What Did Helgerson Do with the Torture Tapes?

I noted here that both Michael Hayden and John Helgerson are recusing themselves from the torture tape criminal investigation.

Hayden said in a statement today that he was recusing himself from any involvement in the new Justice investigation because of his past role in reviewing the tape destruction. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation," Hayden said.

CIA Inspector General John L. Helgerson announced that he also would recuse himself from the criminal inquiry to avoid a conflict of interest. Helgerson said he and his staff had "reviewed the tapes at issue some years ago," during the time when agency officials were debating whether to destroy them.

"During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said in a statement. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation." [my emphasis]

Since Hayden wasn’t at CIA when the tapes were destroyed in 2005, I presume when he says he was involved in reviewing the tape destruction, he’s referring to his lead-up to sending a silly letter to CIA making transparent excuses for why the torture tapes were destroyed [Update: actually, I take that back. Hayden was Deputy DNI starting in April 2005, so early enough to be party to the summer 2005 discussions between John Negroponte, then DNI, and Porter Goss, in which Negroponte told Goss not to destroy the tapes]. I’ll come back to that in a second. But for now, I’m more interested in Helgerson’s reasons for recusing (I’d point out that if he has to recuse going forward, he should have already recused. But this is the Bush Administration, after all).

Helgerson notes he and his staffers "had ‘reviewed the tapes at issue some years ago,’ during the time when agency officials were debating whether to destroy them." The "time when agency officials were debating whether to destroy them" is generally described as February pr March 2003 (when CIA first pitched destroying them to the Gang of Four) through November 2005 (when they were destroyed). We also know there was a CIA briefing for the White House involving Alberto Gonzales, David Addington, and John Bellinger in May 2004, not long after the Abu Ghraib scandal became public (but long after Gonzales, at least, was likely aware of the impending scandal).

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The agency said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." It reaffirmed that statement on Tuesday, but would not comment on any classified report issued by Mr. Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law.

The officials who described the report said it discussed particular techniques used by the C.I.A. against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world. They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the C.I.A. since he was captured in March 2003. Mr. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

I’ve seen the report’s publication date as either April or May 2004–but in any case, at almost exactly the same time CIA briefed Addington, Gonzales, and Bellinger on the torture tapes. Which makes Helgerson’s claim that he "reviewed the tapes at issue" during that period particularly interesting. Helgerson’s report–which focuses on the treatment of a number of named detainees–may have relied on those torture tapes to form the judgment that the CIA was engaged in cruel and inhuman treatment. In fact, it’s even possible that the CIA briefing in May 2004 pertained not just to Abu Ghraib (which was, after all, a DOD operation, not a CIA one), but also to the fact that the CIA IG had just declared in a written report that the tactics used (and presumably shown in the tapes) amounted to illegal treatment of detainees.

So let’s review the coinkydinks, for a moment. John Helgerson published an IG report (possibly relying on the tapes) suggesting the CIA’s interrogation program may be illegal almost exactly contemporaneously with the date of CIA-White House briefing at which they discussed destroying the torture tapes. Then, one week after the Dana Priest story and several days after Brinkema’s inquiry on whether the government had any tapes from interrogations, the CIA issues a public statement denying it tortures. And the following day, voila! The most extensive discussion of the IG report comes out in the NYT. And, either shortly before or shortly after this newspaper article, the torture tapes are destroyed.

If Helgerson viewed the tapes and used them to conclude that the interrogations were illegal, it would sure explain one of the motivations for destroying the tapes.

But that’s not all. Recall that between the time that the first tapes were found (September 13, 2007) and the time when the NYT reported on the destruction of the tapes (December 6, 2007), Michael Hayden’s investigation into Helgerson became public (October 11, 2007, also in an article by Mazzetti and Shane).

A small team working for General Hayden is looking into the conduct of the agency’s watchdog office, which is led by Inspector General John L. Helgerson. Current and former government officials said the review had caused anxiety and anger in Mr. Helgerson’s office and aroused concern on Capitol Hill that it posed a conflict of interest.

The review is particularly focused on complaints that Mr. Helgerson’s office has not acted as a fair and impartial judge of agency operations but instead has begun a crusade against those who have participated in controversial detention programs.

[snip]

Some agency officers believe the aggressive investigations by Mr. Helgerson amount to unfair second guessing of intelligence officers who are often risking their lives in the field.

“These are good people who thought they were doing the right thing,” said one former agency official. “And now they are getting beat up pretty bad and they have to go out an hire a lawyer.”

That investigation (which was scuttled by Congress) sure looks like it pertained to Helgerson’s investigation of CIA interrogation methods. And Hayden’s investigation of Helgerson may well have coincided with Hayden’s "review of the tape destruction."

In other words, this investigation seems like nothing so much as the end product of a bloody Spook fight that follows up several skirmishes over the years.

Update: This, from Mazzetti and Johnston, appears to support my supposition that Helgerson’s investigation used the tapes in its determination that the CIA was engaged in cruel and inhuman treatment.

In an announcement on Wednesday, John Helgerson, the inspector general, said he would recuse himself from the investigation to avoid the appearance of a conflict of interest.

Mr. Helgerson’s office had reviewed the videotapes, documenting the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri, as part of an investigation into the agency ‘s secret detention and interrogation program.

The tapes are thought to portray the use of the technique known as waterboarding, which simulates drowning and which has widely been condemned as torture.

Mr. Helgerson completed his investigation into the program in early 2004. [my emphasis]

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145 replies
  1. WilliamOckham says:

    So, Hayden’s recusing himself because he investigated Helgerson for investigating the torture.

    • readerOfTeaLeaves says:

      Clarification requested: …complaints that Mr. Helgerson’s office … has begun a crusade against those who have participated in controversial detention programs…causing people to have to go out and hire lawyers’?
      Looks like Helgerson got on the wrong side of Hayden. Oh, my…

      Wonder what Kean, Hamilton, Wall Street, ExxonMobil, and the ERs make of this little tempest?

      • LS says:

        The whole thing reminds me of “Goodfellas” Part Deux….

        “Why is your wife wearing the mink coat!!…..”

        Then the music starts ramping up as they nail each other right and left…helicopters flying over their houses as they “destroy” the coke…

        Heh, heh, heh.

        Then what’s his name, whistleblows and is given witness protection….

        Back to reality…oh, yeah, that is reality….

  2. JimWhite says:

    What’s the potential collateral damage in a bloody Spook fight?
    My bet is on the Constitution.

  3. LS says:

    Hayden: “It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation.”

    Helgerson: “It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation.”

    Who is representing them? Sounds like one and the same, or maybe that is just standard lingo….but it also looks like “watch syncronyzation”…to cover for when they both “reviewed the tapes”…

    What the hell do they mean by “conflict of interest“?????

  4. scribe says:

    Helgerson’s claim that he “reviewed the tapes at issue” during that period particularly interesting.

    Question #1 – Did Mr. Helgerson travel to, um, Poland or Rumania during the relevant time period?

    Question #1A – Do the publicly avilable logs of Ghost Air flights collected by plane-spotters indicate travel of a Ghost Air flight through, um, Poland or Rumania during the relevant time period?

