The “Other” Provision Of The Records Act

It appears the fluid and constantly evolving rationalization of the Bush Administration for their destruction of the torture tapes may be starting to congeal in an operative theory relying, at least in significant part, on a provision of the Federal Records Act allowing destruction of certain records located outside of the United States during wartime. As EW pointed out in the last post, this defense was revealed in Isikoff’s December 21, 2007 Newsweek article:

But agency officials could be relying on another provision of the records law that permits an agency, during wartime, to destroy records outside the continental United States that are judged to be "prejudicial to the interests of the United States." The CIA has argued that one reason for destroying the tapes was that agency officials feared that if the videotapes were leaked they might compromise the identity of the CIA interrogators.

It is certainly a relief that we don’t have some sort of rogue Administration running around destroying evidence material to a whole plethora of cases and forums, and that their decision was fully in compliance with United States law. That law would be the Federal Records Act, and the pertinent provision, as codified in 36 CFR Part 1228, reads:

a) Destruction of records outside the territorial limits of the continental United States is authorized whenever, during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent, the head of the agency that has custody of the records determines that their retention would be prejudicial to the interest of the United States, or that they occupy space urgently needed for military purposes and are without sufficient administrative, legal, research, or other value to warrant their continued preservation (44 U.S.C. 3311).

(b) Within 6 months after the destruction of any records under this authorization, a written statement describing the character of the records and showing when and where the disposal was accomplished shall be submitted to NARA (NWML) by the agency official who directed the disposal. (ed. note: see also 44 U.S.C. 3311).

Well, hold on a minute here. Is that their final answer? Of course it’s not their final answer; there is never a final answer, on anything, with the Bush Administration; just a continuing series of intentionally disingenuous obfuscations. It takes no more than a cursory inspection of the foreign war records exception to expect that the Administration will very soon be on the move again, morphing away from this version of their rationalization to the next cock and bull story.

Initially, the provision applies "during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent". To the best I can discern, there has not been a formal declaration of war against another nation by the United States Congress, the branch with the sole power of doing so under Article 1, Section 8 of the Constitution. The AUMF will be trotted out, along with the ubiquitous Article II Commander in Chief tripe, but the simple fact is the AUMF is not a formal declaration of war and Bush’s Article II powers do not allow him to magically transform the AUMF into a formal declaration of war. It is also hard to fathom any basis for the Administration to claim "action by a foreign power appears imminent" at the time the tapes were destroyed.

Secondly, the only person with the statutory authority to exercise the power to order emergency destruction of foreign locus records during a state of war is "the head of the agency that has custody of the records". In this instance, there are only two people that could plausibly be considered to fall into this definition, Porter Goss, the head of the CIA at the time, and John Negroponte, the Director of National Intelligence (DNI) at the time and who is theoretically over all the intelligence agencies, including the CIA. Negroponte not only firmly advised against destruction or the torture tapes, he felt so strongly about it that he memorialized it in writing to insure there was a record. Multiple reports indicate that Porter Goss also advised against the destruction of the torture tapes and that he is dismayed and angry they were destroyed.

Next, assuming there was a proper state of war (there was not) and the right authority ordered the destruction of the evidence tapes (they did not), were the right circumstances present permitting destruction under the provision? It is hard to imagine how a few videotapes could credibly be considered to "occupy space urgently needed for military purposes", nor can it, even remotely, be said that the tapes "are without sufficient administrative, legal, research, or other value to warrant their continued preservation". The only authorized situation remaining is where the records are "prejudicial to the interest of the United States". I will grant the contents of the torture tapes are prejudicial to the interests of the United States; but, personally, I am not very plussed with conflation of concealment of blatant and intentional commission of national and international war crimes by elected politicians, and the general interest of the country. Furthermore, these provisions are designed to apply only to emergency situations. What emergency was there necessitating the destruction of evidence that no one knew about, kept in a safe in a third party country no one is aware of, that is under no known threat or attack by anything, some four years after the tapes were made? The only threat was that the tapes would be discovered and the heinous war crimes of this Administration become exposed and proved beyond any reasonable doubt. Not particularly compelling.

You can almost detect a pattern here eh? The next consideration is, if all the requisite elements permitting the emergency destruction of the torture tapes were met (they were not), were the proper protocols and procedures followed in effecting the destruction? That would require that:

Within 6 months after the destruction of any records under this authorization, a written statement describing the character of the records and showing when and where the disposal was accomplished shall be submitted to NARA (NWML) by the agency official who directed the disposal.

Perhaps there is such documentation and it simply has not been disclosed yet. You would think that this document, at least in a minimally redacted form, would have been trotted out to exhibit the propriety of conduct by the Administration; but we have not seen that. Time will tell, but it is a safe bet that if there was such a legitimate and fully compliant certification made to the NARA within six months of the destruction of the torture tapes, we would have heard about it.

It is almost impossible to know where the convoluted, disingenuous dog and pony show being run by the Bush Administration on the destruction of the torture tapes will end up, but if the line of argument discussed herein is what they are standing on, they are going to need railroad cars of pixie dust to coat the pill for anyone of common sense to swallow.

160 replies
  1. JodiDog says:


    I didn’t have time to digest all the above, but briefly,

    I would think that all the US has to do is to store the tapes and/or do the deed in any foreign embassy in Washington, DC or on any foreign embassy property.

    Then the laws don’t apply.

    • BooRadley says:

      I didn’t have time to digest all the above

      Yes, we know.

      If they use my tax dollars to do it, they’re subject to US law.

        • bmaz says:

          Yes, but it is a bit of an inane discussion point when the specific wording of the law states that it is applicable only “outside the territorial limits of the continental United States” don’t you think? Unless you are operating within some type of spatio-temporal rift (admittedly a possibility), “foreign embassies in Washington DC” are not going to be located “outside the territorial limits of the continental United States”. Thats all I am saying…..

        • freepatriot says:

          here’s a great example of repuglitard logic in action

          the shit stain wants george to ask a foreign government to destroy george’s torture tapes so george can avoid destroying evidence himself

          so basically, the shit stain is proposing that the presnit should hand over to a foreign government, classified data with a high potential to be used for black mail, and trusting a foreign government to destroy that data

          so where we now have george bush claiming that the data was destroyed to prevent the data from falling into the hands of a foreign government, the shit stain wants to turn that data over to a foreign government in the first fucking place

          fucking brilliant

          I’m sure that the shit stain’s Medal of Freedom is in the mail

          that lack of intellectual curiosity is starting to show, shit stain

          guess you didn’t have a lot of time to figure that one out either, huh ???

          back to the drawing board …

          • ralphbon says:

            I find your over-the-top ad hominems far more offensive than JodiDog’s mere incomprehension. Even a true concern troll doesn’t merit what you’re dishing out.

            • TheraP says:

              Thanks for saying that. The problem is that when discussion anywhere devolves to berating others, then you scare people away from commenting, who may fear being berated, and additionally you turn off people from reading.

              Civil discussion. I find Jodi’s comments civil. But something was surely eating at “freepatriot” and I say: “cool it. think before you speak… and treat Jodi and everyone with respect.” (that includes this comment, should you happen by)

              • WilliamOckham says:

                TheraP and ralphbon,

                Please go over to ew’s old digs at tnh and read the history of the relationship between ew, Jodi, freepatriot, and other long-time commenters in ew’s community. You can’t understand the current interactions without that background. My best advice is to ignore Jodi and freepatriot’s responses to her.

                Although I once entertained the notion of writing a software agent to mimic Jodi’s commenting style (which I find simultaneously incomprehensible and predictable), I now find her schtick more and more tiresome (probably because the identity system here defeats the impersonators who infused her persona with a certain amount of variation at tnh).

                • ralphbon says:

                  Please go over to ew’s old digs at tnh and read the history of the relationship between ew, Jodi, freepatriot, and other long-time commenters in ew’s community. You can’t understand the current interactions without that background.

                  Thanks for the context, but I’ll respectfully pass on exploring the past encounters between someone who can’t be bothered to think and someone who can’t be bothered to capitalize, punctuate, or curse artfully.

                  • freepatriot says:

                    but I do capitalize and punctuate artfully

                    honest I really do

                    (is this cuz I don’t make those “smily face” thingys or something ???)

                    and as to the cursing, you prolly jes don like my style, thas all

                    I ain’t original. I usually say the obvious things that nobody else says (I spend most of my time here absorbing the data without any relevant topical offerings of my own cuz I don’t have the experience or expertise to add much to the discussions around here) I’m not a lawyer, I’m a defendant mostly

                    and I ain’t an artist anyway, I’m a glorified type setter


            • BlueStateRedHead says:

              Agreed and thanks. If anyone is still reading, and on this topic but at the cost of repeating myself:

              “trolls were extended warm greetings by many and sundry last night [i.e. 12/24] on, I believe, Egregious’s watch.

          • RodUnderleaf says:

            I find the use of the “ss” words highly offensive. This is not an effective way to deal with a troll as it fouls the general nest. Could you try another formulation freepatriot?

    • freepatriot says:

      you also lack the intelectual ability to digest what is posted in this thread, shit stain

      you’re just like joke line (you remember him, shit stain)

      a stupid mutherfucker who starts a conversation, tries to act like he knows something, then admits that he lacks the intelectual ability to understand the data that he started the conversation to discuss in the first place

      let me save you a lot of time shit stain

      everybody here already knows that you lack the intellectual curiosity and ability to understand this stuff. And we understand that you have limited time on your hands, so you can’t waste a lot of time on this stuff

      what we wonder about is this:

      if you lack the time to study the data, and you lack the intellectual ability to understand the data, why do you waste your time posting here telling us how little you understand and how little time you have to study

      instead of posting that you don’t understand the data (which is obvious just from reading your posts), why not save the time you waste advertising your IGNORANCE and use that time to CURE YOUR IGNORANCE ???

      does logic totally fucking elude you ???

      never had the intellectual curiosity to figure that much out shit stain ???

      instead of informing the world that you ain’t got a fucking clue, why not try to get a fucking clue instead ???

    • leveymg says:

      The rationale for destroying the tapes couldn’t get any worse than what they’ve already come up with:

      agency officials feared that if the videotapes were leaked they might compromise the identity of the CIA interrogators

      Sweet, jeez. They thought no one could figure that one out?

      “A small group of officials within the CIA’s Counterterrorist Center was put in charge of supporting the prisons and managing the interrogations. – James Risen, State of War (30)”

      By most accounts, Abu Zubaydah was taken into custody in March, 2002 in Pakistan, and after initial U.S. interrogation and treatment for gunshot wounds, sent to a secret CIA torture center in Thailand, where he was waterboarded, in April or May 2002. [FTN. 1] See, e.g., Larry Johnson’s timeline,…

      If the Johnson timeline is indeed accurate, at the time Abu Zubayda torture was videotaped, Cofer Black was CTC Director, and he shares command responsibility for that action with his CIA superiors right up through McLaughlin and Pavitt to George Tenet and the President.


