Were the Ramzi bin al-Shibh Tapes Altered Like the Abu Zubaydah Tapes Were?

Given that the AP has filled in some details about the Ramzi bin al-Shibh tapes someone had hidden under a desk at CIA, I wanted to look back at the letter DOJ wrote to Leonie Brinkema in 2007, when the government first admitted it had been sitting on those tapes.

AP says the tapes were found all at once while DOJ only learned about them over a month’s time

As you recall, DOJ sent this letter on October 25, 2007, to tell Judge Leonie Brinkema (who had presided over the Zacarias Moussaoui trial) and a judge who had presided over appeals in that case that two CIA declarations DOJ had submitted–on May 9, 2003 and on November 14, 2005–“had factual errors.”

Here’s how the AP describes the tapes and their discovery:

The CIA has tapes of 9/11 plotter Ramzi Binalshibh being interrogated in a secret overseas prison. Discovered under a desk, the recordings could provide an unparalleled look at how foreign governments aided the U.S. in holding and questioning suspected terrorists.The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.


When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.


The CIA first publicly hinted at the existence of the Binalshibh tapes in 2007 in a letter to U.S. District Judge Leonie M. Brinkema in Virginia. The government twice denied having such tapes, and recanted once they were discovered. But the government blacked out Binalshibh’s name from a public copy of the letter. [my emphasis]

The DOJ letter describes a slightly different (though not necessarily inconsistent) chronology. It claims the CIA informed DOJ first of one videotape, and then roughly a month later, of the second videotape and audiotape.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a video tape of the interrogation of [1.5 lines redacted] On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution. The evidence of the video tape, however, is at odds with the statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings.

At our request, CIA also provided us with intelligence cables pertaining to the interviews recorded on the two video tapes. Because we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations. Based on our comparison of the cables to the [redacted] videotapes, and keeping in mind that the cables were prepared for the purposes of disseminating intelligence, we found that the intelligence cables accurately summarized the substance of the interrogations in question. [my emphasis]

So the AP’s sources suggested that a staffer simply pulled out a box [Christmas in September!] and found all three tapes–presumably at the same time–whereas DOJ only found out about one tape at first, then sent CIA back to see if there were more. If, as the AP suggests, the CIA found the tapes all at once, then it suggests that the CIA withheld two of the tapes from DOJ until DOJ asked for them specifically. Given that DOJ reviewed the first tape on September 19 and the second and third on October 18, there seems to have been a delay in getting those second two tapes, which might either suggest the tapes weren’t found at the same time, or CIA was very slow in turning over tapes they already knew existed.

The DOJ’s explanation of why CIA didn’t mention the tapes assumes CIA didn’t check with CTC before writing the Declarations

Now, the AP reports that John Durham has expanded his investigation to cover the Ramzi bin al-Shibh tapes as well.

A Justice Department prosecutor who is already investigating whether destroying the Zubaydah and al-Nashiri tapes was illegal is now also probing why the Binalshibh tapes were never disclosed.

The Brinkema letter provides this explanation why the people who wrote the Declarations in 2003 and 2005 didn’t mention the tapes.

Unbeknownst to the authors of the declarations, the CIA possessed the three recordings at the time that the Declarations were submitted. We asked the CIA to ascertain the reason for such an error. [1.5 lines redacted] As best as can be determined, it appears that the authors of the Declarations relied on assurances of the component of the CIA that [one line redacted] unknowing that a different component of the CIA had contact with [one line redacted]

While this passage is heavily redacted, it seems to suggest DOJ claims the authors of the Declarations didn’t know which components of the CIA had had contact with Ramzi bin al-Shibh (and, potentially, Abu Zubaydah). But the AP reports the tapes were found lying around the Counterterrorism office. That seems to suggest (though we can’t be sure with all the redactions) that the people who wrote the Declarations had no clue that CTC was running the torture program.

Which is really only plausible if you ensure the people who wrote the Declarations were completely compartmented out of the most basic information about the interrogation program.

But I guess ensuring unbelievable levels of ignorance on the part of the CIA Declarants would be a good way to ensure none of the tapes were released pursuant to discovery in the Moussaoui trial.

The reviews DOJ did of the tapes recall the earlier CIA whitewash of the tape content

What I’m particularly interested in–particularly given the news that John Durham has expanded his investigation to cover the obstruction involved with these tapes–is the description of the review that DOJ conducted of the tapes.

