Torture Tape Destruction, the OGC Review, and the IG Report

One of the most fascinating aspects to the torture tape Vaughn Index is the way it hints at a tension between the torturers in the field growing increasingly panicked about the torture tapes and the CIA’s Office of General Counsel’s decision to review the tapes and, subsequently, not to destroy them (yet). The tension grew worse as the Inspector General decided to review the torture program (and ultimately, the tapes) and as Jane Harman challenged the CIA’s careful excuse allowing them to destroy the tapes. This post will trace what we can see of that tension.

Early in the Abu Zubaydah interrogation, there were two communications pertaining to how to retain the torture tapes. (Note, I’ve indicated: the classification of the documents as question, whether John Durham asserted they were protected under his investigation, and some indication of attorney involvement, though the latter deserves closer attention, as there is significant variation in the way CIA claimed exemption under attorney work product.)

April 17, 2002: Someone (the Vaughn provides no sender or recipient information) sends cable providing guidance on the retention of the video tapes (TS; atty doc)

April 27, 2002: One CIA officer sends another CIA officer cable, copied to several additional officers and attorneys, regarding the interrogation of Abu Zubaydah (S; Durham document)

From the period of August (around the time the waterboarding occurred) until November, 2002 the Index shows recurrent and (as far as we can tell from a Vaughn Index) increasingly urgent communications from the Field, asking to change the protocol regarding interrogation tapes and ultimately, asking to destroy them.

August 20, 2002: Field write to HQ discussing “policy for the security risks of videotape retention and suggests new procedures for videotape retention and disposal” (S)

September 6, 2002: Email between CIA attorneys, titled, “Destruction proposal on disposition of videotapes at field” (S; atty doc)

September 6, 2002: Email between CIA attorneys on revisions of a draft cable regarding the disposition of the video tapes (S; atty doc)

October 25, 2002: Field writes to HQ “discussing the security risks if videotapes are retained” (S; Durham document; atty doc)

November 6, 2002: CIA officer sends CIA officers and attorneys email, titled, “Tapes issue,” following up with the proper procedures for destruction of the interrogation video tapes (S; atty doc)

In mid-November (note, the dates on these emails may be confusing if sent from different sides of the date line), an officer in the Field expresses “personnel concerns” with the disposition of the videotapes. In what appears to be a response, HQ asks to have a “random independent review of the video tapes, before they are destroyed.” This seems to be the genesis of what became the OGC review of the tapes.

November 15, 2002: HQ sends email to Field titled, “Videotapes–response” requesting “to have a random independent review of the video tapes, before they are destroyed” (TS; atty doc)

November 15, 2002: HQ sends email to Field titled, “Video tapes” requesting “to have a random independent review of the video tapes, before they are destroyed, to ensure accuracy” (TS; atty doc)

November 15, 2002: Email chain “including an email from a CIA officer in the field to CIA officers at headquarters expressing personnel concerns with the disposition of the video tapes and headquarters requset to have a random independent review of the video tapes, before they are destroyed, discussed in a two-page email from a CIA attorney at headquarters to the field that is also part of the email chain (TS; atty doc)

November 16, 2002: Someone (the Vaughn provides no sender or recipient information) sends email, forwarding two additional emails, between CIA attorneys, discussing draft language on the logistics of destroying the tapes” (TS; atty doc)

November 16, 2002: Field officer sends CIA attorneys and officers at HQ email informing HQ of “personnel concerns regarding the videotapes” (TS; atty doc)

Here’s how the 2004 CIA IG Report described the OGC review.

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters.

Here’s how CIA described the review in a FOIA declaration description of it.

The CIA OGC also conducted a legal review of the interrogation of Abu Zubaydah to ensure compliance with the relevant legal and policy guidance. This review was implemented not only to ensure that the interrogation of  Abu Zubadaydah was consistent with the law and United States policy, but also to improve the CIA’s program going forward. Document 60 contains the analysis and impressions of a CIA Attorney shortly after the Attorney’s review of subsequently destroyed videotapes, as well as the relevant cable traffic. The document reflects the CIA attorney’s view on what facts were relevant to determine whether the interrogation of Abu Zubaydah was compliant with law and policy, as well as what information would be informative to CIA management in improving the program going forward.

She went onto suggest the review may have been designed to provide interrogators with a defense in the future.

Throughout the CIA’s terrorist interrogation program the CIA was concerned that its officers could face civil and criminal liability for their actions. The CIA directed its attorneys to review the record of the first interrogations to ensure that they were conducted consistent with the Department of Justice’s guidance, which could arguably provide a defense to possible domestic and international criminal and civil liability. Therefore, while the CIA attorneys may have performed their analysis to determine legal and policy compliance, that analysis was in the context of evaluating possible defenses for anticipated civil and criminal litigation.

Of course, both of these descriptions are retrospective descriptions, written years later and after much more legal discussion occurred. In any case, within days of what is apparently the first mention of the review, it appears the OGC review is planned, even while discussion of the destruction of the videotapes continues.

