Torturous Logic

I agree with Jeff. Given the news that the torture tapes never entered the US, given Porter Goss’ apparent command not to destroy the torture tapes "in Washington," and given the terms of the Federal Records Act

Mansfield did not explain why the CIA didn’t find the destroyed videotapes to be "records" as defined under the law. 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."

I think the CIA and the Administration stretched logic with each and every request for the torture tapes so as to claim they never were required to hand over the tapes.

We’ve already seen such tortured logic in the Administration response to Judge Kennedy’s alarm that they had destroyed tapes that may have been responsive to an order he gave them.

Kennedy ordered the administration in June 2005 to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

And whoever pointed Isikoff to the loophole in the Records Act that tapes overseas can be destroyed would presumably believe that negated the ACLU FOIA request for records on detainees held in US custody overseas.

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a lawsuit in June 2004 in the U.S. District Court for the Southern District of New York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the CIA and other government departments to "produce or identify" all responsive documents by October 15, 2004.


The Court’s Order required the CIA to "produce or identify all responsive documents." Those not produced had to be identified. Classified documents were to be "identified in camera [that is, only to the court] on a log produced to the court." Recall, too, that the FOIA request sought information on the handling of all but a few detainees, who were within the United States.

It is well- and long-established law that a court order of this nature requires that the party preserve all information possessed that is responsive to the request. Thus, the CIA was obligated to preserve the tapes even if they were hell-bent on fighting in court to deny them to the ACLU. And as this litigation proceeded, Judge Hellerstein’s later orders only served to reinforce that obligation, as a string of precedents makes clear.

On its face, it appears to be really ridiculous logic, but perhaps they’re arguing that these weren’t records under the Records Act, and therefore they can ignore Judge Hellerstein’s order to keep them.

Which leaves Leonie Brinkema’s two inquiries about records of the interrogations of those Moussaoui wished to interview. It does seem possible that, using this tortured logic, the CIA believed they had to destroy the tapes so they could say on November 14, 2005, that they didn’t "have" any such tapes.

29 replies
  1. BlueStateRedHead says:

    It’s torturous logic about torture that’s torching the rule of law and will still be doing so tomorrow. Thanks for thinking we need a stiff drink of thoughtfulness today, but all your fans would not mind if you took a day off from worrying….
    If you really want to worry, there’s a perfect season possibility in the BlueState and the perfect quarterback looking a less than the above…that’s worry we can condone.
    thanks for everything you have done for my mind and whatever organ holds my hope.
    In that vein, check out Bmaz’s collection of holiday greetings of last nite

  2. MadDog says:

    I’m surprised that we’ve not yet heard a peep about the destroyed interrogation tapes from Brinkema’s court, or more particularly, from Moussaoui’s defense attorneys.

    Wonder what’s keeping ‘em?

  3. merkwurdiglieber says:

    Torturous logic it may be, but your reading of the tea leaves makes
    sense of an otherwise wrongheaded order… once Dana Priest’s exposure
    of the rumoured secret detention system was “out there” the logic is
    strong for your take, boxed in by their own hysteria.

  4. BayStateLibrul says:

    Oh shit, have they gamed the system again?
    Will the Masters of Deceit win the “war on words”?
    I hope not…

  5. 4jkb4ia says:

    Emptywheel! A nice surprise to see you today! Hope you had a good trip. The ACLU suit was important new information.

  6. whitewidow says:

    Happy Christmas! I hope Santa was good to you. Here at emptywheel, every day is like Christmas, because each post is like a little present. I’d just like to say thanks.

    I hope everyone has a nice, peaceful, wingnut-free day. I’m off to bake dinner rolls for the gathering. We’ll be doing a little ice skating and a lot of eating and quaffing of ale.

    I hope Novakula got a big, fat, lump of coal for his fact-free screed about the new public enemy #1, the CIA. Unfortunately pundits, much like sports announcers, never retire. *sigh*

  7. [email protected] says:

    It’s all well and good to say “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.” It completely ignores who makes the judgement. That, in this case, would be a fruitful avenue of investigation. Udser what conditions and exactly who has the right to make the judgment that some record is prejudicial to the interests of the United States. After all, any agency which wished to hide evidence of it’s wrong doing would simply move the recoreds overseas, declare any records damaging to itself as being damaging it, as a part of the United States, to the interests of the United States. Tortured logic to be sure, but exactly the kind of thing knowing who has the power to declare a record prejudicial to the interests of the United States, and under what restrictions that judgment can be made, will help to illuminate.
    Just when you need legal research there’s none to be had.