On September 13, 2007, DOJ learned of the first tape. On September 19, they viewed the videotape and a transcript–the provenance of which they redact (so we don’t know if it was contemporaneous or whether it were done for the benefit of DOJ, and we don’t know who did it or whether it also involves translation). Then on October 18, CIA admitted it had another “video tape” and an “audio tape.” Once again, DOJ reviewed the tapes and read the transcript. Then, DOJ reviewed the intelligence cables based on just the “video tapes,” but not, apparently, the “audio tape,” “to ensure that the cables accurately captured the substance of the interrogations.” After assuring themselves that the version of the tapes they had reviewed the first time–the cables–was close enough “keeping in mind that the cables were prepared for the purposes of disseminating intelligence,” they then gave Brinkema the transcripts for all three tapes, but not the tapes themselves, to review.

I’ve got a couple of questions about DOJ’s actions here:

  • Why would they review the cables at all?
  • Why would they review the cables for the “video tapes” but not the “audio tape”?
  • Why would they give Brinkema the transcripts but not the videos?

I’d love to have the lawyer folks–or anyone else–weigh in in comments. But here is one possible explanation. It’s possible that when DOJ reviewed the tapes they saw something on the tapes that they thought might be pertinent, even if it did not constitute a mention of Moussaoui or 9/11. You know–like the physical condition of al-Shibh, or some physical coercion? If so, that might explain why they didn’t review the cables from the “audio tape”–because they “saw” nothing on those tapes. (Alternately, it’s possible that CIA withheld the cables based on the audio taped interrogation when DOJ did its discovery review, which would be damning all by itself.)

They say they wanted to review the cables “[b]ecause we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations.” This sounds, partly, like CYA: they wanted to make sure the representations DOJ had made–as distinct from the CIA Declarations–were accurate and fair. But the fact they even did the review of the cables suggests they had their doubts. Add in the heavily caveated judgment that the cables did reflect the content of the interrogation (they seem to conclude the cables reflect the intelligence gained during the interrogation, but not some other aspects of it), and it sure seems like there’s a discrepancy between the “video tapes” and the cables. Just not one DOJ felt they were responsible for, given the terms of Brinkema’s order on discovery, at least not after Moussaoui had already plead guilty.

Now onto the description of the three tapes: 2 “video” tapes and 1 “audio” tape. Which, in plain language, would seem to suggest that the CIA had means to both record video (as they did with Abu Zubaydah and Rahim al-Nashiri in the same time period) as well as means to record audio. There are no indications the torturers in Thailand made audio tapes. There is, however, proof that by late 2002, the CIA had already altered the Zubaydah tapes such that the video in some of them had been destroyed; they showed nothing but snow.

In other words, I think it distinctly possible–particularly given that the tapes showed up in a box under a desk in the same CTC department that had knowingly tried to cover up the earlier tampering with the Zubaydah tapes–that the one “audio” tape didn’t start out that way, that it got altered in similar fashion to the Zubaydah tape.

That’s all wildarsed speculation, mind you.

But there is some evidence that Durham is not only investigating the 2005 destruction of the torture tapes but also the earlier, 2002, tampering with them. (And his investigation seems to have taken on new energy when he gave John McPherson–who was involved in CIA’s first attempt at covering up this tampering–immunity.) If Durham is collecting evidence that the CIA engaged in a cover-up of torture in its treatment of the Zubaydah tapes, then both the condition of the al-Shibh tapes (if they still exist) and CIA’s earlier treatment of them (including such things as making sure those who wrote Declarations for Brinkema were ignorant of who was running the torture program) would serve to round out his case (and potentially provide the forensic evidence now lacking for the Zubaydah tapes).

All of which probably answers my third question, why DOJ didn’t give Brinkema the tapes themselves. Mind you, I’m sure they accounted for that in the name of protecting sources and methods (you know? methods? fly them to Morocco for the scalpel-on-penis treatment!). But by withholding the tapes themselves, they prevented Brinkema from seeing whatever it is they saw when they decided they needed to review the cables to see if they were accurate.

Note how carefully the AP’s sources claim that the tapes show no “harsh interrogation methods” like waterboarding.

But current and former U.S. officials say no harsh interrogation methods, like the simulated drowning tactic called waterboarding, were used in Morocco. In the CIA’s secret network of undisclosed “black prisons,” Morocco was just way station of sorts, a place to hold detainees for a few months at a time.

“The tapes record a guy sitting in a room just answering questions,” according to a U.S. official familiar with the program.

But if Binyam Mohamed is telling the truth about the scalpel-on-the-penis treatment in Morocco (and thus far, his claims have held up against the documentary evidence), we know the claim that “Morocco was just a way station of sorts” is an out and out lie. But it still may be true that the tapes don’t show–or didn’t, before one of them became an audio tape, if that’s what happened–the approved methods of the CIA program itself. That doesn’t rule out the tapes showing other things–like the outright beatings that Mohamed describes having happened in Morocco.