November 19, 2002: HQ writes to Field “discussing the disposition of the videotapes, and the duties of the CIA attorney who is visiting the field to review the tapes” (S; atty doc)

November 20, 2002: Field writes to HQ “discussing the OGC review of the tapes” and also (per subject line) their disposition (S)

November 27, 2002: Field writes to HQ “requesting approval for destruction of the interrogation videotapes” (S; OGC doc)

November 27, 2002: HQ writes to Field “regarding disposition of tapes and discussion action for base compliance according to policy guidance” (S; atty-client privilege)

November 28, 2002: Someone (the Vaughn provides no sender or recipient information) sends a cable discussing “a CIA attorney’s travel to a field station to survey video tapes and review pertinent logs, and cable traffic” (TS; OGC doc)

November 30, 2002: Field writes to HQ discussing the disposition of “classified media” in the field (S)

December 1, 2002: Someone (the Vaughn provides no sender or recipient information) sends email discussing “the notes of a CIA attorney” (S; atty)

The discussion of “notes” of a CIA attorney as well as discussion surrounding travel suggests the review may have occurred in the late November time frame. When the OGC attorney reviewed the tapes, he presumably found the same thing the IG Report did:

OIG found 11 interrogation videotapes to be blank. Two others were blank except for one or two minutes of recording. Two others wee broken and could not be reviewed. OIG compared the videotapes to [redacted] logs and cables and identified a 21-hour period of time, which included two waterboard sessions, that was not captured on the videotapes.

Note that that 21-hour period may well have been from the same period–around August 20–when the second email pertaining to torture tape destruction was written.

December 3, 2002: Someone (the Vaughn provides no sender or recipient information) sends email “outlining the destruction plan for video tapes” (TS; atty doc)

December 3, 2002: CIA HQ writes to Field to discuss “the destruction of videotapes” and other issues relating to the “closing of facility” (S; Durham document; OGC doc)

In mid to late December, the discussion of the tape disposition heats up again.

December 19, 2002: Someone (the Vaughn provides no sender or recipient information) sends email titled “Cable in coordination–destruction of tapes current held at field” (S; atty doc)

December 19, 2002: Someone (the Vaughn provides no sender or recipient information) sends email “requesting a draft of a short note decision response to groups of interest on the disposition of the video tapes” (TS; atty doc)

December 20, 2002: HQ writes Field about “source material on videotapes … regarding the policies on tape usage and destruction” (S; atty doc)

December 20, 2002: Someone (the Vaughn provides no sender or recipient information) sends email titled “Companion email–short decision note on tapes issue” … “providing guidance on a short note decision response to groups of interest on the disposition of the video tapes” (TS; atty doc)

Given the length of this “leaks memo” email, it may be an early draft of the OGC review, rather than a draft of the shorter memo on tapes destruction following it.

December 20, 2002: Someone (the Vaughn provides no sender or recipient information) sends email titled “Draft/outline of leaks memo turn into memo form” … “requesting formatting of an attached three-page memorandum” (S; atty doc)

December 23, 2002: Someone sends (the Vaughn provides no sender or recipient information though series suggests CTC and/or OGC) email titled “First cut at Memo on disposition of AZ videotapes” … “regarding a draft memo drafted by CIA OGC regarding the tapes” (U; atty doc)

December 23, 2002: Someone (the Vaughn provides no sender or recipient information) sends email titled “First cut at Memo on disposition of AZ videotapes” … “with draft language on the disposition of the video tapes” (C; atty doc)

December 24, 2002: Someone (the Vaughn provides no sender or recipient information) sends email discussing changes to the first draft of memo regarding disposition of torture tapes (U; atty doc)

December 24, 2002: Someone (the Vaughn provides no sender or recipient information) sends email titled “Tapes–CTC memorandum re tapes” … “confirming receipt of a copy of a memorandum and the writing of a cover letter regarding the interrogation video tapes” (U; atty doc)

The OGC review is completed, as a Memorandum for the Record, on January 9, 2003. Immediately thereafter, the discussion of the tape destruction continues, but only after what appears to be a discussion about how to make sure the videotapes do not qualify as official records. Note, too, this discussion about language is in anticipation of a briefing, possibly the briefings of Pat Roberts on February 4 and Porter Goss and Jane Harman on February 5.

January 9, 2003: MFR “summarizing the review of the interrogation videotapes” (TS; atty doc)

January 12, 2003: Someone (Vaughn provides no sender or recipient information) asks “what actions will make the video tapes an official record” (TS; atty doc)

January 12, 2003: Someone (Vaughn provides no sender or recipient information) sends email “proposing how to reference the video tapes for a briefing” (TS; atty doc)

January 12, 2003: Someone (Vaughn provides no sender or recipient information) sends email memo “informing and reminding CIA officers of the question, what actions make the video tapes an official record” (TS; atty doc)

January 13, 2003: HQ writes to Field “providing guidance on the procedures for retention of AZ videotapes” (TS; Durham document)

January 13, 2003: Field writes deliberative cable to HQ regarding “status response to the maintenance of video recordings” (TS)

[Not listed–probably January] 13, 2003: HQ writes to Field “providing instructions on how to retain the video tapes” (TS; atty doc)

Between the time CIA first starts talking about how to talk about the videotapes such that they do not become official records, George Tenet institutes a torture policy requiring record-keeping.

