06/22/16 – Jason Leopold – The Scott Horton Show

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Introducing our friend Jason Leopold, the FOIA ninja, the FOIA terrorist to the government, from Vice News.
Welcome back to the show, Jason.
How are you, dude?
Great to be back with you, Scott.
How are you?
I'm doing very good.
I really appreciate you joining us today.
And we got a bunch of stuff to talk with you about, Mr. Journalist Man, who publishes a lot.
First of all, tell me everything in the whole world that you know about the Salt Pit, starting with what's a Salt Pit, and concluding with, especially, all of the latest breaking stuff you got for us there.
Sure.
Well, the Salt Pit was the name given to a black site operated by the CIA in Afghanistan.
The actual code name of the black site is Cobalt.
It's also referred to as the Dark Prison.
Many CIA detainees who were held there described it as a dark prison because they were held in total darkness.
And there, right after 9-11, around 2002, a number of detainees were taken to this black site in Afghanistan.
Notoriously, or the most notorious incident that happened at Cobalt, the Salt Pit, was the death of a detainee who was held in CIA custody.
It's the only death that we know of related to the CIA's torture program involving more than 100 detainees.
In Afghanistan, right?
Because there was the other guy they killed in the shower at Abu Ghraib, right?
Yeah.
While there's been discussions about that was perhaps CIA involvement there, we just don't have the evidence showing definitively that, hey, this was the CIA and the CIA was responsible.
Correct me if I'm wrong, because I may be confused, Jason, but I had thought that when Durham did his preliminary investigation to see whether he should do an investigation and all that, that it was boiled down to two deaths in CIA custody, not just one.
And I had thought it was those two.
Am I wrong about that?
No, you may actually be right.
So I may be wrong.
Well, I'll check while you finish your other answer.
Okay.
Thank you.
And with regard to, and if you do get that, obviously let me know so I can correct myself.
But what I have is the actual documents that were so highly classified, Scott, we haven't seen them in 14 years.
I got these documents declassified by the CIA, and these are incredible documents about the death of Gul Rahman, a detainee who was captured in Pakistan in October of 2002, rendered to Kobalt, the salt pit, held there for a few weeks, brutally tortured, interrogated by a young CIA officer who had zero experience in operating prisons or interrogations, also interrogated by one of the architects of the CIA torture program, retired psychologist, Dr. Bruce Jessen.
And he died there.
He froze to death.
Or at least the CIA says, or at least the CIA says, the CIA's own internal review and an autopsy said that the most likely cause of death was hypothermia because he was left half naked in his cell, chained to the floor, and basically froze to death because the temperatures dropped dramatically in the evening there.
So now we have this real incredible insight into, one, the operation of this black site.
We have some real details about what this black site looked like, what the makeup of it was, the fact that there were 20 concrete cells, that music was playing 24 hours a day, detainees were diapered, often held in sleep deprivation cells, which I didn't even know existed.
Additionally, we know that the Federal Bureau of Prisons were training the guards there on a shackling technique.
They were providing instruction to guards and even the CIA at this facility.
But what's really remarkable is the circumstances that led to Gul Rahman's death.
To this day, nobody knows, or I shouldn't say nobody knows, nobody has disclosed where his remains are.
He was secretly buried and his family never told about, for seven years his family had no idea whether he was alive or dead and only discovered that he was dead after reading about his case and his ordeal in a news report.
Why this matters now and why this is important now 14 years later?
Well, that's because Gul Rahman's family is suing the architects of the CIA's torture program along with two other detainees who were held in CIA custody.
And that lawsuit, that federal civil suit, has moved forward.
In the past, what we've seen when any detainees or anyone tried to challenge through the courts or to litigate these cases through the courts, the cases were dismissed largely on state secrets.
This is actually the first time where this case has been able to move forward.
And that means that the defendants, or excuse me, the plaintiffs will be able to obtain discovery, will be able to learn a lot more about the role of these two psychologists in the operation of this program and learn more about what the CIA was up to.
But these documents, I'll tell you, are really, really an important contribution to the historical record.
And they really do underscore the brutality of this torture program.
All right.
Well, now, so second to last point first there on this case going forward, do I read you right there that the judge has already rejected a state secrets claim?
That's right.
Yes, he has.
And they attempted that.
And that was not a surprise that the government would attempt that claim.
But this is the first time a judge said, no, you know what, I'm going to go ahead and let this go forward because I don't think that's good enough.