Which appears to be one way the DOJ review of these tapes exactly matches McPherson’s review of the Zubaydah tapes in 2002. Both reviewed the tapes and the cables to see whether the cables were a reasonably accurate version of what appeared on the tapes. But both apparently stopped short of comparing the tapes to the limits on interrogation DOJ laid out in 2002. Because if you’re DOJ, it would sure suck to be looking at evidence of torture, huh?

Update: papau’s comment about the implausibility that CIA found the tapes under a desk reminded me I wanted to note one more difference between the DOJ version and the AP one. DOJ says the “CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.” AP almost suggests the discovery was accidental.

But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

There seems to be a related story here about why they were looking and discovering boxes full of torture evidence in 2007.

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

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

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

  1. powwow says:

    But if Binyam Mohamed is telling the truth about the scalpel-on-the-penis treatment in Morocco (and thus far, his claims have held up against the documentary evidence), we know the claim that “Morocco was just a way station of sorts” is an out and out lie.

    Not only do Binyam Mohamed’s claims hold up against the record, but, according to Judge Kessler in her November, 2009 habeas corpus ruling in favor of Farhi Saeed bin Mohammed, “The Government does not dispute this evidence”:

    “Petitioner [Farhi Saeed bin Mohammed] contends that Binyam Mohamed’s statements–the only other evidence placing Petitioner in a training camp–cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit to a host of allegations, most of which he has since denied. […] However, after being released from Guantanamo Bay, [Binyam Mohamed] signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. […] The Government does not challenge Petitioner’s evidence of Binyam Mohamed’s abuse.


    Binyam Mohamed’s trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.– Federal District Judge Gladys Kessler, 11/2009

    Specifically (copying more of the excerpts of Kessler’s ruling that I included in my recent Seminal diary about bin Mohammed’s fear of being re-renditioned to Algeria from Guantanamo – excerpts which leave out many of the specifics of Binyam Mohamed’s torture and abuse in Morocco and elsewhere that Kessler’s opinion recites):

    “In addition, Binyam Mohamed detailed his mistreatment in meetings with his attorney, Clive Stafford Smith, in August of 2005. Smith recorded his client’s words in a memorandum that presents Binyam Mohamed’s story chronologically, starting with his detention in Pakistan, following his rendition to Morocco for eighteen months, his transfer to the “Dark Prison”20 in Kabul, his imprisonment at Bagram, and then his arrival at Guantanamo Bay. […] The remainder of this section presents the harrowing story that Binyam Mohamed has told about his abuse, as recounted in either Smith’s memorandum or the diary he created for his lawyer in 2005, and repeated since his release from Guantanamo Bay.


    On January 21 or 22, 2004, Binyam Mohamed and two other prisoners were put on a plane with United States soldiers dressed similarly to those who had transferred him to Morocco from Pakistan. Id. at 16-17. Again they stripped him before transporting him. Binyam Mohamed recalls that one female soldier was assigned to take pictures of him. She expressed horror at the scars on his penis. Id. at 17.

    The diary reports that Binyam Mohamed was taken to the “Prison of Darkness” in Kabul.”

    [Etc. – See Kessler’s full opinion for more.]

    • emptywheel says:

      Thanks a ton for that powwow. I’m still transient enough that I was even confused whether it was Brinkema who wrote that opinion or someone else.

      But don’t worry, Morocco is really just a waystation for detainees to have a chance to enjoy some warmth before being brought back to Afghanistan for a cold winter.

  2. JasonLeopold says:

    Hayden’s statement re: the tapes and specifically Moussaoui: from a 12/2007 press release:

    The press has learned that back in 2002, during the initial stage of our terrorist detention program, CIA videotaped interrogations, and destroyed the tapes in 2005. I understand that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries—including the trial of Zacarias Moussaoui.

    • bmaz says:

      So, was Elmer Fudd Hayden lying, or admitting that military commissions are not judicial in nature? Because the tapes sure as hell had evidentiary value to the detention, Habeas and/or eventual litigation of any variety (even indefinite detention review under Obama’s brilliant plan for that) by abu-Zubaydah and al-Nashiri themselves.

      • JasonLeopold says:

        from page 2 of the letter to Brinkema:

        “Further, the CIA came into the possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.”

        Really CIA?

        • bmaz says:

          Um, if I am atty for Moussaoui, I am absolutely trying to establish pattern and practice of torture as part of “interrogation” to support the assertion by my client. Other cases are certainly germane to that, and it is my recollection such evidence was formally requested by either the attys or Moussaoui himself.