January 28, 2003: Tenet issues guidelines on enhanced interrogations, including mandating that records be kept

Then, on February 5, 3003, CIA briefs Jane Harman and Porter Goss. Jane Harman’s follow-up letter makes it clear that CIA revealed it had used waterboarding and told Goss and Harman that the torture tapes were not an official record and the CIA was planning on destroying them. The request for a review of the video tapes might be a response to a Congressional question–or it may be a request associated with the IG Review (which eventually reviewed the videotapes in May 2003). When Muller responds to Harman–after consulting with the White House–he makes no mention of her discussion about the videotapes.

February 5, 2003: CIA briefs Harman and Goss, informing them torture tapes were not official records

February 7, 2003: Email (the Vaughn provides no sender or recipient information) asking “how best to accommodate a request for review of video tapes, without complicating security issues) (U; atty doc)

February 10, 2003: In letter to Muller, Harman notes she has been told the torture tapes will be destroyed after IG finishes inquiry but warns that “even if the videotape does not constitute an official record,” CIA should retain it (declassified in 2007)

February 19, 2003: Draft response to Harman (S; atty doc)

February 19, 2003: Interview report (participants not indicated) for review of the interrogations (TS; atty doc)

Undated [possibly February 2003]: One page email (the Vaughn provides no sender or recipient information) scheduling a meeting to discuss disposition of video tapes (S; Durham document)

February 22, 2003: Someone (the Vaughn provides no sender or recipient information) sends email titled, “Harmon letter” … “discussing a meeting between CIA and White House regarding the CIA’s response to a congressional inquiry” (TS; atty doc)

February 28, 2003: Muller responds to Harman without acknowledging or responding to her point about videotapes

Harman noted in her letter that she had been told the videotapes would be destroyed after the IG finished his investigation. Shortly before the IG Report was released in 2004, there was another discussion of how to prevent the videotapes from becoming an official record.

April 12, 2004: Someone (the Vaughn provides no sender or recipient information) sends email “discussing what actions would make the tapes an official record” (TS; atty doc)

Note that there is probably some further discussion of the OGC review of the videotapes in the IG Report that is redacted, since Jay Rockefeller requested it as a document in 2005, shortly before the torture tapes were destroyed.

Finally, there is a reference to the ongoing investigation into the OGC report later that fall.

November 11, 2004: Memo and email chain (the Vaughn provides no sender or recipient information) on OIG’s open investigation (TS; atty-client doc)

I noted yesterday that Jose Rodriguez retired (announced September 14; effective September 30) and John Rizzo withdrew his nomination to be General Counsel (September 25) just as CIA was reviewing who approved the torture tape destruction in 2007. What I neglected to mention is that days later, on October 11, the NYT reported that Michael Hayden started an investigation into John Helgerson’s purportedly unfair pursuit of those involved in the detention and torture program. Both Michael Hayden and John Helgerson would have to recuse themselves from the torture tape inquiry.

This, obviously, is just a sketch of the way the desire to destroy the torture tapes led to the OGC review, which led to apparently delicate efforts to pretend the torture tapes were not official records, which intersected in some way with the IG Report(s).

62 replies
  1. emptywheel says:

    Note, one thing I find particularly interesting about this timeline is which emails the Vaughn includes no sender or recipient information for.

    Some of these almost certainly include OGC–that’s the kind of legal work we were paying for, I guess. And some of them may include those outside CIA.

    • BoxTurtle says:

      I still think contractors did a lot of the dirty work. If so, the GC for whatever firm *cough*blackwater*cough* provided the contractors is likely included.

      I wonder what would happen if I went in front of a judge and said “Your honor, I destroyed the evidence against me, but it wasn’t an offical record so it’s not obstruction”.

      Boxturtle (Actually, I don’t wonder a bit)

  2. bobschacht says:

    Thanks for this masterful laying out of these communications. I have two comments.

    First, this sentence near the beginning has me puzzled:

    (Note, I’ve indicated both the classification of the documents as question, whether John Durham asserted they were protected under his investigation, and some indication of attorney involvement, though the latter deserves closer attention, as there is significant variation in the way CIA claimed exemption under attorney work product.)

    The “both” clues me that there is an “a” clause and a “b” clause. Does
    “a” = “the classification of the documents as question, whether John Durham asserted they were protected under his investigation,” and
    “b” = “some indication of attorney involvement, though the latter deserves closer attention, as there is significant variation in the way CIA claimed exemption under attorney work product.” ???

    The syntax of this sentence is too convoluted for me to follow.

    My second comment is that the way you have laid it out, and your commentary, suggests to me that someone in “the Field” got sufficiently anxious about the tapes issue that he may have destroyed some of the tapes in the field (i.e. some under field control) before they were instructed to be destroyed. IOW, given the protracted discussion of the preservation issue, I can easily imagine some folks in the field getting rather anxious, and not willing to wait for a firm bureaucratic answer.

    Of course, what we lack is the actual destruction date of each tape, so my point is conjectural. Even if we had the physical tapes, could the date of their destruction (i.e., erasure) be determined?

    Bob in AZ

    PS The “edit” option allowed me to delete some redundant words, but then collapsed my formatting, shoving everything together in one long paragraph. Sorry!

