The Timeline of Torture Tape Destruction in John Durham’s Documents

As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

December 9, 2002: Someone sends a cable referring to McPherson’s review of the videotapes, as well as an inventory conducted on December 3, 2002. The inventory matches this inventory, though Friday’s version does not redact the description of Tape 88 as “no video but there is sound” nor the description “begin other materials.” Also note the appearance of “H2O” below number 75. We don’t get the original of this cable, but it appears someone pulled it up from the files some time after the tape destruction in November 2005. (Document 12; PDF 39-50)

December 20, 2002: A two-page memo from the CIA General Counsel to the Director of Central Intelligence discussing the disposition of the videotapes.

December 20, 2002: At a time when CIA is discussing what to do with the videotapes (there are emails between the Office of General Counsel and Tenet on December 20 and December 26 noted elsewhere in the Vaughn index), someone from Counterterrorism Center (probably their legal department) forwards the October 25 cable to someone else, perhaps to explain why the officers in the field had started taping over tapes on a daily basis. (Document 8; PDF 20-22)

December 20, 2002: Draft/outline of leaks memo, requesting formatting of an attached three page memo.

December 23, 2002: Two-page email with draft language for a memo on disposition of video tapes.

December 23, 2002: One page email described as “first cut at Memo on disposition of AZ videtapes,” drafted by CIA OGC.

December 24, 2002: One-page email receipt of a copy of a memorandum and the writing of a cover memorandum regarding the interrogation video tapes.

December 24, 2002: Change to first draft memo on disposition of AZ videotapes.

December 26, 2002: A three-page memo and one-page cover sheet from the CIA General Counsel to the Director of Central Intelligence discussing proposed options for disposition of the tapes.

January 2, 2003: Someone requests HQS decision regarding videotapes. We don’t get this cable, but it is noted in Document 12. (PDF-39-50)

January 9, 2003: John McPherson completes his memo on his review of the tapes. (Document 9; PDF 24-28)

January 10, 2003: A meeting to discuss the disposition of the torture tapes. For a variety of reasons, I believe this to be written by George Tenet’s Chief of Staff, John Moseman. The note requests CTC to write a paper explaining the reasons to destroy the tapes. (Document 24; PDF 101)

January 12, 2003: A one-page Top Secret email asking what actions will make the video tapes an official record. A one-page email proposing how to reference the video tape for a briefing. A two-page email informing and reminding CIA officers of the question, what actions make the video tapes an official record.

January 13, 2003: Someone forwards Scott Muller and John Rizzo and others “early background on videotapes.” The subject line says four cables are included, but only one appears here, the one sent on May 6, 2002 described above. (Document 10; PDF 30-31)

January 2003: Document 27 (PDF 110-122) appears to have been written before January 28, 2003 because it refers to the “Guidelines” that were finalized on January 28 as still being coordinated by CTC. The document summarizes Abu Zubaydah’s treatment up to that point and speaks of his status in the present tense. I’ll do a separate post on this, but the document may have been part of CIA efforts in January 2003 to justify destroying the torture tapes. It gives some background on him, lists the intelligence he has given, lists the techniques used on him (though, curiously, the description of the techniques is redacted), describes the videotapes and OGC’s review of them, and describes the efforts to fix the torture program. In addition, there are two extensive redacted sections. Most curiously, there is a one-page passage, classified “Secret” (the rest of the document is classified “Top Secret”) that summarizes who AZ was claimed to be, intelligence he provided, and his injuries. I suspect the entire document was used to brief Congress during their February 4 and 5 briefings, and the Secret summary was what the members of Congress were allowed to take away–though that’s just a wildarsed guess.

June 18, 2003: Someone from CIA Inspector General’s office interviewed John McPherson. The report makes clear that McPherson did not think the videotapes that had been taped over were “noteworthy.” The report also suggests that McPherson had not compared the videotape content with guidance sent to the interrogators to see if it matched. McPherson appears to have said he was not under any pressure to ignore those aspects of the videotapes. (PDF 33-37)

July 13, 2003: A cable from the field asking for instructions for disposition of hard drives and magnetic media. Note, we don’t have the original document, but it appears someone pulled it up from the files some time after the tape destruction in November 2005. (Document 12; PDF 39-50)

August 3, 2003: Someone sends a cable to the field directing someone to maintain control of all magnetic media (but not the videotapes in someone’s possession), and forward the inventory document for it to someone. We don’t get the original of this cable, but it appears someone pulled it up from the files some time after the tape destruction in November 2005. (Document 12; PDF 39-50)

August 4, 2003: Someone sends a cable asking for “a cable from the Inspector General authorizing ref action.” We don’t get the original of this cable, but it appears someone pulled it up from the files some time after the tape destruction in November 2005. (Document 12, PDF 39-50)

April 1, 2004: A completely redacted event that appears in the undated timeline summarizing the key events surrounding the torture tape destruction. (Document 25; PDF 103-104)

April 12, 2004: A two page email discussing what actions would make the tape an official record.

May 11, 2004: David Addington and Alberto Gonzales tell Scott Muller not to destroy the torture tapes. This is noted in an undated timeline of the torture tape destruction. (Document 25; PDF 103-104)

November 10, 2004: Two page email chain on the video tapes and OIG’s open investigation, described as “Memo w/OIG comment on tape disposition.”

July 28, 2005: A one-page email with a CIA attorney’s opinion, conveyed to his client, regarding the DNI’s position [on] the destruction of the videotapes.

November 4, 2005: The timeline event reads: “At ODDO request, [redacted]CTC[redacted] drafts language to be included in a cable from [redacted] requesting DDO approval to destroy the tapes. [Redacted]CTC[redacted] sends the language to [redacted] and the ODDO front office, as well as OGC for approval. The plan was for [redacted] to cut and paste the text into a cable and send it to HQs for approval.” (Document 25; PDF 103-104)

November 5, 2005: The timeline event reads: “[Redacted] sends cable requesting approval to destroy the tapes.” (Document 25; PDF 103-104)

November 8, 2005: A cable claiming the IG no longer needed the videotapes and OGC had determined they “accurately documented [redacted] activities on video tape” requests approval to destroy the videotapes. Documents 13, 15, and 16 all appear to be identical copies of this cable though with different routing information and (for Document 15) a different typeface. (PDF 52, 57, 59) Note, the timeline suggests this cable was sent on November 5, not November 8. (Document 25; PDF 103-104)

November 8, 2005: A cable granting permission to destroy the tapes. (Document 14, PDF 54-55) The timeline makes it clear that DDO–Jose Rodriguez–authorized the tape destruction. (Document 25; PDF 103-104)

November 9, 2005: The field informs HQ that it has destroyed the videotapes and within a minute of receipt of that cable–at 5:19 AM–someone forwards the cable to someone else. Note, we have both the original cable (Document 18; PDF 64) and the forwarded cable (Document 17; PDF 61-62)

November 10, 2005: The timeline on the tape destruction shows the following three events (Document 25; PDF 103-104):

[Redacted]CTC[redacted] sends a note to [redacted] saying he has gotten [redacted] concurrence on the language for the cable. He also says that he understands [redacted] is going to call [redacted] with the language for the cable rather than email it to him.

[Redacted] receives the note and replies that the exchange with [redacted] has already taken place. He phoned the language to [redacted] sent the cable. He notes that DDO already approved the destruction of the tapes.

AGC learns that the tapes were destroyed and contacts DCIA Chief of Staff. AGC notes that DNI and Harriet Miers as recently as a few months ago opposed the idea of destroying the tapes. He states they need to be notified of the destruction as well as others.