  8. Hugh says:

    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.

    Not that it matters to anymore but as far as I know there has been no formal declaration of war. If I had to guess at the intent of this law, it would be to keep sensitive documents from falling into enemy hands. In the absence of such a danger, I doubt that it is applicable. It looks like an attempt to blow smoke and hope no one notices.

  9. bobschacht says:

    I guess it all depends on what the meaning of “is” is, doesn’t it?


    Happy holidays, one and all!

    Bob in HI
    (but temporarily having a White Christmas in Wisconsin)

  10. Mary says:

    I still believe the case with the strongest likelihood of a court finding direct, criminal obstruction is the one where there was not a specific order – and it’s the one where Mukasey’s conflicts are clearest. Padilla. But along with the issue of destruction as obstruction – the parallel issue of failure to produce as obstruction is getting lost. It’s very clear that there was a failure to produce and respond that was being authorized by someone. A failure to produce in Moussaoui and the ACLU case and very likely in response to subpoenas in Padilla, although the destruction in that case wouldn’t require a court order of preservation to be obstruction.

    So the second step on the tortured logic path is to decide who authorized incomplete and inaccurate responses to the orders of production for the Moussaoui and ACLU cases, but the first step is to see who failed to order preservation in Padilla. And there, I guess, I’d start with the USA who had Padilla arrested and who responded to the direct and timely claims made by Padilla’s attorney’s that his arrest was based on statements from two tortured men. And with the AG who helped the USA disappear Padilla.

    In particular, I’d start there given the later very public statments made by that former USA, now DAG, about his team’s “unprecedented” review of classified information before the June 05 Padilla press conf. which went very deeply and specifically into the detention and interrogation of Zubaydah. It absolutely baffles me that not one journalist or member of Congress has made a pass at calling Comey to the fore and asking him if those video tapes were disclosed or reviewed by his team prior to that press conf or if he knew of their existence, discussions regarding their destruction, etc. Ditto calls to Ashcroft, Clement and Olson. And in that regard, if they did or did not know of FBI agents threatening to arrest CIA agent, Dan Coleman’s (very vocal) torture allegations, etc.

    Because I think the first stop on the trail is non-production, not destruction. And I tend to think tha the reason for the non-production goes to the heart of what may have been other conflicts – the “issue” Sen Whitehouse highlighted, the statement Comey did make to Congress, the angry FISC Chief Judge call to Ashcroft, etc. I think what you had was a DOJ that was comfortable with the concept that, even though their licenses to practice sprang from the Judicial, not Executive, Branch and should have created a whole series of obligations to that Branch, they were exempt from accountability (by virtue of control of the prosecutorial process) for transgressions agaisnt the Judicial Branch. I think that they felt could always claim that when their duty to the court required candor, disclosure and compliance with law – – they could always trump that with saying that in matters of national security (as decided upon by the Decider), courts “ain’t the boss of me.”

    IOW – I think on something like the production of torture interrogation tapes, their feeling was that IF the President said they were a matter of national security, then it was his call whether or not the courts got them or not and DOJ (n/k/a Bush’s lawyers) had no duty other than to follow his interpreation of the law and blow off any professional and ethical duties to the tribunal. After all, what could the court do? Who would enforce those orders a court might issue? Who would pursue obstruction and contempt charges when the criminals own the prosecution and have decided it is in the interests of “national security” to exercise prosecutorial discretion to let matters slide?

    But by 2005, one of the torture memos was “out” and it was, very publically, discredited as infantile. Goldsmith had done his best to clean it up, but had included his own infantile footer that everything done under the old memos was, of course, legal and not affected by his new memo (so yeah for child kidnapping and abuse and violation of Geneva Conventions prohibitions against out of country transport of protected persons, eh?). Other than Larry Thompson – who had signed off directly on paperwork, the lawyers were probably relatively content to play the non-production game of chicken, setting up a series of cascading parsed arguments (they didn’t ask for this by name, they didn’t ask for this kind of recording, they didn’t ask for out of country-an argument that probably went down in flames as a corollary to Rasul, they didn’t ask for our constructive control, etc.) that really were intended to end up with the “national security prevents these from being turned over – state secrets” argument, backed by a nonprosecution of crimes stance (we’re a mafia that doesn’t kill our own unless they quit kissing the godfather’s ring)