    • emptywheel says:

      Added one more thing to that “both,” I guess.

      Yes, I think it highly likely that Field did some destroying before OGC got there. But given what Durham has asserted protection over, I don’t think it’s a focus of whatever investigation Durham is doing. I think they can trace it back to the OGC review, and at that point, it’s a question of whether OGC noted the tapes had been tampered with, and if so, why they did nothing about it.

      So I think this is a two-level coverup.

      Fall 2002: Someone damages and erases tapes from the period of the worst waterboarding.

      December 2002: OGC reviews the tapes but does nothing about the obvious tampering.

      May 2003: IG reviews the tapes, notes the obvious tampering, wonders why OGC didn’t do anything about it, schedules invesitgation into THAT for once they’re done with torture investigation.

      November 2005: For a slew of reasons, CIA finished the job, hiding the evidence that OGC ignored (and presumably doing so before IG could refer it for an investigation, complete with forensics).

        • emptywheel says:

          Here’s my theory, that if I don’t get fatigued of this subtopic I will post on.

          In late July, I think DOJ convinced Hellerstein that the individuals directly responsible were going to be held legally responsible, and therefore Hellerstein didn’t need to face the dilemma of holding the govt itself in contempt.

          That was a long time ago. But obviously, Durham has just reasserted that he has an active investigation.

          So maybe he has one and we’ll get somewhere. Or maybe he’s stalling long enough such that Hellerstein will ALSO not hold CIA in contempt.

      • Jeff Kaye says:

        I totally agree, as this earlier destruction of some of the evidence is clear (the 21-hour “gap”, if you will).

        You’ve done a masterful job putting together the timeline, given the fractured nature of our knowledge. I’ve a few random thoughts.

        It’s notable that the frantic emails from the field to HQ over destroying the tapes appear to end by late November, once the OGC investigation commences. I find the descriptions of that review to be interesting, as they all emphasize its dual nature, i.e., to review compliance with the Aug. 1 memos (especially since lititgation was expected, and then, obscurely, to improve the program, or in one case, to determine “what information [from the AZ interrogation] would be informative to CIA management in improving the program going forward. Another doc has the dual nature to be again judging compliance, but also (from the OIG report) “compar[ing] what actually happened with what was reported to Headquarters” (italics added). The latter suggests that data was withheld, altered or destroyed, and unreliable reports sent to HQ. But the latter is unlikely, given what we already know of the close contact during the torture between field and HQ. More likely, it’s a set-up for a cover story to make it look like HQ didn’t know the full extent of what was happening in the field.

        A small addition to the timeline, not crucial, but it appears that it was after the Thailand base was dismantled, and after the Feb 03 Congressional briefings that CIA moved (hiring Dusty Foggo) to greatly expand its black sites. (NYT article) It may mean nothing, or to me indicates they felt they were in the clear for more torture, i.e., they’d weathered the Harmon challenge.

        Another thought… the fact that AZ was being set up as a major Al Qaeda figure, which he wasn’t, might play into all this, especially since they likely knew he wasn’t. (That is, CIA knew. I think they told FBI something different.) So what were they doing with him? The tapes may have shown that. As you likely know, I believe that experiments were being done on these prisoners. Nothing that may have been noticed beyond the waterboarding, etc. But like a magician’s trick, which works through misdirection, the experiments were conducted in the background, if you will.

        While the CIA/WH/Pentagon thought they could legally thread the needle on torture (Yoo/Bybee memos, Pentagon’s own legal review), there was no way they could “legally” get away with medical experimentation upon prisoners, which is a huge war crime, one even Yoo wouldn’t touch. But the experiments would have been fairly unobtrusive. I will be writing up the kind of technology used this week, but suffice it to say that a remote heart monitor, a quick swab of the cheek, a quick blood sample. That’s all that was needed for these kinds of experiments, which were (if indeed they did take place — just as they were done upon SERE recruits (documents [PDF] to this nature), utilizing the mock torture experience, contemporaneous to the period of the black sites) undertaken to measure the body’s response to “overwhelming stress”, a long-time goal of secret interrogation methods crowd, going back to Projects Bluebird and Artichoke.

        I know some will think me a total conspiracy nut for the above speculations, but if they did indeed occur, it has some bearing on why they needed to destroy the videos, and other materials (we should not forget). I should note that the last time we had public evidence of the CIA destroying records, etc., was in fact the early 70s destruction of the MKULTRA files, which was revealed in open Congressional testimony. Of course, no CIA official was ever brought up on charges for that.

  3. behindthefall says:

    **mods** I vote to ban from FDL any ads that insist on playing sound uninvited. Especially when they don’t have ways to shut the (*&^%$# thing off. And perhaps coincidentally (or not) my browser has been acting VERY strangely since they first showed up.

    Please block them.

    ktnxbai ;-)

    • quake says:

      **mods** I vote to ban from FDL any ads that insist on playing sound uninvited. Especially when they don’t have ways to shut the (*&^%$# thing off.


      And perhaps coincidentally (or not) my browser has been acting VERY strangely since they first showed up.Please block them.