          “Unrelated” my ass.

        • emptywheel says:

          No, I think they technically were.

          The tapes were coming out at the same time as Rodriguez was unexpectedly retiring and Rizzo was withdrawing his nomination to be GC. And we know they were trying to figure out what was up w/the Zubaydah tapes before they gave the second “audio” to DOJ.

    • Mary says:

      But what about the objections raised by Padilla’s lawyers to his arrest under the material witness warrant, which was based on an FBI (not CIA btw – but I haven’t seen that FBI agent having his feet held to the fire as to his personal knowledge vis a vis the declarations) declaration that used two torturees, one of them Abu Zubaydah who was videoed, for its basis?

      Padilla’s lawyer’s raised issues including possible mistreatment and coercion with those warrants from the get go. Maybe you can go back to that original lawyer and get his input on whether or not he thought the Zubaydah info wasn’t relevant to all the many proceedings involving his client. Tapes get destroyed November 2005, Padilla gets moved from “disappeared into human experimentation” to real court in Jan 2006.

  3. Mary says:

    Don’t forget Comey’s email in 2005, telling Alberto G that Comey has heard about videos of early interrogations. So in 2005, you had McNulty and a cadre of lawyers in ED VA, as well as CIA lawyers, State Dept and NSC lawyer Bellinger, Addington, Ashcroft, Comey, Rosenberg, Gonzales, Miers, Yoo, an assortment of CIA lawyers with Rizzo and Muller at the top, maybe Bybee, maybe Chertoff (and who was that other crim div guy who went on teh torture field trip?), maybe Yoo, probably Philbin, maybe Alice Fisher, etc. all knowing about the existence of torture tapes and not one of them, ever, put out a lit hold? Not one of them communicated with lawyers handling any of the torture cases or with the courts involved. Not until Rosenberg got to the ED VA and has his hand forced.

    Anyway – there are so many things that could be on the tapes and that might not be “intelligence” gathered summaries than you can begin to spec about, but some interesting options might go to – i) references to having the Moroccans or contractors waterboard him (there have been scattered reports here and there of al-Libi and binalshibh being waterboarded – but that was never anything confirmed and would poke at the representations being given to Congress about only 3 waterboardings (and remember, the OLC specifically provides that non-gov can’t rely on its opinions so waterboarding by a contractor would open some doors too); info indicated the degree to which the US was exercising control over the facilities in Morocco – which could be damning jurisdictionally; discussions of KSM’s missing children and/or what was being done to them; threats against binalshibh’s family-a much more clear cut Torture Act violation; binalshibh providing info that contradicted Zubaydah’s operational status (a necessary fact in the Bybee/Yoo memos as a predicate for torture); binalshibh providing info on Binyam Mohamed or Jose Padilla not being operational players; information indicating the use of drugs during the sessions which would also be a more clear cut torture act violation; threats against al-Shibh’s life and/or references to Preliminaries or other tortures that would be used or had been used on him to date or that were being used on others.

    There’s lots more, but some of the least “sexed up” ones could provide a more solid case than you might expect. Then there’s the issue you raise of evidence of tampering – which would be pretty damning, but hard to fit into a proof and charge pie unless you had some good evidence on what was tampered.

    And you have to wonder, what about the boys and girls doing the IG report and sitting on Jove’s throne for the criminal determiantions in ED VA? They didn’t get those items, so how could their review have been complete? What did Rosenberg do to marshal (by then) his crim guys who investigated the CIA to review the new evidence? (And btw – how did they do that without ever talking to the torture victims anyway and didn’t they “in good faith” push to got interview those torturees for more info and evidence once they were moved to GITMO?)

    Here’s one thought on the timing of the find. Do we know when the “spikey red hair” sistah who went to watch waterboarding for entertainment and who sent Khalid el-Masri into torture and then wouldn’t let him go until she was forced to and then only by dumping him in a fashion where he was lucky he didn’t get killed – and who might have ben Rodriguez’s goto itch for supervising the actual tape destruction – – do we know when CIA made her covert and put her beyond Congressional investigation? Bc she’s the kind of girl you could see keeping some souvenirs and she’s also the kind of girl you can see someone having it a bit “in” for and “finding” her crap while she was ducking out on her cya covert assignment?

    And you have to wonder about things like forensics – I’m guessing no one fingerprinted those tapes when they were found, huh?

    Just way too much and I have to get to real work – sort it all out, will ya? I’m not holding my breath for Durham and Holder and Obamaco.