    By 05, someone like Rodriguez probably saw the handwriting on the wall with the eventual turnovers in power and might not have realized that only invertebrates rise within the Democratic party DC power structure. There was a whole sequence of events lining up, from the indictments and investigations in foreign countries (all of the black site hosts, Priest points out, were signators to the Torture Conventions) to the revelations at home and the revelation that a homicide, with very likely no statute of limitations, was involved. The Sup Ct looked likely to force the release of Padilla into domestic courts and the issue of his arrest warrants would be raised again and raised in a setting where the lawyers faced their greatest disbarrment risks – which might make them less protective of CIA sources and which might even allow for the Padilla case to go down in flames (note that everything was destroyed by the time Padilla’s lawyers got their second chance to raise the torture basis of his arrest warrant in a court – – and wonder about the basis for the FISC warrants that may have been issued based on torture and what checks, if any (and there aren’t any – not one) there are on that.

    Oh well, other things take precedence today, but someone needs to ask why no ex-DOJ lawyers, especially one like Comey who responded to Padilla’s torture claims for the warrant and who stood up and held the presser on Zubaydah’s treatment and handling that was supposedly based on a thorough review by his team and also no one is asking someone like Coleman whether or not there were rumors of tapes floating at FBI. Dogs that don’t bark. I used to have one of those – you never knew the bite was coming until you felt the air move the instant before his teeth hit.

  11. radiofreewill says:

    If the Torture Enablement looks this flimsy and thin –

    – Video of Torture is not a Record, and therefore not Subject to Orders of the Court, or is

    – Too Predjudicial to the United States, and therefore Okay to Destroy,

    Then just imagine How Monsterous the Torture Ordering must have been?

  12. Hugh says:

    I have concerns about any immunity deal with Rodriguez. I think there should be a lengthy and detailed proffer before any deal is accepted. If not Rodriguez is likely to dance around with vague answers, a bad memory, and scattered references to classified matters that he is not at liberty to discuss with the investigating committee.

  13. ralphbon says:

    Let’s not overstate the concordance between the narrative that’s building on the basis of anonymous leaks and the — what’s the word? oh yes — truth.

    How sure can we be that the tapes’ imagery was never digitized and transmitted via secure channels to headquarters? If so, then even if the tapes themselves never technically found their way to US soil, their contents may have resided, and may yet reside, on US servers.

    Have any journalists on the case queried their sources not just about the tapes but the disposition and/or transmission of their contents?

    Moreover, let’s say that the tapes were never duplicated or digitized. Were they at least played for viewers on US soil, via secure CCTV or digital hookup? And then, even if the analog or digital imagery was never saved on the receiving end, could it not in some way be construed to have resided, if only ephemerally, on US soil while being viewed by US eyeballs?

    We’re dealing with champion parsers here, some of whom may be Isikoff et al’s sources. We must remain vigilant regarding the epistemology underlying the evolving and congealing narratives.

    • bonjonno says:

      I mentioned this on another thread, but again…

      I cannot envision the CIA using decade or two old technology. the tapes likely came from digital video cameras that recorded initially in digital format on tape. I’d wager there were never any analog tapes. Likely started in digital form which is easily edited and transferred. And there is probably a digital trail a mile long.

      • MadDog says:

        Actually, yes. We’ve gotten at least one report that the contents of the tapes were cabled to the US.

        And if memory serves me correct, said interrogation stuff was viewed here by at a minimum, higher-ups at the CIA (and perhaps one or two “free” tickets were left at the box office for folks like the NSC’S John Bellinger or even Condi Rice who remained Junya’s National Security Advisor and didn’t flit over to State until January 26, 2005).

        I would also note that we only have Mikey Hayden’s well-vetted statement that the videotapes were destroyed. This is an affirmative statement, but not necessarily all of the truth.

        Mikey has never to my knowledge indicated one way or the other that the feed providing the viewing of the interrogation stuff was not itself recorded.

        It would seem a tad bit unlikely that it wasn’t, so one should take existing statements about tape destruction as “parsing” until affirmative other statements exist (if ever) about interrogation recording destruction.

  14. merkwurdiglieber says:

    In thr digital world there is the possibility of a copy being retained,
    NSA?, and location is rendered nebulous. Thanks to Mary for reminding them
    we are thinking of them at Christmas.