Also on November 10, 2005, someone sends two cables with the subject line “Short backgrounder” to Dusty Foggo, first saying everything on the tape destruction made sense (though John Rizzo was upset), then noting that the approvals had not been as originally represented. (Document 20; PDF 81-82)

November 25, 2005: The November Vaughn (but not the January one) describes a 3 email chain with the subject line “short backgrounder” with a November 25 date. This suggests that the two emails sent on November 10 (Document 20) were actually part of a 3-email chain, the last email of which was written on November 25. Note that since the November Vaughn was hard copy documents and the January one electronic copy documents, there may not be an electronic copy of this email chain.

September 25, 2007: Someone sends another person the information for the email authorizing the tape destruction, as if asking for help doing a search. (Document 21; PDF 84)

October 5, 2007: Someone forwards the September 25 email, as if asking someone else for help searching for the email. (Document 21; PDF 84)

December 3, 2007: This appears to have been a request for a statement for the NYT, which broke the story of the torture tape destruction the following day. It begins by laying out the problem we’ve identified with the tapes–that they showed that interrogators had used waterboarding more times and differently than they had been directed to. 7 pages of this document remain totally redacted (suggesting that the problems with the tapes were not just what they portrayed). (Document 22; PDF 86-93)

December 10, 2007: This appears to be someone sending the IG, internally, the summary of a trip taken during the IG Review of the interrogation program. This may have been the May 2003 trip when IG reviewed the tapes themselves, though the report also seems to discuss interviews. Note, the forwarding email says the summary table–which appears to summarize all Abu Zubaydah’s waterboard applications–“was subsequently refined. (Document 23; PDF 95-99)

December 20, 2007: Some pulls the three cable sequence on tape destruction (perhaps for the IG?), as well as a document dated August 19, 2003. The November Vaughn suggests the August 19, 2003 document discusses an “unrelated counter-terrorism operation.” (Document 19; PDF 66-79)

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

109 replies
  1. scribe says:

    Just noting there’s an 18 month hole in the middle of the timeline, from May 2004, shortly after the destruction of the Republic (March 2004), to November 2005.

    Given the level of interest in this activity, I find it hard to believe there were absolutely no documents generated regarding it in that time frame.

    • emptywheel says:

      There’s a very good reason for the hole: the timeframe that Judge Hellerstein set on the FOIA response. Only documents in the 2002-2003 and November 2005 range–or docs that mention those dates–are included.

      We do know there were other documents from that period. For example, the Vaughn lists Negroponte’s memo to Porter Goss from July 2005 telling him not to destroy the tapes. There were two requests from Jello Jay in 2005 for the OGC review of the tapes. What would be most interesting, of course, would be if there were mention of things like the Brinkema order or the 9/11 Commission request for videos or anything else. But I’ve seen nothing to indicate there is.

  2. bobschacht says:

    …shortly after the destruction of the Republic (March 2004)…

    Well now! What do you see around March 2004 that I missed?
    Not that we don’t know our Republic has been destroyed…

    Bob in AZ

  3. emptywheel says:

    Btw, one of the things I find most interesting about this timeline is that McPherson conducts his review on November 30 (I think it took him a few days), immediately thereafter someone sends a cable saying it was a mistake to move them (suggesting an awareness that the tapes had been destroyed), followed by McPherson’s report on January 9, making zero mention of the alterations, which took place the day before the meeting with Tenet on what to do with the tapes.

    In other words, the timing sure makes it look like they drafted the document so as to make it possible to destroy the videotapes, even while they recognized the tapes had been altered.

  4. emptywheel says:

    Oh, and one suggestion for that completely redacted event on April 1, 2004? That would have been the period when they were considering criminal referrals coming out of the IG Report.

    There are at least 4 sets of Bates numbers reflected in the documents as follows:

    A 5-digit Bates series with no other identifiers
    A 6-digit Bates series with no other identifiers
    A series with the form: “2007-8808-IG######” which seems to be the IG trying to figure out what happened to the torture tapes in late 2007
    A series with the form: “(mm/dd/yy) TCG: #####” which seems to be after DOJ took over

    So those two earlier Bates series had to have been tied to some kind of formal inquiry.

    There is also some really wacky numbering system in the top right corner of some of these. If anyone has the slightest clue what those mean, I’d be eternally grateful.

    • MadDog says:

      …So those two earlier Bates series had to have been tied to some kind of formal inquiry…

      I hope our Legal Eagles will correct me if I’m wrong here, but aren’t Bates numbers only assigned in actual court cases (versus formal inquiry)?

      • scribe says:

        Not necessarily. You (and anyone with enough money) can buy a Bates numerator machine (or a close analog, e.g., these) and if you google “Bates numberer” you will get literally hundreds of links to downloads, free and otherwise, which will allow you to Bates number .pdf documents in just about any OS you can think of.

        When you’re dealing with lots of papers/documents, particularly where the same paper/document got copied and stuck into something later, it’s impossible to keep them straight without Bates numbering them. The same goes for document productions in just about any case beyond simple contracts or torts.

        You don’t need anything more than a need to keep a lot of stuff straight and organized to deploy a Bates numberer.

        • MadDog says:

          Excellent background info. Thanks!

          I don’t mind getting a correction since IANAL and sometimes you folks seem like from an alternate reality. *g*

        • PJEvans says:

          Used a stamp like that once, handling an award election.
          Stamp the envelope, stamp the membership-number list, stamp the ballot (all three pieces of it). And the site-selection ballots, too: same number if it came with the award ballot, different series if it was by itself (and the envelope and the member-number list got stamped with that number instead). There were only about fifteen or sixteen hundred of the things ….

        • MadDog says:

          Far be it from me to suggest that lawyers use a Bates stamp for everything:

          “Meet the wife and kids. This is 40346, 40347 and my better half, 32376.” *g*

          • bmaz says:

            No no. The numbers are easily resettable. Stamp wife and kids number one, so they think they know whey they stand; then use sequential numbers for all mistresses, dates, floozies, unintended offspring, clients and pets so you can keep em all straight. Of course, if you are Larry King or Elizabeth Taylor, you might need to sequentially number the spouses……..

  5. 1boringoldman says:

    May 6, 2002: “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos”…

    THE BLACK HOLE

    September 5, 2002: “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk”…

      • 1boringoldman says:

        I can’t seem to locate where ABC got this: “The videos were taken at a secret CIA prison in Thailand in 2002, and later stored at the CIA station in Bangkok for three years before they were ordered destroyed.” But I wonder if McPherson went to review them at the CIA HQ in Bangkok and that’s when they were ‘moved’ from the prison to Bangkok [for his visit]. I further wonder if that ‘move’ is when they were messed with, and that’s what had Mr. December 3rd in such a wad…

  6. Mary says:

    they drafted the document so as to make it possible to destroy the videotapes, even while they recognized the tapes had been altered

    Doesn’t it.

    I also like the language Nanny McPherson used to describe his duties on the tapes. If the cable said they did something, he looked to see if they did it – then, if they did, he checked off and went on. So if the cable said “we gave him a cup of coffee” and the tape showed that they gave him a cup of coffee while sodomizing his child, then he could check off that the tape concured with the cable and go on.

    I’m puzzled by the Jan 13, 2003 doc on a few different fronts. First, how would it be that CIA didn’t have or produce the May 02 cable on its own? Did it not exist anymore in any way other than as part of the Jan 03 email (I can’t tell, but I think instead of attached to that email, it was cut and pasted into it – ?) That’s just very odd and makes you wonder what kinds of cables have gone missing. If something as central as that cable has gone MIA, but-for it’s incorporated reference in the email to Muller, Rizzo and lines of redacted persons but without any clear (even redacted) “from,” how can anyone make any of these claims we see about how they reviewed *everything*?

    How did the May 02 cable go missing?
    How many people did the Jan 03 email go to(it looks like a lot).