    Question #2 – If the answer to question #1 is “no” – how did he review them? By having them brought to him? By having their contents described to him? (If so, who described them?) By having them played over an internet-type link from, um, Poland or Rumania?

    In fact, it’s even possible that the CIA briefing in May 2004 pertained not just to Abu Ghraib (which was, after all, a DOD operation, not a CIA one),

    Not exactly. You forget the presence of OGA types (and contractors servicing OGAs) in Abu Ghraib and telling the military what to do to “set the conditions” for interrogation.

    • LS says:

      I get the impression that it is not the fact that they were “tortured”, it is what they said when they were tortured…like…Pakistan…Atta…$$$…ISI…who knows..

      9/11 is the really big elephant in the room. Pakistan was involved prior to 9/11…Al Qaeda was a creation aided by Pakistan….Money was transferred to Atta by a Pakistani General for heavens sake….perhaps “agents” were “exposed” by the interrogated; thereby blowing the Al Qaeda BS up. Just look at the Bhutto assassination, where they want to blame everything on AQ….they are inventing a narrative that our own eyes know is not true.

      Musharraf stated years ago that he thought OBL was probably dead…this whole thing stinks to the core…to the core.

      • DeadLast says:

        I think your post is on the money. In fact, follow the money…

        …all profits from natural gas from the former Soviet [insert prefix]-stans flow through **drumroll** Dubai! The new world headquarters of Halliburton! (BTW, the natural gas will flow through Afganistan & Pakistan.)

        There is something really ugly going on. Thank god we have a free and open press.

        • klynn says:

          Agreed. You might want to read the previous thread on Lying To Congress Before the Torture Tapes

          Rayne and myself posted many links on this topic including the following:

          Here’s more on the Trans-caspian gas pipeline and info on uranium deliveries

          http://www.jamestown.org/edm/a…..id=2371058

          I think it’s an oil/uranium for black prisons kind of an agreement going on… EU/NATO countries all win on this and it reduces the Russian and ME threat…again a mighty game of chess…

  5. CTuttle says:

    “The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law.”

    Ummm… 18 USC 2441, prior to the MCA’s alterations in ‘06, clearly states it was illegal…!

  6. BayStateLibrul says:

    Leahy weighs in…

    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) did not object to Durham’s appointment, but he did caution Mukasey that the panel wants more information about the tapes from the Justice Department.

    “I remain concerned that the constitutional oversight role of Congress has been ignored in the discovery and destruction of these tapes,” Leahy said. “I look forward to hearing further from Attorney General Mukasey when he comes before the Judiciary Committee this year. I hope the Justice Department will cooperate with Congress as it investigates this serious matter.”

  7. perris says:

    one quick question please;

    interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

    excuse me?

    what cia is that?

    that would have to be “team b”, not the real cia

    • LS says:

      CIA could not “approve” anything. Right? Only Bush/Cheney “pixie dust” direction held supposed weight, directive authored by Yoo etal. at the dirction of Bush and co-Prezdinent Cheeeneee.

      Get rid of “the problem”…I don’t care how you do it, just do it, and let me know when it is done…on second thoughts…do it, but don’t tell me anything…I don’t know when, how, or anything…just do it.

      • perris says:

        CIA could not “approve” anything. Right? Only Bush/Cheney “pixie dust” direction held supposed weight, directive authored by Yoo etal. at the dirction of Bush and co-Prezdinent Cheeeneee.

        exactly

      • klynn says:

        I’ve been wanting to post this for a while, just for the chuckle:

        Pixie dust, also known as “fairy dust”, is the trail of sparkling material that often follows mythical creatures such as pixies and fairies in general when they are visually represented. Sometimes, this trail is interpreted as being a tangible substance, often imbued with magic powers.

        In literature

        The most notable example of this is in the 1953 Disney version of Peter Pan, where pixie dust allows one to fly if one is thinking happy thoughts, specifically the song “You can fly”, and in the film is often shown as supplied by the character Tinker Bell.[1] Unlike in the Disney film version, in the original novels and stage play of Peter Pan, it was called fairy dust.

        In popular culture

        The Walt Disney Company also uses pixie dust as a marketing image, usually sprinkled by Tinker Bell to create the impression of a magical feeling for various Disney icons, such as – for example – the Disneyland castle that is used as the logo for Walt Disney films and DVDs.

        Pixie dust (disambiguation)

        Pixie Dust may refer to:

        * Pixie dust, also known as “fairy dust”, is the trail of sparkling material that often follows mythical creatures such as pixies and fairies, often imbued with magic powers.

        * Pixie dust was the informal name that IBM used briefly in a series of 2001 press releases for its antiferromagnetically-coupled (AFC) media technology, which can increase the data capacity of hard drives. In 2005 IBM announced plans to begin using “magnetic pixie dust” to enhance hard-drive capacity.

        * Pixie dust may refer to silly actions or activities done for stated reasons. For example, claiming something is being done for “Legal Reasons” when in fact there is no legal requirement to take that particular action.

        * Pixie dust may refer to an illusion that can occur in night helicopter operations in dusty environments during brownout when the rotor blades create tiny sparks from impacting particles.

        Got to love that Pixie Dust…It can be interpreted as being a tangible…

        • emptywheel says:

          Scared me for a second. I was tangentially privy to a lot of high level IBM slang. But for the most part that ended in 1984. So I didn’t borrow it from there…

          • klynn says:

            In 2005 IBM announced plans to begin using “magnetic pixie dust” to enhance hard-drive capacity.

            For sure THIS does not fit into our current history, even though it fits the time line. If so, yikes! Then how right you have been about Pixie Dust on multiple levels!

            Sorry I posted so O/T. I’ve been wanting to post that for a while now. Thought you would like it!

            • emptywheel says:

              I did. I’m genetically an IBMer (even went last week to see if I could find the old IBM country club in Endicott NY where I learned to swim). But I’ve stopped following them. So I’m glad you clued me in…

      • MadDog says:

        CIA could not “approve” anything. Right? Only Bush/Cheney “pixie dust” direction held supposed weight, directive authored by Yoo etal. at the dirction of Bush and co-Prezdinent Cheeeneee.

        And to buttress the point that the CIA didn’t approve anything, from the NYT back in January 2005:

        Security Nominee Gave Advice to the C.I.A. on Torture Laws

        WASHINGTON, Jan. 28 – Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.

        ~snip~

        In interviews, former senior intelligence officials said C.I.A. lawyers went to extraordinary lengths beginning in March 2002 to get a clear answer from the Justice Department about which interrogation techniques were permissible in questioning Abu Zubaydah and other important detainees. The lawyers involved included Scott Muller, then the agency’s general counsel, and John Rizzo, his top deputy, the officials said.

        “Nothing that was done was not explicitly authorized,” a former senior intelligence said. “These guys were extraordinarily careful.”

