CIA Met with White House about How to Respond to Jane Harman’s Torture Warnings

After being briefed on February 5, 2003 that the CIA had used waterboarding and intended to destroy tapes depicting that torture, Jane Harman wrote CIA General Counsel Scott Muller a letter raising concerns. Harman warned CIA they should not destroy the torture tapes, whether or not they constituted an official record.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

And she asked directly whether President Bush had bought off on torture as a policy.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In his response to her, Muller basically ignored her warning about the torture tapes. And he gave her a very indirect answer to the question that–under the National Security Act–she should have been able to get a direct answer on, whether or not Bush had signed off on the torture.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

As it turns out, Scott Muller was not acting alone when he largely blew off Harman’s concern. Document 28 of the CIA’s Vaughn Index on the torture tape destruction reveals that CIA met with the White House about its response to Harman. (There’s also a one-page draft of the letter to Harman dated February 19.) The Vaughn Index describes the second email, which has the subject “Harmon Letter,” this way:

This is a one-page email, discussing a meeting between CIA and the White House regarding the CIA’s response to a congressional inquiry. The document also includes the draft text of a letter to Congress. This document contains information relating to the sources and methods of the CIA. The document also contains predecisional, deliberative information, CIA attorney work-product, and information provided by a CIA attorney to his client in connection with the provision of legal advice.

Thus, even though Harman’s letter and Muller’s response have been declassified, the CIA is claiming that we can’t know what Muller advised (himself? Bush? Tenet? Precisely who is the CIA General Counsel’s client, here?) about how to respond to Harman’s inquiry.

So we know that the White House weighed in on how to respond to Harman. We’re just not allowed to know how they weighed in.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

46 replies
  1. BoxTurtle says:

    We know how they weighed in: “Destroy those tapes, anything else remotely resembling them and screw the Harman b***h”

    Boxturtle (Though the actual phrasing was probably a little more diplomatic)

  2. WilliamOckham says:

    Check out Doc 42:

    12/20/2002
    Email
    Secret
    Subject: Draft/outline of leaks memo turn into memo form

    This is a two-page email that is requesting formatting of an attached three-page memorandum. The memorandum requests approval for the destruction of the video tapes.

    Leaks memo?

    • emptywheel says:

      Saw that. Look at the timing: they intensify their panic about the OGC review at the same time as one of Nashiri’s interrogation reports gets liberated within CIA. SO I suspect that may have been the precipitating issue for the review, though OGC claims it was random (ha!!). So I suspect that they were after Nashiri related leaks.

      BTW, I can’t tell whether I’m revising my opinion that Rizzo is as corrupt as fuck, or whether I think he’s even more corrupt than I thought. I guess, the 2007 discrepancy might help me there…

      • WilliamOckham says:

        I see what you mean.

        I feel like I’m being a little scattershot here, but I keep seeing things I missed before. For example, did you notice that the earliest document in the index is a request for guidance on tape retention (on 4/17/2002, so that’s right after the start of the AZ interrogation), but there’s never any reply. As you know from the earlier Vaughn indexes, there were cables flying back and forth between CIA HQ and Field during that time period, but nobody responds to the question about tape retention. The subject doesn’t come back up until 8/20/2002, after the the waterboarding starts.

    • emptywheel says:

      As I’ll show, she did a particularly good job of fucking with their plans to destroy the tapes.

      THere’s a big debate about whether they are “official records” in anticipation of the briefing. In her letter, she says, I don’t give a shit if they’re official records or not.” But later that year, there’s still correspondence within CIA about whether they’re records or not.

      • bmaz says:

        I have got to run out, but back around the time this first started, there was big mention of the “official record” BS and I took it apart at the seams. And that still does not address the evidentiary question in the least anyway. It is a red herring and fraudulent argument.

        • emptywheel says:

          Oh, I understand.

          WHat I’m saying is that they appear to have been trying to maintain fiction that these weren’t official documents. And Harman crafted her letter–IMO–in such a way as to screw that up for them, too.

      • earlofhuntingdon says:

        As with White House e-mails, I suspect that whether taped interviews of suspected terrorists were official documents is not really a close call. It’s just a pigeon hole to sidestep oversight. Even if the interviewees were third party government operatives or contractors/mercs, the CIA certainly obtained the tapes, framed issues and questions to be asked, and purchased the results. I’d like to know how that makes them anything other than “official documents”.

  3. WilliamOckham says:

    I misread the description of that 4/17/2002 document. It’s actually guidance from a CIA attorney to his client about tape retention. That changes a lot, actually. We don’t know what guidance the CIA attorney gave, but I think we can assume he didn’t say “destroy them now”.