      And, this:…..213/423878

      Zubaydah was interrogated by a team overseen by James Elmer Mitchell, a consulting psychologist under contract to the CIA, who reportedly adapted “brainwashing” techniques originally developed by the Chinese in the Korean War.

      According to an article in Vanity Fair —…..rentPage=1 — Mitchell and a staff CIA psychologist, Bruce Jessen, took over the interrogation of this al-Qaeda detainee in May, 2002, and for months subjected Zubaydah to a variety of extreme physical and pyschological abuses

      That canard about protecting Agency identities sure doesn’t fly. Like, nobody ever got offered up during previous scandals? Might as well just say something equally plausible, like the tapes were destroyed “to protect intelligence sources and methods.”

      • emptywheel says:


        That is one scenario on timing. But the documents that have come out so far have claimed the torture didn’t start until after August, when they got their Bybee Memo. If it indeed started in April, then that would explain the Zubaydah tape destruction, by itself, bc it would be evidence that the CIA was torturing without legal basis. That wouldn’t explain the al-Nashiri destruction, who was captured after the Bybee memo.

  2. TheraP says:

    No congressional declaration of war. But don’t forget that bush “self-declared” himself “war president” in January of ‘04 in a tv interview. (He said: “I’m a war president. I have war on my mind.”) It seemed pretty juvenile and narcissistic at the time. And I thought it had to do with the coming election, but given all the extraordinary powers he’s claimed, maybe it was more calculated than it seemed at that point.

    • sojourner says:

      First off, BMAZ, awesome post!

      TheraP, Bush wants so badly to be seen as the decisive war president. Maybe it is part of the neocon thinking that they need a war to provide the backdrop required for legitimacy, but time and again I have been struck about how much Bush wants a war to show that he has cojones or something. Trouble is, he has fallen flat on his face every time he has opened his mouth…

      Finally, Radiofreewill, I love your prediction that these idiots will no longer be around by the end of summer, and that would be an awesome Christmas present! “Judge not lest ye be judged” — but I so hope to see these idiots frog-marched out. I hate what they have done to our country!

  3. mainsailset says:

    This dog just ain’t gonna hunt. Where do you suppose the scripted translations are that were in the hands of the analysts? And were the results of the interrogations all analyzed overseas? Bush a war president my foot.

  4. MadDog says:

    When all is said and done by Mukasey’s tame munchkins, and by the now emasculated CIA Inspector General, should any suggestion or doubt still be raised by Court or Congress, Deadeye will dutifully instruct Junya that in the name of National Security, Junya must unfortunately declare all under the all-encompassing safety umbrella of State Security.

    Shorter Administration: “Hiding stuff, the only thing we’re good at.”

  5. BlueStateRedHead says:

    Imminent, as in the face of defeat and takeover by the enemy? If so, would that cover the shredding of the records at the Iran embassy (to no avail, alas, they put them back together again)? We were not in a state of war, but there was a siege going on. Would the same not be true of the embassy in Vietnam, when (correct me if I am wrong), we were also not at war?

    On the one hand, if I am following you, that would establish a precedent for destruction when war was not declared. On the other, it would be hard to invoke that precedent without making the case that is “prejudicial to the interest of the US,” in short that we were comparably getting out of Dodge in a hurry when they were destroyed.

    But then consistency is not a concern of these hobgoblin minds, unlike that of certain trolls. BTW, trolls were extended warm greetings by many and sundry last night on, I believe, Egregious’s watch.

  6. RodUnderleaf says:

    Bmaz, your description of how the various administration dodges amount to tainted meat to throw off the dogs, is nicely fleshed out.

    Is it time as well to analyse the evidence vacumn relating to specific 9/11 convictions. To revisit aspects of the 9/11 official account that depend on the supposedly destroyed evidence?

    Can it be determined that the supposedly destroyed evidence can really ever be said to have risen to the level of actual usable evidence? Can it be proved that it ever was evidence and that it proved anything at all?

  7. JohnLopresti says:

    The EU has reopened the rendition panel investigation after a Ukraine building US built was shown on Russian television with documentation of “~1,000″ ‘civil’ aircraft flights known to be spycharters 2001ff. I wonder when that facility was built, and if part of the reluctance to discuss the reason for the putative shredding of acetate records now has bearing on the delicate politics of that country during the orange revolution, or even providing leverage in diplomacy now by Putin, given the media likely are government sponsored, though I would wonder how involved in foreign policy Goss would have had to have been when serving his 20 months at The Co.

  8. radiofreewill says:

    OT bmaz, you and EW really ought to consider a weekly Impeachment Trash Talk Thread now that virtually any piece of evidence could float in from anywhere – 10 million e-mails, a Torture Tape, an Abramoff Picture, a Whistleblower, etc – and take BuchCo Down.

    It seems pretty clear to me that Bush and Cheney won’t be in Office – either by Resignation or Impeachment – by the end of the Summer ahead. They aren’t Running the Clock Out, they’re running into a Box Canyon.

    The real test of prognostication, imho, would be to pick the month of Impeachment and the Crime that takes them Down – And there are So Many Crimes to Choose from!

    So, for instance, I’m an Optimist – I’d say March and Torture!

    Maybe we could call it Pin the Crime on His Ass?

  9. Hugh says:

    It is standard operating procedure for this Administration to trot out stories util one gains a little traction and then to stick to it relentlessly. Remember the firings of the US attorneys and the story they used there? Clinton did it and what Bush did was no different, yadda, yadda, yadda. I could see this going the same way. “It could have been handled better but the law says we could do it and we did it.” So if this is the story they settle on, expect a few Senator Foghorns in the coming days to be enlisted to remind us that if we investigate this the terrorists win and that the destruction of the tapes was nothing big and that it is being used by Democrats for “political” purposes.

    • Rayne says:

      Actually, Hugh, I think the SOP will follow a different direction, and it may already be in play. They put somebody at the front to feign false indignation, demand thorough investigation, who gets carried away with offerings of immunity and contaminates and tanks the real investigative effort. They’ll poison

      Bet EW will agree that Rep. Crazy Pete Hoekstra is a likely candidate for this position.

  10. JohnLopresti says:

    The EuroParliament webpage seems a little dated mostly 2006, as was the AP article I cited from November 2007, but there is mention of a delegation meeting with SHorton, PGoss, many US persons; PG at page 4 of 9 in that document. But this is somewhat likely offTopic. Usually the instruction /make a paperTrail/ is fairly concurrent once there is chalk on the cleats, if there are zebras watching; with or without an instaReplay rule

  11. radiofreewill says:

    Bush, in his recklessness, has done nothing less than to Make the Proposition: The American *Brand* – which, for 230 years now, has been “Freedom of Choice” – is now Synonymous with Torture, Corruption and Ideology.

    If We don’t do anything to throw-off the Tyranny Bush ‘put’ on US, then We’ll deserve Our Fall From Grace in the Eyes of the Rest of the World.

    Bush can’t Take Our Integrity Away – Only We can Give it Away.

    So, what’s it gonna be?

    Are We gonna let Bush steal America and put his *Brand* on US?

    Or, are We going to Exercise Our Freedom of Choice by Defending the Constitution, Honoring Our Treaties and Standing-Up for Basic Human Dignity?

    How many times has BushCo said: The United States Does Not Torture!

    Unless We mean it when We say it, we’re no different than BushCo.

    We have to Impeach, or We are Bush.

  12. Rayne says:

    Oops, forgot to add that the unusual replacement of national archivist John Carlin in April of 2004 with Allen Weinstein was iffy. But at the time it looked more like a move by the administration to do one or all of three things: keep a firm hand on management of Poppy’s records as they were released, ensure the 9/11 commission only got what the administration wanted them to have, and/or keep prying eyes out of DeadEye’s Fourth Branch records on the Energy Task Force.

    But perhaps there’s a chance that the “tapes” were also a factor in the shuffling at NARA…would they have concerns in April 2004 about the destruction management of this documentation?

  13. radiofreewill says:

    This is the guy – the Decider – who Vetoed Children’s Healthcare – and who Ordered Torture, in Secret.

    Our President.

    Now, to steer my soapbox derby car back to the thread at hand – The Barbarity of Humans Waterboarding other Humans, caught on Tape, can’t be papered over with Legal Quibblings like these Records Act interpretations.

    Destroying Evidence of Torture doesn’t Erase the Torture, just like Disposing of the Body doesn’t Erase the Murder.

    And, it’s not like the Tapes are the Only evidence of Systematic Torture – there are the Detainees themselves, with their stories, Kirakou, and all of the reporting done on the Black Sites, Renditions and assorted Court Cases.

    Allthough the Tapes are, supposedly, destroyed, thanks to them we are no longer doubting that Waterboarding was done. Until Kirakou, Zubaydah and the Tapes, we weren’t really sure about the Waterboarding, but now we are – and Waterboarding is certainly Torture, if not also a War Crime.

    All Ordered in Our Name, but Secretly, by Bush the War President.

    • Rayne says:

      Yup. All Ordered in Our Name, but Secretly, by Bush the War President.

      Sure looks like it when one considers:

      – the careful use of the phrase “first recollection” by Bush

      – four attorneys within the White House were involved in the assessment of the destruction of tapes

      – persons of senior rank like Negroponte and Goss are on record as saying they didn’t support the destruction of tapes

      – deafening silence from DeadEye’s sector, including Addington

      – no rush for the microphone by others who might have been able to clarify this and put to rest any doubts about the handling process (hello Rummy? AbuG? anybody?)

      There is a nebulous outline here, drawn in by the pieces provided and further clarified by the pieces pointedly not furnished.

  14. merkwurdiglieber says:

    Crazy Pete starts acting out while Dick shows the kids the direct approach, there has to be a security camera recording of that EOB emergency as well.

  15. cinnamonape says:

    a) Destruction of records outside the territorial limits of the continental United States is authorized whenever, during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent, the head of the agency that has custody of the records determines that their retention would be prejudicial to the interest of the United States, or that they occupy space urgently needed for military purposes and are without sufficient administrative, legal, research, or other value to warrant their continued preservation (44 U.S.C. 3311).

    Gee! Why not just have secret record facilities in Hawaii or Alaska!

    Glad to see that Al Qaida is considered a “nation”? And precisely when was this “Declaration of War” issued? Was that the one against Saddam? Seems that it was very unlikely that a brigade of Saddam’s Presidential Gaurd was going to overrun the CIA HQ in the US Embassy in Bangkok!

    The “Head of the Agency” would, in this case, be…uhhmmmm!…Porter Goss? Not Jose “Jack” Rodriguez? But Porter denies that he authorized it.

    And the lawyers all say that THEY never authorized it. But maybe we haven’t heard from the “right” lawyers.

    And I’m sure that they must have really needed all that space occupied by the videotapes in Thailand to make more for the war on terror!

    I notice that it’s interesting that the head of agency is not required to consult further when he makes the determination that the records are without sufficient administrative, legal, research, or other value . Of course, when you have a Federal Judge suggesting that evidence related to terrorism trials still being conducted may be found on tapes of those individual while they were interrogated or detained…that makes arguing that they had no “legal” grounding a tough row to hoe. And certainly, without actually SEEING THEM it would be unreasonable to argue whether they might have sufficient administrative, legal, research, or other value.