    • perris says:

      interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

      CIA could not “approve” anything. Right? Only Bush/Cheney “pixie dust” direction held supposed weight, directive authored by Yoo etal. at the dirction of Bush and co-Prezdinent Cheeeneee.

      there’s the thing the investigators CANNOT let happen, they cannot let the administration create self serving dialogue

      the cia cannot approve anything, the administration approves methods, if they violate treaties we’ve entered, it’s the administration at fault, not the cia

      so the administration is trying to divest themselves of what they themselves directed by making believe the cia “approved” the methods

      the president is “washing his hands” becuase he goes by what the cia says but he tells the cia what to approve in the first place

      this is like when he shopped for a general that would go along with his position so he could make believe he “listens to the generals”

      a childs trick and we cannot fall for it

      the cia didn’t approve anything, that was the president that did the approving

      period

      • CTuttle says:

        the cia didn’t approve anything, that was the president that did the approving

        True, that would be Bybee/Yoo etal’s OLC that ‘approves’ said methods…

  8. ralphbon says:

    Slight metaphor adjustment

    LS:

    Conyers is like the frog that patiently waits for the fly to land on his tongue…Waxman…he’s like the bloodhound…relentless…on pure instinct…

    BayStateLibrul:

    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) did not object to Durham’s appointment, but he did caution Mukasey that the panel wants more information about the tapes from the Justice Department.

    I would say that Leahy better fits the description of the frog waiting for the fly to land on his tongue.

    Conyers is the frog who actively and aggressively catches the fly but then declares swallowing it “off the table.”

  9. LS says:

    So, maybe Rodriguez was told to destroy the tapes so that the non-existence of the tapes could be compartmentalized…i.e., he destroyed them..should the law come snooping around…

    Meanwhile others, kept copies, in the event that destruction of the tapes would lead to another type of obstruction.

    It’s like…they are destroyed…but it depends on who you actually ask.

    I’ll bet copies or the originals still exist.

    • MartianPolitics says:

      I’ll bet copies or the originals still exist.

      I do too. If these “tapes” were ever digitized, I would regard it as a near certainty.

      • sailmaker says:

        Goldsmith (from his book) says that on the torture tour in October 2003, he saw Hamden via web cam. My guess is that the ‘tapes’ were almost certainly digital tapes. Digitalization would have eased transmission via the internet (or whatever version of the net the military is using now). Maybe the original ‘tapes’ have been destroyed, but I’d bet serious money that copies exist.

        • Rayne says:

          CRAP. I did NOT want to buy Goldsmith’s book, but now it looks like I might have to.

          Webcam.

          Jeebus, exactly who viewed detainees by webcam?
          Were all webcam transmissions live, or tape delayed from location?
          What was the earliest use of webcam?
          If the HVD program was “… a very structured, very rigorous programme,” where are the instructions for webcam usage?
          Where are all the communications that document webcam transmissions?

          I wish it was clearer to us whether this investigation announced by Mukasey was a real effort to get to the truth, or a method by which they will keep Congress at bay (”can’t discuss this as it is under investigation”). Will the apparent thoroughness of the investigator appointed tie up all the evidence, so that we can’t get answers before the election?

          • emptywheel says:

            Don’t forget–my torture timeline includes a slew of photography related rules pertaining to HVDs. We’ve already got the outline of the regulations pertaining to photography which were (as I’ve pointed out before) being changed in highly charged environment when the tapes were destroyed in 2005.

            • Rayne says:

              Yes, exactly…which means they must have made the same kinds of changes in regs for video.

              There’s an entire line of questioning from which we have been diverted by the chase for tapes.

  10. CTuttle says:

    Greenwald nails it again…

    It’s hard to imagine a more serious scandal than this. As I noted the other day, it is a confirmed fact that Alberto Gonzales and David Addingtion — the top legal representatives of George Bush and Dick Cheney, respectively — participated in discussions as to whether those videotapes should be destroyed. The White House refuses to disclose what these top officials said in those meetings. Did they instruct that the videos should be destroyed or fail to oppose their destruction? The NYT previously quoted one “senior intelligence official with direct knowledge of the matter [who] said there had been ‘vigorous sentiment’ among some top White House officials to destroy the tapes.”
    Thus, we have evidence that “top White House officials” vigorously argued that these videos should be destroyed. The number one aides to both the President and Vice President both participated in discussions as to whether they should be, almost certainly with the knowledge and at the direction of their bosses.

    -snip-

    Both legally and politically, it’s hard to imagine a more significant scandal than the President and Vice President deliberately obstructing the investigation of the 9/11 Commission by concealing and then destroying vital evidence which the Commission was seeking. Yet that’s exactly what the evidence at least suggests has occurred here.

    What possible justification is there for the White House to refuse to say what the role of Addington, Gonzales, Bush and Cheney was in all of this? Having been ordered by Bush’s new Attorney General not to investigate, are the Senate and House Intelligence Committees (led by the meek Silvestre Reyes and the even meeker Jay Rockefeller) going to compel answers to these questions?

    http://www.commondreams.org/ar…..1/02/6109/

  11. phred says:

    EW, I’m a little confused by this

    … the first tapes were found (September 13, 2007) and the time when the NYT reported on the destruction of the tapes (December 6, 2007)…

    I was under the impression that the “found” tapes are not the same as the “destroyed” tapes (i.e., they record different prisoners). Is that still the current interpretation, or do we now believe the found tapes contain the same material as the destroyed tapes. Your use of the article “the” makes this a bit confusing.

    • emptywheel says:

      Correct–sorry for my confusing formulation. Set A–those tapes which still exist which should have been admitted to Brinkema–those still exist. Set B–those tapes which also should have been admitted to Brinkema–those no longer exist.

      You get the feeling that the fact that they kept some copies is going to end up looking particularly damning, huh?

        • emptywheel says:

          And those referenced in the ACLU FOIA which the govt was ordered to keep, and any tapes related to Padilla, if there are any, and potentially the tapes referenced in Kennedy’s courthouse. Yes.

          My point was that we first learned that CIA had not admitted it had tapes when DOJ told Leonie Brinkema that fact. For some reason, the govt lawyers involved in all the other cases seem to have no concern about making false representations to their judge.

      • phred says:

        Yep, that’s the feeling I get. So I’m thinking the “found” tapes may have been found in the IG’s office. And I’m thinking Hayden wasn’t too pleased they had been found. And I also find myself thinking that Helgerson, Kappes, and Sulick are all singing from the same hymnal. Lets see if Hayden gets some religion…

  12. ralphbon says:

    So, what happens if and when prosecutions start revving up for the crime of destroying the videotapes, and then it turns out that the originals, or the contents thereon (IANAL, but I like a good “thereon” now and then), turn up?

    • readerOfTeaLeaves says:

      Then we have irrefutable confirmation that Bush and Cheney were involved in war crimes.
      The WH weaseling, evasions, and attempts to create distraction suggest that they’re guilty as hell and increasingly afraid.

      Meanwhile, Russia is moving in to sign contrracts for Iraq oil resources, some of the oil is now being trucked to Iran, and Turkey is increasingly p*ssed off. More at Iraq Oil Report, and also via klynn’s links, for anyone interested.

      • JohnForde says:

        I think copies exist. And don’t you think there is some really juicy evidence held by some of the players?
        I’m thinking Rodrigeuz has something like an audio recording of Addington ordering the tapes destruction.

  13. SaltinWound says:

    Here’s a thought. I’ll overstate it a bit to make a point:

    One of the ways Cheney has kept the CIA in line over the years is by blackmailing them: he knows they’ve tortured, destroyed evidence, etc.

    Cheney was angry that the CIA pushed to have the NIE released. In response, he’s been using some of what he has on them. Is that possible? That Cheney is one of the ones pushng this story?