    I also think the Vaughn index is a bit deceptive on this doc, bc it really makes it sound as though the Jan email “attaches” a contemporaneous cable and both the email and cable are about retention – it makes it sound as if the email and a contemporaneous cable are setting retention procedures.

    Instead, the cable is from almost a year ago and did set retention procedure, but it sure doesn’t look like it is being circulated in the email as a directive to the recipients on retention. Instead, it looks like it is something that was done for what the Subject line of the email describes – to provide the long list of recipients with “Early Background on Videotapes (Four Cables)”

    I know the default is to never suspect something malicious when ordinary incompetence will provide the answer, but I do have to wonder about how that was all set up.

    Second (and in addition to the other 3 cables not being included) the content of the email itself is really interesting and IMO highlights some good reasons why lots of people might have wanted to lose the original cable.

    The cable itself indicates that, days after the 4-27 email on making official recods copies of the tapes, someone has been arguing for taping over and editing the tapes. Editing coming up so fast is, imo, interesting. When you have to tell someone to not only preserve, but “g-d-it, don’t edit the g-d thing either” well, how often would someone feel compelled to tell a subordinate or colleague who had just been told to preserve a video “oh, and by the way, don’t edit it”? Pretty much, imo, only if there had been discussions on editing and why people thought editing might be a good idea.

    The language of the cable makes it sound as if Ref A and Ref B were the ones having the tiff on this. After the “HEY, DON’T TAPE OVER OR EDIT” directive, Ref A is thanked for establishing and maintaining the videos and working out all the problems. Then comes the “but.” “WE REITERATE REF B GUIDANCE, HOWEVER, AND ASK THAT [redacted – looks like last letter might be E – maybe 8 letters] RETAIN ALL VIDEOS OF AZ’S INTERROGATIONS AND THAT [REDACTED] LEAVE THOSE TAPES UNEDITED.”

    IMO, a lot of this sounds like the contractor was in the middle of all this argument. With someone person or representative of an entity as Ref A, who made the actual arrangements for the taping and that same Ref A being the on to argue for editing the tapes. But while the first paragraph of the cable reads like an order to CIA persons (actions required – do this and this); the second paragraph changes tone completely, with thank-yous to Ref A, reiterating “guidance” from Ref B, and “ask”ing that a redacted person or entity keep copies and not edit.

    I think that could indicate a whole second parameter – along the lines of what Jason Leopold’s sources are telling him about a second set of tapes used to evaluate the deterioration of AZ that the contractor might have been keeping and along the lines of Jeff Kayes pieces on human experimentation. There’s an air of jousting in the cable – as if the CIA can control some elements of tape retention, but for some they are having to “ask” and kiss up a bit as they ask.

    But then after the kiss comes the arm twist, bc the third thing that really strikes me about the cable is what it flat out tells Ref A and Redacted – your tapes are evidence.

    “THOUGH WE RECOGNIZE THAT THE TAPES MAY BE CUMBERSOME TO STORE, THEY OFFER EVIDENCE OF AZ’S CONDITION/TREATMENT WHILE IN [REDACTED 12ish characters] CARE THAT MAY BE VALUABLE IN THE FUTURE (APART FROM ACTIONABLE INTELLIGENCE)”

    I’d really like to know in whose “care” CIA is claiming that AZ was during this time frame – Thailand? M J Associates? US government? That early on – FBI?

    Anyway, whoever was getting the cable and Ref A were told that the tapes are evidence that may be valuable in the future. Then we get two full paagraphs, 3 and 4, completly redacted and since the cable is titled about being about retention of AZ’s videotapes, you have to wonder what would be in them that has to be completely and totally blacked out. What is there going on in May, 2002 discussion about videos of AZ’s interrogations that don’t have one word that can come out of redaction?

    Especially, what might follow up after a paragraph descibing that the tapes need to be kept as evidence of AZs treatment for puroses other than evaluating actionable intelligence? A tape that indicates whoever has some of the videos or some control is someone who has to be “asked” as opposed to given and “action required” re: the tapes.

    I’m really interested in how this cable is MIA except for how it appears in the email and how it lays out, at the beginning, grounds for wondering about the control given to third parties to control the torture and tape it.

    Even more, what the people involved could possibly have thought after being told the videos were evidence and then told later to destroy them and then told, oops – there’s a CIA IG investigation (which apparently didn’t get to investigate the contractors all that much) – don’t destroy after all, and THEN again, as Abu Ghraib has come to the fore and all kinds of cases are pending with torture discovery requests, being told – oh yeah, destroy those puppies after all.

    All of the above gets a second think, too, when you look at the magnetic media/hard drives doc.

    On a separate note, why do you think they kept saying they going to “deploy” someone to come and help destroy the videos? How hard is that for field ops? Why would you be having them hold off for the person you were going to “deploy” unless that person were going to be doing something a little bit different than what you were putting in the cable you wanted done? Field ops overseas don’t know how to destroy a videotape and hard drive? Seriously? They need someone “deployed” to show them how? Who would buy that?

    • MadDog says:

      …I’m puzzled by the Jan 13, 2003 doc on a few different fronts. First, how would it be that CIA didn’t have or produce the May 02 cable on its own? Did it not exist anymore in any way other than as part of the Jan 03 email (I can’t tell, but I think instead of attached to that email, it was cut and pasted into it – ?)…

      I’ll take a crack at this. The way I see it is that the Jan 13, 2003 document is an internal CIA email (Lotus Notes anyone?), and then the May 02 document is as you’ve said a CIA cable. Two different systems not conjoined.

      The May 02 cable I’m guessing is a cable from somewhere in the Directorate of Operations (perhaps from the CTC which organizationally falls under the DO).

      As to not being able to “produce” the cable “on its own”, it might be because “operational” CIA documentation is exempt from FOIA. When the cut and paste job showed up in the CIA OCG files, that however was not exempt from FOIA.

      • Mary says:

        So you think it looks like cut and paste too, rather than attachment?

        The Oct and Dec cables were produced free standing and they look to have basically the same kinds of origination and dissmeination.

        I also don’t think that explains how the cover email and attached/cutpaste are indexed. Oh well – you guys have fun.

        • MadDog says:

          So you think it looks like cut and paste too, rather than attachment?

          Or scanned in from a hard copy (printed copy) of the cable.

    • MadDog says:

      …On a separate note, why do you think they kept saying they going to “deploy” someone to come and help destroy the videos? How hard is that for field ops? Why would you be having them hold off for the person you were going to “deploy” unless that person were going to be doing something a little bit different than what you were putting in the cable you wanted done? Field ops overseas don’t know how to destroy a videotape and hard drive? Seriously? They need someone “deployed” to show them how? Who would buy that?

      I’ll try to take a crack at this too.

      Just my guess here, so caveat emptor. *g*

      Videotapes are not so easily destroyed by stuff like burning, and burning is what is typically used to get rid of classified documents (a “burn bag” as a term is ubiquitous in offices handling classified material).

      Given the quantity of videotapes to be destroyed, and requiring total assurance that not one inch of videotape remain, it might be that CIA HQ decides they need to send out a classified materials destruction honcho (no big deal – there are plenty of them in our government’s bureaucracy), and with that person, some type of incinerator equipment to produce the “nothing but ashes” the CIA desires. Or even something like a piece of equipment that utilizes something like sulfuric acid to render the videotapes into their constituent chemicals.

      In any event, I would think that the Thailand CIA Station had some inherent facility to deal with classified document destruction (paper and small quantities of audio tape) on their own, but not with the quantity of videotape material and with the assuredness HQ insisted upon.

      • Mary says:

        I still don’t buy it. They had cooperation with Thailands’s gov and intel and I think it would have been easier for them to get incineration materials, etc. from local sources – if they didn’t have them – more easily than by having the US ship them there. I don’t think you could send just any classified materials destruction honcho on a field trip to a torture site to destroy materials – he/she’d have to be someone they would be ok bringing into such a program.