    • Rayne says:

      They had to record the events; they couldn’t have relied on live coverage only. Why would they transmit live-only to persons of senior status? there’d be too much useless chaff in this feed (unless of course we are dealing with people far sicker than we assume). They’d have recorded the events and then transmitted that which had been screened for possible value. There may not have been much screening, but there would have been some. (And I agree the format is likely digital, possibly copied to tape for ease of destruction of copies, but original format was likely digital for its portability and because tape is no longer the media of choice.)

      The location was likely transient; I’ve been looking for an example and I think we have one possibility. We know that Jordan had been cooperating, but asking Jordan to do certain kinds of things could have put them at greater risk for political instability, a la Lebanon. Jordan also has more permanent facilities, making them a more likely suspect.

      But what about Poland? We know they’ve had at least one black site — yet it must have been transient. Poland received benefits from the U.S. for accommodating the U.S.; there must have been further cooperation across the EU since black sites of this transient nature didn’t appear in the recent “European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment“. Poland wasn’t alone, either; there were 14 other EU nations involved, allowing some sort of transient operation. (Poland and Romania may have allowed more permanent operations.)

      But what if this is the reason why we have not seen as much chatter from the EU on the torture tapes? What if the reason the EU does not appear as concerned about possible torture conducted on their soil, because they were asked only to allow “logistical flights”, not rendition or torture? is all the data floating around the world in a plane with about as much traceability as that flight carrying cocaine that crashed over a week ago in South America? And are the comings and goings of such operations labeled “logistical flights”?

      Legitimate investigators are going to have to get their A-game on if we are dealing with a floating archive.

  15. behindthefall says:

    BTW, the ‘Merry Christmas’ thread says “>> Torturous Logic” at the bottom, skipping any mention of “Tommy K’s Evcerywhere”. If the “Tommy K” thread isn’t getting much action, this could be a reason.

    More to the point, although two threads late, Merry Christmas, God Jul, and other appropriate wishes to all, and thanks for being here and letting the not-a-lawyers, such as myself, benefit from your thoughts.

  16. bigbrother says:

    AUMF…Authorization of Military Force does not reach the bar of Declaration of War.
    Bush states over and over we are at war to the press. Again War on terror. Off shore american activity including destabilization of foriegn governments ei ‘democratizing nations’ has to be part of USA activities and authorized and funded by official government agencies.
    USA has not declared war. The preexistence of alleged crimes makes these tapes edivence, Shredding documents, altering evidence or witholding evidence are all crimes. To do this to defend violations of international law is no different…What about our own laws against torture.
    This is crime on steroids. Judge Kennedy needs to carefully consider what he will be abbeting if he lets the government lawyers off of the hook with these sophistic arguments. “The devil made me do it.” These are grown ups, professionals who know better. It is all so transparenty parsed that Kennedy would have to live with a big lie on his record and what about appeal?

  17. Teaeopy says:

    As to DoJ-CIA and Congressional investigations, executive branch officers and Members of Congress who might want minimal revelation of the facts of the torture recordings while wishing to appear to be diligently pursuing all the facts may try to frame language and thinking around “videotapes”—old tech, if you will—and hope that investigators, committee interrogators, and the press won’t zoom in on that digital stuff. Committees of Congress can obtain the technical and legal expertise to frame the right questions, but will they? After all, things could get very complicated and drawn out, and there could be political implications.

    All competent prosecutors are aware of information technology issues, as they deal with those issues with great frequency. If the investigations by Congress and DoJ-CIA start down the wrong path technology-wise, let’s hope there will be enough gumption and integrity in Congress to bring about the appointment of special counsel.

  18. bobschacht says:

    I love it that EW and Mary and others are so ON to this issue, even on Christmas day. We will yet get the bastards who are perverting our national government. Your diligence inspires me, and is one of my most treasured Christmas presents.

    Bob in Wintry WI

  19. merkwurdiglieber says:

    Hayden, coming to CIA from NSA, would be especially jumpy about a spare copy of the digitized record
    lurking somewhere. Someone, wisely, may have made one for protection in case of the limited hangout
    rollup. The silence of the Europeans on this is apparent, HT Rayne, highly mobile operation, quick and dirty.
    There are specialists in this digitised legal environment and they will be engaged by parties involved, but, the
    DFH’s and the geeks out in the netroots can parse some likely scenarios as we await developments, even on
    Christmas… a fine one to all!

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