    • phred says:

      I don’t think so, there are big shiny arrows all over this story pointing straight at the WH. If there was anyone feeling vindictive towards Bush and Cheney, my vote would go to Rove. But, at this point, I’m with EW, this looks to me like a fierce internal battle at CIA that has managed to spill all over the front page of the papers.

  14. Neil says:

    OK freshman QB, local Norman Boy vs Mountaineers, Coach leaving for MI after 1 year of a 4 year contract, and owing $4 million due to a buyout clause in his contract, his contract.

    Hmmm, I think I’ll go for the Sooners this year and MI again next.

    • watercarrier4diogenes says:

      Great call, Neil. Mountaineers 48, Sooners 28

      Shades of a recent Fiesta Bowl and an Orange Bowl vs USC not too long ago. Why the votes keep going to the Sooners (e.g. – got into the BCS Title game after being blown up in their own Big 12 title game a few years ago) in the polls is just beyond comprehension.

  15. SaltinWound says:

    Also:

    Libby’s very important man defense might have gone better if he’d been allowed to talk about the torture turmoil. Maybe it really was distracting!

  16. bigbrother says:

    What was on those tapes was evidence relating yto the run up to 9/11, That information had to be so dmaging to the Administration they were destroyed. The logic is the crime revealed on the tapes were more severe than obstruction of justice. Why else would they be destroyed. If the “tapes” are found how would they be id’d as authentic.
    State secrets come into play with the evidence that covers all of this supposedly else they would not have gone down this path.
    it is noteworthy that bushco is not whining.
    Looseheadprops has a different view at FDL. I more see Marcy’s explanation as more cogent. All parties are warning stay out of the investigation no feet on the scale.

    • MelodyMaker says:

      Open process? wtf. Bunker mentality, meet table. I’m smelling resignations and pardons on this thing.

  17. MadDog says:

    And still nothing but ***crickets*** is heard from Brinkema, and more importantly, the Moussaoui Defense Attorneys.

    Why I wonder is that?

  18. CTuttle says:

    Turley on KO was calling Mukasey’s appointment of Durham as insufficient,and, Durham needs to be given Special Prosecutorial authority…

  19. LS says:

    Question:

    Why did Bushco really feel it necessary to resort to “torture” for information?

    1. Did they want to coerce information to fit the narrative of their agenda?

    2. Did they want information to catch OBL?

    How has it benefited them? #1 or #2??? Just wondering?????

    • perris says:

      Question:

      Why did Bushco really feel it necessary to resort to “torture” for information?

      1. Did they want to coerce information to fit the narrative of their agenda?

      2. Did they want information to catch OBL?

      How has it benefited them? #1 or #2??? Just wondering?????

      torture is not to get information, the purpose it’s supposed to serve is instill fear

      in this case, the purpose was not only to instill fear in the Iraqi’s, it’s also to instill fear in Americans

      where the president claims he can dissapear anyone he wants even american’s we are all left to fear for torture

      it does not get information it keeps you from getting information, the purpose is fear

  20. MadDog says:

    EW wrote:

    “We also know there was a CIA briefing for the White House involving Alberto Gonzales, David Addington, and John Bellinger in May 2004, not long after the Abu Ghraib scandal became public (but long after Gonzales, at least, was likely aware of the impending scandal).”

    (My Bold)

    An addition that I would suggest is this from the AP:

    One official familiar with the investigation said the review so far indicates that Alberto Gonzales, who served as White House counsel and then attorney general, advised against destroying the videotapes as one of four senior Bush administration attorneys discussing how to handle them. The official spoke on condition of anonymity because of the ongoing investigation. Gonzales’ attorney, George Terwilliger, declined comment.

    Another of the administration attorneys, John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers came to a consensus that the tapes should not be destroyed, said a senior official familiar with Bellinger’s account of the 2003 White House discussion. Bellinger could not be reached for comment.

    (Again, My Bold)

    Things were already cooking by 2003 with the White House criminal cabal lawyers.

    So it makes me wonder why the CIA would be doing a “briefing” in 2004?

    It certainly wasn’t to let the WH legal beagles know that the tapes existed because they already knew that in 2003.

    And for those who don’t remember, the charter cabal members were Fredo, Miers, Addington and Bellinger.

  21. GregB says:

    Come on folks, it’s only torture. You are getting riled up like this is something as important as a blowjob.

    -G

  22. masaccio says:

    I put this comment up on yesterday’s thread, but I cannot stop myself from repeating it:

    In an earlier response, I pointed out that my subpoenas contain a definition of the term “document”. Here it is:

    “Document” without otherwise limiting the generality of its meaning includes, but is not limited to, the following items: agreements; correspondence; telegrams; cables; memoranda; records; books; summaries of records or notes of personal conversations or interviews; diaries; calendars; forecasts; statistical statements; accountants’ work papers; journals, ledgers and other accounting papers; graphs; charts; maps; diagrams; blueprints; tables; indexes; pictures; recordings; tapes; microfilms; charges; accounts; analytical records; minutes or records of meetings or conferences; opinions or reports and/or summaries of investigations; opinions of reports of consultants; appraisals; reports and/or summaries of negotiations; brochures; pamphlets; circulars; trade letters; press releases; contracts; stenographic, handwritten or any other notes; projections; working papers; federal and state income tax records; checks, front and back; check stubs or receipts; invoice vouchers; deposit slips; check vouchers; tape date sheets or data processing or word processing cards, tapes, backup tapes, or discs or any other written, recorded, transcribed, punched, taped, filmed or graphic matter, however produced or reproduced; and any other document or writing of whatever description within the scope of Rule 34(a) of the … Rules of Civil Procedure, including without limitation any information contained in any computer or word processor, although not yet printed out, within the possession, custody or control of plaintiff or the possession, custody or control of any agent or employee of plaintiff (including without limitation attorneys, accountants, consultants and investment brokers or advisors) and other persons acting or purporting to act on plaintiff’s behalf.

    I just refuse to believe that the people sending out requests and subpoenas and getting court orders don’t use similar or better definitions, and it is ridiculous for anyone to assert that the Commission did not request the information, and it is absurd to think that these kinds of things aren’t covered by the Court’s order.

  23. masaccio says:

    Well, that didn’t work so well, copying didn’t bring over the lovely blockquoting and boldfacing. Let me just call attention to this provision:

    tape date sheets or data processing or word processing cards, tapes, backup tapes, or discs or any other written, recorded, transcribed, punched, taped, filmed or graphic matter, however produced or reproduced;

  24. Scarecrow says:

    In the WaPo story on the Mukasey announcement, Helgerson says this:

    “During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches,” Helgerson said in a statement. “It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation.”

    Is that likely to be public testimony to Congress?

    • emptywheel says:

      Excellent question. Obviously, he expects to testify somewhere. But if it pertains to his report, I suspect BushCo will make him go behind closed doors.

      • bmaz says:

        You know, as I recall, Leahy and a couple of others were pretty interested and nosing around back when the CIA investigation of Helgerson was first news. I wonder if one of them, or their staffers, hasn’t had some below the radar contact with Helgerson. I am starting to think Helgerson has been a busy little bee, and maybe has had some, also below the radar, help from his friend and colleague Mary McCarthy. There may b e a lot more of this story in the hands of people lining up against the Bushies thatn we realize. The more I think about it, the more I could see Helgerson being, if not the motivating factor, certainly one of the main motivating factors behind a whole lot of what is starting to percolate.