        Thailand wasn’t necessarily the very most stable of places – I just can’t believe we’d be so in bed in with Thai intel as to work hand in glove with them on our torture regime and yet not have all kinds of doc/equipment desctruction options and capabilities or be able to get what we needed without having it ‘deployed’ over.

        While a burn bag wouldn’t work super well for the vids, for a place like Thailand we had to have process in place to be able to destroy computers and hard drives and all kinds of things, just based on local politics imo. Again, it wasn’t the most stable of places and things like computers would be a big target in the fallout from any instability I would think. I just don’t buy any kind of need to deploy someone over unless it was pretty accepted that someone deployed would be coming with their own set of *not in writing* orders or unless someone was worried that the guys in the field couldn’t be relied upon to do what they were told for some reason.

        • MadDog says:

          I still don’t buy it. They had cooperation with Thailands’s gov and intel and I think it would have been easier for them to get incineration materials, etc. from local sources – if they didn’t have them – more easily than by having the US ship them there. I don’t think you could send just any classified materials destruction honcho on a field trip to a torture site to destroy materials – he/she’d have to be someone they would be ok bringing into such a program…

          I don’t think there was any way that the CIA would allow videotape documentation of this sort to even be “glimpsed” by any outside group. The CIA folks wouldn’t even trust this kind of information within most of their own organization, much less to the Thai government/intel folks.

          Also, in reading through the material, I got a sense that the CIA HQ folks wanted to, insisted upon, having their own onsite witness to the videotapes’ destruction.

          Perhaps I’m reading more into the HQ folks tone, but I ask myself whether in that position myself (HQ), I’d trust those lying field folks when they said, you betcha, we destroyed ’em all.

          I sense the HQ folks knew of the well-earned reputation of field folks for saying one thing and doing another. For squirreling away “copies” of stuff as a form of self-protection.

          In any event, tis nothing but my own SWAG. *g*

          • emptywheel says:

            I added some other dates from Vaughn indices above (the non-bold dates). And while I didn’t add them all, you can see how the idea to do a review came about in the November Vaughn. They seemed to be prepping to work on the October 25 cable, when on November 15 HQ sent out to field saying, “oh, we want to do a random independent review.” There appear to be a few panicked emails exchanged in response. And as I pointed out above, on December 3 they did request to destroy the vids–not sure whether that was before or after they got the cable saying they couldn’t do so.

            Also, note the cable on December 1 with attorney notes. Not sure if that’s McPherson’s notes sent by him, or whether someone peaked at his notes. What I originally thought was his draft, later in the month, was first name “Leaks memo.”

            And it’s also abundantly clear that OGC (McPherson’s department) and CTC were working together to find a way to destroy the tapes even while McPherson was drafting his results. There’s also the weird timing that in late December, Tenet gets a memo on this, followed by the CTC/OGC work on this, followed by another memo to Tenet. Then in January there’s McPherson’s memo, followed by the meeting about which Tenet’s COS John Moseman (I believe) sent out a note saying, “have CTC put together a memo on why we need to destroy the tapes.” Point being that they had already done so by that point.

          • Mary says:

            I don’t think there was any way that the CIA would allow videotape documentation of this sort to even be “glimpsed” by any outside group.
            ??

            I don’t either – ? I don’t think the CIA would even go through all the hoops of clearing someone internally just to get a doc destruction guy on site.

            You had mentioned, ” with that person, some type of incinerator equipment to produce the “nothing but ashes” the CIA desires. Or even something like a piece of equipment that utilizes something like sulfuric acid to render the videotapes into their constituent chemicals.”

            and my response was
            “They had cooperation with Thailands’s gov and intel and I think it would have been easier for them to get incineration materials, etc. from local sources – if they didn’t have them – more easily than by having the US ship them there.”

            And also that, with everything we were doing in Thailand on the intel front, coupled with how much political unrest there was in Thailand then, I don’t believe that our CIA there would “not have all kinds of doc/equipment desctruction options and capabilities or be able to get what we needed without having it ‘deployed’ over” (we, meaning, in a really fun slip of tongue, the CIA) ;)

            But as to, “Also, in reading through the material, I got a sense that the CIA HQ folks wanted to, insisted upon, having their own onsite witness to the videotapes’ destruction.” that is definitely part of what I was putting on the table (or unless someone was worried that the guys in the field couldn’t be relied upon to do what they were told for some reason)

            I don’t believe for a minute that there was any need to deploy someone bc the guys there couldn’t adequately and successfully destroy everything (non-sequitor,btw, how long did the other FBI guy stay on site?) There was another reason and it had to do with the person they wanted to deploy imo, not some inability to get the videos destroyed without deploying someone.

            If you look at the redactions, I think it seems like the deployment was to send some kind of message. They have “Deployment of [Redacted]” as a title and it’s hard to believe that a title, like document destruction specialist, would be redacted. A name or a piece of equipment that has covert aspects might be understandable though. Then they start off on, “A [redacted] will be deployed [redacted] at the earliest opportunity to be present and assist in destroying the tapes completely.”

            A [redacted] would work for a piece of equipment reference, but that doesn’t make sense in the “be present and assist” context. It also doesn’t make sense as a reference for an individual. And they later refer to sending separately the details of “the [redacted] deployment” All that makes sense for a title, but not something innocuous like document destruction. Now if there was a cia title for a guy who goes around cleaning up after crimes … ;) Well, “A [redact]” sounds like it was something that was supposed to make them sit up and take notice imo.

            When they back off in Dec and say to keep the tapes after all (and that one sounds a lot like they are expecting someone on site to give them a lot of trouble) they also talk about deploying someone – a “senior HQS officer” – who can be dispatched to help if they need “additional assistance” and no one redacts that reference, just the title the kind of guys the were going to deploy for doc destruction.

            And in 05 when Jose and Friend are getting serious on destruction and did destroy and would have really wanted to make sure there wasn’t anything left, they don’t seem nearly as concerned with deploying someone to do the destruction, just to oversee (and there have been stories, IIRC, that Rodriguez sent a woman over to oversee the destruction and I’d bet that if her name came out, she wouldn’t be a doc destruction specialist – but that would only be one item in her skill set.

            • MadDog says:

              You make all good points.

              …When they back off in Dec and say to keep the tapes after all (and that one sounds a lot like they are expecting someone on site to give them a lot of trouble) they also talk about deploying someone – a “senior HQS officer” – who can be dispatched to help if they need “additional assistance” and no one redacts that reference, just the title the kind of guys the were going to deploy for doc destruction…

              That person still puzzles me as well. There’s an undercurrent of something not stated going on here. Just what it is I don’t know.

              I still hang on to the thought that the HQ folks wanted to have their own person on site as a witness to the videotape destruction. It is never explicitly stated, but that’s an undercurrent I get as well.

              • Mary says:

                Esp with the Foggo ref about how someone pushing for the destruction might have been in some of the tapes.

                • R.H. Green says:

                  A rogue thought on your envoy with the “not in writing” portfolio: his/her mission could have been to find specific things on the tapes and make secure copies before destruction. Just for insurance.

            • jdmckay0 says:

              But as to, “Also, in reading through the material, I got a sense that the CIA HQ folks wanted to, insisted upon, having their own onsite witness to the videotapes’ destruction.” that is definitely part of what I was putting on the table (or unless someone was worried that the guys in the field couldn’t be relied upon to do what they were told for some reason)

              I don’t believe for a minute that there was any need to deploy someone bc the guys there couldn’t adequately and successfully destroy everything (non-sequitor,btw, how long did the other FBI guy stay on site?) There was another reason and it had to do with the person they wanted to deploy imo, not some inability to get the videos destroyed without deploying someone.