      I’m using Firefox rather than IE as my browser, and haven’t experienced any bad effects, But, mods, please block them anyway. Thanks.

      • quake says:

        Thanks. And while you’re at it, please block the obnoxious flashing ads too. I have nothing against ads per se, but these are really annoying.

  4. wohjr says:

    Could the seemingly redundant emails on November 15 regarding tape preservation be referencing two different sets of tapes? Or going to different places in “the field”?

    • emptywheel says:

      Possibly different places in the field, though they seem to be in the context of shutting down Thailand.

      But I don’t think they refer to different tapes, bc of hte definition of this FOIA, which all pertains to the 92 AZ and Nashiri torture tapes.

  5. earlofhuntingdon says:

    A helluva lot of work went into analyzing the legal exposure for those making, handling and reviewing purportedly “non-official” records of our top spying agency.

    The comment about a tape being “broken” and unviewable seems odd. Unless the tape itself was adequately erased or the ribbon was mangled beyond the repair powers of our top spying agency, a broken reel or cartridge would be no hurdle to jump at all. The ribbon would have been rewound onto a working reel or into a cartridge. I don’t think the CIA or an IG or DoJ investigator would handle forensic evidence the way my sister might handle a broken VHS of Gone with the Wind.

    • Jeff Kaye says:

      Humorously enough, for those who remember the early Harry Palmer flick, The Ipcress File, the term “Ipcress” is found on a piece of audio tape at the scene of a quickly abandoned torture site. It’s a fragment of a tape obviously destroyed. The remaining piece tape is looped and analyzed, but the bizarre loud sounds on the tape make no sense (until later it’s discovered that they are part of a sensory overload portion of torture). “Ipcress” stood for “”nduction of Psycho-neuroses by Conditioned Reflex under strESS”.

      Curiously, and though the film was quite popular, and included a starring role its leading star, Michael Caine, and though the film spawned a number of sequels, the film itself has not been available in the U.S. since the beginning of the Bush administration. It can be purchased on DVD in European format, but not in the U.S.

        • Jeff Kaye says:

          You are right. I checked and TCM has (until this year) apparently aired it once or twice a year. They have no plans to currently broadcast it. You can go to this link and vote for it to be released on Home video.

          It’s quite an entertaining movie, kind of anti-Bond (in its day). It also has that plot about psychological torture…

      • earlofhuntingdon says:

        That’s amazing. Glad I have a copy from pre-9/11. The European format would not be playable on most US machines. I’m sure taking such embarrassing precedents off the market was purely coincidental, just as was taking off the market the original Manchurian Candidate after the JFK assassination.

        • Jeff Kaye says:

          Btw, I forgot to mention, I did try NetFlix to get a copy of Ipcress File — I’d wanted to see it after number of years, to verify my memory — and they said, after I’d ordered it and it sat in queue that it was unavailable. My belief is nothing sinister happened, just that the few copies of the DVD were ripped off. But who knows? The movie is also available for U.S. DVD version in a Russian (probably bootleg) version.

          I think I’ll wait for TCM to schedule again and put it on my DVR to watch.

  6. Garrett says:

    I forget what’s been discussed or not, but the destruction of the tapes on November 9, 2005, and the leaking of the existence of waterboarding to the public on November 18 are clearly related. Up till now, I’ve been wondering if there was a possibility that the tapes were destroyed after the leak. Now, it’s a question to what extent the various leaks to Brian Ross at ABC might be semiauthorized.

  7. maryo2 says:

    Nov 15 – HQ wants a CYA review
    Nov 15 – Field pushes back — people here do not want to send tapes, copies or digital video to HQ
    Nov 19 – HQ replies that they will limit the duties of the visiting CIA attorney so as to protect the field personnel
    Nov 28 – [Field??] notes that more than just video tapes were looked at by the CIA attorney. Logs and cables were looked at, too
    Nov 30 – Field changes word choice from “tapes” to “media”
    Dec 1- [Field??] says point-blank “what about the CIA attorney’s notes!?”
    Dec 3 – [Field??] says ‘this is what we plan to do.’
    Dec 3 – HQ responds by adding in other issues relating to the “closing of the facility” (Are these other issues the plan for hiding or destroying non-tape media, logs and cables?)
    Dec 20 – HQ expands their wording to “source material on videotapes”

    I think there was concern in the field that the CIA attorney’s notes might become official record, or that HQ was going to cover their butts at the expense of the field agents. HQ consistently says “tapes”, but field mentions “videotapes, media, logs and cable traffic.”

    And then HQ avoids Congressional oversight of the other media because Congress asked for material related to the destruction of the “tapes” not everything related to closing of the facility.

  8. fatster says:

    My eyeballs were ping-ponging around as I was darting back and forth, looking through all those entries, trying to figure out who, using what legal authority, decided that the tapes made by the government or on behalf of the government by contractors were not an “official record.” What great relief it was to get to your final paragraph, EW, and learn that “apparently delicate efforts [were made] to pretend the torture tapes were not official records. . ..” Wish to heck I’d read your last paragraph first. Whew!

    • cinnamonape says:

      It’s very clear that someone in the CIA made statements to Harmon about justifying that the tapes were not the “official record”…and it seems clear that she disputed that. That’s why she responded saying that the definition is still not relevant to preservation issues.