      • perris says:

        Excellent question. Obviously, he expects to testify somewhere. But if it pertains to his report, I suspect BushCo will make him go behind closed doors.

        if he or cheney has any worry at all, they will invoke executive priviledge

        he has mastered this, anything at all close is secret

      • bmaz says:

        Ouch! Actually, I might give Stoops credit for being Jeb, with his even denser brother, Mike (currently driving the “other” university here, Arizona, into the ground) playing the part of George…..

      • freepatriot says:

        My daddy once warned me that it is better to remain silent and be thought a fool than to open your mouth and prove beyond a doubt that you are a fool:

        Stoops is the George W Bush of college football.

        thus proving that you are as ignorant about politics as you are about college football

        got any other cute zingers to prove you’re a complete fool ???

  25. radiofreewill says:

    “Now, John, I’m sure you’ve been around Big ‘G’ government long enough to know we’ve all got Daddy’s in this business…”

    “What the fuck, Porter?! What The Fuck! You’ve seen the same Tapes I have! What the Fuck!”

    “…Bush is my Daddy…”

    “Earth to Mr. Goss, Earth to Goss! By every statute of Civilized Human Rights that I know of, that’s T-o-r-t-u-r-e on those Tapes, Porter, and I can guarantee you that 10 out of 10 International Tribunal Judges would agree with me!”

    “…and I’m your Daddy…”

    “I’m talking fucking Torture, Porter! They hang people for that, you know?! No statute of limitations! These Tapes are our Only Fucking Protection for when Bush tries to Blame the Fucking Torture on Us. Can’t you see?!”

    “…So, here’s what I want you to do…”

    “Porter, dammit! I’m trying to tell you that If you Okay the Destruction of those Tapes, and it gets out – and one of these fucking days you know it will! – Then You will Own the Torture, and All that comes with it. Think about it!”

    “…give the Tapes back to Rodriguez…but, not before you make Copies…and ‘lose’ them in your safe.”

    • emptywheel says:

      I suspect they’re on opposite teams. In fact, I suspect there are three teams: Herlgerson and McCarthy, who opposed teh torture and were trying to expose it, Kappes and Sulick, who didn’t oppose the torture but who also believed in doing the right thing wrt the tapes, and Rodriguez and (I still am convinced) Porter Goss, who didn’t oppose the torture but were convinced they needed to obstruct justice to protect the DO guys who did it.

      That’s a wildarsed-guess, but that’s my suspicion.

  26. RodUnderleaf says:

    The large shoe in the sky waiting to drop goes like this…

    the 9/11 Commission admits it never met the detainees whose alleged testimony comprises much of the chapters that outline the 9/11 plot. The Commission writes the following in a boxed off section of chapter 5:

    “Detainee Interrogation Reports
    Chapters 5 and 7 rely heavily on information obtained from captured al Qaeda members. A number of these “detainees” have firsthand knowledge of the 9/11 plot.

    Assessing the truth of statements by these witnesses — sworn enemies of the United States — is challenging. Our access to them has been limited to the review of intelligence reports based on communications received from the locations where the actual interrogations take place. We submitted questions for use in the interrogations, but had no control over whether, when, or how questions of particular interest would be asked. Nor were we allowed to talk to the interrogators so that we could better judge the credibility of the detainees and clarify ambiguities in the reporting. We were told that our requests might disrupt the sensitive interrogation process.

    We have nonetheless decided to include information from captured 9/11 conspirators and al Qaeda members in our report. We have evaluated their statements carefully and have attempted to corroborate them with documents and statements of others. In this report, we indicate where such statements provide the foundation for our narrative. We have been authorized to identify by name only ten detainees whose custody has been confirmed officially by the U.S. government.”

    Without these alleged firsthand accounts, the Commission can say very little about the alleged plot. It has “no hard evidence,” only the alleged testimony of alleged terrorists who have been tortured. Who knows if what they are alleged to have said is true?

    • Loo Hoo. says:

      Brutal but brilliant. Looks like 9/11 commission members knew they were being lied to, and did some CYA.

    • Hmmm says:

      Quoth the 9/11 Commission:

      Our access to them has been limited to the review of intelligence reports based on communications received from the locations where the actual interrogations take place.

      Very odd phrasing there, and the bolded part is consistent with the theory of remotely recorded & analyzed interrogations. I know the Commission is now claiming they didn’t know at the time that there were recordings, but might they have know about the basic teleconference setup?

    • perris says:

      “inteligence reports based on”

      the commission based it’s reports on reports of reports

      and we still have no idea if these “reports” came from “team b”

      team b of course is the devision set up by cheney because the real cia would not say what cheney wrote down for them to say

      I really want that point made, that we are giving the fake cia the same credibility as the real cia, the two are mutually exclusive

      team b isn’t even a cia at all, they don’t “gather inteligence” they manufacture inteligence, team b needs to be called something besides cia even though cheney want’s them to carry the same credentials

      from now on I would like democrats to use “the propaganda team set up by cheney”, not “the cia”

  27. ralphbon says:

    Insominia has its advantages.

    Below, my letter to the New York Times regarding their editorial this morning on the appointment of Dunham:

    To the Editor:

    Got credulity?

    Regarding John Dunham, the prosecutor assigned to pursue the CIA tape destruction case, you write, “We hope that he will … have the independence he needs,” and later, “The ultimate test for Mr. Mukasey will be whether he grants Mr. Durham the latitude he needs….”

    Ahem. By not recusing himself and other Department of Justice officials from the investigation, and by not granting Dunham full powers of a special counsel, Mukasey has already constricted the latitude you so passively “hope” for.

    If Dunham’s first act is not to demand such expanded purview and the recusal of his superiors, he will already have tipped his willingness to abet rather than smash this latest attempt at a modified limited hangout.

  28. drational says:

    Isn’t it most interesting why they took it out of EDVA US Atty Office? This is the office prosecuted Moussaoui and Padilla. Suggests some in the office may well have known about the tapes when they denied their existence.

    • drational says:

      Sorry, EW pointed this out in the prior post.
      On another note the EDVA USA is Chuck Rosenberg, Comey’s former Chief of Staff.
      Rosenberg was one of the men prepared to resign over the Hospital Signature Mission, perhaps a man of principle.

      He was not appointed til 3/06, so after the Tape Destruction, but I suppose he recognizes his office is in deep.

      • emptywheel says:

        I think Rosenberg is one of the good people in DOJ. I also think, just on the basis of having mis-directed Brinkema on the tapes (telling her no tapes of the detainees she believed Moussaoui shoudl have) is grounds for recusal. They were made to look pretty shitty by CIA (either with or without knowledge), so they can’t be expected to do a fair investigation.

        Though of course, Mukasey has just as strong a reason to recuse, but he’s not doing it…

  29. BayStateLibrul says:

    The gates are down, the lights are flashing, but is the train
    coming in?

    Mukasey needs to recuse, and we need a written report at the end of
    the tunnel.