              FWIW, I agree completely.

              Beyond what you say… if CIA did not trust (whoever) to destroy tapes (for whatever reasons), and they did want their guy to do the wet work, in world of spook think, it makes no sense to me they would broadcast their intention to send out destruction specialist.

              That doesn’t fit their MO.

              Seems to me they’d have their guy drop in unannounced, ask for tapes/media w/out declaring intentions, then poof.

      • emptywheel says:

        Yeah, and I would also think that given the legal issues (ahem) they wanted to pretend it was all proper. Thus the big deal about actual start and end times for destruction of the video.

        • MadDog says:

          The HQ weenies could read the handwriting on the wall. There was no way their usage of videotaping would remain secret, somebody would blab to the NYT or WaPo.

          So yes, those “legal issues (ahem)” were CYA Number 1 for HQ weenies.

          And for the very same reason, there was every incentive for Field folks to squirrel away (secretly) copies of the videotapes in some safe place. Self-protection or blackmail, it would been foremost in some Field folks’ minds that they would be the ones hung out to dry.

    • Jeff Kaye says:

      As I am swimming in different weedy waters lately, and haven’t had time to go through these docs (try reading Emerging Cognitive Neuroscience and Related Technologies (2008))… I was intrigued by a question of yours.

      “THOUGH WE RECOGNIZE THAT THE TAPES MAY BE CUMBERSOME TO STORE, THEY OFFER EVIDENCE OF AZ’S CONDITION/TREATMENT WHILE IN [REDACTED 12ish characters] CARE THAT MAY BE VALUABLE IN THE FUTURE (APART FROM ACTIONABLE INTELLIGENCE)”

      I’d really like to know in whose “care” CIA is claiming that AZ was during this time frame – Thailand? M J Associates? US government? That early on – FBI?

      Could the word have been “PSYCHOLOGIST” or “PSYCHOLOGISTS”? It fits use of the word “care” and “condition/treatment”.

      As earlier on in the days of examining the torture scandal, we are going to find the centrality of the work of psychologists in the interrogation very important. I don’t wish it this way because of some perverted egoism related to my own field. In fact, it sickens me.

      As for Mr. Fredman… remember him trying to spin those minutes after they came out. He wrote a letter to Levin, trying to make it sound that he was talking about the Istanbul protocol? He was certainly worried. Will he be hung out to dry? Someone has to take the fall if things get too hot. Not that he’s not deserving.

  7. MadDog says:

    EW, no big deal but a minor typo in your Chart – The Bates number you list in column 3 for Document 2 should be TCG00392 instead of TCG00382.

    I deduce that from the next page’s Bate number in Part 1 page 4.

    And while I’ve had no success in divining a DOJ acronym for TCG via Google, I’ll offer a guess that it might mean something like Transmission Control Group, but that’s only my guess.

    • emptywheel says:

      Ah, thanks.

      Remember that IG and OGC had to recuse themselves once this went to DOJ (though I’m not sure whether that was in December 2007 or in January 2008. There’s some detail in the early OIG response to ACLU on how they were doing document reviews at that point, which might tell use what TCG was.

  8. Mary says:

    Something else very interesting about the CIA Nanny’s review is that McPherson labels his review as Atty-Client privilege and work product.

    This raises a freakin boatload of questions, problems and issues. I’ve got to take advantage of the weekend and weather and get going, but just who was his client did he think? How is he preparing work-product that is a review of central elements of dispute and then ok-ing those central elements for desctruction? How the hell is he oking for destruction with all the pending judicial proceedings – which he has to have been aware of from his position and which any kind of targeted mundane discovery would show that he was aware of in some fashion.

    One other items not best tied to this post, but since I don’t know if I’ll get back – I think the 12-20-2007 doc exchange is really interesting, other than the pages of redactions, for one reference in it. X tells Y – we need this list of docs, you’re the only one with access, can you get them for us and Y responds with – here’s some of the stuff, but some of it is “controlled by” [redacted, with either the “and” end of the word not redacted or redacted “and I have asked”]. The bit item of interest, though, is when Y says, “Others we have no access to are owned by [redacted]

    Really – docs on the CIA torture program are owned by someone gov can’t direct to turn them over? Really really? You redaction specialists will have to tell me if Mitchell Jessen & Assoc fits – or not.

  9. Jeff Kaye says:

    EW, re your planned article on the CIA’s summary of AZ’s interrogation, two quick things I notice (not earth-shattering).

    1) The affirmative description here of AZ as the author of Al Qaeda’s resistance manual. This is a step beyond the conditional language they used before. Was this for the Congressional audience. Of course, it was a lie.

    “He is the author of a seminal Al Qaeda manual on resistance to interrogation methods.”

    2) In the section on videotapes, it’s said the OGC attorney reviewed the videotapes, and “inventoried the interrogation materials, videotapes, logbook, notebook, and psychologist’s notes…”

    What interests me are the psychologist’s notes (of course). This is the first indication I’ve seen that such notes were taken in the course of AZ’s interrogation. We need to know the content of those notes, as it will indicate to what extent they were measuring the response to variations in the interrogation techniques’ application to judge behavioral response. I’m not talking facial expressions here, which they could use videotapes to study later, and go by too fast for observation (for the most part). A good example might be the descriptions in the log of Al Qahtani’s interrogation. The psychologist would be describing mood, affect (appropriate or not, what it was), behavioral actions, especially unusual ones (urinating on oneself, or continually masturbating, as AZ was reported to do as a soothing activity for a person highly stressed and regressed, etc.), preliminary observations, and perhaps — and this would be even more important — conjuring suggestions about ways to manipulate the situation.

  10. MadDog says:

    …There’s also the weird timing that in late December, Tenet gets a memo on this, followed by the CTC/OGC work on this, followed by another memo to Tenet. Then in January there’s McPherson’s memo, followed by the meeting about which Tenet’s COS John Moseman (I believe) sent out a note saying, “have CTC put together a memo on why we need to destroy the tapes.” Point being that they had already done so by that point.

    This is really weird. Perhaps the rationale is that they don’t think they’ve sufficiently covered their butt with “legally defensible” documentation, so the order goes out to retrospectively come up with all the reasons why they just had to destroy the videotapes.

    I’m only surprised they didn’t claim a Geneva Convention “detainee privacy issue”. *g*

  11. 1boringoldman says:

    Anyone know who the [2005] retiring Bangkok CIA Station Chief was? Was whoever-he-was also the Station Chief in 2002?

  12. emptywheel says:

    I want to pull in a comment Jeff made in yesterday’s thread–a quote from a discussion at Gitmo on October 2, 2002.

    – At this point a discussion about whether or not to video tape the aggressive sessions, or interrogations at all ensued.

    Becker: Videotapes are subject to too much scrutiny in court. We don’t want the LEA people in aggressive sessions anyway.

    LTC Beaver: LEA choice not to participate in these types of interrogations is more ethical and moral as opposed to legal.

    Fredman: The videotaping of even totally legal techniques will look “ugly”.

    Becker: (Agreed)

    There is NO way Fredman wasn’t one of the lawyers involved in discussions about destroying tapes on September 5 and 6. None. So he was right in the middle of efforts to destroy these tapes when he made that comment.

    • MadDog says:

      I agree, and furthermore, I have a sneaking suspicion that he had involvement in constructing, or at the very least, approving the text that CTC put together for the folks in Thailand to “request approval for the videotape destruction”.

    • Mary says:

      Surely not Mr. “if the detainee dies”

      So do you think the two CIA lawyers who wouldn’t cooperate on advice of counsel with the OPR investigation were Fredman and McPherson? And now one of them has a deal with Durham?