Correct.
And what they have, what the plaintiffs, the ACLU, is doing on behalf of the families and what they have going for them is the fact that you had a Senate Intelligence Committee that released a voluminous executive summary, 500 pages, which did contain quite a bit of detail.
They're still 6,000 plus pages classified about the CIA's program.
And let me just point out that, you know, a little bit of a kind of behind the scenes here, the way that I was able to obtain these reports related to Gul Rahman, related to this inspector general report and other reports about his death and the investigation into it, is that the Senate Intelligence Committee talked about it.
And in their executive summary, they cited footnotes.
And those footnotes were sourcing the CIA documents that they relied upon to draft their narrative.
Just a little bit of, you know, sort of wonky info here.
Those footnotes are incredibly valuable, okay?
And I was able to then take those footnotes and file a Freedom of Information Act request for those documents.
Because once those footnotes are cited, those documents are no longer what the CIA would refer to as operational records or in operational files.
And it meant that, you know, I could then obtain those records.
In the past, if I were to ask for an inspector general report, they would say that that file is maintained as an operational file and it's exempt from FOIA.
So because it was cited in the Senate's torture report, it allowed me to pursue it.
All right.
Now, by the way, just for the footnote, yeah, Manadel al-Jamadi in Iraq, the guy that was hanged with his arms behind his back till he suffocated in the shower there at Abu Ghraib, he was arrested by the SEALs, but he was in CIA custody at the time he died.
And he was the second one that Durham did his preliminary investigation on that went nowhere.
Thanks for noting that.
I'll have to correct myself down the road.
Appreciate it.
Yeah, yeah, no problem.
Anyway, but I mean, and that's its own scandal, right?
Is that even though more than 100 people died, were tortured to death or died in, you know, more or less those type of circumstances in military custody, it was just these two in CIA custody that we know of.
And then they basically just investigated it to death in a way, you know, to deliberately get rid of it.
Let's hold, you know, he started out with this broader investigation.
John Durham, who was not quite an independent prosecutor like Ken Starr was back then, but some kind of special prosecutor.
And he just narrowed his investigation and narrowed it and narrowed it and narrowed it.
So it was just the question of these two deaths.
And then he said, man, we don't really have enough to proceed on this.
And that was it.
They were done getting away scuffery with the whole damn thing.
Yeah, it's, you know, in the case of Gul Rahman, you know, let me just say that after reading these documents, it's amazing.
It's remarkable.
And it certainly calls for an explanation as to why John Durham felt that he could not pursue, you know, a prosecution.
You know, first of all, in Gul Rahman's case, I mean, the CIA inspector general also referred this after, you know, after this investigation took place, referred this to the Justice Department, you know, more than, what, 10 years ago.
And the Justice Department, you know, declined to pursue a prosecution, you know, at the time.
It's really odd.
It doesn't seem to hold up.
I mean, what's amazing here is in this report, there's several reports here.
So let me just kind of give you a picture of what I have.
I have reports that the CIA's counterintelligence officials put together immediately after Gul Rahman died in November of 2002, notifications to Congress about the circumstances behind his death.
So that's an important point.
Congress was notified.
Key senators on the oversight committees were notified about his death in CIA custody in November of 2002.
So they were in the know that there was some sort of program going on.
In January, they were informed about this again.
There was an accountability.
The CIA, you know, put together an accountability review board, which ultimately held no one accountable.
So we have some of those reports.
Then we have the inspector general report that was finished several years later.
So his death and the investigation into it spanned a number of years.
And we have all of that material and we can put it all together.
And what's remarkable is that in one of these reports, the CIA actually blames Gul Rahman for causing his own death.
Okay.
Prior to, before he died, he was interrogated, beaten up, and, you know, he threw his food at guards, threatened to, apparently threatened to kill them.
So he was stripped naked and left in his cell, chained to a wall where he couldn't stand up.
Well, endowed with cold water, I think he's saying.
Endowed with cold water, which, by the way, you know, a couple of months earlier, John Yu, the young Justice Department attorney who was notable, notably wrote the torture memos, which provided the so-called legal justification for some techniques.
You know, some of the techniques that were used on Gul Rahman obviously were not approved for whatever that's worth.
But in preparing some of the reports about his death, they blamed him and said, by throwing his last meal, Gul Rahman was unable to provide his body with a source of fuel to keep him warm.