    But perhaps Goss did view them? Where? How?

    If they really want to argue this legalizes the destruction then they have to explain many of the false statements they have already made to Congress and the Public.

  16. radiofreewill says:

    Waxman may have Fitz’ non-GJ documentation, presumably including Bush and Cheney’s interviews regarding the Insta-declassification of the ’something’ that was leaked to Judy Miller…

    Even money says Bush Compartmentalized Rodriguez from the Rest of CIA and Ordered him to Destroy the Tapes – but, there’s at least one copy of the Torture Tapes ‘out there’…and Bush knows it.

    The USAs were put on The List for reasons of Political and Criminal Expediency.

    Court Orders were Willfully Non-Complied-with in Kennedy’s and Brinkema’s Courts…

    Seems pretty clear that Canary called Rove and Got Bush to ‘fix’ the Siegelman Case through PIN…

    It’s likely that Bush Pioneer Jack Abramoff knew Bush much more familiarly than Bush let on…

    Bush left for Crawford today and…

    …he might not come back.

    We may see Cornyn and Kyl, the Pardoners, take over for the last 12 months…

    Bush will Run Away before he’s held Accountable.

    • Curious says:

      Where do you suppose the one copy of the CIA tapes is being held? By whom?

      and, what is this: Seems pretty clear that Canary called Rove and Got Bush to ‘fix’ the Siegelman Case through PIN… PIN?


      • radiofreewill says:

        Curious – PIN stands for Public INtegrity section, and it’s an organization within DoJ – at the time of the Siegelman Case, headed by a guy named Noel Hillman, who just got subpoenaed – that has the Power to assign Prosecutorial and Judicial Resources to certain Cases.

        In the Siegelman Case, it appears an Alabama Political Boss, named Canary, used his Political connection to Karl Rove to have Bush ‘get involved’ through PIN in the assignment of the Prosecutors and the Judge (who appears to have had a $100 Million conflict of interest) – to Railroad former Governor Siegelman into Prison on trumped-up Charges.

        If you have the time, this series in Salon is world-class writing from Scott Horton:…../BlogEntry

        On the Tapes, I’m of the same opinion that others have expressed here – there was electronic transmission – so intercepted and decrypted copies could be all over the Global Intelligence Community. Personally, I think Putin has a copy – and he backed Bush off of Iran with it, but that’s jmho.

        If any foreign Country is determined to have hosted the Torture or held the Tapes or Secretly made their own Tapes of the Torture, then we have to remove Bush and Cheney from office, for no other reason than to protect the Country from Blackmail – and then let the Law deal with them.

        In addition, if Abu Ghraib is any indication, BushCo was very Cavalier in their Depravity, and did very little at the time it was happening to stop Trophy Collecting of Torture Porn – there could be ‘highlight reels’ of those Tapes floating around out there, for all we know.

  17. jdmckay says:

    Negroponte not only firmly advised against destruction or the torture tapes, he felt so strongly about it that he memorialized it in writing to insure there was a record.

    … according to an “anonymous source”.

    This attributed advice seems very out of character to me… Negroponte’s activities have been 100% negligent of any legal (not to mention moral) proprieties in virtually every policy endeavor he’s puppet-mastered.

    Personally, I’d have to see proof to believe his opposition as stated, and would bet good $$ his intent/actions were the opposite. Everything I’ve seen all these years says Negroponte is as vile a character as any of W’s war criminals.

  18. merkwurdiglieber says:

    Negroponte has a long track record extending back to the LBJ years,
    key player in many rough areas, most notoriously the death squads activity
    in El Salvador and the Iran-Contra operations. Always came out “clean”,
    in a technical sense, just the type to protect himself with documented
    opposition to “tape destruction”… if a stray copy were to surface it
    could be to protect someone “opposed” to the fix or the policy after the
    fact, hard to narrow it much more than that without additional facts.

  19. bmaz says:

    jdmckay – I understand Negroponte’s long record. However, he is, unlike many in the Bush historical story, a competent and bright actor, irrespective of what you may think of his actions. It is just my gut, but I tend to think that Negroponte is what he appears to be in this story. Could easily be wrong, but that is my considered opinion so far….

    Ralphbon and TheraP – I don’t quite know how to explain the Freepatriot/Jodi dynamic. It kind of just is what it is; but they both co-exist within in it, and I have actually seen them show glimpses of care for the other on occasion. But just as we have a house troll, Jodi, we have a house troll minder, Freepatriot. This I will say, I don’t believe I have ever seen freepatriot attack anybody that was not a troll and that did not need attacking (if so it is so rare i cannot think of it); you are not in danger of being so accosted. There is not as much evidence since the move to the new digs here of the basis of the “troll dynamic” that resulted in this unusual setup that exists, but if you had been around longer term, you would know there is a legitimate basis for the nickname that is, at this point, strangely almost affectionately applied to Jodi. If you are going to have a troll, you can do far worse than Jodi; and Freepatriot is the consummate troll minder. I say all this not to agree or disagree with your comments, simply to lend what I have observed in my time around these parts.

    • jdmckay says:

      I understand Negroponte’s long record. However, he is, unlike many in the Bush historical story, a competent and bright actor, irrespective of what you may think of his actions.

      Just curious what you base this on? How did he gain your respect (is that right word)?

      Death squad support in Nicaragua, Iran Contra, and lieing about it all come directly to mind for me. And FWIW, I have no doubt about the competency & intelligence of many BushCo hi-power operatives… just the opposite: many of ‘em are brilliant, not to mention embodiment of seemingly boundless energy. It’s motives and intentions that separate them from other decent folks similarly endowed.

      Beyond that, after watching BushCo for a while now, I have (for better or worse) developed a notion that anyone appointed to positions Negroponte’s held under GWB has been vetted, is a true believer in whatever malfeasance lurks beneath their stated intentions, and is willing to go to any lenghts for “the company”. Those who blink or become liabilities get dumped, as we’ve seen.

      It is just my gut, but I tend to think that Negroponte is what he appears to be in this story. Could easily be wrong, but that is my considered opinion so far….

      Regardless, “he memorialized it in writing” at this point is uncorroborated hearsay, not a matter of record. Don’t let your (apparent) respect for this dude cloud that.

      And don’t misunderstand please bmaz (whoever you are), I read here almost every day for a long time now, mostly lurking. I read your comments (along w/few of the very learned, insightful & articulate legal regulars here) always. You all have greatly expanded my awareness/understanding in ways I couldn’t do w/out the insights you folks provide. EG., I really appreciate your input here & hold what you right in high esteem. I’m sure the same is true for many other lurkers here.

      I just don’t trust big John, and think I have good reason.

      • bmaz says:

        Oh, I don’t have any particular affection for Negroponte in the least; nor, for that matter, respect. I simply mean that, unlike most of the bumblers and incompetents in the Bush Administration, and the batshitcrazyinsane folks like Cheney, Negroponte is skilled, a critical thinker that concerns himself with more than just the moment at hand; and, for whatever reason (even I have no clue what feeds my gut instincts sometimes) I kind of think the objecting and memorializing report sounds about right here. Thats all….

  20. TheraP says:

    Thanks WO, I will do as you recommend. Obviously that fits with my own “bent” and I will learn a lot I’m sure. Your perspective is much appreciated.

  21. Mary says:

    I agree with all the legal analysis, but where I have to sigh is when we meet the issue of implementation of the legal analysis. Who is going to implement? The same people who are destroying records.

    If anyone cared about the Presidential Records Act, Fitzgerald would have generated or participated in some kind of reaction to all the missing emails his investigation began to turn up, or someone would have done something in all the investigations since. If the law still meant anything, Cheney’s butt would be in a sling. Instead, you have Addington sending emails, striking through the job title of the man who raised the illegality of Cheney’s actions. (”Anyplace you saw the words, “the director of ISOO” or “ISOO” it was struck.”)

    You also have blatant, outright, repeatedly acknowledged violations by the President of the National Security Act, from planting domestic propaganda via Judy Miller to the refusal to brief the gang of 8 and making up out of whole cloth some “gang of 4″ briefings that clearly violate the statute and being incomplete even with those briefings.

    Before you even get to the destruction of tapes, you have the failure to turn them over (an obstruction that isn’t getting attention). Still, there is a bit of a difference for Rodriguez. Over and over, the meme is that the President can do whatever he wants, without regard to statute, and order others to do whatever he wants, without regard to statute and with “authorized” depravity, but if Rodriguez really did act without Presidential authorization, he’s taking it all to the next step – actually, a step many at DOJ already took when they excused each other from culpability for things that were perhaps “less than” authorized in a written trail. Rodriguez is saying the Executive Branch as a whole doesn’t really have to follow the law if they can get a departmental lawyer to paper up an out for them, just like OLC papered up outs for kidnapping and abusing children and torturing innocent protected persons and sinking into the filth of sexually and physically humiliating a person as they systematically broke their mind and made them bark like dogs, urinate and defecate on themselves while naked and chained in stress positions and made them lose their minds in unrelenting isolation.

    Even without a presidential order (which he may have had – who knows?) Rodriguez is really putting the “an OLC opinion is a get out of hell free card” argument to the sword by saying – then my departmental lawyer ok is too. Bc the arguments are in kind.

    We already know that this DOJ, with the last two Congresses – Republican and Dem led, have restructured law to not include the President even when he kidnapps children and leaves tortured men stripped and chained to freeze to death. Whether he is illegally engaging in domestic propaganda for a war that will create the greatest refugee crisis in the world, or allowing Rove to ditch emails, the DOJ is there to make sure that the laws can be fully broken at whim and courts and the public lied to until the lies are revealed, then made to understand that lies and the truth are all the same when it comes to accountability.

    Oh sure, the law may be “found” again in the future, under a rock somewhere, waiting for a different President. But it won’t matter. They’ve shown that anytime a cabal of loyal Bushies chooses, they can use “the law” as nothing more than a poltical tool for torture and war. Once it’s been shown to be nothing more than fools gold, it won’t ever have real value again. That’s so unforgiveable that I have a hard time not beating the dead horse in frustration, but I know I have to give it up bc it doesn’t really accomplish anything.

    • RodUnderleaf says:

      Is it important to make a potential distinction between those who are killed by accident through the use of torture and those killed purposely through the use of torture. I suspect this may become an issue.

      • TheraP says:

        should we do the same for child abuse… those killed by accident and those on purpose????

        sorry… I’m not following you.

      • bmaz says:

        I fail to see any distinction of merit there. Torture is illegal, immoral, unreliable and ineffective for the purpose intended, i.e. useable information and evidence. Torturing someone is an intentional criminal act, whether the torturer intended the death is somewhat immaterial. Think of it in terms of the felony murder rule.

        • RodUnderleaf says:

          Torture was normalized to some extent by the administration. They have not accomplished this with murder yet. There is a greater potency to consideration of the deaths as murder.