  4. QuickSilver says:

    Good for Jane Harman, who has conclusively demonstrated better CYA instincts during the Bush era than Jay I’m-Gonna-Sit-Right-Down-And-Write-Myself-A-Letter Rockefeller… And here I was thinking she just didn’t mind if things got a little rough!

    But at the end of the day, however, isn’t it the CIA which committed torture, and the White House which authorized them to do so? So what did I miss here?

  5. WilliamOckham says:

    Btw, there was a four part Vaughn index of 154 documents from the OLC that the ACLU put up week before last. You can find them on the ACLU’s main Torture FOIA page (scroll down)

    I’m looking at those (and my compendium of previous FOIA docs) to see if we can tie anything there with the tape destruction. It would be interesting indeed to find out that the OLC weighed in on the tapes. So far, the nearest point of intersection is the Moussoaui trial.

  6. earlofhuntingdon says:

    Some of those documents requested would disclose “sources and methods” used by the CIA? Yep, in how it lies to Congress. I don’t think that’s a legit. exception to the obligation to disclose.

  7. MadDog says:

    I would note that both the text on page 2 and Footnote 1 of Wendy Hillman’s latest declaration (28 page PDF) say the following:

    Text from page 2:

    3. I understand that in this case the Court ordered the CIA to search for, and process for potential release, documents from two time periods (1 April 2002 to 30 June 2003; and 1 June 2005 to 31 January 2006) that described the persons and reasons behind the destruction of 92 interrogation videotapes. The CIA subsequently searched the CIA’s Office of the Inspector General (OIG) and located 55 responsive documents that were then reviewed for potential release…

    And from Footnote 1:

    While the original OIG search produced approximately 100 documents, further review showed that many of the documents were outside the court-ordered time frames. Two of the documents were outside the time frames but contained embedded documents that were responsive within the time frames, so those two documents were included as responsive…

    While the CIA’s “literalness” is itself of note, don’t miss the fact that the CIA’s latest Vaughn Index and Wendy’s declaration only relate to 55 documents rather than the 100 documents the CIA found that discuss the videotape destruction.

    • MadDog says:

      And also of note to another future release of CIA documents relating to the destruction of the videotapes, Wendy Hillman’s declaration Footnote 2:

      The CIA also searched pertinent electronic repositories for responsive documents. Those searches have been completed and the documents are currently being processed for potential release…

  8. MadDog says:

    A focus has been generally on “videotapes” and their destruction, but one should also note the following from page 17 of the latest CIA Vaughn Index describing document 9 of 11/30/2002:

    This document is a three-page cable from the field to CIA Headquarters that discusses the disposition of classified media in the field

    (My Bold)

    What other media was the CIA disposing? Audiotapes? CDs/DVDs? Hard Drives? Thumb Drives?

    • bmaz says:

      Eh, even the Rules of Federal Civil Procedure take all this into account as a matter of definition for discovery. FRCP 34 includes inter alia:

      …any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form;

      That is civil, there are criminal cases directly at issue, whether to be held in front of military commissions, military courts martial or Article III courts. Criminal cases have every bit the standards and strictures as civil, and much more due to the heightened due process rights of an accused to confront, cross examine evaluate and present all evidence, especially that which is arguably exculpatory in nature (and it is crystal clear that evidence the defendant was tortured is such evidence). These are not just Constitutional requirements, although they are certainly that, but also international standards. The detainees depicted on the tapes were being detained for charges by the United States, they had rights to not have direct evidence destroyed. There is simply NO way around this. None. And distinctions between audio versus videotape or whatever kind of media are simply irrelevant. they had a duty and they knew it; that kind of parsing is laughable on its face and are not going to cut it.

          • kgb999 says:

            I imagine they went the way of Camp NAMA’s computer records.

            If this turns out to be the case, can we pleeeease refer to ironically selective and improbably extensive hardware failure resulting in all crucial evidence of official wrongdoing being lost as records being “McChrystaled”?

          • kindGSL says:

            I thought it was exposed in the first place because soldiers were passing around pictures on their computers. I remember there was a clampdown on their access to internet.

            They were put into what I like to call a cone of silence, no communication with the outside world.

          • robspierre says:

            The published DoD standard involves multiple over-writes with random data followed by cross-drilling of the disk platters, crushing, or similar.

            The problem with digital media is that it is so easy to copy and so frequently cached that it can be hard to predict where data ends up. There might still be copies floating around. If the data was stored on a RAID at headquarters (which is how you store state-of-the-art surveillance video), then it could be very hard to destroy unless you sacrificed the whole array, including unrelated data, and every backup tape ever made. With terrabyte disks, that could be quite a project.