  30. Rayne says:

    How much content in Goldsmith’s book mentions the webcam? Now I’m wondering whether in spite of his weak rationalizations for what transpired, whether Goldsmith sprinkled deliberately some breadcrumbs to follow…

    • emptywheel says:

      I advise Goldsmith’s book in any case. But here’s the most insight you get on closed-circuit; it comes after a description of a trip to Gitmo and a REALLY sparse description of a trip to see Padilla, all on the same day:

      After being briefed on the conditions of Hamdi’s confinement and learning about the very limited contact he had had with any human being during the previous six months, we shuffled through the gloomy corridors to a guard station command center to have a look at Hamdi himself. Top administration lawyers crowded around the small black-and-white closed-circuit television bolted in the back of the room, and witnessed the barely twenty-two-year-old Yaser Hamdi–it was his birthday as well–in the corner of his small cell in an unused wing of the brig, crouched in a fetal position, apparently asleep.

      Before I saw him on closed-circuit television, I had no sympathy for Hamdi, whom I knew had volunteered to fight for the tyrannical Taliban. Witnessing the unmoving Hamdi on that fuzzy black-and-white screen, however, moved me. Something seemed wrong. It seemed unnecessarily extreme to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact and with no access to a lawyer. “This is waht habeas corpus is for,” I thought to myself, somewhat embarrassed at the squishy sentiment.

      • TheraP says:

        Ok, now I can 2 and 2 together:

        “To a spectator it would look like torture,” he said. “And torture is wrong.”

        Put that quote from Mr. Gannon to a NY Times reporter (see: http://www.nytimes.com/2007/12…..ref=slogin)
        next to the quote EW just posted:

        Before I saw him on closed-circuit television, I had no sympathy for Hamdi, whom I knew had volunteered to fight for the tyrannical Taliban. Witnessing the unmoving Hamdi on that fuzzy black-and-white screen, however, moved me. Something seemed wrong. It seemed unnecessarily extreme to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact and with no access to a lawyer. “This is what habeas corpus is for,” I thought to myself, somewhat embarrassed at the squishy sentiment.

        Two breadcrumbs put together.

    • TheraP says:

      Rayne: I think you have hit on the operative image:

      breadcrumbs to follow…

      How apt. And whether deliberate or not… it’s the breadcrumbs….

      • skdadl says:

        Yes, the breadcrumb theory. I believe in that one too.

        Much as I love and admire Mary for all she has taught me, and even when I know that she is right, I still cling to that one bit of redemptory hope for a few of the boys. Comey and Goldsmith sprinkled breadcrumbs rather than pixie dust, and it is amazing to think back on how far other people have followed some of their tracks in the last year.

  31. Rayne says:

    Interesting. Closed-circuit television makes perfect sense; they’re widely used in prisons and jails here. But in light of all that’s been discussed here, one wonders whether any of that feed was recorded.

    Goldsmith’s description is something that might described as “clinical” — it’s obvious that even the use of that descriptor can’t change the lack of humane treatment, apparent in black-and-white.

    Agh. I wonder if the local library has a copy yet.

    • perris says:

      But in light of all that’s been discussed here, one wonders whether any of that feed was recorded.

      you know, if they are serious about “getting information” then they have to record it, no choice, you’re gonna have to decipher things yelled and spoken in other languages, said under the breath

      they had no choice if they really wanted info

  32. Mary says:

    81 “This is the office prosecuted Moussaoui and Padilla. “

    Moussaoui, but IIRC, on the court front Padilla went from Chicago to SDNY to So. Car to FL.

    Rosenburg has already signed on exchanges with Brinkema defending the non-delivery by DOJ of information, so he is joined on a “side” in the matter and should be and stay recused.

  33. TheraP says:

    I did a lot of thinking about that “spectator” quote (see: http://www.tpmcafe.com/blog/th….._spectator)

    “To a spectator it would look like torture,” he said. “And torture is wrong.”

    That sentence at the end of the latest revelations related to the “Torture Tapes” says it all. No matter how these people rationalized their behavior, no matter what tortuous logic they used to imagine it was permissible to mistreat a human being, for whatever twisted purpose, once they considered how the tapes might look to a spectator, there was only one conclusion: “it would look like torture. And torture is wrong.”

    [snip]

    To a conscience it would look like torture. And torture is wrong. And now we have to face that people who keep calling themselves our “leaders” are nothing of the kind. They lack a conscience. They lack empathy for other humans. And believe themselves above the law. Believe it right to subject someone to torture. Believe someone is guilty without benefit of trial. Refuse to recognize another human being as having worth – because in their mind they have already condemned the person: They have played prosecutor, judge, and jury – to a person deprived of counsel, deprived of any judicial process. A person has been condemned to cruel and inhumane treatment by a state – with mandates to do so coming from the highest levels, including the eventual mandate to “go ahead and do whatever you need to do and don’t tell us… so we can pretend ignorance and lie to the public if this ever becomes known.”

    Yes, this is why the tapes were “destroyed.”

    • Rayne says:

      The investigations over the tapes frustrate some C.I.A. veterans, who say they believe that the agency is being unfairly blamed for policies of coercive interrogation approved at the top of the Bush administration and by some Congressional leaders. Intelligence officers are divided over the use of such methods as waterboarding. Some say the methods helped get information that prevented terrorist attacks. Others, like John C. Gannon, a former C.I.A. deputy director, say it was a tragic mistake for the administration to approve such methods.

      Mr. Gannon said he thought the tapes became such an issue because they would have settled the legal debate over the harsh methods.

      “To a spectator it would look like torture,” he said. “And torture is wrong.” [Tapes by C.I.A. Lived and Died to Save Image, NYT 30-DEC-07]

      Even Gannon’s use of the word “spectator” suggests more to his opinion, that the persons who were likely to have viewed the taped content weren’t just casually observers, lookers-on, bystanders, but spectators, like those attending a sporting or entertainment event.

      His word choice may have been unconscious, but it conveys a lot.

    • perris says:

      The investigations over the tapes frustrate some C.I.A. veterans, who say they believe that the agency is being unfairly blamed for policies of coercive interrogation approved at the top of the Bush administration and by some Congressional leaders.

      that’s my point when I said

      interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

      excuse me?

      what cia is that?

      that would have to be “team b”, not the real cia

      the cia cannot approve anything, that goes straight to the top

  34. ralphbon says:

    So, hate to get this talmudic, but the question of CCTV goes to the administration’s already dubious loophole regarding destruction of records on foreign soil:

    First, how credible is it that a videotaped interrogation would be viewed remotely in Langley and/or Washington but not recorded for subsequent study? My guess is, not very. Therefore, unless the hard drives on which the video was recorded were transported to foreign soil before being wiped, the video (though not the original tape) has been destroyed on US soil.

    Even if the CCTV signal was not saved during viewing, could the fact that it was not captured be technically construed as “destruction” on US soil?

  35. radiofreewill says:

    “Remind me, again, Colonel? Why am I giving you back these Fucking Torture Tapes?”

    “Because it’s the Patriotic thing to do, Mr. Helgerson.”

    “The Patriotic thing to do?! These Tapes belong in the Evidence Vault at the Federal Marshall’s Building! Those are Fucking War Crimes on those Tapes by every definition I could find!”