      • BooRadley says:

        Rod, the best defense against terrorism is a free and open society. Once we allow our government to torture anyone, the normal flow of RELIABLE information dries up. People who have that kind of information are understandably unwilling to share it. They don’t want to get “renditioned” and tortured.

    • MsAnnaNOLA says:

      Yes everything you said. That is why Impeachment must happen before this gang leaves office. Even if it is the day before the new president is inaugarated. Impeach Bush and Cheney, so Pelosi becomes president for 12 minutes and then the new president comes into office. It has to happen or we have not defended the constitution. We the people are on the record not opposing lawlessness. This lawlessness will not stop with the next President Republican or Democrat if we don’t say something!

  22. JohnLopresti says:

    I wonder if CPowell knew anything about this, or if Rice kept the tapes’ existence a secret from him. Further I would expect Bush, Cheney, and Rumsfeld to have fretted a lot about the tapes’ existence especially if reviewed now a posteriori in the perspective of definite concerns by the likes of Sarkozy and Merkel, the current ‘Old Europe’ leaders, that publication of UStortchaVideo would reinforce their respective opposition parties, given the sorry tales of Berlusconi and Aznar’s political demise following the numerous US belligerency related scandals which rooted foremost in the tabloid quality of the AbuGhraibImages’ publication.

  23. Mary says:

    On a different note, the Boston Globe has run a story on what seems to me to be another very basic question that is going unasked. Why weren’t ALL interrogations of ALL detainees recorded? I spec’d before that if what you wanted and needed was “ticking time bomb” or other intelligence, you’d record every word. The only reasons you wouldn’t would be to be able to manufacture intelligence for Cheney and Bush’s personal appetites. While they don’t go to the “why wouln’t you” point, the interrogation experts in the Globe piece do go into the “why you should record” aspects and lament the loss of so much intelligence record.…..ional+news

    It tangentially makes me think, too, of the USA who caught so much flack supposedly because of his push to have FBI interrogations recorded.

    • WilliamOckham says:


      I think you’ve hit on something important about the videotaping of interrogations. It’s very clear that many within the domestic law enforcement community view videotaping as losing proposition (as in losing control of the narrative). For the torture of supposed terrorists, I’m amazed they even allowed it any case.

      • bmaz says:

        And this goes to TheraP’s comment @50 as well. You are right about the hesitancy of domestic law enforcement and it is because they do not truly want a record of the tactics they use; even though most of them are, sometimes regrettably, at least minimally legal. Thing is, if you are truly interested in obtaining the most benefit from a critical interrogation, the ability to review a videotape of it is invaluable for allowing considered long term analysis and careful evaluation for physical cues from the subject. Problem is, the tactics that most use are not very attractive to the average citizen and, almost invariably, while the basic tactics interrogators utilize are legal, they impermissibly exceed the parameters thereof habitually and don’t want a record of that. Doing it the right way, getting the best evidentiary record thereof and obtaining convictions properly and legally never really seems to enter the equation with law enforcement. Go figure…..

    • TheraP says:

      Mary, you are doing a tremendous service here! Don’t give up on your righteous anger over this. I have become your loyal reader. And I totally agree with you that all interrogations should be recorded. It’s the only way to place a check on the power of anyone who is questioning an incarcerated person. It may have to done for loans and other things soon as well!

      So thank you for all your informative comments. It may not be making a difference yet. But hopefully eventually.

      I think the issue of torture is so upsetting that many people literally do not pursue it. So keep on this. I think in term so of my own work, that people who have been tortured as children, and I’m talking in the US, most therapists can only handle a few of these people. It’s hard stuff to stomach. And leads to so much emotional overflow into the therapeutic relationship.

      So, again, thanks. Every time you post… I look for them!

    • bmaz says:

      That was Charlton. I actually have a bit o experience on interrogatio/ confession law with a distinct emphasis on coerced confessions. Tortured confessions are a part of that whole. There are a number of true experts out there, each with their own views, but certain basics are universally agreed to for the most part. Taping of critical interrogations/confessions is one of them. The unreliability and uselessness of tortured/coerced confessions is another. If you are interested, my favorite two that I have worked with are Gisli Gudjonsson and Richard Ofshe.

      • TheraP says:

        It’s a different topic, but same issue. For children who have been abused, it’s important to tape the testimony and to be sure that the questioner is not “leading” the child. It protects the child – sometimes from having to testify in court – and it protects the accused. And of course the questioner.

        It should be the same in any criminal proceeding, it seems to me. There should be a record. And three parties are protected by that recording. The person being questioned, the interrogator/questioner, and the state or other aggrieved party.

        Seems only logical to me. but then bushco has altered even logic…

  24. JohnLopresti says:

    M’ry, SAckerman has a nice Year in Review two paragraph article today about Addington’s efforts to abolish ISOO once the archivist ordered AGAG to issue an opinion on whether FourthBranch had an EO exempting VP from complying with archiving regs that keep the presidency within the rule of law for document preservation.

  25. merkwurdiglieber says:

    So they tape to solidify the prosecution fact set by whatever technique,
    and to map defense discovery points, then, destroy record to prevent any
    discovery. Slam Dunk. My hope is for an EX PFC Wintergreen character in
    the bowels of communication having an unauthorised copy just for the randy
    hell of it… not as likely as some legal type looking to flip.

  26. bmaz says:

    TheraP and WO (Mary too) – For an idea of how these concepts fit into the domestic, non-torture, framework this recent court decision in the case of Martin Tankleff, in an almost two decade old case, gives a good look into the general area.

    • TheraP says:

      Thank you for that link, bmaz. I find it interesting because of his age in particular. I do not have the reference though I will try to find it. But within the past year or so (maybe several), there was a review and article in The American Psychologist, which looked at suggestibility in police interrogations, particularly among adolescents. It was found that adolescents are very vulnerable to being “suggested” into confessing crimes, to literally manufacturing memories based upon being interrogated for long periods, given false suggestions and so on.

      That was clearly operating in the case you referred to. But I think it’s a similar phenomenon that interrogators using torture and other mind control methods are trying to accomplish – to break down the personality to the point where suggestion becomes “reality” for the person. This of course happens routinely in child abuse as well, where the perpetrator wants not just sex etc. with a child but wants the child to believe they “wanted” the abuse.

      Well, for me, this is just so upsetting on so many levels. And I am truly committed, to whatever degree that means, to eradicate this horrible and inhumane treatment at the hands of the authorities. It’s bad enough that people do it in secret and on their own. And they should be punished as well. But it’s even worse when the state does it! When a crime becomes a “means” of state control.

      My fingers are literally seizing up in anger… hard to type!

      • bmaz says:

        Well TheraP, if you liked the Tankleff case, you will absolutely love this one. I am going to give you three links; they are to each part of a three part series regarding the series of false confessions obtained in a rather infamous case known colloquially as the “Buddhist Temple Murder Case”.

        Part One
        Part Two
        Part Three

        Sorry for the combined length, but I think you, and any others interested, will find it a simply remarkable and compelling story. You previously mentioned “suggestability” and other devices for implanting the information desired to be regurgitated by the subject in his confession. Pay particular attention to the methods used here, notably the “prop room”. This case is literally now one of the “textbook cases” in the field. As an aside, I was the lead attorney for a couple of plaintiffs from the “Tucson Four”, that were caused to falsely confess, in the civil rights suit brought after their eventual exoneration on the criminal charges.

        • TheraP says:

          bmaz: I read all 3 links of the story of the Temple Murders. wow!

          It sure looks to me like within that story lies the response to 9/11, the search for WMD in Iraq, the need to torture, to spy on everyone, etc. etc., all the paranoia and need for dictatorship, and I can only imagine the infighting as this whole thing is now coming apart.

          What a cautionary tale! In some ways it reminds me of how, when celebrities are treated by doctors, they often lose their objectivity and fail to follow standard operating procedures.

          The whole thing says so much about how even “experts” can go off the deep end, the pressure from people above, how “suggestion” functions when people are being interrogated but also among members of the interrogation team.

          Thanks for providing that. I can only imagine how your case went, how the innocent were affected by this. What a mess!

          If this were Dickens, we’d have a happy ending coming soon! but….

  27. LS says:

    From the EU Parliamentary site:

    “Legal advice should be sought on those actions considered a violation inter alia of
    Article 6 of the Treaty on European Union, Articles 2, 3, 5 and 6 of the European
    Convention for the Protection of Human Rights and Fundamental Freedoms, the
    Charter of Fundamental Rights, the UN Convention against Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishment, the EU-US agreements on
    extradition and on mutual legal assistance and other international treaties and
    agreements concluded by the European Union/Community and its Member States,
    including the North Atlantic Treaty and its related agreements on the status of forces
    (in particular, the agreements concerning the use of American bases in the territory of
    EU Member States and acceding countries) and the Convention on International Civil

    I wonder how many breaches of treaty one can find…

  28. Hmmm says:

    I wonder, bmaz, does Rod perhaps mean not that the penalties or legal analysis should be different, but rather that “extended interrogation techniques” may have in some cases been used as a pretext/cover for deliberate murder? As in “Oops, gosh, we sure didn’t mean for that to happen!”

    • RodUnderleaf says:

      That is along the lines of my meaning. Torture can be used to kill as well as get info. Maybe some interrogations are for killing purposes.

      “Crucially, among the worst cases in this list – those of detainees tortured to death – only half have resulted in punishment; the steepest sentence for anyone involved in a torture-related death: five months in jail.”


  29. Hugh says:

    Do they talk themselves into being stupid? I’m trying to grasp the mindset. To torture in the first place and to tape it in the second — what have they been talked into?

    I suppose you would have to define who “they” are. You have those who set the policy, those who transmit it, those who run and maintain the torture facilities, those who work at them (communications, guard and physical plant staff), those directly involved in the interrogations (interrogators, contractors, supervisors, medical staff, notetakers, video camera people, etc.), and finally those who analyze the interrogation work product. Outside the policy setters, most of the rest feel probably correctly that they are and will remain anonymous and therefore effectively free of responsibility for their actions and complicity in torture. The Bush Administration has not only sanctioned their activities but praised them. It has repeated many times that it does not recognize their torture related activities as torture. The Congress has signaled too through the MCA that it too supports their actions. So who is going to prosecute them? Look at the politics. There will be no war crimes tribunal. Yes, there may be civil suits, but these look destined to be lost in a maze of state secret arguments. So to answer your question, no, these guys are not stupid. They have a very good idea of what they were doing and know that they are extremely unlikely to pay any price for it.

    • skdadl says:

      Graham Greene … Hannah Arendt … It is stupidity, both moral and practical stupidity. People torture other people because they just want to keep their jobs? I do understand and empathize deeply with the shock of 9/11 — the son of a dear old friend was at Windows on the World that morning, so I know some of what people have gone through. But you can’t run foreign policy forever that way, not when the dead bodies are piling up in their hundreds of thousands elsewhere.