Additionally, his violent behavior resulted in his restraint, which prevented him from generating body heat by moving around and brought him in direct contact with the concrete floor, leading to a loss of body heat through conduction.
As a result, Gul Rahman's actions likely caused his own death.
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Amazing.
What do you, what, what, you know, I was reading this, Scott.
I was like, what, what is, are they actually blaming him for that?
Well, look, it's just like the, the local news every night.
And then the cop's gun went off and the guy died somehow.
Yeah.
That's how they always do.
It's really amazing, you know, and, and, uh, here we are 14 years later, right?
So I spoke to, uh, you know, I spoke to folks at the CIA, uh, just to get some comments from them.
And, you know, they did say that this is a, a lasting mark on the agency's record.
You know, 14 years later, they do agree that, you know, that, that obviously someone should have been held accountable.
Uh, the, the CIA officer who managed this black site, uh, his name is Matthew Zirbel.
And four months, four months after Ghul Rahman died, uh, the CIA station chief in Afghanistan recommended that Zirbel, uh, who also conducted some of these interrogation sessions with Rahman, that he'd be awarded $2,500 for his quote, consistently superior work.
Uh, this was an officer who the inspector general would later determine, uh, um, did not, uh, provide accurate information when disseminating cables, uh, to CIA headquarters about what was taking place at the black site.
Uh, that, uh, the information was, was, you know, suspect and that the integrity of the information was called into question.
In other words, it was, uh, you know, there was a coverup taking place, although those words were not used.
Uh, it's, you know, it really sort of, these documents really sort of explain, um, this disaster that was the CIA's torture program.
All right.
So let's talk a little bit more about the Bureau of Prisons angle on this.
Um, you know, we know for, for those of you youngsters in the audience, uh, the rule was gloves off, grab whom you must do what you want.
The Geneva conventions don't apply.
We found some lawyers that decided that we can break whatever law we feel like here.
But so that makes sense, Jason, for the CIA, that's their job is breaking the law all day anyway.
But when it comes to the Bureau of Prisons, I'm very interested, you know, in, in what guidelines they were following or thought they were following.
You described them teaching the CIA agents about, uh, short shackling, which sounds like it's a stress position.
Is that the kind of thing that, um, is, for example, I don't know, just off the top of my head, sounds like banned by international law, but allowed by American law.
And that's why the Bureau of Prisons was able to be instructors to CIA torturers here.
Am I understanding this right?
Well, it's a, it's an important question.
And with regard to, uh, that particular technique, uh, which the, uh, documents I have say is safer than hog tying, short shackling.
Um, it's my understanding that that actual technique is prohibited within the Federal Bureau of Prisons.
So there are questions obviously, as to one, why they were teaching this technique, if in fact, it is banned and prohibited within Federal Bureau of Prisons.
Right.
How do they become experts and now they're teachers of the process?
But most importantly, most importantly was the fact that Federal Bureau of Prison personnel were present at this black site, were called to this black site and invited there by, uh, officials at CIA headquarters.
Uh, this sort of, this revelation about the, the, um, uh, presence of Federal Bureau of Prison personnel, uh, surfaced in the, in the CIA's, uh, excuse me, in the Senate Intelligence Committee's torture report.
Now, uh, after that was released, uh, I, you know, filed a Freedom of Information Act request and others did as well with the, with the Bureau of Prisons to get some, to get some documents about, you know, their presence at this black site.
Uh, the Federal Bureau of Prisons said, no, they can't find anything.
Uh, they had no documents.
They, they, they, they can't locate anything and, and, and also refused to discuss it.
However, these, you know, these, these documents about Gul Rahman's death contain a lot more information about the Federal Bureau of Prisons, uh, and, uh, their, uh, their presence at the, you know, at the black site and exactly, um, what they were doing there.
Uh, it says that, uh, uh, these reports I have say, you know, BOP, Bureau of Prison Instructors were assigned to temporary, temporary duty at Cobalt, uh, training guards in restraint techniques, escort procedures, security checks, entrance procedures, cell searches, watch calls, and pat-down searches, uh, and apparently made a number of recommendations to improve security.
Uh, additionally, they, uh, uh, provided, you know, training on this specific technique.
And it was this technique, this short shackling, okay, that, uh, ultimately was sort of the catalyst, uh, behind Gul Rahman's death.