      I suspect that there must have been a pretty weak argument. Certainly the Zapruder film is considered an “official record”. I’m sure the National Archives are filled with videos and films that are considered “official records”. It likely relates to someone in the chain-of-command signing off on the document making it an “officially sanctioned record”. But that’s a whole different kettle of fish. Any archivist will tell you that there is a substantitive difference between the evidentiary value of a primary vs. a secondary source. The videos, eyewitnesses, and other documents made contemporaneously with the events constitute primary records. Secondary records are often expunged from the official record because they are “hearsay”.

    • cinnamonape says:

      Some interesting definitions put out by the National Archives:

      Records: In Federal archives, all books, papers, maps, photographs, motion pictures, sound or video recordings, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by agencies of the U.S. Government under Federal law or in connection with the transaction of public business and preserved or deemed appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them.

      Documents include books and booklike materials, printed sheets, graphics, manuscripts, audiorecordings, videorecordings, motion pictures, and machine-readable data files. (2) A general term used to designate official materials issued in the name of the House. (3) Beginning with the 15th Congress, the copy of material that was printed by order of the House or Senate. Printed documents from the 30th through the 53d Congress were identified as either miscellaneous or executive documents, which see below. This distinction has disappeared and House documents are referred to in the following manner: H. Doc. 25, 54th Cong., 1st sess.

      Intrinsic value: In manuscript appraisal, the worth, in monetary terms, of a document, dependent upon some unique factor, such as its age, the circumstances regarding its creation, a signature, or an attached seal. In archival terms, it is those permanently valuable records that have qualities and characteristics that make the records in their original form the only archivally acceptable form for preservation.

      Nonrecord: Material not usually included within the definition of records, such as unofficial copies of documents kept only for convenience or reference, stocks of publications and processed documents, and library or museum material intended solely for reference or exhibition.

      Permanent records: Records of an office or committee of the legislative branch appraised by the National Archives as having enduring value because they document the organization and functions of the committee or office that created or received them and/or because they contain significant information on persons, things, problems, and conditions with which the committee or office dealt

      Preservation (archival): (1) Adequate protection, care, and maintenance of archives and manuscripts. (2) Specific measures, individual and collective, undertaken for the repair, maintenance, restoration, or protection of documents. (3) A basic responsibility of an archival repository.

      • fatster says:

        Thank you so much, cinnamonape. I’ve spent decades in public service, including among documents, documents, documents, which I hope helps account for why I was about bananas trying to figure out who (and is which official) decided those tapes weren’t official and on what basis.

  9. Jeff Kaye says:

    Let us not forget, btw, that there’s another case of missing torture videotapes. Judge Rosemary Collyer ruled in October that the government must produce one week’s worth of videotapes depicting the interrogation of al Qahtani.

    From a CCR press release on Oct 5, 2009:

    October 5, 2009, New York – The Center for Constitutional Rights (CCR) learned today of the existence of video and audio tapes of the abusive interrogations of client Mohammed al Qahtani, the victim of the “First Special Interrogation Plan” personally overseen by former Secretary of Defense Donald Rumsfeld.

    From a Raw Story article (emphasis added):

    “After the intense scrutiny of the government’s torture and interrogation of Mr. al Qahtani, it is shocking that the government has hidden the existence of these tapes from the public for so many years,” said CCR Attorney Gitanjali S. Gutierrez. “The government’s interrogation of him has been the topic of multiple military, Justice Department and congressional investigations. These tapes should have been acknowledged long ago.”

    “Mr. al Qahtani’s torture is already well-established, with a clear paper trail that leads all the way up the chain of command to the desk of Donald Rumsfeld,” said CCR Executive Director Vincent Warren. “The revelation of these tapes indicates the government carefully documented horrific evidence of torture and abuse at Guantánamo. The only question that remains is whether the people ultimately responsible for it will be held accountable for breaking the law and breaking faith with our system of justice.”

    The judge’s order acknowledging the existence of the tapes and ordering their release may be read here (PDF link).

    But then Carol Rosenberg reported that Navy Rear Adm. Tom Copeman, Guantanamo commander, said at a first ever interview with reporters visiting the base that the Qahtani videotapes were missing! (He also reported that the al Hanashi NCIS “suicide” investigation was concluded, something which Brook deWalt at JTF-Gitmo told me just yesterday wasn’t true!)

    Separately, Copeman said Tuesday that he was aware of a federal judge’s order to release videotapes from November 2002 that gave a window into the harsh Guantánamo interrogation of a Saudi detainee, Mohammed Qahtani, whose treatment was considered “torture” by a senior Pentagon official.

    Copeman said, however, that detention center staff had searched their records and found no evidence that the Department of Defense was in possession of those interrogation videos.

    “I’m not saying they don’t exist,” the admiral said. “I’m just saying to the best of our knowledge down here, based on the time we’ve had to look into it, there’s nothing in our history files that indicates we’ve ever seen then, taken them or had them in our possession.”