      This is O/T, and I apologize, but our (Conservative) prime minister and minister of defence have just used Boxing Day to recite Dick Cheney’s talking-points about Iran, and I am so angry I could spit. Listening to the two of them, I feel as though I’m living through some dreadful replay. Our minister of defence actually took the American ambassador to Canada along with him on his visit to the troops in Afghanistan, and there they are singing from Cheney’s playbook.

      Oh, I am so angry.

  30. BooRadley says:

    FWIW and an extreme long shot, From a Milwaukee Journal Sentinel article:

    “Under the state’s John Doe law, citizens can force judges to hold hearings by sending them letters alleging a crime has been committed. The judge must take testimony from the person who sent the letter and any witnesses he or she produces … .

    1. It’s doubtful, but I was wondering if anything similar exists in old Federal statutes.

    2. If not, could progressives use Wisconsin courts (A state with a long progressive tradition, WI refused to implement the Fugitive Slave Law. ) as a toehold for fighting torture? This goes to the heart of what the founders meant by Federalism. At least getting cases filed in a state court provides minimum traction and some exposure in the media?

    IANAL, so laughter is anticipated.

    • TheraP says:

      And if so, what about using it to get an impeachment going?

      If that’s the case, I’d be prepared to join you and others in lodging a complaint! There are so many crimes, we could just use Hugh’s list!

  31. TheraP says:

    Do they talk themselves into being stupid? I’m trying to grasp the mindset. To torture in the first place and to tape it in the second — what have they been talked into?

    Hugh did a lovely job @63 of discussing this from the point of view of the hierarchy of what happens with regard to torture.

    I’ve been thinking of something different. I’ve been thinking about how language works. How language is the basis of this “policy.” How little by little, you change the meanings of words, the meanings of phrases. How by changing those meanings and then writing down policies, in great and elaborate detail, you make something horrendous seem nothing more than a “procurement” agreement… something like a contract to procure information.

    So, by codifying everything, as if you were simply detailing the manufacture, specifications, transportation, and distribution of a commodity, as simple as “nails” of various sizes and materials, etc. you turn a stomach-turning, headache inducing, moral evil into something banal, boring, devoid of emotion.

    Now of course that is not the case in the torture room. But who gets chosen to be a torturer? Who remains as a torturer? Maybe they have rules and regulations for that too…. so the procurement and training of such individuals also becomes banal, boring, etc.

    But it seems to me that language undergirds all of this. A bureaucratic mentality. That a layer of that lies between the sociopathic leaders and the dregs who become or remain the torturers.

    It’s like something out of Kafka to think this is now occurring and sanctioned in our society. It’s like reading about the Nazis. Or The Gulag Archipelago, a book I tried (and failed) to read when it came out – it was just too upsetting to read about the torture … on and on.

    And here we are. I’d be interested in whether others see any merit in these musings I’ve been having… and that I think relate to the questions raised above.

    • merkwurdiglieber says:

      I had the same experience with the Gulag Archipelago you describe. It
      came out after we knew quite a lot about the Phoenix program and the
      tiger cages,”interrogation facilities”, used by this program on Con Son
      island off Vietnam. Pentagonese was the subject of much dark antiwar
      humour as well, “Megadeath” comes to mind as does”pacification”. It has
      never really stopped, this eliding the meaning of plain speech into a
      thought control tool, reread some Orwell and know you are never far from
      this phenomenon. Television destroys language by repetition disconnected
      to meaningful images, they select the image then burn in an elided term
      for it. Text restores the imagery of the individual reader… problem is
      essential literacy has descended into aliteracy by visual overload in
      recent times. RIF Reading Is Fundamental.

  32. freepatriot says:

    it may not be pretty but it works

    stain shup up. didn’t it ???

    my methods have reduced the shit stain to posting “late replies” at TNH, cuz it can’t show it’s face when the discussion is actually occuring

    ya gotta fight fire with fire

    there is NO room for compassion here

    if you treat the shit stain with kindness, you only encourage it. If you engage the shit stain’s foolish statments, you let the shit stain win

    if you heap ridicule and scorn on shit stain personally, the shit stain begins to doubt itself

    I don’t ignore shit stains. I scrub them away

    all your trolls are belong to me

    • bobschacht says:

      IMHO you over-reacted. Who appointed you captain of the thought police?
      I am willing to tolerate more diversity of opinion, even some troll-ish behavior. I know where my delete key and Page Down keys are, and I don’t need you to purify the comments for me.

      YMMV, IMHO, etc.

      Bob in HI

      • BooRadley says:

        Bob, just fyi, I have never known freepatriot to ever in anyway try to dampen the diversity of opinion.

        One of freepatriot’s early nicknames for her was “Tokyo Jodi.” Later iterations of Jodi were clearly not the same as the initial troll, who I believe really had a brother serving in Iraq. This has led many of us to speculate that “Jodi” gets paid by the post from some neocon troll factory.
        S/he is probably also reporting back/cataloguing the topics emptywheel is covering.

      • WilliamOckham says:

        Again, I encourage people to go over to tnh and read through the archives for the background on Jodi and freepatriot. I stand by my position that the best way to foster the intelligent discussion that is the hallmark of the ew community is to ignore Jodi’s comments and freepatriot’s responses. If you read through the threads over at tnh, you’ll discover that freepatriot has contributed much to our continuing discussion. You’ll also discover that I have some differences of opinion with him on how best to handle Jodi. I doubt you’ll get him to change his mind.

        In the spirit of the season, I wish you and all the others here peace and goodwill.

      • freepatriot says:

        IMHO you over-reacted

        why thank you for the compliment, and thanks for noticing

        I ain’t the “captain of the thought police”, but somewhere along the line, I was given custody of the shit stain

        the best way to stop the shit stain from attacking posters around here is to launch pre-emptive attacks on the shit stain

        go and read the shit stain’s history at TNH

        after a while, you’ll realize that you’re actually seeing the “Kinder and gentler” shit stain

        but it’s still a shit stain

        the shit stain isn’t an “alternative view point”

        the shit stain is a repuglitard operative who only posts repuglitard talking points

        go and read the shit stain’s explanations of why scooter libby should be acquitted, and you’ll soon realize what the shit stain’s objective is

        don’t defend the shit stain

        it has earned our derision and ridicule a hundred times over

  33. mainsailset says:

    Hey, FP, Merry Christmas!
    o/t over at Think Progress they caught a new piece out over at Newsweek
    “David Addington pushed to eliminate job of national architivist who challenged Cheney”
    Among the quotes: “A number of prosecution exhibits in the Plane related perjury trial…were annotated “handle as SCI”
    …they were conferring on the plane about coming up with a media response to the allegations of Plame’s husband.

    No new news there, but someday it would be nice to see the SCI police show up and take that damn “Handle as SCI” stamp away from Cheney & Addington.

  34. Jeff says:

    I find the gist of the argument here persuasive (though not the first plank about state of war), and it makes me think either this line from CIA spokesperson is key:

    “The bottom line is that these videotapes were not federal records as defined by the Federal Records Act”

    and/or the CIA is just making it up as it goes along, and it has no idea yet why these videotapes didn’t count as records under the Federal Records Act.

    But I do want to take issue with the assumption driving this post that the Bush administration is the pivotal actor here. So far we don’t have evidence of that, and there is in fact a lot of evidence that the CIA, or some component of the CIA, was a relatively autonomous actor in the destruction of the videos, as well as the current attempts to rationalize it.

    • PJEvans says:

      I do want to take issue with the assumption driving this post that the Bush administration is the pivotal actor

      They appointed most, if not all, of those involved: this puts them pretty high on the list of Those Most Concerned, IMO. (Also, it would be George and Dick in the front row of defendants at the war crimes trials.)

    • bmaz says:

      Jeff – I think both of your points are legitimate to some extent; so rather than argue, I will simply explain why took the posture I did in the post. The “state of war” element is but one of the many elements of the code/statute; and, even if you grant that element in favor of the Administration (or whoever), there is still no valid applicability of this provision to what we believe we know happened in this case. More significantly, however, there is truly a distinction historically between declared war and what have been commonly known as “police actions” which is an ages old description for use of military force other than in a declared war. The subject has been continuously and increasingly blurred since the advent of the Korean War by Truman, on through Vietnam. As part and parcel of “reclaiming the power of the executive”, the current Administration has attempted to effectively wipe out any need for a formal declaration of war by Congress. An honest survey of the law over the decades, indeed centuries, does still, however, yield the conclusion that there remain many “war powers” that really do not matriculate to the executive without a formal declaration of war pursuant to Article 1, Section 8. Granted, several powers have been determined to inure to the executive via the “War Powers Act”, even absent the formal Congressional declaration of war. No matter what anybody says, the AUMF is not a formal declaration of war. To my mind, the better analysis on this issue of the FRA in this case is that there was NOT a valid state of war; but I very much understand what you are saying.

      As to your second issue, I agree there is no conclusive evidence on the relative scienter and participation of the Administration principals. My view is predicated on the following: Initially, I just don’t believe the CIA, Rodriquez or otherwise, did this on their own; it is contrary to the character of the clandestine branch (Larry Johnson describes this angle well). Secondly, we have the pretty clear, and so far uncontroverted, evidence of the DNI, two AGs, two WH counsels, Addington and Bellinger involved in the process. I find it impossible to believe that, in light of said facts, at a minimum Cheney, and in all likelihood Bush too, were not involved. They all knew quite clearly that the CIA was itchy and wanted to destroy the tapes; the failure of the leaders of the Administration to insure and mandate, unequivocally, that the tapes be preserved was a knowingly reckless disregard of the law and their duty. Reckless disregard in a situation like this carries a defined and established level of criminal culpability under age old provisions of common law that have also become part and parcel of our statutory law. Even more than that, they are the captains of this criminal ship of fools and are, therefore responsible for the sinking. That is my view.

    • emptywheel says:

      To add to what Mary and bmaz said, I think several things merit–at least for now–the use of the word “Administration.”

      First, both Porter Goss and the White House appear to be working the press heavily. Goss would have you believe he was never a spook and DNI Negroponte never told him clearly not to destroy the tapes. The White House would have had you believe that Harriet Miers was the only one involved in discussions of the tapes, even though Harriet’s legal role post-dates most of the known discussions. Add in the general shiftiness with dates, and it seems clear that the story we’re getting–that Rodriguez destroyed these tapes on the say so of two lawyers who, we’re guessing, gave him a narrow opinion legalizing that destruction–that story is very carefully parsed and hides the true extent of several peoples’ roles.

      Then look at the timing: the destruction happens on Goss’ watch, who was basically put in charge to make the CIA look like Dick Cheney wanted it to look. It did not happen on Tenet’s watch, though the concern about the tapes started then. And it was revealed on the anti-Goss Kappes and Sulick’s watch. At the very least, that would suggest we need to consider the factionalism within the CIA over the last few years. But it also suggests that the faction that did, finally, destroy the tapes had close ties to Fourth Branch.

    • Rayne says:

      Have been mulling this over today…and I think I’ve kicked it around here or elsewhere.

