortly after the September 11th attacks, a state of emergency was declared and special powers were given to then President George W. Bush, the AUMF. This also produced a lot of legal reasoning within the upper echelons of the White House and the Department of Justice. Legal action was taken, memos were generated, legal opinions were rendered on how the best way to fight this new war was going to be. So we can see that there is a concerted effort to construct both a legal framework and a spatial framework that allowed the administration to operate in extralegal terrain. Spaces in between, say like Guantanamo Bay. Spaces that we could operate but not within the full jurisdiction of American jurisprudence. To actually figure out what we can do to these people and where we can do it.

GWB: So I said to our team are the techniques legal and a legal team says, yes, they are and I said use them.

Matt Lauer: Why is waterboarding legal, in your opinion?

GWB: Because the lawyer said it was legal. He said it did not fall within the Anti-Torture Act. I’m not a lawyer.

JC: With that legal reasoning you saw proliferation of sites. So, in Thailand, in Afghanistan, in Romania, in Lithuania that used these documents as a type of justification, producing lists of techniques that could be used on prisoners, slapping, sleep deprivation, etcetera. It was not necessarily that torture and that these spaces could be created because there was no law, it was a thought that the law actually produces these spaces. The law produces a framework in which people can be waterboarded, not the removal of them.

GWB: This government does not torture people. You know, we stick to U.S. law and our international obligations.

JC: The way that the human body was rendered in these opinions was not necessarily as a human body, but as a type of valuable informational asset. And so when you strip out any type of humanity, when you strip out things like the Geneva Conventions and you strip out other norms of warfare and you’re left with creating new ones, it is easy to remove the human body from that and see that only as a type of threat.

GWB: The American people expect their government to take action, to protect them from further attack and that’s exactly what this government is doing and that’s exactly what we’ll continue to do.

JC: So very quickly after the attacks, prisons were set up. The first ones being in Thailand and Afghanistan and the CIA was allowed to take suspected terrorists off the battlefield and rendition them to these sites.

Dick Cheney: We also have to work the, sort of, the dark side, if you will. We’re going to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate it. And so, it’s going to be vital for us to use any means at our disposable, the disposal basically to achieve our objective.  

JC: So they were usually handcuffed. They were blindfolded. They had earmuffs put on them. They had diapers put on them. Oftentimes, they were drugged. And this is a type of sensory deprivation to remove them from any sense of time or place. When they would regain consciousness or when they would land in their desired location, they wouldn’t know where they are and they would be placed into these spaces where they could be say waterboarded. They could be slapped or they could be walled which is another term where they could throw the prisoners against walls. As the program progressed, the cells in Thailand or in Afghanistan started to mature. So we started to see purpose-built facilities in Romania and Lithuania that used prison cell technology that was constructed, built, designed in America, but shipped over into Eastern Europe, same that you find in many prisons in the United States. They’re smooth. They’re gray. They don’t have windows and that produced another type of dislocation. The kind of banality of your environment where you have no idea what time it is and you have no idea where you are. That’s a very specific thing that the design of the space has allowed the prisoners to feel. And so, you saw this production of goods and distribution that mirrored mass incarceration here in the United States.

GWB: The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know. Many specifics of this program, including where these detainees have been held and the details of their confinement cannot be divulged.

JC: Many of the prisoners were taken to Guantanamo Bay.

Newscaster: The Guantanamo Naval Base, key Cuban base for the servicing of U.S. ships in the Caribbean carries on business as usual in the face of Castro accusations and harassments. A U.S. outpost on guard.

JC: Guantanamo Bay was not the end of their trip but almost the beginning because it was the legal reasoning and rationale of America’s control over Guantanamo Bay. So, if you can have a naval base there, it can be governed by other types of laws and the warehousing of these prisoners that had been rendered beyond their use as vessels of information, they exist in this sort of suspended state where the trials are painfully slow, and they never seem to be getting anywhere.

Barack Obama: You know, obviously I’ve been very clear that Guantanamo has to be closed, that some of the practices of enhanced interrogation techniques, I think ran counter to American values and American traditions. So I’ve put an end to these policies. I am a strong believer that it’s important to look forward and not backwards.

JC: Barack Obama campaigned on closing Guantanamo Bay. But once he was elected it didn’t seem to be at the forefront of his administration’s policies and at the same time, Obama did acknowledge that many of these prisoners were tortured.

BO: In the immediate aftermath of 9/11, we did some things that were wrong. We did a whole lot of things that were right. But we tortured some folks.