      But how can Nanny McPh make a deal on his “client’s” info for which he has claimed atty-privilege?/s

      It’s worth a fast note, too, that between the October “let’s destroy this crap” cable and the December “or not so much” cable, there was the death of Gul Rahman in November at the Salt Pit, where much the same techniques as had been used on AZ were used.

      And again, IIRC there has been one or two stories that said that the CIA promptly briefed Congress on that death, but nothing I’ve seen in a briefing schedule would fit with a prompt briefing of all of the gang of 8 – which you’d think a torture killing of a non-al Qaeda guy whose boss might cause trouble for our soldier in Afghanistan might trigger.

      • emptywheel says:

        Two things. First, I’m 90% sure McP wasn’t one of the lawyers who didn’t cooperate. First, because at least three of those were CTC lawyers, not OGC lawyers. And second, because I think they credibly do claim that McP hadn’t been involved before his review.

  13. Gitcheegumee says:

    Where is the proof that the videos were actually destroyed?-

    Is there video of their actual destruction?

    • DeadLast says:

      At what point did most video go digital? All I read about “tapes” makes me think of the old, pre-YouTube days. I have to believe that there are a lot of sick puppies in the Torture Brigade. If files were digitized, they are a lot easier to….

      • Hmmm says:

        You remind me of a thought that came last night. If we wind up in a situation where digital video eventually surfaces, but the analog (probably VHS) tapes have been destroyed, then there may be no way to confirm the authenticity, nor if authentic the integrity, of the digital recordings. Since there has been plenty of time elapsed, faked digital recordings could have been created by now, showing things different from what actually happened, so they could be far less incriminating than the actual tapes were, and/or they could point fingers in different directions than the actual tapes would have done. That would be consistent with multiple IC actors now suddenly starting to talk about the existence of a second recording system (even if there wasn’t actually one there at the time): manufactured evidence falsely “clearing” the participants and command chain.

        So, if digital recordings should now turn up without a compelling authenticity/integrity story, might want to keep a grain or two of salt in reserve.

        • Mary says:

          Add to that – the first directives on keeping the tapes were also very strongly worded with respect to NOT EDITING them either. So obviously editing was on someone’s mind, right from the get to.

  14. MadDog says:

    A couple additional items that have crossed my mind:

    1. This particular CIA document dump seems to be the most important one we’ve yet seen. Not because the CIA IG report, the OLC opinions or the OPR report are not important themselves to our understanding of what took place in forming the policies and practices of torture.

    Instead, this batch of CIA documents really for the first time opened the door onto just what those decisionmakers at the focal point for implementing torture were thinking, saying and doing.

    And it isn’t a pretty picture!

    2. Lastly, what really strikes me about this CIA document dump is “the dog that didn’t bark.” There is no indication whatsoever that anyone in the CIA Office of General Counsel (Muller, Rizzo, MacPherson, etc.) ever took the affirmative step to insist via documentation that due to pending court cases, these videotapes were not to be destroyed.

    Yes, Rizzo was upset to find out Jose Rodriguez as DDO had ordered them destroyed, but I get a sense that Rizzo was only upset about having to inform Harriet Miers; not that CIA had destroyed evidence that Federal judges were insistent be turned over to the courts.

    Some might argue that we’ve not seen everything John Durham has acquired, but I would argue that no such OGC document exists based on the commentary in these released CIA documents as well as Rizzo’s comments to the MSM earlier this week.

    So how could it be that the CIA OGC did not issue a written document to the DDO requiring the torture videotapes be maintained?

    And how convenient for Jose Rodriguez’s defense to be able to claim he didn’t know the videotapes were evidence already requested by Federal court judges.

    • Mary says:

      Lastly, what really strikes me about this CIA document dump is “the dog that didn’t bark.” There is no indication whatsoever that anyone in the CIA Office of General Counsel (Muller, Rizzo, MacPherson, etc.) ever took the affirmative step to insist via documentation that due to pending court cases, these videotapes were not to be destroyed.

      ding ding ding ding ding ding ding

      AKA for all those many listed lawyers as a lit hold.

      And not only that, we know from the OPR report and a few other leaks that it is confirmed in the public record that Agag and Bradbury were told by Comey that there was video and Comey’s COS (who later got to go ‘splain a few things to Brinkema) knew too.

      All those lawyers as well – with lots of OPR documentation about them knowing about the tapes, and no lit hold, anywhere.

      THESE are the kinds of things that are much easier to nail down on obstruction and professional standards fronts than the touchy-feely-fuzzy “how bad was the opinion” and it’s why I’ve harped on the fact that if the judiciary committees had really wanted to do something worthwhile, that’s the front they would have pushed on – an investigation into how forthright DOJ has been on all the illegal programs with the courts and congress and what standards they do and don’t feel bound by – esp with so many taking the position that the President can always just overrule their interpretation of the law to say, “if I say it’s legal, it’s legal”

      I think you are maybe starting to see why I’ve been so teeth grinding over the failure to put on lit holds for so long now. Add in the fact that you have a memo to the President in Jan 02 saying, basically, the only thing between us and War Crimes under the War Crimes Act is the viability of our claim that how we label someone limits their rights to be treated humanely.

      • MadDog says:

        I couldn’t for the life of me remember the term “lit hold”, but the concept was something I knew you, particularly, had been most adamant about. *g*

      • emptywheel says:

        Remember, AGAG KNEW about the videos well before that. Even if he wasn’t briefed early in the taping (dubious), he was briefed on them on May 11, 2004.

        I think he and Addington told them not to destroy the videos bc they wanted to have that out there to keep the torturers in line.

        • Mary says:

          Yep, but he wasn’t AGAG then, he was AGWHC. So he knew, but there might be a stretchy argument that what he knew as WHC isn’t something that he could necessarily reveal or act on to his former client’s detriment as AGAG and it wasn’t something that OPR could really do anything about – his actions as WHC.

          It’s when you also nail that info to him in his capacity as AGAG that you show definite issues on DOJ being used for institutional obstruction as well as firming up very definite professional ethics obligations. We might not be entitled to know what WHC did vis a vis his client and lit hold communications(even though it was in that capacity that he warned his client that they were committing war crimes unless the title “unlawful enemy combatants” could be successfully used to evade war crimes responsibility), but where DOJ is involved in gov oriented litigation then you have a different situation.

          But absolutely, you’re right that on an overall basis you can’t lose track of when these guys are first in the record with knowledge. The next most interesting thing is to document when/if Ashcroft found out about the taping and when AGAG found out about the destruction.

          • bmaz says:

            I think it is questionable whether there would be privilege for this due to him being WHC. Aside from that however, I cannot see ordering a litigation hold could in anyway be seen as violating it even if there was. It is a ministerial act.

            • Mary says:

              I mean specifically putting a hold on the tapes in his capacity as AG if the only evidence of how he learned about their existence was in his role as WHC where his client would have had a very different interest than the DOJ’s interest.

              I agree he probably could have/should have anyway. I don’t think, though, that OPR would have been in the same position to review what he did with respect to the tapes if the only evidence was what he knew from a briefing he got as WHC – but once you also have him being told in his capacity as AGAG, then OPR has a really different toehold. imo,fwiw.

              BTW – anyone want to consider what would happen if a bunch of Goldman Sachs guys are unable to produce docs and records bc they destroyed them?

          • emptywheel says:

            Right. But I sort of think it’s akin to AGAG taking his briefcase full of CYA materials to carry around with him when he moved to DOJ. I’m certain that his and Addington’s instruction not to destroy the vids was more about self-preservation than anything else. So was AGAG’s briefcase. And after he was investigated for it by IG, he left very quickly and suddenly became unemployable.