And in the documents, you know, the, at least some of the early ones from the counterintelligence, uh, and counterterrorism officials at the CIA when they were preparing their own reports about it, they were blaming the Federal Bureau of Prisons.
They were blaming Gul Rahman's death on, on the Federal Bureau of Prisons saying, hey, they taught us this, and they said that this technique was okay.
And, uh, you know, it's not really our fault.
All right.
Now, uh, a couple more issues I want to get to here.
Uh, can we go back to this, uh, piece from May?
A promise not to torture, I think, with a wink could be in brackets here, was enough for the U.S. to, uh, transfer detainees, says Declassified Report.
This is about the extraordinary rendition program of the Bush Jr. years?
Yeah, actually, um, this is not about the extraordinary rendition program.
This is about the transfer of Guantanamo detainees.
Oh, this is from Guantanamo.
I see.
Yeah.
Yeah.
Um, it is...
Okay.
I should have read it before I got you on the line.
Look, you know, it's obviously a lot of, look, it, there, there's actually relevance to what you're saying, Scott, because a promise not to torture when detainees were turned over to other governments, uh, was exactly, uh, all the U.S., you know, wanted to hear, even though they knew that would be the case.
Um, so it's, it's, it's the same as it, as it, uh, with respect to renditions.
But this, these, these reports actually, uh, are about, uh, when detainees are transferred out of Guantanamo to other countries.
There have been several detainees who have protested their transfer uh, countries like Algeria, uh, Morocco, because they fear that they will be tortured.
These are countries that are known to, uh, engage, uh, in torture.
And so these reports, um, show that all the U.S. required was just a simple promise that, yeah, we won't torture.
Uh, and then the, and then the, uh, uh, these detainees were, uh, were, um, uh, transferred, uh, from Guantanamo to, to some of these, to some of these countries whose human, you know, countries that have, uh, uh, human rights records that, uh, are, uh, questionable and, um, and, and even criticized by the, you know, the U.S. State Department.
So, you know, in, in, when you look at this administration's efforts to close Guantanamo, it's really important to start looking into what they are doing, uh, how they are trying to get these detainees out.
I can tell you that, uh, you know, just, just a little while ago, I, you know, threw out on Twitter, I, I got some documents about, uh, about the release of, um, about the transfer of some Guantanamo prisoners, uh, completely redacted.
This administration is so secretive when it, when it comes to the transfer of Guantanamo detainees, Scott, that it's, uh, uh, it, it, it's hard to kind of understand what they're doing behind the scenes.
And I think a lot of the questions that Republicans are raising and saying, look, we need more transparency when it comes to this are very legitimate.
Yeah.
All right.
Now, speaking of, uh, transparency, uh, let's talk a little bit about Hillary Clinton's emails, uh, because again, you're the FOIA terrorist here, um, doing the Lord's work on the ground level.
Everybody else is basically playing catch up with what you're doing, trying to find out as much as you can about not just the emails themselves, but the investigation into the emails, this, that, and the other things.
So I guess my first question, if I have to try to rank them would be, do you have any kind of expectation, um, for when the justice department is going to announce that they're not going to indict Hillary Clinton before or after the convention?
You know, I, I honestly have no insight into that at all, Scott.
I mean, uh, we tried, I have two lawsuits.
So I have the lawsuit that the freedom of information act lawsuit that resulted, uh, or forced the state department to release all of her emails that, that, that we, uh, you know, start we're, we're seeing on a monthly basis.
And in addition to that, I have a lawsuit against the FBI to kind of give us more information about what they are doing, uh, and what that, um, uh, what, what, what they, uh, obtained from her server.
Um, you're the one who showed right.
That this is no security review.
This is a criminal investigation.
Uh, that's right.
This is a criminal investigation.
We actually tried to get the FBI to state, uh, that this was a criminal investigation and the FBI would not do that.
They just would not, uh, um, I would say take the bait, if you will, based on my attorneys, excellent arguments in terms of trying to force them to do that.
What they did say is that, uh, they could not release any information to us about what they are doing because it would interfere with their investigation about a week.
This, this happened about two weeks ago, about a week later.
And so that was last week.
Um, a judge in, uh, another FOIA case, uh, actually referred to this and, and, and based on what he was reading, uh, from the FBI, uh, said that this was in fact a criminal investigation.
So let's set that aside.
It is a criminal investigation.
Um, what, what it ultimately means, what it will, uh, what will, um, come of it and when I have no, uh, insight into that at all.