    • JasonLeopold says:

      That red haired woman was recently, within the past year, put back on undercover status after John Kerry sent a letter to the CIA requesting information about her in connection with the Salt Pit.

      • phred says:

        If she was put back on undercover status, when was she not undercover? I didn’t realize that sort of thing was a revolving door…

          • Mary says:

            That’s all pretty interesting, isn’t it? She’s not covert while she’s queing Khalid el-Masri up for torture at the Salt Pit, then when she starts to be investigated she is covert, then she became non-covert – when? Sometime after the el-Masri suit got spun 10-9-07)? Of couser, by then a prosecutor in Munich has issued warrants for 13 people in the case and passed them on to Interpol. And also by then, German papers, Sourcewatch and wiki were announcing the names of the three pilots – Eric Robert Hume (aka Eric Matthew Fain), James Kovalesky and Harry Kirk Elarbee.

            May of 2004 is when El-Masri was dumped in Albania with no money or identification and almost killed or agains disappeared by Albanian guards who thought, bc of the way the CIA staged him, that he was a terrorist.

            An 8 year SOL would leaving her hanging through 2012. So it’s interesting that at some point after she went covert to be protected from inquiries and prosecution (didn’t it used to be called going outlaw?) there was a time they thought she was safe enough to de-cloak.

            The irony of it all is that el-Masri hsa been so disturbed since his CIA torture and failed efforts at justice in Germany and the US that he’s thrown a chair at and struck a mayor and been sentenced himself to 2 years in prison. His torturers – notsomuch.

            • JasonLeopold says:

              although I have been unable to find it myself, I have been told that the name of this agent is still listed in the Library of Congress/foreign service directory on their website someplace. FWIW.

  4. phred says:

    EW, do you have any idea why someone would have gone blabbing to the AP about the tapes now? Does this suggest something is coming down the pike fairly soon (whether for good or ill, I remain agnostic), but it seems weird for such a story to appear out of nowhere in the middle of August.

    • powwow says:

      I (perhaps hopefully) read the reporting in this latest AP article to be the result of journalistic digging by the Associated Press (following on the earlier article this month by the same co-authors, Adam Goldman and Matt Apuzzo, which itself seemed to be the result of some lengthy independent research, not just access source-initiated leaks). Reporting which could just as well have been done a couple of years ago probably, if efforts had been made to pursue it then by editors and/or publishers and the reporters they direct.

      I’m basing this on what I (perhaps wildly optimistically) perceive to be an unfolding reality: The Associated Press is suddenly on the torture case. A perception that started with a superbly-reported and written AP article by Andrew Welsh-Huggins (though it lacked the informed background that Jeff Kaye brings to the subject of the APA and torture), that I found to be a remarkably heartening piece of old-fashioned journalism.

      These AP articles actually show up in the hometown newspapers of our federal representatives (and are even sometimes reported on NPR’s presidency-promoting, politically-correct national radio broadcasts), even if, for “space reasons,” the concluding paragraphs of longer, meatier pieces are often left off – as these two from the Welsh-Huggins article probably were in many newspapers around the country:

      Zubaydah was arrested in Pakistan in March 2002 on suspicion of being a top al-Qaida official. He was the first detainee subjected to Bush administration-approved harsh interrogation techniques, which included waterboarding, slamming the suspect into walls and prolonged period of nudity.

      Zubaydah later told a military tribunal he suffered physical and mental torture and nearly died four times. Zubaydah claimed that after many months of such treatment, authorities concluded he was not the No. 3 person in al-Qaida as they had long believed.

      But, I guess, none of us can know for sure whether the American people (especially our “right to know” what our government is doing) and the rule of law suddenly have a new-found ally in the Associated Press, or whether these three closely-spaced AP articles are instead a coincidence prompted by something like Durham’s investigation bringing a little too much heat to ignore, inside our secretive Executive Branch of government.

      • phred says:

        Thanks powwow. So much of our media coverage seems to be timed and leaked for specific political reasons that I tend to assume that reporters who work for major organizations like AP no longer independently hunt and dig and discover without being fed and spun first. That’s a sad commentary, eh? For all of our sakes I hope your optimism is well founded.

        Jason at 24, thanks again.

        And john-in-sacr at 27, sooner or later The Geezer is gonna succumb to the ravages of age, just like us mere mortals, and when he does he’ll get his butt kicked not just by the Pack, but by the rest of the league as well. Might this be that year? Hope springs eternal for the Green and Gold ; )

  5. JasonLeopold says:

    In this list of defense trial exhibits in Moussaoui there is a reference to:

    XA001 Schizophrenia video [This videotape remains under seal]
    XA002 Guide to schizophrenia video [This document remains under seal]

    Does anyone recall if that relates to Moussaoui? I ask because the AP story refers to al-Shibh being treated for schizophrenia.