      “The bottom line is that these videotapes were not federal records as defined by the Federal Records Act”

      Was this administration given copies of product created by a third-party, and told they were for use by this administration but not necessarily for permanent possession?

      Agh. I wish third parties who know the truth would simply lay out their cards, dump their intelligence in public; who does it serve to keep this toxic crap at this point? It’s not like we don’t know they have it all; this administration has leaked like a sieve from day one.

    • Hmmm says:

      I assume Webb could not convict in the Senate on his lonesome, absent a quorum and Aricles of Impeachment from the House (as he is).

  35. Mary says:

    58 – the difference that I think you are getting at is “intent” or mens rea, but in the case of death (or even suicide) as a collateral consequence to beatings, hypothermia, humiliation, stress positions, heart rate increases and decreases, repetitive physical, mental and emotional shocks, etc. – the mens rea element is tied to “what is reasonably foreseeable” and it is reasonably forseeable that these practices result in death. I’m guessing you mean there is still some kind of difference between reckless homicide (freeze him and if he dies, he dies) and a more intentional (freeze him until he dies) and there is a bit. But it’s only a bit and the homicide element doesn’t change, just the degree.

    Re: the tapes – I have to think that someone really was sold on the “we’ll get good info by doing this” concept and the truth is, when the country had taken the hits it had – completely unprepared for them too – and where there was a lot of legitimate as well as illegitimate concern for what might happen next, someone really might have thought it a good idea to tape the interrogations (remember, they are also claiming hundreds of hours of tape of observational tape of these guys in their detention boxes as well) and pretty much everything and have interrogators, bin laden and al-Qaeda specialists, linquistic and cultural specialists and psychologist/pyschiatrists review to try to actually figure out where there was good information, ‘gives’ that needed follow up, culturally or linquistic anomalies that needed context, etc. That’s my “devil’s due” answer. Then there’s the fact that perverse and depraved personalities like those who authorized and engaged in solicitation and cover up, are just like any other criminal personality – they like to watch their crimes. But tapes might have originally been intended to actually do what you would do if you were expecting national security intelligence.

    bmaz – Your story of the coerced confessions in the murders of the monks back in comments a few months ago made an indelible impression on me.

  36. Mary says:

    81 – keep in mind that, well before the destruction of the tapes, there was administration knowledge of a) the “harsh techniques” authorized on the tapes, and b) the existence of the tapes.

    In light of that knowledge, we also have the facts that the tapes were never turned over and never described as information responsive to an order or subpoena but not being turned over under claim of privilege, etc., to:

    a. 9/11 Commission
    b. Padilla’s lawyers who defended against his arrest warrant by directly claiming that the Zubaydah and Binyam Muhammed statements were solicited by torture
    c. Moussaoui’s attorneys or Judge Brinkema who requested tapes involving Zubaydah and KSM among others
    d. The ACLU FOIA lawsuit and Judge Hellerstein’s orders
    e. The detainee cases in front of Kennedy and Kessler, among others.

    In particular, there is no question but that failure to turn over, as well as destruction, would have been obstruction in the Padilla case and I’m still waiting to see where DOJ issued do not destroy notices for that case. Moussaoui is probably next in line on severity vis a vis the traditional criminal evidentiary role played by the courts. Politically, the 9/11 commission failures are also pretty big – the detainee cases are more or less important, depending on content and context, and the ACLU case – where the order is probably one of the best and most direct – is also one where the relative powers of the two branches are most at odds (although the lawyers should still lose their licenses imo).

    So all throught he failure to turn over, the administration was “the” pivotal player. Given that, it can’t become something less than pivotal when the tapes it failed to turn over are destroyed and particularly not when the administration sits on the knowledge of that destruction for a year despite all the listed court cases, again, specifically including Padilla’s.

    • bmaz says:

      Exactly. There are two related, but distinct, areas of criminal action in play here; the concealment/obstruction and the subsequent destruction/obstruction, that compound each other.

      • freepatriot says:


        the concealment/obstruction

        the subsequent destruction/obstruction

        and THE TORTUE

        actually, the TORTURE comes first

        then we have the “concealment/obstruction”

        and then the “destruction/obstruction”

        why argue about issues where faulty memory and lack of knowledge might exonnerate george ???

        let’s deal with the issue where the “I Didn’t Know” and “I just learned of this” excuses are ADMISSIONS OF GUILT

        under the Geneva Conventions, george bush’s “Lack of knowledge” about crimes against humanity is an admission of guilt

        who cares about the “destruction-withholding” obstruction question

        let’s just stick to the question that nobody denies

        the tapes held information about the torture of human beings

        doesn’t matter what george knew

        it happened, and george bush ios responsible, whether he knew or not, cuz he’s the commander guy and shit

          • klynn says:

            So bmaz what is the course of action on this (or rather these) offenses? Does it play out in the court cases or …? Looks like you begin to address this in 98.

            What role could state attorney generals play in all of this?

            • bmaz says:

              Double jeopardy and res judicata are somewhat related, but not synonymous concepts. double jeopardy is probably best described as the criminal application of the more general, and commonly civil, term of res judicata. For the purposes here that you are discussing they probably are no different, but since it is criminal conduct at issue, double jeopardy is the more appropriate term.

              I am familiar with the Texass case of Sheriff Parker and that wasn’t just a crime against justice he was convicted of, it was, indeed, waterboarding. The black folks wrongfully convicted had a hell of a time getting any relief in spite of the Sheriff’s conviction; most simply had done their time by then and went on with their lives to the best of my recollection. It was Texas you know…..

              • bmaz says:

                Oops, that was in response to freepatriot at 102.

                KLynn – no jurisdiction on the torture stuff for any state AG unless it happened in his state.

                • klynn says:

                  This is probably a crazy thought…What if electronic/telecom related evidence relayed through their state on public utilities? Right of the People apply at all?

                  • bmaz says:

                    Nice try, and creative; but, to the extent not totally occupied and precluded by Federal jurisdiction, there is not a chance in hell it would ever happen.

                    • klynn says:

                      Thanks for the “creativity” kudos. Just thought with routing of electronic data through many different states, we might be able to hit on a number of Executive violations in one punch (FISA, missing emails, missing tapes, time table on torture…the list is long for state AG’s…Oh well, I tried!

                      In regards to treason or other criminal actions by a President or Vice President, where does Federal jurisdiction stop and The People’s Right To Know start? Could The People’s Right To Know trump Federal jurisdiction ever?

                    • bmaz says:

                      And this kind of goes to rapt’s comment at 116 as well. Heh heh, yeah, I dunno; but if I personally even remotely had the ability to bring the law to these clucks, I would have done so long a go. I do not. I stumbled around, frustrated and increasingly angry for a long time looking for some way to try to actually make a difference in the struggle. That is how I ended up here. Don’t kid yourself, there are a lot of people that read this blog and EW’s work; many of whom are in the socio-political mix, especially other widely read bloggers and journalists, as well as politicians and their staffs and, every now and then, judicial types.

                      KLynn as to our question specifically, I have seen some of the various theories floated about using state level action to crack the nut. Best as I can tell they are either deluded pipe dreams, or founded on such theoretical and/or archaic bases that it is impossible for me to see any hope for success as a general matter. There are certain exceptions like bar complaints against lawyers etc. that might, and I emphasize might, have a miniscule effect. The real answer to your question is impeachment; that is the power of the people by and through their elected representatives. House elections occur every two years; the public has simply not cared enough to take out the politicians, of both sides, that are perpetuating the status quo. Or make enough noise that the idiots currently in office get off their ass and honor the Constitution. The problem is not just “them”, is is “us” as a whole.

                    • bobschacht says:

                      The real answer to your question is impeachment; that is the power of the people by and through their elected representatives. House elections occur every two years; the public has simply not cared enough to take out the politicians, of both sides, that are perpetuating the status quo. Or make enough noise that the idiots currently in office get off their ass and honor the Constitution. The problem is not just “them”, is is “us” as a whole.

                      This is where I get hung up. I try to coordinate a local Congressional Impeachment committee (HI-01) that met with our Rep. last April (30-40 people), and I blog about impeachment here and here. I compiled a workspace for articles of impeachment, but somehow in terms of results it seems to add up to a big fat Zero. How can I be more effective in getting a passive public to care about impeachment?

                      Bob in HI

                    • bmaz says:

                      Bob, I have no idea. I didn’t mean to imply it was simple, or even necessarily that is even possible in the state we are now. There are so many reasons behind the inertia; lack of education, lack of a stake for a lot of people in the society as a whole, greed, selfishness, lack of focus, lack of competent leadership, etc. It is pervasive and deep. The only shot at any kind of national consciousness that I have seen in several decades was 9/11; but instead of bringing the country together, Bush/Cheney cleaved us even further apart and actively fought any shared sacrifice and stake in the collective good. It strikes me that they did that not just out of their dog whistle desire to not compromise and govern from and for a razor thin majority; but also out of the shrewd calculation that any kind of unified citizenry engaged in a common purpose would interfere with implementation of their bat crazy, corrupt, pillaging, colonial, robber baron policies. Now, I just don’t know; but one thing is fairly certain, it is not from lack of effort by people like you and most of the others inhabiting and frequenting these parts.

                    • radiofreewill says:

                      Hang in there Bob! I hope you and that truly patriotic band of 30-40 Great Americans keep getting together – your group stood its ground, Our ground really, when it was Right but not Popular.

                      h/t to Our brothers and sisters in Hawaii!

                      The help We need to get Everyone behind Impeachment could come from a wide variety of places at any time:

                      – a Damage Assessment from the Leak of Valerie Wilson’s CIA Identity
                      – a Photo of Bush relaxing with Bush Pioneer Abramoff in the Marianas
                      – a Copy of the Torture Tapes
                      – an interview with an Obviously damaged Zubaydah, Nashiri, KSM, etc
                      – Rodriguez fingers Bush on Jan 16
                      – the Gitmo Detainees get access to the Press
                      – Bush’s Secret EO creating a Program of Systematic Torture gets revealed
                      – We find out Fitz was on The List
                      – Cheney proved to be eavesdropping on Congress’ e-mails
                      – if the ‘foreign Country’ that held the Torture-the-Arabs Tapes was Israel
                      – etc, etc

                      I actually think if Rove’s and Bolten’s Contempt Citations are voted through, then that will lead quickly to Impeachment, too, but mostly I think Torture is the Beam in Bush’s Eye that will take his Administration down.

                      It could happen at any time, any day…but, I still say Bush will Resign before being held to account.

              • PJEvans says:

                I think that case also wiped out the career of the county DA, too. He’d seemed reasonable when I was living in that area. (It’s one that’s finally getting past Prohibition, and they’re kicking and screaming at that.)

