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Context of 'October 2, 2002: Closed-Door Congressional Testimony by Top CIA Officials Undercut Conclusions Made in NIE'

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In a congressional closed-door hearing, CIA Director George Tenet and his deputy John McLaughlin appear before the Senate Select Committee on Intelligence to discuss the National Intelligence Estimate (NIE) on Iraq that was released the day before (see October 1, 2002). When Tenet is asked whether the agency has any of its own spies on the ground in Iraq who can verify the NIE’s claims about Saddam Hussein’s alleged arsenal of illicit weapons, he replies that the agency does not. “I was stunned,” Senator Bob Graham (D-FL) later recalls. At some point during the hearing, Levin asks McLaughlin: “If [Hussein] didn’t feel threatened, did not feel threatened, is it likely that he would initiate an attack using a weapon of mass destruction?” McLaughlin responds that under those circumstances “the likelihood… would be low.” But the probability of Hussein using such weapons would increase, McLaughlin says, if the US initiates an attack. [Central Intelligence Agency, 10/7/2002; CBC News, 11/1/2002; Isikoff and Corn, 2006, pp. 138, 141] Senator Jon Kyl (R-AZ) asks McLaughlin whether he has read the British white paper (see September 24, 2002) on Iraq and whether he disagrees with any of its conclusions. McLaughlin says, “The one thing where I think they stretched a little bit beyond where we would stretch is on the points about Iraq seeking uranium from various African locations. We’ve looked at those reports and we don’t think they are very credible…” [US Congress, 7/7/2004, pp. 59] Graham and Levin ask the CIA to release a declassified version of the NIE so the public will be aware of the dissenting opinions in the document and so members of Congress can have something to refer to during their debates on the Iraq war resolution. [Central Intelligence Agency, 10/7/2002; CBC News, 11/1/2002; Isikoff and Corn, 2006, pp. 138, 141] The CIA will comply with the request and release a declassified version of the document two days later (see October 4, 2002).

Entity Tags: Jon Kyl, Carl Levin, George J. Tenet, John E. McLaughlin, Daniel Robert (“Bob”) Graham

Timeline Tags: Events Leading to Iraq Invasion

Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) file an amicus curiae brief with the Supreme Court in the case of Hamdan v. Rumsfeld (see June 30, 2006) saying that because of the passage of the Detainee Treatment Act (DTA—see December 15, 2005), the Court no longer has jurisdiction over the case. Graham and Kyl argue their point by citing the “legislative history” of the DTA, in particular the official statements Graham and Kyl made during debate over the bill, and specifically an “extensive colloquy” between the two that appears in the Congressional Record for December 21, 2005. Graham and Kyl argue that this “colloquy,” which argues that Guantanamo prisoners have no rights under the standard of habeas corpus, stands as evidence that “Congress was aware” that the DTA would strip the Court of jurisdiction over cases that involve Guantanamo detainees. (The Senate included an amendment written by Graham, Kyl, and Carl Levin (D-MI) to the DTA that would reject habeas claims in future court cases, but does not apply retroactively to cases already filed, such as Hamdan.) However, Graham and Kyl never engaged in such a discussion on the floor of the Senate. Instead, they had the text inserted in the Record just before the law passed (see December 30, 2005), meaning that no one in Congress heard their discussion. The brief indicates that the discussion happened during the debate over the bill when it did not. The Record indicates that the discussion that did take place concerning the Hamdan case comes from Democrats, and explicitly state that the DTA has no bearing on the case. C-SPAN video coverage of the debate proves that Graham and Kyl never made those statements, and Senate officials confirm that the discussion was inserted later into the Record. But in their brief, Graham and Kyl state that “the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet… or are underlined.” The Record shows no such formatting, therefore, says the brief, it must have been live. The debate between Graham and Kyl is even written to make it appear as if it had taken place live, with Graham and Kyl answering each other’s questions, Kyl noting that he is nearing the end of his allotted time, and another senator, Sam Brownback (R-KS) apparently attempting to interject a question. Lawyers for the prosecution will strenuously object to the brief, and Justice Department defense lawyers will use the brief as a centerpiece for their argument that the Supreme Court should throw the case out. [US Supreme Court, 2/2006 pdf file; Slate, 3/27/2006; FindLaw, 7/5/2006] Former Nixon White House counsel John Dean will call the brief “a blatant scam,” and will accuse Graham and Kyl of “misle[ading] their Senate colleagues, but also sham[ing] their high offices by trying to deliberately mislead the US Supreme Court.… I have not seen so blatant a ploy, or abuse of power, since Nixon’s reign.… [Graham and Kyl] brazenly attempted to hoodwink the Court regarding the actions of Congress in adopting the DTA.” [FindLaw, 7/5/2006] Their efforts will not be successful, as the Supreme Court will ultimately rule against the Republican position in Hamdan vs. Rumsfeld (see June 30, 2006).

Entity Tags: John Dean, Detainee Treatment Act, US Department of Justice, US Supreme Court, Samuel Brownback, Jon Kyl, Lindsey Graham, Carl Levin

Timeline Tags: Torture of US Captives, Civil Liberties

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