Well, we all know nothing's going to come of it.
That's the real thing.
I mean, as far as any charges against her, but it'll be interesting to see, you know, if, if others are charged or, you know, at least I, and here's, what's the most interested, uh, most interesting part to me that seems to get the least attention, I guess, for obvious reasons, but that is the 30,000 missing emails that, you know, she and her staff, I guess, or maybe her lawyers decided they could just go ahead and delete and never turn over at all.
Now, do I understand the story, right?
That not so fast.
Those emails, in fact, were backed up on the cloud and, or the FBI was able to get past the layers of ones and zeros from the scrubber program and restore those emails and find them and add those to the pile.
Cause I mean, I just got to tell you, I don't believe for one moment that there were 30,000 private emails that were sent during her four years as secretary of state that could be excluded.
I mean, I think that's the goldmine, right?
That's where, that's why she did this in the first place.
So she could delete all the most incriminating ones, you know?
Yeah.
Well, I mean, there's certainly something that's important to know, which is her lawyers chose and decided what was private.
So the claim or the assertion that, you know, 30,000 emails were private comes from Hillary Clinton.
In, you know, if she were using a government email system, other people would determine, you know, whether these communications were private.
So yes, I think it's certainly questionable what, you know, whether or not 30,000 emails actually were deemed to be private.
It's unclear whether the FBI was able to obtain all of it.
It's certainly my understanding that they did, you know, recover some of those deleted emails.
I don't know if it's the full 30,000.
Those are obviously things that, you know, or communications that we were going after as well.
I mean, this is so important.
And by the way, is it, do you know they got them from the cloud, from the company in Colorado, or they were able to recover them from the server after Hillary wiped it?
Or do you know?
It's, from what I understand, it's from the server.
But, you know, Because I'd heard a thing about they had a cloud, they had a backup, they didn't even know it.
And the FBI had that too, but I don't really know.
Yeah.
And look, the FBI is being very, very, you know, they're holding that information close.
What's important though, Scott, is that that you should know, that your listeners should know, is that even after the FBI says that this case is closed, nobody's, you know, hypothetically, whatever they decide to say.
But once the case is closed, my FOIA lawsuit remains active.
And that means that I will be able to obtain the information about this closed investigation and, or at least some of the information.
And, excuse me, I will be able to provide the public with pretty much what went on behind the scenes, or at least be able to piece that together.
So even when it's done, it's not really going away.
Okay.
And it's, it's, it's going, you know, the issues with regard to the emails will remain well into, you know, the general election.
And by the way, if she destroyed those and they plainly, one could argue to a judge, were plainly not private, would she be in violation of any criminal statutes at that point when these are supposed to be public records?
And for example, you have lawsuits in the courts saying, give these records to me.
They're, they're public documents.
Is that, I mean, I don't know if it's obstruction or what you'd call it, but could she be in trouble just for that?
I'm sorry, just for, for deleting emails in the name, you know, calling them private when you could argue that on the face of it, they are not private at all.
They are.
Yeah.
She wouldn't be in trouble for that.
I mean, look, you know, if, if, if I were to just sort of give you an educated guess here or, or, or my what my understanding would be at, at, at, you know, at worst, at best it mishandling of classified information.
Yeah.
What, what kind of like what Sandy Berger did when he kind of, when, when, when he left the White House, I believe with, with, with classified info, I think that that, that's all I, I, I could see right now.
Well, and of course the question is not what could she be charged with?
There's no chance she'd be charged with anything, but just technically which laws has she broken?
Yeah.
Right.
And with regard to deleting emails, no, I don't, I, you know, that that's one of the weaknesses about the federal records act, which requires the preservation of documents is that, you know, there, there's no real severe penalty that's attached to it.
As a side note, it's something that we, and in the, you know, transparency community, the, the, you know, calling on open government open government advocates calling on, on the, the, the, the administration to implement measures that would actually, you know, hold officials accountable for, you know, for, for, for doing things such as this.
All right.
Well, listen, man, you do great work, dude.
You're the leader of the transparency community by a mile, Jason.
And I really appreciate it.
And it's a, it's, it's great getting back with you.
All right, y'all.
That is the great Jason Leopold.
Find him at news.vice.com and tons of great stuff there all the time.
And well, his work was more heavily documented than any other journalists working out there.
Cause that's his beat man.
Documents find him at vice.com and that's the Scott Horton show.
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