  37. BayStateLibrul says:

    Could it be that Kurt Vonnegut (rest his soul) explanation pertains to the CIA Tapes Coverup?
    “It so happens that idealism enough for anyone is not made of perfumed pink clouds” Vonnegut writes. “It is the law! It is the US Constitution.
    But I myself feel that our country, for whose Constitution I fought in a just war, might as well have been invaded by martians and body snatchers.
    Sometimes I wish it had been. What has happened instead is that it was taken over by means of the sleaziest, low-comedy, Keystone Cops-style
    coup d’etat imaginable.”

    More insight can be gleamed from today’s Letters to the Editor (via NY Times)…..26cia.html

  38. freepatriot says:

    are any of the victims of bush’s crimes against humanity still alive ???

    can’t we just call these people to testify before Congress about what was on the tapes ???

    then the interrogators would have to reveal themselves to rebut the testimony

    and the repuglitard party would explode on live television

    I’ve been kinda skimming the argument, so I don’t remember the names, but we know whose interegations were recorded, right ???

    Abu Zubaydah and someone else, they’re still breathing, yes ???

    could make for some interesting theater, even just watching the bushies try to quash the subpeonas would be worth the price of admission

    the more I think about it, the more I am convinced that this is the fight we want to have with georgie

    what’s george gonna do, try to tell us that Abu Zubaydah is a mentally ill doofus that doesn’t know shit ???

    that kinda proves our point, and it don’t exonnerate george

  39. freepatriot says:

    the steepest sentence for anyone involved in a torture-related death: five months in jail.

    can previous legal proceeding be nullified by the fact that the proceedings were part of an official cover up which is subsequently prosecuted as a criminal conspiricy

    I’ve run up against “Res Judicata” (???) before

    could a conviction in a criminal conspiracy trial as described above be used to break or nullify res judicata ???

    • bmaz says:

      No, like the result or not, that would be barred by double jeopardy. It is theoretically possible, I think, for a prosecution by a different (other than military court martial) jurisdictional entity, whether that be a federal court or some international entity, to prosecute on slightly different, but parallel laws. The analysis to determine what jurisdiction, what laws/crimes, and to what extent they do, or do not, mirror the original crimes tried on, is complex and beyond the scope of this comment thread.

      • freepatriot says:

        so it’s a “double jeopardy” thing, and not a res judicata thing ???

        sorry, didn’t realize I was mixing apples and oranges

        so how do you go about removing a “wrongful conviction” ???

        there was a case in Texas where 90% of the black population of a town was wrongfully convicted of drug crimes by a rogue cop and a lax justice system. the cop had his credibility demonstrably destroyed on the stand during a trial, and all of the convictions were proven to be the result of a crime against justice

        but I never learned what happened to the original convictions

        what do we do bout somethin like that ???

        is there a way to answer that quickly, and ain’t you glad I ain’t yer lawyer ???

  40. earlofhuntingdon says:

    I imagine that Addington made the rounds among Cheney’s acolytes, suggesting allusions to the French burning state papers in the fireplaces of the Elysee palace moments before the Boche entered the City of Light. Ain’t no such legal, physical or moral comparability in these circumstances. But that wouldn’t stop Cheney’s man any more than it would from claiming that Massoui’s interrogations prevented the launch of a thousand [terrorist] ships. It’s the facial imagery, not its accuracy, that counts with these plagiarists.

    What’s astonishing is that Cheney and Addington have removed the need for their deniability to be “plausible”. Denial alone they now deem sufficient, confident that a delay in investigating, a delay in the prosecution, a delay in meting out justice is as good as a pardon. Argument alone, rather than legally supportable argument, is thought adequate for action to be deemed under color of law. Cheney’s acolytes among the civil service, the courts, the political appointees, among ranking members and their professional staffs, are paid to make it so.

    Fortunately, bloggers have an interest in undercutting that meme, more so than the entertainment moguls that now sell what passes for news. We may have to give Boxing Day a new, American meaning.

    • TheraP says:

      We may have to give Boxing Day a new, American meaning.

      Just underscoring your comment. This is a thrilling thread!

      and for bmaz: I am reading… the assignment. Fascinating! (Boxing Day indeed!)

  41. BlueStateRedHead says:

    To the moderators,
    There may be plenty of trashiness to our threads even when the subject is not football, but may I propose that freepatriot’s use of the word sh*t today had gone beyond the limits of our tolerant attitude toward our concern troll. I count 6 comments with an approximate total of 27 sh*ts, in the case of @80, 10 in one comment. It is only MHO, but I find it obtrusive in that great a number. IANAG (not a Geek),so I can only wonder if the repetition is an indication of some machine rather than a person.
    It also makes it very hard to follow an intricate argument.

  42. freepatriot says:

    Argument alone, rather than legally supportable argument, is thought adequate for action to be deemed under color of law

    that statment sums up the repuglitard party in one neat package

    • freepatriot says:

      you could replace the words “legally supportable” with the word “Logical”, and the meaning would be clearer

      and I shoulda told ya that was from earlofhuntingdon at 100 (but it didn’t work out that way)

  43. BlueStateRedHead says:

    OT, but for a football dedicated group, important breaking news.

    National broadcast of Pats/Giants on CBS/NBC/and the N[asty]Football League networks.

    Not that it matter in the BlueBayState where it was considered local TV. But bet it matters in the Blue and Yellow state where EW lives. Unless, of course, she subscribes to the N[asty]Football League network…..ts-TV.html

    So the Patriots will be free. How do you like that Freepatriot?

  44. rapt says:

    Brief? comment from a reg lurker…

    I come here to read the usually concise and to-the-point legal analysis of PTB shenanigans and of course I find them very enlightening. Usually. OK we know Cheneyco is guilty guilty guilty under all the laws of the land, but in the years that this has been obvious to anyone with a few brain cells who reads non-MSM news, the law has been powerless to do anything about it.

    That is my point; you know the law but really it doesn’t apply in this case – these many cases. All those unexplained deaths of various whistleblowers and others wearing white hats adds some credence to this point. If someone like bmaz could convince me that the law will take care of these bad boys at some time in the near future I would shut up and watch happily, but so far no, and from a longer perspective it appears very unlikely.

    This is not to say I expect the lizards to win in the end (can’t be so sure about that) but I do know that one must open up and at least imagine other paths, some of which may not involve *the law* at all. Perhaps this particular blog can’t/won’t be the place for that – I am optimistic tho cos there’s a lot of smart people here.

  45. nolo says:

    way too late to this one
    to deal with substance tonight,
    so i’ll simply note — not
    entirely off-topic, here — that
    in under one weeks’ time, our
    northeastern federal congressmen
    and senators have been able to
    make the unthinkable happen: CBS
    and NBC will simulcast the patriots’
    upcoming game. . .

    this is — clearly — more important than
    all the “high crimes and misdemeanors
    of cheney, with which we regularly concern
    ourselves here, apparently. at least to our
    elected officials. yikes.

    that is all.

    now, to read the thread.

    p e a c e

    go pats!

  46. freepatriot says:

    opps. make that 26 mintes to football

    or are we not trash talkin bout Bowl game number 7 ???

    23 minutes to football

  47. radiofreewill says:

    rapt – Thanks for delurking, I think there are many who feel the way you do.

    Keep the faith! I say this is the largest RICO Prosecution of all time – and in a good RICO, nobody sees the FBI openly at work until the Long Arm of the Law collars the Big Boss right at the End.

    I know – I’m an optimist – but I feel Our Country is way too big to be brought down by petty Tyrants like Bush, Cheney, Rummy, Wolfie, etc. These guys needed Secrecy to Hide Lies to pull-off Hijacking the Country, but they appear to have finally run out of Pixie Dust and Secrecy Compartmentalization Cloaks, too.

    I still believe some of what we were taught growing up is true – but in particular, I still believe Nobody Punks the FBI.


  48. bmaz says:

    Uh oh. I may be a goner. Local bubble headed bleach blonde is reporting a four alarm fire at our local nuke power plant. I believe that I hear my good friend Jack Daniels calling me; I’ll be back momentarily…..

    • bmaz says:

      “….smoke coming from a piece of fiberglass in a cooling tower at Unit 3. … Arizona Public Service, which operates the station, says there is no fire at the station, and nobody was hurt. …. Authorities decided the fire was so benign that it shouldn’t trigger the lowest level of nuclear emergency.”

      Well, tally ho! That is refreshing news. Still, if it was all such a carefree scene, why exactly was a “piece of fiberglass” smoking in a cooling tower at the country’s largest nuke plant, and the one with the worst safety record; and why exactly did they cause such a multiple response of fire crews? Oh well, like a cockroach, it appears I live for another day….

        • freepatriot says:

          that’s the problem with jack daniels, you gotta add all kinds of weird shit to make that rot gut drinkable

          that’s why I drink Kesslers

          never heard of adding bbq sauce, but in a pinch, anything will do I guess

          • bmaz says:

            Semi-agree; I usually have Crown Royal around, but not since a small to middlin Christmas Eve Party. Mr. Daniels is still here however. I was too petrified to go out, because if it had been an actual nuclear emergency, our local news told us we should be aware of the following:

            Do not call 911. Special rumor control numbers and information will be provided to the public for a nuclear power plant emergency, either during the EAS message, in the utilities’ public information brochure, or both.

            In a nuclear power plant emergency, you may be advised to go indoors and, if so, to close all windows, doors, chimney dampers, other sources of outside air, and turn off forced air heating and cooling equipment, etc.

            Excellent! That ought to be almost as effective as getting under my fucking plywood desk was in case of thermonuclear war during grade school in the 60s. I made it through the 60s though, so it must work…..

  49. klynn says:

    Sorry to bombard you with the state AG questions. I just started doing some reading on the FOIA cases which have increased since 9-11 and noted that many start to blur the lines between the People and the 9 reasons the Federal level does not need to comply.

    It is just starting to look as though, if the Federal level is claiming EO Priv but the request is based in the protection of citizens, that the exemption for national security sake could be tossed out and the Right of the People could potentially trump. Add the EFF cases and ACLU cases and I think we are looking at case law for FOIA in the near future that could define in the context of Exec violations. Add to that picture, Governors responsible for Homeland Security in their state and the possibility of illegal activity conducted by the federal level within a state, the picture continues to muddy. I do not know if this gives context to my questions… Thanks for responding to all my ???’s

    Just read 124…Forget responding…Just enjoy the JD…

  50. Teaeopy says:

    We can expect a “lite” version of an investigation from the DoJ-CIA team, intentionally over-simplified. I expect them to quickly fix responsibility upon one officer to a few officers but admit no intentional misconduct. The public and Congress will be expected to accept their findings and move on.

    The White House may be expected to stay on the somewhat successful track of claiming uncheckable Article II authority and emphasizing national security perils along with “wartime” necessities. What’s been accomplished to derail that approach?

    Many Democrats in Congress might, like Republican colleagues, prefer a simple solution to the torture recordings issues—a solution other than the impeachment process. All Members of Congress should be aware that torture and torture recordings issues have something in common with surveillance and personal data collection issues: they won’t neatly disappear for a new presidential administration and for a new Congress. (At their base is the issue of executive branch power.) The issues won’t simplify themselves over time, either. Congress had better sweat all the details from the outset. If they don’t, they should be made uncomfortable. Discussion among concerned citizens won’t be disappearing for anyone’s convenience.