    The story of the missing Qahtani tapes has totally flown under the radar, and in fact, in this context, so far as I can see, this comment and a reprint of the Rosenberg article at Cageprisoners are, after Rosenberg’s original article, the only places that have brought this to the public’s attention. I have searched, and maybe someone can help me here, but I find no update to this story to date. I’m due to talk again to Lt Cmdr Brook DeWalt at JTF Gitmo, and you can be sure I’ll be asking him also about this. (not that I expect any straightforward answers)

      • Jeff Kaye says:

        The magician story has been around for awhile. It’s true. I bet the journalist got the story from H.P. Albarelli’s new book on the murder of Frank Olson, “A Terrible Mistake”, as it is a treasure trove of information of this sort. I suspect we’ll see a lot of stories like this coming out in the next months, as it is a treasure trove of information of this sort(Albarelli spent almost ten years investigation on the subject. He’ll be part of a FDL Book Salon later in January 2010.)

  10. LabDancer says:

    Is it possible that the incident(s) of CIA types showing face on particular tapes was a crude effort at authentification?

    And would this not fit the (otherwise quite odd) Field request for “independent … review”, in the sense that someone within the agency bureaucracy, but outside the clandestine service, would review those tapes where one of its own ‘showed face’ to determine whether or not, in the circumstances of that particular session recorded on tape, they were both involved in the torture process & it was being ‘done right’?

    Surely no one within the agency would care whether the torture was being ‘done right’ by persons outside the agency [I can’t see them seeing much if any material distinction between detainees on the one hand tortured in Egypt or Syria by who-ever, and on the other being tortured by Blackwater thugs where-ever]; and surely a recording of such a session [of either type] would be far more amenable to being argued as not qualifying as an “official record”.

    If so, that would suggest some perceived need, requirement, or even benefit, in retaining intact recordings where CIA officers ‘show face’, with such recordings being maintained, consistent with the demands of bureaucracy, outside the control of those who ‘showed face’, thereby taking on more characteristics of record officiality, and even more over time.

    • LabDancer says:

      As to the word “random” [along with “independent”, the other conditioner of “review”], that seems redolent of the sort of language one sees in audits — as in: a random look-through of a large group of recordings to determine the likelihood that each and every member in the group is overwhelmingly likely to contain one or more instances of a CIA officer ‘showing face’. All very orderly & appropriately Eichmann-esque.

      • earlofhuntingdon says:

        Yup. “Random” to a top-level bureaucrat does not mean what it means in a bowling alley or a 7-11. I suspect it means to him or her what it means to a CPA, a NOT statistically relevant sample. Lacking that statistical relevance, the information disclosed cannot be shown to be indicative of the whole or other, non-selected parts that were not examined. Had the samples been “randomly selected” to yield a statistically relevant sample, that would be different.

        The use of language in today’s Washington makes Clinton’s parsing of “is” seem amateurish and commonplace.

        • fatster says:

          That’s the typical use of the term. To those who use statistics, however, it has a much more specific usage. Here it is in a nutshell. And wouldn’t you know it pertains to our old friend the probability distribution.

  11. MadDog says:

    And btw, there are a number of other documents now up at the ACLU in the category of “Documents Relating to the OLC Documents”.

    These are:

    Vaughn Declaration of David J. Baron, OLC, and accompanying Vaughn Index of 56 non-OLC documents discovered by the OLC withheld in FOIA lawsuit (11/20/2009) (16 page PDF)

    Vaughn Declaration of Stewart F. Aly, DOD (11/20/2009) (6 page PDF)

    Vaughn Declaration of Margaret P. Grafeld, DOS (11/20/2009) (24 page PDF)

    Vaughn Declaration of David M. Hardy, FBI (11/20/2009) (53 page PDF)

    Vaughn Declaration of Mary Ronan, NSC (11/20/2009) (9 page PDF)

  12. klynn says:

    Now, I am not sure what “document” policy was being considered to come up with the “not official” consideration. (Thanks cinnamonape @ 30)

    However my document policy from my corporate lawyer states:

    “Documents that facilitate the development of an official document are unofficial. The exception to this is if they are required as evidence to support information in the official document.”

    EW, I am catching up on your last 7 posts. Thank you so much for your outstanding effort to sift and organize to make the case clear. Thank you to the larger “Justice League” at EW’s and the fantastic comments.

    I cannot understand why my Thanksgiving Day is not being greeted by some arrests of government actors.

    • fatster says:

      I doubt you’ll ever see this (since I’m so very tardy in responding), but I wanted to thank you for the definition. Since the definition you have does address ‘document’ and not video tape, it’d be interesting to know how that works out in the legal realm.

  13. behindthefall says:

    **mods** Just got back, and see that something was going to be done about the noisy ads. Thanks, really.

  14. Jeff Kaye says:

    I know everyone’s probably getting ready for Thanksgiving now, but Andy Worthington’s new article at Truthout quotes the UK High Court judges in a newly unredacted statement calling Binyam Mohamed’s torture by U.S. agents in Pakistan prior to his transfer in July 2002 as the same as Abu Zubaydah received.

    For the last 15 months, Mohamed has watched as two British High Court judges have tried to release to the public information conveyed by the US intelligence services to their British counterparts regarding his torture in Pakistan, prior to his rendition to Morocco [in July 2002]….

