General Hayden Gets Mail

Congressmen Conyers, Delahunt, Scott, and Nadler would like Michael Hayden to provide a detailed description of how and why torture tapes got destroyed. Here are the key questions:

3. Did the CIA notify the Department of Justice of its intention to destroy the tapes and if so, when? Did the CIA receive a legal opinion from the Department of Justice’s Office of Legal Counsel, or any other entity, relating to the destruction of the tapes? Please provide copies of any such written materials.

4. In light of the fact that the September 11 Commission and a federal court requested information regarding these types of materials, why did the CIA decide not to provide information to these two entities concerning the existence or possible and actual destruction of the tapes?

5. When the CIA provided information to Department of Justice lawyers in 2003 and 2005 with respect to the request of the court in the Moussaoui case for evidence taken from interrogations of CIA prisoners, as stated in the Times article, what information concerning the tapes was provided to Department lawyers?

I’m especially interested in question number 3. As I said earlier, I think one of the two most likely times for the destruction of the tape is between May 10 and May 30, 2005, when OLC was busy writing torture opinions to override existing restrictions on torture. In fact, I wonder whether they have refused to turn over those particular torture memos (in addition to their desire to hide the ongoing torture) because they didn’t want anyone to know that (probably) Steven Bradbury deemed it legal.

In any case, I think there’s a high likelihood that Bradbury did deem it legal–given Hayden’s repeated claims that it was.

Anyway, things are getting interesting…

  1. posaune says:

    zed? for real?
    had to make donation to FDL today because of your brillance, EW.
    Incomparable is all i can say! huge thanks.

  2. whitewidow says:

    I saw via Glenn Greenwald that Jello Jay and Harman performed their usual staunch defense of the constitution by ignoring the information that the CIA would be destroying the tapes. They both knew about it before the destruction happened, but failed to act. Way to fulfill that oath, Senators!

    I’d post a linky but I’m having trouble with this new-fangled site.

    • scribe says:

      Which Oath?

      They were caught between two competing obligations. I’m not going to condemn them for not disclosing classified material – the underlying act in the Libby case, BTW. Go read my comments I posted over at TalkLeft explaining (or at least arguing) why they probably did all they could do, and do not deserve condemnation (not nearly as much as the CIA folks do) over the tape destruction. You might not agree, but maybe you’ll understand the difficult issues.

      When you’re an amoral Sun King making up your own rules, that’s one thing. When you believe in a Rule of Law – even when the rule itself is pretty stupid – that’s another.

      And, FWIW, it’s my opinion that the knowledge of the existence (and non-existence) of these tapes was probably out there with the press for a while, but they waited until after Clement made his arguments in the Gitmo cases (Wednesday) to go forward with the story. They wanted to punk him and the Supreme Court again, just like they did with the Abu Ghraib pictures (which came out a day or so after the Solicitor General solemnly told the Justices “We Don’t Torture. Period.”

  3. RevDeb says:

    Hi Marcy!

    I keep going back and re-reading Scott Horton’s piece on Balkinization about lawyers being war criminals. I think we need to resurrect this and talk about it. A lot.

    For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

    The lawyers here not only did the wrong thing, they then allowed it all to be covered up. I want to see John Yoo frog marched.

  4. LS says:

    I remember Hayden repeatedly stressing that he had checked with his own departmental lawyers (wonder who he was referring to) to make sure what they was “doing” was lawful. He made a really big deal about it, in fact, I think he even gave a separate presser about it.

  5. phred says:

    EW, during my drive home tonight NPR was reporting the tapes were destroyed in Nov. 2005. Assuming their information is correct, that seems to be to have been a direct result of Brinkema’s request. Once destroyed they could honestly tell her they didn’t exist. Nothing like the CIA acting like a 5 year old who broke a vase, hid the remains under their bed, then replied to their parents’ queries, “what vase?”.

    • phred says:

      Ah, that’s what I get for getting behind and catching up in chronological order — I now see in your post upstairs you’ve got the November date…

  6. bmaz says:

    EW – “I wonder whether they have refused to turn over those particular torture memos (in addition to their desire to hide the ongoing torture) because they didn’t want anyone to know that (probably) Steven Bradbury deemed it legal. … In any case, I think there’s a high likelihood that Bradbury did deem it legal–given Hayden’s repeated claims that it was.” This is my take as well; precisely consistent with the standard “off-tackle play” the Administration runs when their support is nothing but a disingenuous, contrived to fit their whims OLC sham opilnion.

  7. Leen says:

    What would our world be like without EW’s, Plame/Wilsons, Whitehouse, Kennedy, Leahy, Waxman, Scott Ritter, El Baradei. O.k. there is reason to hope.

    Just so late for the Iraqi people and I feel so ashamed of what my country has done to those folks. Criminal.

    Scott Hortons interview with Scott Ritter about the release of the NIE is insightful…..-ritter-4/

  8. bmaz says:

    JohnForde @ 1 and posaune @ 2 – I love you folks, along with all here, but you have keen intellects and worthy comments to lend; why junk up the threads with nonsense like “Fitz!!” and “zed!!”? It adds nothing and detracts from the effort underway. The race here is to be the first to get out critical thoughts, impressions and information; not simply to be seen and heard as a goal in and of itself.

    Scribe – Heh heh. I had that same thought regarding Clement as well. I’ll bet he is developing a nervous tick when he is scheduled for SCOTUS oral argument these days wondering which direction the impeachment evidence showing him to be a lying, toady shill is coming from this time. Good; he deserves it.

  9. Leen says:

    One of the points Larry Johnsson made yesterday at his website No Usa Quarter was that he thought it was likely that CIA had not done the torturing but “contractors”.…..ure-tapes/
    “Then there is the question of tradecraft. Did the CIA officers participating in the interrogation/torture sessions allow themselves to be filmed so that they could be easily identified? I am skeptical. When the truth comes out I think we are likely to discover the people doing the questioning were contractors, not undercover Agency officers.”

    Today he brings up Cofer Black (Blackwater)
    Here is Larry Johnson’s latest on the torture tapes…..ment-77207

    More on Torture Tapes

    By Larry Johnson on December 8, 2007 at 11:43 AM in Current Affairs

    The blooming scandal surrounding the destruction of torture tapes is just beginning. The parade of current and former intelligence officers with something to say on the matter will include some very highly regarded Case Officers. For example, asking who ordered the tapes and who directed keeping them on hand will lead to Cofer Black, who headed the Counterterrorism Center at CIA until he moved to the State Department as the Coordinator for Counterterrorism in December 2002. Whether or not Cofer is complicit in any way, his positions as a Blackwater executive and advisor to Republican presidential candidate Mitt Romney will make him irresistible to lazy reporters looking for colorful characters and simple story lines.