JC: And that acknowledgement also lead to the question, so what do we do now? And now, the Trump administration’s very cautious and loath to release any of them.

DJT: GTMO, right, Guantanamo Bay which by the way, which by the way, we are keeping open, which we are keeping open. And we’re going to load it up with some bad dudes, believe me. We’re going to load it up.

JC: In late 2014, before the House switched from Democrat to Republican control, Senator Dianne Feinstein rushed out the Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, which is colloquially known as the torture report.

GWB: We’re fortunate to have men and women who work hard at the CIA serving on our behalf. These are patriots and whatever the report says, if it diminishes their contributions to our country, it is way off base.

JC: The report contained hundreds and hundreds of footnotes and incredible amount of reductions and these redactions hid what really we wanted to know. Because of the redaction and because of the political spectacle around it, it allowed us as the public to think that there was some sort of accountability, to think that there was some sort of justice being done. But in fact, I think the redactions open up a new type of unknowing. That the black boxes on the page are a type of abstraction that allow us to fill in with our own opinions, our own political ideologies, and importantly our own conspiracy theories, allowing different narratives to take hold because of a lack of information.

It’s another turning of the wheel of this kind of unknowing quality towards the whole program, this lack of information. So, we still don’t know what happened. We still don’t know who the key players were. We still don’t know the full names and the places of the people involved, where all the prisons were, who administered them, and only through like little pieces of information have we been able to try and construct this larger picture.

Dianne Feinstein: Are you an advocate for destroying the tape?

Gina Haspel: Senator, I absolutely was an advocate if we could within and conforming to U.S. law and if we could get policy concurrence to eliminate the security risk posed to our officers by those tapes and the consistently —

DF: Are you aware of what those tapes contained?

GH: No, I never watched the tapes but I understood that our officers —

JC: According to the CIA’s own accounting Gina Haspel was in charge of destroying 92 cassette tapes that showed interrogations on prisoners in Thailand, black site green or “Cat Eye,” as it is known. Those tapes were destroyed because they contain the visuals of U.S. officers interrogating and possibly torturing suspected terrorists. And they were destroyed specifically so they wouldn’t become public knowledge that those visuals would not circulate around the world both within our country and abroad.

GH: Our lawyers were very consistent in saying to us that there was no legal requirement to retain the tapes, no legal impediment to disposing of the tapes. I’m not a lawyer but I believe the basis for that judgment was the fact that there was a complete and written detailed record of the interrogations.

JC: That’s a repression of evidence. It’s a repression of information. It is furthering this question of unknowing that goes back to a denial of the democratic process that without full accountability, how can we judge these people? Are they fit for office or are they not? And this came back with the case of Gina Haspel in amazing fashion that she is now the head of the CIA. And this history was specifically not discussed because it is secret, because it can’t be known, because this information is too dangerous.

What’s very clear is that the George W. Bush administration was filled with ideologues that were incredibly intelligent, that knew how to produce the policies that they wanted. It’s hard to understand perhaps what sort of policy and ideology that Donald Trump has would produce because it’s very unclear that Donald Trump has any sort of ideology other than maintaining his own presidency.

William Barr is the new attorney general and he comes from this lineage that believes in the strong executive, in the unitary executive and he actually knows what he’s doing but it actually takes an idea. It takes a desire. It takes an ideological understanding of the world. In the Trump administration, be aware of the people who know what they’re doing because they are the ones who can actually produce things that we don’t want them to produce.

JS: Jordan Carver is a writer, educator and the author of “Spaces of Disappearance: The Architecture of Extraordinary Rendition.” Jordan is a contributing editor to the Avery Review, a core member of Who Builds Your Architecture? and a Henry M. MacCracken Doctoral Fellow in American Studies at NYU. He spoke to our producer Jack D’Isidoro.

[Music interlude.]

And that does it for this week’s show. If you are not yet a sustaining member of Intercepted, you can log onto to join the more than 3,000 other people who have already become sustaining members of this program. Intercepted is a production of First Look Media and The Intercept. We’re distributed by Panoply. Our producer is Jack D’Isidoro and our executive producer is Leital Molad. Laura Flynn is associate producer. Elise Swain is our assistant producer and graphic designer. Rick Kwan mixed the show. Transcription is done by Nuria Marquez Martinez. Our music, as always, was composed by DJ Spooky. Until next week, I’m Jeremy Scahill.


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