      • MadDog says:

        Formerly number 3 at the CIA and now convicted felon, Buzzy Krongard probably had it mostly right:

        …Had there been no political or security considerations, videotaping every interrogation and preserving the tapes would make sense, according to several intelligence officials.

        ”You couldn’t have more than one or two analysts in the room,” said A. B. Krongard, the C.I.A.’s No. 3 official at the time the interrogations were taped. ”You want people with spectacular language skills to watch the tapes. You want your top Al Qaeda experts to watch the tapes. You want psychologists to watch the tapes. You want interrogators in training to watch the tapes.”

        Given such advantages, why was the taping stopped by the end of 2002, less than a year after it started?

        ”By that time,” Mr. Krongard said, ”paranoia was setting in…”

        (My Bold)

        • Jeff Kaye says:

          And the reason for the paranoia, I believe, was all the buzzing and resistance from numerous elements within the military and even intelligence hierarchies. There were all those GCs in the military services who saw war crimes in the SERE-based proposals, but then Myers squelched the Dalton review. There was aggravated protest by FBI, also CID, NCIS, etc. Who knows if there weren’t upset within CIA itself? While the program was compartmentalized and on need to know basis only, a SCI, still, as I’ve been told, people in the intel field still talk among themselves, and the idea something big and bad was going on was known. Also, there was resentment because some were cashing in with big bucks on this, while others were not. (I wouldn’t underestimate this factor.)

          Yes, paranoia setting in, but not because of oversight from Congress or the press, for the most part. In the end, we didn’t see the end of torture, but a compromise: a truncated version of the program was formalized in Appendix M; SERE was still allowed to function in the field, if approved by the Secretary of Defense (as I’ve solely documented); CIA would forego on paper the “enhanced techniques”, but really just be much more careful about getting caught.

          • eCAHNomics says:

            all the buzzing and resistance from numerous elements within the military and even intelligence hierarchies

            Gee, buzzing and resistece when there were gross violations of the law which went unreported. So glad we have people who have such high integrity in the military, etc.

    • robspierre says:

      Video can be stored on hard disk, not just on tape. This makes particular sense for users who record a lot of video (like casinos, building security, etc.). All you need is a camera, an interface card, and a laptop, preferably with a fast, external drive.

      It wouldn’t surprise me if the CIA used this approach–much easier to index, enhance, study, and play back than tape.

        • robspierre says:

          I was referring to the “other media” someone mentioned, not to the tapes. My main point was that audio and medical imagery are not the only possibilities.

          Digital storage is possibly significant, because destroying it isn’t easy or intuitive. Destroying disk-stored video would be a more difficult and much more expensive problem than destroying tape. The chances of video surviving on disk would be higher than on tape and, given access, a forensic specialist might be able to find “destroyed” evidence. So the rule in industry is, if you absolutely have to destroy data, you have to physically destroy all of the physical media that might have held it even briefly.

          I’m told that even flash memory holds shadows of what has been stored on it, even after rewrite. So you have to crush the chips to be safe.

  9. Jeff Kaye says:

    Hm. That is interesting, that Harman says, “Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future.”

    It was only on Jan. 12, 2003, a month or so before she was briefed, that there is a small flurry of emails regarding what actions could make the videotapes “an official record”. (There’s another email that effect later, on 4/12/04.) What this tells me is that CIA told Harman that the tapes did NOT constitute an “official record” for preservation purposes, or so I’m guessing. Otherwise, why would Harman request the videotapes be preserved, irrespective of whether or not they constituted an “official record”?

    Nevertheless, I’m with bmaz on this: there’s no way any of this wasn’t evidence and therefore part of an official evidentiary record. What is this “official record” bullshit anyway?

  10. rafflaw says:

    It is no surprise that the CIA is dirty. There are many people at the CIA who belong in jail over the torture issue, not to mention the Bush officials who authorized it.

  11. Gitcheegumee says:

    @34

    Jeff, this link may be of interest to you-especially The Gray Zone,2004,by Sy Hersh.

    Definitely worth a look,imho.

    Close Read: What Did Seymour Hersh Say About Assassinations?: News …Jul 21, 2009 … People also remembered that Seymour M. Hersh had said or written …. In the May 24, 2004, issue, Hersh published “The Gray Zone,” his third …
    http://www.newyorker.com/online/…/close-read-seymour-hersh-assassinations.html

    Show more results from http://www.newyorker.com

Comments are closed.