  51. TheraP says:

    enjoy your football folks! I’m manning the barricades in your absence…

    And besides, the neurons often work best when left to their own devices, while you’re enjoying yourself:

    as @132 says:

    Discussion among concerned citizens won’t be disappearing for anyone’s convenience.

  52. Rayne says:

    OMG. I think I solved the puzzle, sitting here watching a news program on cable called “My India”. They’re talking about outsourcing of legal work to India because of the high-concentration of English speakers who work for 60 to 80 percent less than lawyers in the U.S.

    They outsourced their legal assessment of tape destruction to India…


    Makes about as much sense as anything else this administration has done so far.

    • bmaz says:

      I don’t know Rayne, I think those Indian legal minds, even at 60%-80% discount, are much brighter, more experienced and more ethical than the Regent bred team Bush installed at the DOJ.

      • Rayne says:

        Hasn’t made mangoes any less expensive at the market here.

        I figure the Indian deal was primarily designed to keep Musharraf in check since he can’t account for the whereabouts of 10 billion plus he’d been paid. But these jokers in office are so damned sloppy they use a hammer where a subtle push will do, causing similar corresponding overreaction.

        • LS says:

          Nevermind, maybe it was…I’m just realizing this was back on the 26th…don’t know how I got “here” on the 27th. *g*

  53. JohnLopresti says:

    I heard a community radio program today that revised what I had found in a Horton post published at balkinzation sometime this year wherein the military force strength in Iraq was depicted as half and half, equal amounts regulars and mercenaries. The radio speech today was from May 2007, and revealed that the numbers are indeed equal, but on the ‘mercenary’ side only a quarter are private sector armed soldiers, the rest are armed security but not soldiers, and the other private security company employees are truck drivers, electricians, food service, laundry.

    Where this gets back to the instant discussion in the thread is an effort to generate proportion in early news; certainly many commenters here supply ample material to exercise some similar contextualizing. There is a cultural anthropologic way of depicting the depletion of accountability which the tapes’ destruction represents, but inappropriate to add to this legal thread; in fact, there are wider ways to represent the interaction that yielded the Iraq invasion. But we do well to look at our own processes, especially the governmental functions that seem perhaps still resilient, but besmirched by the hastiness of papering and taping over the reckless management style which has been the essence of this administration in many areas. I can think of some policies of the administration I support; but has been quite a rodeo.

    Clearly congress is interested in the dynamic of how the tapes ‘incident’ occurred, and the judicial strength of the reasons congress needs to persist until we know what the folks ‘responsible’ have to say, or want us to believe. This thread seems to make timely progress in that sense.

  54. JodiDog says:

    All, and especially Mr Potty Mouth whom I don’t have to designate because he is pretty obvious.

    I stopped posting on this thread’s subject because I had had my say. I don’t require bmaz to say “hey Jodi, you are right there” to keep me quiet.

    As for Mr Potty Mouth causing me to stop, I would assume he thinks the sun rises each morning because he has been doing his job. (Someone else used that line. Guess who?)

    Anyway, I am the original Jodi from TNH but that blog has no ID check so anyone can use that name. Over here on emptywheel’s new blog, there is an identity check but the name Jodi was already taken, probably by the person pretending to be me over on TNH.

    It is an easy matter to check who is who because I have used the same email address on both sites.

    … and of course there are other obvious signs.

  55. Jeff says:

    bmaz, Mary and emptywheel

    I agree with your characterization of most of the facts you adduce, but they still don’t add up to attributing the act of destroying the tapes to the administration – at least not yet, especially what Mary says. No doubt it looks like the administration is responsible in some measure that remains to be seen, if only for knowing passivity in the face of the prospect of their destruction. But that doesn’t erase the non-identity of the CIA, and especially folks in DO, on the one hand, and the administration, on the other. Again, I agree with we that we need to pay attention to the factionalism within the CIA, but that still doesn’t add up to saying that the administration did the destruction. I’m not saying they didn’t; but it is far far from clear that it was the administration’s action, as distinct from acquiescence along the way.

    I think you are giving far too little credit and agency to the CIA in protecting itself, even at the expense, at times and to some degree, of the White House. For instance, I think it is far from clear, as ew suggests, that “The White House would have had you believe that Harriet Miers was the only one involved in discussions of the tapes.” How do you know that set of leaks came from the White House, and not CIA? Or put it this way, hypothesize that the leak of Miers’ role came from the CIA – would that push you to rethink the identification, in this case, of the administration and not CIA as the actor who destroyed the tapes?

    • emptywheel says:

      In the case of Miers, no, not at all. You leak the Miers bit to either skew the timing of discussions (hiding those that took place in 2003 and 2004) or you do so to hide the involvement of GOnzales and Addington. That’s true regardless of who it is. Plus, one of those leaks came from the WH, at least given how the reporters responded to the WH pushback.

      Keep in mind, too, that the question of passivity or not may be the wrong question. The exposure of the CIA may have set off a real argument, particularly involving Addington (who was the only one who never recanted the Bybee Memo).

      • Jeff says:

        Sure, that’s all possible. But it is also possible that the Miers leak was designed to throw attention onto the White House without overly antagonizing Addington, for example. It may also have come from source(s) with access to some information and not others.

        The point remains, it’s way way too soon to speak so confidently about the administration doing this and doing that when it seems quite clear that CIA had a significant role, and perhaps even the pivotal role. And if it makes sense that it happened under the watch of Goss who was basically a servant of the White House installed to wipe out Agency subversion of the White House (from the White House’s point of view), that is obviously not enough to explain how it happened, since Goss has been in office for over a year when the destruction happened.

        And again, the question of passivity may indeed be the wrong question. But it may not – and all I was saying is that this post jumps way too quickly past the may to unequivocally talking about this, that and the other thing the administration did, when it remains far from clear just what the administration did.

  56. KucinichOnly says:

    Been following EW since her excellent kos series on shooter and swiss miss. i remember the old jodi and does seem like more than one person. the putdowns would be ok and alert people new to the threads but the ss word is distracting.

    Been following afterdowningstreet and if we were all so focused on the boring but necessary details of continuing to push for impeachment by state AGs as the mystery poster also recommended we might accomplish the downfall of these monsters. What whistleblowers have died other than the two honest women AGs in the medical supplier case. Please write your Congressperson and the media about Gov. Don Siegelman, please write to him too, why was he not allowed on 60 minutes and it does not seem that he has gotten any protection from Conyers’ hearing back in sept/oct. Mr. Siegelman sent note to please write to conyers to hold hearings, that was about two weeks ago. Need followup on this important political prisoner case on the left blogs.…..he-nation/

    In his stands on the issues, Dennis Kucinich comes closest to embodying the ideals of this magazine. He has been a forceful critic of the Bush Administration, opposing the Patriot Act and spearheading the motion to impeach Vice President Dick Cheney. He is the only candidate to have voted against the Iraq War in 2003 and has voted against funding it ever since. Of all the serious candidates, only he and Governor Bill Richardson propose a full and immediate withdrawal from Iraq. And only Kucinich’s plan sets aside funds for reparations. Moreover, Kucinich has used his presidential campaigns to champion issues like cutting the military budget and abolishing nuclear weapons; universal, single-payer healthcare; campaign finance reform; same-sex marriage and an end to the death penalty and the war on drugs. A vote for him would be a principled one.

  57. KucinichOnly says:

    Was the mystery poster Thomas Tamm? The postings stopped just after he was visited by the FBI in a photo and article in Newsweek – no followup on that story either. Someone mentioned on a mystery poster thread on DU about internet transmissions of digital information, the person seemed to be guessing and referring to possible video conferences that might have been captured and sent to EU where MM said that the auditing info about the emails had been sent and war crimes trials were being prepared there. MM mentioned what sounded like kidnapping of US whistleblowers as they went to their cars in the morning and something about endangering children. Are there US citizens being held against their will, uncharged possibly tortured as Padilla was but unlike Padilla the media was not informed. How many whistleblowers have been murdered or are in custody possibly being tortured. Did anyone ever follow up on the Katrina victims who were tricked into getting on planes and flown to different states some of them imprisoned without access to the media on closed military bases one in Colorado as reported by the Denver Post and another base more remote in Utah. That story just disappeared off the radar. We need a real media to do followup investigative reporting.

    I admire the dedicated people who use their expertise in the law to educate the concerned citizens on the internet but we have to find someway to get an honest investigative media. I hope that the military brass and intelligence services are able to do something because it does not seem that there is anyone to enforce the law. It sounds like kennedy and another judge were threatened and recanted their rulings requiring bush to provide the torture tape and other evidence. and have discussions on a certain foreign country that seems to have taken over ours.

  58. JodiDog says:

    Well, let me beat the kettle one more time though I don’t expect to change many minds.

    1. Over on TNH, I was one person and was the only one posting as JODI except for one incident that I know about about, maybe 4 or 5 months ago or even longer. I made a remark about it at the time, and it stopped at least on the threads I followed.

    2. A few weeks before emptywheel moved, someone started posting under my name at TNH relatively frequently. I remarked about it every time I saw it. The person attempted to sound (on the issues) like me, and was close most of the time, but of course I could see the differences, of expression, etc. I believe that that person or someone who had picked up on what was going on came over here and grabbed the ID Jodi. I remarked about it, and changed to JodiDog which I now kind of like. Sort of a play on Bluedog, and Reddog, I think.

    3. I am the Jodi with the conservative military family. My father career doctor, older brother who is a combat commander and is still over there, a second brother who also was a doctor but only was touched by Aghanistan and he is out now, a mother who was a military nurse when she met my father. Senator McCain has been to my parents house though I wasn’t there.

    4. I have the grandmother in SC and actually met Senator Lindsay Graham there at her house.

    From 3 and 4, you can see where my basic political roots were nurtured.

    5. I played BB in HS and College but instead of becoming a BB coach and science teacher in HS or College as I had planned as a young girl, when I found out my knee could no longer handle BB, and that I was really much better at science, physics, math, etc., I went on to get a few degrees including one up near where I directed emptywheel’s friend to a Beamish Stout watering hole.

    6. My first vote for President was in 2000 for Bush(43) who appeared to be much more real, conservative, and sensible than Gore. Bush might have been a good President except that 911 came along, and he seemed to get the idea that he was playing his HS sports again with all the glory and fun. And that he would win everytime. That is a good idea in HS but not in WAR.

    7. I didn’t see the reason to hurry up to Iraq though my brother and father explained to me the practical military parameters, though none of us had a good feeling about it.
    I do think that the intentions were good.

    8. After we essentially won the battle at the 4 week mark, we then exposed all the weaknesses, stupidity and self dealing of the Bush Administration.
    For that I wish that at least an attempt to Impeach Bush would be made.
    I would like that to be one of his “Legacy” highlights.

    9. Anyway, my grandmom and I are going shopping again.

    10. Let us all hope for a better New Year.

    Jodi, visiting SC.

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