  6. john in sacramento says:

    Off topic

    Not so much breaking news

    NFL.com: Return trip? Favre boards plane, reportedly to Minnesota

    Brett Favre is on a plane heading north, a source told NFL Network’s Scott Hanson. Could it be bringing Favre back to Minnesota? Signs point to yes.

    The Biloxi Sun Herald cited a “highly placed source” in reporting that the plane is taking Favre and his wife, Deanna, to Minnesota so the quarterback can announce his return for a 20th NFL season.

    Also on board are three of Favre’s closest friends on the Vikings — defensive end Jared Allen, guard Steve Hutchinson and kicker Ryan Longwell — who traveled to Hattiesburg, Miss., to try to convince the quarterback to come back, “The Minneapolis Star Tribune reported.

    Back to your regularly scheduled programing

    • phred says:

      Must. Not. Go. OT….

      Hahahahahahahahahahahaha… Go Vikings ; )

      Whew. I feel better now.

      Jason, how do we know about Kerry’s inquiries and his letter? Do you happen to have any links handy?

      • JasonLeopold says:

        I spoke to one of Kerry’s staffers on the Foreign Relations Committee and this person told me about the letter. I made a formal request for it and the committee said the CIA classified it.

        • phred says:

          Thanks Jason, I appreciate the follow up…

          So do you think Kerry is continuing to pursue this or did he pull a Rockefeller and write a sternly worded letter complaining about the misuse of classification that he then tucked in his safe?

    • emptywheel says:

      Glad you bring that up, John, because I’ve been meaning to discuss with bmaz when the beginning of trash starts. It sure seems like at least a pre-season is due, don’t you think. And at least if Favre is making is yearly trek to un-retire, than bmaz won’t be so glum when I ask him about it.

      • bmaz says:

        Torture and gutting of the Constitution really brings me down; but the thought of football without the Geezer, that was the last straw.

  7. john in sacramento says:

    Trying to not go o/t but …

    Tried to find the flight, and checked the two airports out of Hattiesburg (who knew they had two?) and couldn’t find the flight out of the muni (HBG) or the commercial airport (PIB). But, it seems you can have an untrackable tail number

    bmaz at 18 Chilly has a ‘lade? Bet he doesn’t roll with dubs though ;-)

    strangely at 19 lol

    phred at 20 the Packers would win if the ol geezer would give it up though

    Marcy at 23 TT is a good diversion isn’t it?

    Edit: Live video

    • fatster says:

      Seems that was the last of the entire 24 charges. Wasn’t lying to the FBI what got Martha Stewart sent to the slammer?


      • Mary says:

        Oh yeah – they do a good job keeping us safe from blowhards and dishtowel divas. I actually ended up with more respect for Martha Stewart than for DOJ after that self-interested juvenile fixation on making her do time. But god forbid torturers should ever even get a legitimate investigation.

          • Mary says:

            heh heh – What I do remember is how she went ahead and started serving instead of trying so hard for stays and then what I really remember was how, when she was released, she went to all her animals and was feeding treats to her horses and leaning against their necks and patting her cats and giving them treats and I thought about what the purpose was of having such a monster trial and running up such big bills over what she did rather than just letting her pay a fine and make contrite noises like so many others and walk away.

            I mean, look what they’ve let Ashcroft and Ayres and Ring get by with – but by damn, the brave boys and girls at DOJ put Martha in jail. I really don’t think our federal prosecutors have much respect for what it means to destroy someone’s life like that over a stock sale, while all the while covering ass left and right for their colleagues who are killing the law and actually assisting in torture crap.

            • fatster says:

              And some scoff at the notion that we seem to be displaying signs of becoming a Banana Republic. It’s been a long time coming and appears to be accelerating now.

            • Petrocelli says:

              They had some “serious evidence” against her … lips are sealed but might will open if plied with Bourbon & Pie.

              And yeah, the whole Martha saga was ridiculous, Holder and Obama ought to protect the law, as they’re sworn to do.

  8. emptywheel says:

    Here’s a teeny detail, but I’m gonna share with you all my nerdiness.

    Tape 88 of the Abu Zubaydah series is described as “no video but there is sound.” That’s the last one before the two AZ “tape and rewind” tapes, which presumably started sometime around October 25, 2002 (when HQ sent a cable instructing them to tape and rewind).

  9. bobschacht says:

    Shorter Central “Intelligence” Agency:
    “We don’t know nutin’ about nutin’.”