    “With respect, sir, none of those definitions you found carries any weight in the wake of 911. Global Terror has visited itself upon our shores, and our President has called all of us to the flag! To do anything other than to respond to his call with Obedience would be un-Patriotic!”

    “What are you going to do with these Tapes, Jose?! I’m kinda curious because you don’t seem to be taking your Legal advice from us?”

    “You know I can’t get into that with you, John! You aren’t cleared for this highly sensitive Counter-Terrorism Op!”

    “What the Fuck, Jose?! First Porter tells me to give you back the Tapes – but he wants a Memo for the Record saying he’s against Destroying them – and now you tell me you don’t know what’s going to happen to the Tapes after I give them to you!! What the Fuck, Jose!”

    “Ours is not to question why, John, but to do, or die…”

    “Dammit, Jose, those people were systematically Fucked-Up in these Tapes! Here they are – you can have them! But I want you to know my Report is going to duly note that I gave them back to you, along with my strongest Legal advice to Not Destroy Them! Do you hear me?!”

    “You’re a Patriot, John…you’re doing the right thing…we’ve all been called to Duty by our Leader in this time of National Emergency!”

  36. Mary says:

    97 – morning skdadl. I’m a Christian and have a big bag of belief in redemption – but for me it’s a lot like allocution for your plea bargain, you should confess to what really happened to qualify, but in the end, the only redemption I can affect one way or the other is my own – and I’ve got a full plate with that.

    75 – “I wonder if one of them, or their staffers, hasn’t had some below the radar contact with Helgerson” I wonder if Helgerson did any criminal referras and why Kennedy was prompted to send this letter:

    http://kennedy.senate.gov/news…..3c142f7ffb

    Also, on Helgerson, from the “timeline” aspect, I think this is interesting and might make Hellerstein ask a few boys and girls to come by chambers and explain their prior representations a little more thoroughly –

    As per Dean’s http://writ.news.findlaw.com/dean/20071214.html piece about, in particular, the ACLU FOIA request before Judge 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 CIA claimed that some of the relevant documents were the subject of an inquiry by the CIA’s Office of the Inspector General, so its attorneys requested a stay of the judge’s order and an extension of time to comply with the request for other documents. In February 2005, Judge Hellerstein denied the CIA’s request for a stay, but he did not enforce the stay immediately when the CIA moved for the judge to reconsider his ruling based on additional evidence from the CIA’s Director – as the CIA entered a full-court press to prevent the ACLU from getting anything.

    But from Marcy’s link http://www.nytimes.com/2008/01…..ref=slogin above:

    Mr. Helgerson completed his investigation into the program in early 2004

    So CIA and DOJ are telling Hellerstein they need a stay on turning over documents, in Sept, Oct and beyond of 04, bc of the IG investigation, but presumably that’s the same IG investigation that the IG is saying he wrapped in “early 2004″ (and golly, wouldn’t it have been nice if everyone weren’t so busy in 04 trying to cover Bush’s crimes that people actually went to vote with the information that should be available, not in a book written several years later to spin a lack of personal responsiblity, but in public information about Executive Branch crimes made available from a transparent democracy with a functioning, non-corrupted, Department of Justice?)

    • phred says:

      Good catch Mary. Any idea who at CIA asserted to the judge that the IG inquiry was ongoing in the fall of 2004? It might help clarify our teams (as EW noted above).

    • emptywheel says:

      Mary

      It’s not the same investigation.

      There was one, which I beleive was started in 2003, which pertained to interrogation largely relating to the WOT–so Afghan and Pakistan related detainees. As I understand the chronology from public reporting, Mary McCarthy was not a participant in this. But then there was a later one that she was very central to, which focused on detainee issues relating to Iraq.

      As I understand the ACLU FOIA–which was a response to Abu Ghraib–the latter investigation would pertain more directly to the those interrogations.

  37. BlueStateRedHead says:

    BREAKING. WE WIN. von Spakosky gives up the FEC. !!! Snoopy dance!!!! *G* also tears. links follow.

    • BlueStateRedHead says:

      Know this is OT, but let’s recognize the implication. ENORMOUS. (crossposted on FDL.)

      For the elections:
      The Repubs had frozen all nominations to FEC if they could not keep him on it. The FEC thus lacked a quorum and went out of business on Jan. 1 as a regulator of election law. As Little Hans was Obama’s hold, this says something for his senatorial record.

      For culpalization of the Bush crimes:
      This is the time to revive efforts to disbarment for moral turpitude made when USA broke on TPM. IANAL, but I remembering citing here the opinions of those who are and thought the case, while difficult, could be made. If there are any takers, I can hunt them down.

      Work calls. will check in later.

  38. Mary says:

    From the Mukasey thread (EW – I agree with your points on not knowing who to believe, but also left some operative dates for representations to courts and the public that are after the initial arrest of Padilla that are also operative for various reasons – especially the Clement argument to the Sup Ct. ) I’m bringing up this info from a Vanity Fair piece on the kinds of things that were done and considered pretty immediately once CIA got involved, and also at the “interesting” reference in that piece (which may just be a psychologist mis-speaking, but may not) about how initial authorizations did not come from the CIA legal department or from DOJ and/or OLC, but rather from “White House lawyers.” I think that is an interesting point (and thanks for the link @ 58 to Chertoff’s involvement in torture advice – I hope no one forgets to put him on the list).

    http://www.vanityfair.com/poli…..ntPage=all

    One of the first on-the-ground tests for Mitchell’s [psychologist CIA used to help break minds] theories was the interrogation of Zubaydah. When he and the other members of the C.I.A. team arrived in Thailand, they immediately put a stop to the efforts at rapport building …

    Mitchell had a tougher approach in mind. The C.I.A. interrogators explained that they were going to become Zubaydah’s “God.” …

    As Zubaydah clammed up, Mitchell seemed to conclude that Zubaydah would talk only when he had been reduced to complete helplessness and dependence. With that goal in mind, the C.I.A. team began building a coffin in which they planned to bury the detainee alive.
    A furor erupted over the legality of this move, which does not appear to have been carried out. … But the C.I.A. had a ready rejoinder: the methods had already been approved by White House lawyers.

    I’d really like to see someone start the question ball rolling on who would authorize burying someone alive. You know that these are things that have probably been discussed by all kinds of people at FBI, CIA, DOJ, WH and no one coughs this up. How evil is that?

  39. TheraP says:

    I’m going to do a thought experiment based on the description of Hamdi in that cell. Can’t do it now. But using their own “clinical” definition against them, I’m going to think through what would happen if your local police force and ER were confronted with someone in a fetal position…. which would clearly be evidence of someone who could not take care of himself and thus, without proper care would be “a danger to self.” I’ll look back at those very standards for ER docs. We could also do a little research study (using local ER docs and your average police officer)… and I’m sure the person would be deemed to be in need of immediate medical and psychiatric care. (Were I, as a clinician, to make that phone call… I assure you I know exactly what would happen!)

    I’ll write more up later. But I think we can impale them upon their own post, so to speak, using their own “medical” definition of what is torture.

    Have to work soon, but I’ll write this up… if needed… if only for myself.

  40. Leen says:

    Marcy thanks for staying on this. Who are the CIA attorneys who gave the big o.k. to these “enhanced” interrogation methods being used?

    I have read somewhere that Seymour Hersh has seen some of these tapes. Does anyone know whether this is true?