    • Mary says:

      So how could it be that the CIA OGC did not issue

      and more to the point, DOJ that was handling the cases. How could it be that nothing went out to CIA and others, includin OVP and WH even, from DOJ putting on notice that certain kinds of docs should not be destroyed.

      Or – what if that had gone out? I’ve asked a bunch of times whether or not OPR or IGs or Judges or anyone has asked for info on lit holds that might have been generated in connection with all the cases.

      Oh well – off again.

    • bobschacht says:

      2. Lastly, what really strikes me about this CIA document dump is “the dog that didn’t bark.” There is no indication whatsoever that anyone in the CIA Office of General Counsel (Muller, Rizzo, MacPherson, etc.) ever took the affirmative step to insist via documentation that due to pending court cases, these videotapes were not to be destroyed.

      Yes, Rizzo was upset to find out Jose Rodriguez as DDO had ordered them destroyed, but I get a sense that Rizzo was only upset about having to inform Harriet Miers; not that CIA had destroyed evidence that Federal judges were insistent be turned over to the courts.

      Some might argue that we’ve not seen everything John Durham has acquired, but I would argue that no such OGC document exists based on the commentary in these released CIA documents as well as Rizzo’s comments to the MSM earlier this week.

      But we don’t have telephone logs, do we? Critical instructions may have been given orally, by telephone.

      Bob in AZ

      • MadDog says:

        I suspect that with any oral instructions, those implicated will have memories of deaf ears. *g*

    • MadDog says:

      And one additional thing that I find most striking about with this latest CIA document dump is what EW made abundantly clear with the very title of her intial post this week – Is John Durham Finally Done? as well as this post.

      Why would Durham release these “law enforcement privilege” documents now?

      Does this mean that Durham can’t make a case against anyone so there is no longer a need for a “law enforcement privilege” to shelter these documents?

      Or does this mean that Durham can and will make a case so there is no longer a reason to keep these FOIA’d documents out of our hands?

      To be honest, while I lean toward the former, I could easily believe the latter. *g*

      • emptywheel says:

        I asked some folks at DOJ whether we should expect a Durham Friday night news dump on Friday. THey were adamant that wasn’t going to happen–they didn’t have to ask anyone or anything, they knew he wasn’t done. When I asked about the FOIA exemption 7, they distinguished that this was just a law enforcement hold, not a hold until indictment.

        So what does that mean?

        Now, I’ve half wondered whether CIA chose to release the McPherson stuff to make it easier on those (Rodriguez) to know what he’s up against. The same kind of helpful leaking we often see in these high profile cases, but in this case it’s selective declassification to help one of their guys try to fight a rap.

        Also, somewhere recently, they said Goss has testified.

        But one of the things I find most interesting is that they presumably didn’t release what should be the third email in the chain to Foggo in November 2005 about the destruction. That’s about the only thing that hasn’t been released.

        • MadDog says:

          …Also, somewhere recently, they said Goss has testified…

          I read that too in one of the MSM articles this week. With a bit of searching Google News, I found it over at UPI:

          …The Justice Department has been conducting an investigation into the destruction of the tapes for more than two years. Goss and other ex-CIA officers have testified before a grand jury hearing evidence as part of the investigation…

          By the way, in looking for that Goss item, I scanned the WaPo article on this subject and there was this other tidbit:

          A day after the destruction, Kyle “Dusty” Foggo, then the executive director of the CIA, was told that “we may have ‘improperly’ destroyed something,” according to an e-mail. The message was written by Foggo’s deputy, who remains undercover, according to a former intelligence official…

          (My Bold)

          I must have missed it that it was Foggo’s deputy.

            • MadDog says:

              I thought I had also read it in the NYT piece, and sure enough, I had:

              …Mr. Goss and other former C.I.A. officers have testified before a grand jury hearing evidence as part of the investigation, former intelligence officials said…

        • MadDog says:

          I asked some folks at DOJ whether we should expect a Durham Friday night news dump on Friday. THey were adamant that wasn’t going to happen–they didn’t have to ask anyone or anything, they knew he wasn’t done. When I asked about the FOIA exemption 7, they distinguished that this was just a law enforcement hold, not a hold until indictment.

          So what does that mean?

          A straw I’m more than willing to grasp. *g*

        • 1boringoldman says:

          But one of the things I find most interesting is that they presumably didn’t release what should be the third email in the chain to Foggo in November 2005 about the destruction. That’s about the only thing that hasn’t been released.

          Those two emails are the most revealing. Since you put up this timeline pointing out that one of them is missing, something has been nagging me about it. I think it’s that I would expect it to be either in the dump for us to read or all black and redacted. But it’s just not there. I wonder if it wasn’t too damning to publish yet too devoid of “state secrets” to redact, so they left it out in hopes that there wouldn’t be an EW who noticed its absence.

          I presume Durham has seen the whole sequence…

    • emptywheel says:

      Well, I think that’s waht the several cables I added in above about whether or not the videos were official records are so important.

      They were very obviously trying to make sure they never became an official record. Now, perhaps CIA treats legal requests the same way they do FOIA, in which case operational cables are considered off limits. So so long as they could pretend these videos were just something that happened out there in Thailand, they could claim they weren’t discoverable in trial. (And this is all still a pressing issue, as the GOP always bring up Moussaoui’s trial for the discovery nightmare that will come about through civil trials. Well, we know the big problem was that they refused to turn over tapes that were discoverable. Guess what? There are more tapes out there that would be discoverable.)

      • MadDog says:

        Knowing what I know about lawyering (a miniscule amount I daresay, and most of which I’ve acquired right here from parties who I won’t name), it wouldn’t surprise me in the least if there be lawyerly parties who would try to argue that judicial orders aren’t really orders at all. *g*

      • bmaz says:

        The “official record or not official record” distinction, as well as the Moussaoui court and 9/11 Commission putative attachments are all very germane and critical. However, again, independent of all that is the fact the tapes were direct and material, and almost unquestionably exculpatory, evidence to abu-Zubaydah and al-Nashiri themselves. You can argue all day and night about the former, but there is simply no way around the latter. None.

      • Mary says:

        And what is so important about the very first one is that it was obviously generated after some kind of a decision had been made that the tapes were to be treated as official records.

        That’s a topic that it would be great to get the feedback on and FOIA requests related to the destruction might not have been deemed broad enough to include that, but a response for everything that related to the status of torture tapes as official recods or not, including opinions, etc., might have some interesting info.

        Whether or not they were official records though (and I wonder if anyone ever asked OLC for input on that?) doesn’t matter for lit hold purposes as per bmaz at 58

        @56 – and why nothing at all, even redacts, for the other “early background” cables that were supposed to be a part of the Jan 13,03 email? Bc they were docs we’ve already seen? The Oct and Dec cables? Or not?
        @71 – anytime your argument wanders to “my client deserves a medal, not an investigation” you aren’t arguing from strength. If you’re the only one suggesting a medal, you’re Bush fondling Tenet’s neck.

        @75 – that would be a possiblity too – I just think that the focus on having to send someone was not because the guys in the field were doofuses (doofi?) who didn’t have the capacity to destroy completely. There was another agenda at work and the later quasi-admission that they wanted someone to oversee fleshes out a bit – but by then, if you didn’t trust your guys in the field, how many copies might there be and how would you know? There was an agenda – just what it was or even if everyone sitting silent had the same one or not is not clear. And jdm @ 89 makes a really good point on that – if they are giving a heads up, it seems likely there’s a reason

        @79 – that’s a really good and interesting take. I don’t do a good job on trying to figure out redact characters – my eyes just don’t do that – but that would be very interesting. And if he was under “care” from those psychs, per gov, then what does that make their records? HIS medical records? Hmm.

    • emptywheel says:

      Oh, and I don’t buy the “didn’t know about Brinkema’s order.” The November 4 date when they started scheming on this makes the THE DAY AFTER Brinkema’s order.