    And these are the folks we depend on for critical national security information?

    Bob in AZ

  10. JasonLeopold says:

    Also, the WaPo wants us to know: http://www.washingtonpost.com/wp-dyn/content/article/2010/08/17/AR2010081700373.html?hpid=topnews

    The two videotapes and an audiotape do not show any use of what the CIA has called “enhanced interrogation techniques,” the official said. Human rights groups have described the CIA’s methods as torture.


    “The tapes, which were made and found years ago, show a guy sitting at a desk answering questions,” said the official, who spoke on the condition of anonymity because of ongoing investigations.


    The Associated Press, which first revealed Tuesday that Binalshibh was the subject of the recordings, reported that the tapes were discovered under a desk at the CIA. A U.S. official contested the assertion that they were found under a desk and added that they were discovered by the agency’s counterterrorism center.

    Maybe they were discovered by the counterterrorism center in a drawer.

    • WilliamOckham says:

      In this limited hangout, it is really starting to sound to me like these tapes were found during an investigation of someone at the CTC and the CIA did not expect to find them. Which means they grabbed someone’s insurance policy. Paging Barry Eisler, real life may have beat you to your plot.

      • R.H. Green says:

        My imagination ran to wondering who the “someone” is, and how exactly were the tapes “discovered”, under who’s desk;and does tucked mean fastened under the desktop with ductape, or merely under one of several empty desks in a storeroom? Who would leave behind such a treasure to be discovered? Was it an attempt to ditch something hot during a search, or a plant intended to be found? Was it supposed to be an example of all the “destroyed” tapes by not showing any illegal behavior. Who can tell where the wind blows from?

      • bmaz says:

        If the tapes are as benign as described by the Post, then I dunno about it being somebody’s insurance. If they are as described, I actually wonder if their nature and existence are not being intentionally leaked out to plant the notion in the gullible and shallow press that the destroyed tapes were also mostly benign and therefore it is no big deal that not diddly squat is going to be done to prosecute over the destruction of the tapes of abu-Zubaydah and al-Nashiri. As Marcy noted, this evidence was supposedly discovered in 2007 and really has huge implications vis a vis a plethora of court and tribunal related issues. So, they have been known about for well over three and approaching four years.

        We are now well over two and a half years into the Durham investigation (and he has had this evidence the entire time) and he STILL cannot seem to find anything he thinks should be charged. He has not charged anybody, not one sole, as leverage to roll on others. Not one, and that is what you do to build cases. He has not done squat. The statute runs on the torture tape destruction in a little over 60 days. All kinds of statutes on underlying crimes, backup charges and overt acts have blithely been allowed to expire by Durham and the DOJ while they sat idly with their thumbs up their rears. Now we get this limited hangout cover rollout. Smells like rotten seeding of rationalization of looking forward not backwards to me. Hope I am horribly wrong about Durham; but I will believe it when I see it.

  11. Aeon says:

    The tapes were not found “hidden under a desk at CIA” any more than they were found hidden in EW’s liquor cabinet.

    Unless they were discovered in someone’s safe that happened to be located under his or her desk.

    That is because at the end of the shift of every employee at CIA all classified material is required to be locked in that employee’s safe. And every night security guards from the agency’s Office of Security come in and check to make sure that every safe is locked. Upon the third warning of mishandling of classified info at the office (including leaving the safe unlocked), the employee is fired.

    This means that the discovery of the tapes was likely made during some sort of official inquiry (and that the safe was locked).

    Also, on a related note, one might take into account that the Morocco tapes may not be in English, leaving open the question of who translated them for the courts.

    • Mary says:

      But we know they didn’t go “by the book” on torture info – they didn’t even keep records and track of memos in their secure site. And we know that they couldn’t really just fire their torturers – way too much down side for that.

      I am sticking with my spec above, though, about someone having notfriends. A “staffer” sounds really weird. Why would a “staffer” be sniffing around under someone else’s desk? Why aren’t there any references to the employee who had things hidden under the desk being disciplined? I’m sticking with the person who had the info being one of the torture crew and there being some change in circumstance.

      Scenario where a “staffer” might be going through someone else’s desk without worrying about having to explain what they were doing there would be that they were ordered to by a superior; that they were doing something more routine like going through a desk of a terminated or transferred or otherwise leaving employee (my spec is one who got a “covert” assignment to otherwise save their butt); that they knew they would find something that would raise a big enough issue it would provide them cover; or that they were operating in response to something like an organized subpoena response (ok, rofl for that one, but let’s put it on the list anyway).