    Although four other passages – and the elusive summary – remain redacted, the two reinstated after the FCO dropped its objections are significant, as they refer to the notorious memos issued by the Justice Department’s Office of Legal Counsel in August 2002 and May 2005, publicly released by the Obama administration in April of this year, which purported to authorize the use of torture by the CIA.

    The first passage stated [written by the UK judges], “One of those memoranda dated August 1 2002, from Mr. J.S. Bybee, Assistant Attorney-General, to Mr. John Rizzo, acting General Counsel of the CIA, made clear that the techniques described were those employed against Mr. Zubaydah, alleged to be a high-ranking member of al-Qaeda.”

    This means that pre-Bybee, we have evidence of other use of the “enhanced interrogation techniques”. No wonder the U.S. doesn’t want their statement released, and the British government is doing what it can to be obliging. So this is a second location and another April-June/July use of the enhanced techniques, prior to the Aug 1 authorization, or even the July oral authorization. I’d guess the program was actually quite well advanced by July 2002, and the entire legal business had to do with a decision to greatly expand the experimental SERE-like program, and therefore, since exposure was going to me a much greater likelihood, legal cover was sought beyond that which smaller scale CIA programs already have by virtue of their classified nature and lack of real congressional oversight.

    As Andy points out, it also shows the torture program was used at the rendition sites, not simply a turn-over to other national’s ideas of torture.

    Big news, I’d say.

  15. alinaustex says:

    to bmaz @ 6
    Is it possible that Durham has not indicted anyone yet as he is trying to bring forth the most prosecutable case for the highest ranking official from the bushcheney regieme ? Could it possible/ likely that Rumsfeld was involved in the destruction of the al-Qhatani torture media ? And if Rumsfeld is involved in obstructing justice before Judge Collmeyer could that extend Durham’s investigation and explain why he has not concluded his work ?

    • bmaz says:

      It is possible, sure. I don’t know if it is probable; it is awfully difficult to discern whether Durham is trying to whitewash and minimize this (still my guess) or get a full case like you continually suggest (and I hope is correct). It is very hard to look at the facts, and they only get worse in this regard as Marcy has pointed out in this series of posts, and not wonder what the fuck Durham is doing. I could have mad a prosecutable case on this crap the minute I saw the first evidence of this in the NYT and, as you know, I am not necessarily overly excitable about when and where people can and should be prosecuted. The other troubling thing is, at least as to the torture tapes, it was a completed set of acts. You do not have to worry about letting the suspects play more things out etc, so most prosecutors would pick a couple of solid targets and pound them to get them to roll, but there is no evidence of that here. The only one that looks like has rolled in the least is Foggo, and that was from circumstances in another investigation and prosecution (his, Wade’s etc), not the torture tapes. In fact, the appearance is that Durham was ready to happily close the torture tape investigation up until Foggo was literally almost forced on him.

      As to your statute question, it depends on a lot of factors, but for purposes of discussion, I would operate under the assumption the statute date is the destruction date.

      • bobschacht says:

        As to your statute question, it depends on a lot of factors, but for purposes of discussion, I would operate under the assumption the statute date is the destruction date.

        What about if there is a case for conspiracy to obstruct justice relating to the destruction of the tapes? wouldn’t the active date for SOL purposes continue as long as the conspiracy continued?

        Bob in AZ

  16. alinaustex says:

    correction its Judge Collyer -and when would the SOL clock start ticking on the destruction of the al-Aqhatani tapes ?

  17. timbo says:

    Veeery interesting.

    This discussion also makes me wonder to the USA firings later on…didn’t one of the USAs suggest that it was a good policy for the FBI to tape interrogations when interrogating suspects? Seems like there may have been some stress around that suggestion percolating at DOJ HQ ’round that issue and the torture agenda mayhaps.

  18. alinaustex says:

    alinaustex @ 56
    If Durham was after an ongoing criminal conspiracy that could /would take
    longer to prove yes ? Forgive me if this is naive -but if a prosecutor is going after former high ranking officials could it not take awhile ? And if the obstruction was willfully going on aiding and abetting the prior criminal conspriracy -would not the SOL be ‘reset ‘ from the latest date the obstructing actions ocurred -like possible the most recent time a torture tape or related incriminating document went missing ? And what if a presiding Judge found out that not all asked for media was produced when so ordered and a copy of that media surfaced ? My belef and hope is that ‘bootleg” copies of torture media have been made by the “FIELD” just to make sure the personel at the pointy end of the torture interrogations are not made the ‘sacrificial sheep ” by the REMF ‘s motherfoookers( recall abu Gharib and Pvt Englande) -especially the One with five deferments who would not last five minutes out there operating in the “DarkSide” as a ‘field agent”
    But bmaz you are right -our discussion/speculation on a whole host of issues revolves around whether are not Durham is a stand up professional Prosecutor or not . My beief is that Prosecutor Durham in the end will make us proud and Truth Justice and the American Way will be defended against all enemies foreign and in this case particularly Domestic ”
    And I still am feeling real good about our modest wager .

  19. alinaustex says:

    sorry its early I must have trytophane (?) hangover from the turkey I meant bmaz at 56 from my entry at comment 60 ….

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