      • MadDog says:

        I could well imagine that Bob Bennett arguing that Jose Rodriguez had no idea that Brinkema sought his precious torture videotapes, and why the heck didn’t Rizzo tell him.

        • bmaz says:

          Fine. Let him. But to do so, he is going to have to actually, you know, testify. Let er rip Jose, cause then I have some more questions for you since you have waived silence. Secondly, it well might put Rizzo seriously in play, not a bad thing either in some respects; that could really bugger their pie. All good by me; let’s roll.

          • MadDog says:

            Bennett, though I find him at times to be a rather clownish character, would be the last lawyer to ever let his client testify absent immunity, don’t you think?

            But I do take your basic point. None of these CIA folks like Rizzo and Rodriguez would make good candidates for any testimony. Perjury would be the rule rather than the exception. *g*

            • bmaz says:

              Don’t sell Bob Bennett short; he is one hell of a lawyer. You may not like what he does all the time, but he does a very good job for his clients, which is what counts in the big leagues.

              • MadDog says:

                Based on the Bennett comments in the WaPo article, the WSJ article, and the ABC News article, I’m guessing that Rodriguez is not one of the intelligence folks who have testified before the Grand Jury:

                “Jose did not in the dark of night destroy these things; it was discussed within the agency and with Congress,” said Robert Bennett, Rodriguez’s attorney. “He deserves a medal, not an investigation.”

                …Robert Bennett, Mr. Rodriguez’s attorney, said Mr. Rodriguez “was protecting his people and the national security of the country. He deserves a medal not an investigation.”

                …Robert S. Bennett, attorney for Jose Rodriguez, told ABC News that “nothing in the documents suggests Jose broke the law.”

                “Jose was protecting his operatives and the national security of the country and deserves a medal and praise rather than an investigation,” added Bennett. “Before he made the decision, he got assurances that it was legal and that there were no legal impediments to do it.”

                Bennett made sure that his client’s “innocence” got out there in the MSM as the story broke, but somehow didn’t connect with the NYT. Must’ve been a long distance call, doncha know? *g*

  15. orionATL says:

    as far as lit olds go,

    if, like me you’re ignorant and curious, try google which may lead you to http://www.eddupdate. com.

    there you will find a brief explanation of “litigation hold” and why it is usually not procureable by “the other side” in law cases.

    but sometimes it is “discoverable” says this article,

    like if there has been what lawyers call “spoilation”.

    if cia gen counsel’s office did not know for certain sure there was certain spoilation in the cia’s torture documentation (all kinds),

    they were devoid of legal imagination and unfit to practice.

    why produce something that will be used against you?

  16. orionATL says:

    but bmaz,

    can’t rodriguez ( or you or i) be compelled to appear before a grand jury?

    if so, he WILL testify, though he will not self-incriminate.

    if joser (pronounced “hoser”) does appear,

    i wonder if he’ll feel the necessity to assert his fourth ammendent rights as well as his fifth.

  17. orionATL says:

    jeff @79

    why not “psychologists”.

    it fits not only the spaces allocated, but the probable reality of the administration of torture by a bureaucracy – division of labor and responsibility sliced into many units.

    but i don’t think the torturers, including any clinical psych contract torturers, would have been the “assigned to the care of” psychologists. i would expect those to be line employees of cia, “agency expert certifiers” one might call them, rather like cia’s lawyers.

    parenthetically, i would not want to have the dreams of that (or those) cia psychologist (s).

    the good news is:

    the inquiry broadens

    @emptywheel and

    elsewhere in the wlw (weblog world).

    • Jeff Kaye says:

      Some of the CIA psychologists have a *lot* of authority. I’m not talking Mitchell, Jessen, or other contractors.

      But, I could easily be wrong. It’s only a supposition.

  18. 1boringoldman says:

    EW,

    Document 2 is dated 10/25/2002 in the list and the table, but it looks like it ought to be October 2 in the PDF [“TOT: 251945Z OCT 02“]. Am I looking in the wrong place?

    The reason I ask is that Oct 2, 2002 is the date of the Strategy Meeting where Fredman says “The videotaping of even totally legal techniques will look “ugly”…

    I was wondering if he left the meeting and put together his “turn off the videotaping” guidance, or wrote it, then went to the meeting with it on his mind…

    • watercarrier4diogenes says:

      TOT: 251945Z OCT 02

      would be how “25th @1945zulu time, October, 2002” would be written in military time. Zulu being GMT.

  19. Jeff Kaye says:

    A plug for The Seminal diary I just posted:
    CIA Second Taping System Reported in Zubaydah Interrogation

    It’s really a kind of plug, with a few of my own observations for Jason Leopold’s article, which I think contains some new information that we’re going to have to consider as to how it fits.

    I’m writing up a separate piece on the meaning of the “psychologist’s notes” I mentioned upthread, and connecting it to the issue of experimentation in general, and also “learned helplessness”.

  20. alinaustex says:

    alinaustex
    Could the released documents by Durham be an attemtpt ‘to smoke ’em out ” – that is we the Prosecutor Team have the evidence to convict alot of people -so those people that might want a make a deal better get “their rears in gear “. And Bmaz would Rodriguez or Rizzo for the purposes of our friendly wager be considered a Prinicipal ? And could it be that Durham doesn’t need Rodriguez ‘s testimonty thats why Bennett has not achieved an immunity deal for his client ? Wonder too if Foggo has given up any important actors in this tragic misuse of the OGA ? You know ol “Nine Fingers” could have gotten a lot more time for those sweetheart illegal water biottle procurement contracts. Mr Foggo also was helping in setting up the Black Sites .
    but then again all this might be my idle early morning chatter -and again I issue the disclaimer I am not a lawyer and do not even pretend to be one on the internet tubes ….

  21. orionATL says:

    but then look what happened with the accounting firm whose attorney “encouraged” employees to tidy up their files in “a timely way” and thereby litigation related info was lost.

    first convicted , then reversed on appeal if memory serves (and it often don’t).

    added: arthur anderson viz accounting for enron.

  22. alinaustex says:

    If the contractors who tortured detainees were involved with a conspiracy to cover up said torture -even if the other co conspirators were OGA and other federal employess would the RICO statutes still pertain to the contractors ?

  23. alinaustex says:

    [email protected]
    Cannot believe all original torture media have been destroyed or altered -and even if it has -the very act of editing a tape I am told by legal beagles could led to obstruction charges .
    I still maintain my optimism about the Durham grand jury -especially now that Goss and the Gossling have been to visit ….

  24. jdmckay0 says:

    BTW – anyone want to consider what would happen if a bunch of Goldman Sachs guys are unable to produce docs and records bc they destroyed them?

    I think a lot of people have considered this. Going to be interesting (?) to see what SEC Attn(s) actually have, eg. if this is going to be another Ted Stevens imbroglio.

  25. alinaustex says:

    [email protected] 102
    In your opinion – have all the SOL’s run out for what the Durham grand jury is currently taking testimony regarding -And just to be sure -even if the obstruction charge relates to a homicide -the SOL on that has now ‘expired ‘ ?
    How about the homicide itself?
    And if the obstruction of justice is ongoing- ie trying to hide some criminal wrong doing – even if that obstruction is happening currently to hide an illegal act that has an expired SOL -that is not a currently chargeable offense?
    ( Bmaz- you and Mary have educated many of us here – and we appreciate your efforts to bring clarity to our questions )

  26. alinaustex says:

    Bmaz @102 (again)
    And the recent war crimes law that was put into place for the DOJ – the one I think you said you did not quite understand the impact – did that new law not have a provision that said- parapharsing now – that certain war crimes like torture would not have a SOL ? Am I remembering that correctly ?

Comments are closed.