  12. Leen says:

    Just read through all of the comments. For all the work and research you justice seeking brainiac’s have and continue to do on this torture issue. What has been the result? Anyone who rewrote the laws prosecuted? Anyone who destroyed these tapes prosecuted? Anyone who tortured prosecuted?

    I deeply admire what you folks have and continue to do. But a peasant wonders. What is the point? Clearly these people operated outside of the law, have gotten away with it and looks like they will get away with it.

    No one out here that I talk with students, seniors in nursing homes, lefty professionals etc believes the line that our Reps, Eric Holder and Obama have repeated that “no one is above the law” No one believes this myth

    • bobschacht says:

      My attitude is, we’ve gotta be patient. Eventually, the truth will out. Enough of it, anyway. We’ve gotta trust the process. It is basically all we’ve got.

      Bob in AZ

      • Leen says:

        Of course that is the hope. Don’t know many who trust the process. Too many dead, injured and displaced in Iraq and no one held accountable to trust any process

  13. Mary says:

    After some googling, it looks like Sept 2007 was when Rodriguez was leaving the CIA.

    One avenue of spec would be that when the tapes were being destroyed, either he or the cookie he sent to oversee the destruction thought that there might be some benefit to having a little sumpin’ in a personal file. In case anyone tried to make him/her take a fall.

    But it may have been that someone got wind of it (or that it was just a lot easier having the tapes in safe in teh office than getting them out of the office as he was getting ready to leave) and the tapes were “found” by some kind of searching for a blackmail file, then produced with the unlikely story (and Brinkema isn’t pushing on that – on *what do you mean you found them under a CIA desk?!? and how do we know there isn’t more?!?*). And maybe not even everything that was found ended up being produced. If they found two tapes and an audio, who’s to say they didn’t find 3 or 4? If tapes were altered, who’s to say tapes weren’t also destroyed?

    Anyway – I’m guessing that, relevant to Moussaoui or not, there was info on the tapes to make they blackmail worthy.

    • bmaz says:

      Well, I’ve got a novel idea, let’s see them and find out.

      Also might explain, at least partially, why the job of CIA Inspector General languished unfilled for almost a year and a half I guess.

    • 1boringoldman says:

      “And maybe not even everything that was found ended up being produced. If they found two tapes and an audio, who’s to say they didn’t find 3 or 4?”

      There’s my $200 bet…

  14. powwow says:

    Very much related:

    Lyle Denniston | Wednesday, August 18th, 2010 2:19 pm

    The government’s headline-making prosecution of Zacarias Moussaoui — the only person so far convicted of any crime related to the terrorist attacks on Sept. 11, 2001 — will not be tested in the Supreme Court, at least for some time. The time to file an appeal ran out on July 30, and his court-appointed lawyers have since advised the Fourth Circuit Court that Moussaoui did not authorize them to file a petition for review by the Justices. The attorneys have now been allowed to withdraw from the case.

    More than eight years ago, in December 2001, Moussaoui, a French citizen of Moroccan descent, was charged with six counts of conspiracy in connection with the terrorist assaults. At various points in the case, he has been referred to as the “20th hijacker,” although that was never proven because he pleaded guilty in April 2005. The jury, after seven days of deliberation, refused prosecutors’ request to impose the death penalty; he was then sentenced to life in prison without the chance for release.

    Once before, his defense attorneys tried to take the case to the Supreme Court, after the Fourth Circuit Court had turned down a request for his attorneys to directly question others allegedly involved in the 9/11 plot, who were being held by the U.S. government pending their prosecution (which has not yet gone to trial; it remains unclear where they will be tried). The Supreme Court refused to hear that challenge on March 21, 2005. It was after that that Moussaoui chose to plead guilty to all charges.


    Last January, the Fourth Circuit rejected Moussaoui’s challenge to his guilty plea, upheld his life sentence, and refused to send the case back to the District Court to consider revelations about classified information that had been submitted to the court during his trial and later disclosed publicly. After the Circuit Court denied en banc review on March 2 of this year, his defense lawyers three times asked and received extensions of time to file a certiorari petition to the Supreme Court. The latest extension allowed until July 30 to file the petition.

    In their motion to withdraw, the defense lawyers on Aug. 5 told the Circuit Court: “After being advised in writing of his right to seek review in the Supreme Court, Mr. Moussaoui did not authorize counsel to file a petition for a writ of certiorari in this case. The July 30, 2010, deadline for the filing of a petition for certiorari has now expired.”

    • bmaz says:

      Maybe the government has given Moussaoui a more favorable “secret sentence” in return for not appealing further!

      Okay, it is Brinkema, not a show trial judge at Gitmo, so I am kidding. I think….