    On John Deans impeachment list David Addington holds first place.

  41. Mary says:

    105 – YEAH!!! Good win for Obama and nice to have that win before it would cut off Edwards matching funds and make things look kind of blergh for infighting fodder.

    107 – No, and I think a lot of this has been filed under seal and redacted, but in the end, it’s the lawyers’ duty to make sure their representations to the court are as correct as reasonable due diligence would make them – so if I’m the lawyer, someone at CIA tells me they can’t turn stuff over bc the IG has it, you call the IG up and see if that’s correct. Or you get an affidavit from someone with enough CIA seniority to make it reasonable to rely upon (reasonable, until we have a full complement of lying liars in almost every court you can think of from all branches of governement.

    59 – I completely agree. I think we discussed this a little in connection with Brinkema’s order(s) and related pleadings, which IIRC were sealed or had a lot of redacting. But there’s no way that Moussaoui’s lawyers didn’t use the broad boilerplate on their requests and, even if Brinkema deleted down for her order, the Judge would have used some pretty broad language for the description of the data to be turned over to the court.

    What struck me, with that in mind, was how very narrow and parsed the partly redated letter to Brinkema from DOJ was and how limited they made their representations as to their knowledge and what they were turning over v. what may exist and/or what the order likely required them to turn over. I also have to wonder at what point, if ever, McNulty (who would have continuing duties to the court for the case he supervised if he becomes aware of misrepresentations to the court) became aware of the tapes and/or their destruction and/or any other evidence.

    The big problem is that DOJ is right in the line for all the criminal wrongdoing and the prosecutor has been put in a slot where he is subject to all OLC rulings, among other things, rather than having independence and where he has a very narrow mandate that doesn’t involve his own agency’s house. Be interesting to see what happens there, but I still think these guys will be arguing at some point that, for obstruction based on failure to produce, etc. the same arguments they relied on for torture (CIC powers trumping law and separation of powers) and for putting Padilla into military abuse (CIC powers trump court’s powers and habeas) for years. They’ll claim that it is not obstruction to fail to produce or disclose to Congress and the Courts data that is protected for “national security” purposes.

    It’s not really tied to anything in this thread, but when I googled something the other day I ended up with a 2006 amicus brief filed on behalf of several retired judges in the Arar case that really does the slice and dice on state secrets vis a vis claims of illegal gov behavior IMO.
    http://www.brennancenter.org/d….._47334.pdf

    I meant to ask lhp in her thread if she knows Rosdeitcher – I was really impressed with that brief.

  42. Mary says:

    110 “I’m going to think through what would happen if your local police force and ER were confronted with someone in a fetal position”

    The problems they created were so pervasive and so mind boggling. Think through what would have happened in a court martial of Taliban or Iraqi soldiers if they had an American General turn himself in to them because they were holding his sons – and if they then gave North Korean intelligence officers with Al-Qaeda associates access to him for night time abuse and beating sessions, while they spent their days sipping tea and stuffing him into a sleeping bag, binding him in there, pummelling him, and eventually suffocating him to death. In THAT court martial proceeding, tell me if you think just one person would be held responsible and that they would only be given a 60 day restricted area detention as the appropriate sentence for what they did.

    Or, for that matter, if a “sleeper cell” of al-Qaeda were fired upon by Army snipers outside of a tiny Texas village, and if they repelled that attack, but then went house to house, killing everyone in that Texas village, including toddlers huddled with their mother, because they were “worried” that there might be “hostiles” in those homes – – think about how they would be handled in court martial proceedings.

    Then take a look at what we have done when those actions have been done by our soldiers, under their leadership and “rules of engagement.”

    • TheraP says:

      Mary, no thought experiment necessary to answer that question.

      There’s a court case from Colorado where 4 therapists were convicted and sentenced to 16 years each for the death of a 10 year old little girl, when she was being subjected to “rebirthing therapy” “after being bound in a flannel blanket with pillows piled on it.” (http://www.healthwatcher.net/Quackerywatch/Attachment-therapy/)

      So there’s your answer!

  43. klynn says:

    This may seem like a dumb and off-topic question but I’m throwing it out there…

    If any of the video was live feed/teleconferencing, wouldn’t this be the most drastic reason for retroactive immunity in regards to FISA?

  44. emptywheel says:

    Some background on the distinction between the two IG investigations:

    McCarthy was drawn into the CIA’s wrenching internal debate over treatment of foreign detainees when she was recruited by Inspector General John L. Helgerson in the summer of 2004 to oversee the agency’s criminal probe of alleged wrongdoing in the war on Iraq. CIA Director George J. Tenet requested the probe shortly before he was replaced by Goss.

    [snip]

    Then Helgerson persuaded her to oversee his inquiry of detainee treatment in Iraq, and later Afghanistan.

    McCarthy’s findings are secret. According to a brief CIA statement about the probe in a federal lawsuit filed by the American Civil Liberties Union, investigators set out to examine “the conduct of CIA components and personnel, including DO personnel” during interrogations. Tens of thousands of pages of material were collected, including White House and Justice Department documents, and multiple reports were issued. Some described cases of abuse, involving fewer than a dozen individuals, and were forwarded to the Justice Department, according to government officials.

    Another report, completed in 2004, examined the CIA’s interrogation policies and techniques, concluded that they might violate international law and made 10 recommendations, which the agency has at least partially adopted. That report jarred some officials, because the Justice Department has contended that the international convention against torture — barring “cruel, inhumane, and degrading” treatment — does not apply to U.S. interrogations of foreigners outside the United States.

    I’ve got a copy of the ACLU’s request for documents (which, incidentally, Goldsmith uses as evidence of what opninions were written when, which is one way he got around the classification review), though i’ll need to find a link for it. The requests are overwhelming tailored to Iraq-related things. There are just a few requests that are general enough to relate to interrogations happening anywhere overseas.

    In other words, the govt lawyers were absolutely correct when they said there was an ongoing investigation–it was the one most closely tied to the ACLU suit.

  45. Mary says:

    115 – I know that the ACLU FOIA filings came on the heels of Abu Grhaib, but they had a very broad request in for info on all detainees held at overseas locations.

    If I follow, you are saying that there was one CIA IG investigation that was still ongoing in in the fall of 04/winter of 05 that was relating to Abu Ghraib and CIA interrogations of detainees who were primarily military detainees in Afghanistan and Iraq (was there a report on that?), but there had been a separate IG investigation into the black sites and CIA interrogation of prisoners in its own or foreign intel agencies control and that one wrapped up earlier – that would be the one that Helgerson seems to be referring to in his quote about finishing up in spring of 04.

  46. Mary says:

    Here are the ACLU links for their FOI actions in general:
    http://www.aclu.org/safefree/t…..efoia.html

    the legal documents in the case:
    http://www.aclu.org/torturefoi…..index.html

    and the FOIA request:
    http://www.aclu.org/torturefoi…..equest.pdf

    but I think my confusion was on the two investigations more so than the FOIA content. It was a response to Abu Ghraib, but as Dean noted, it’s language would include all detainees held on foreign soil.

    So I guess my take would be, if the IG investigation that was still ongoing and on which they based their motion was ONLY for the military detention detainees who were questioned by the CIA, then they couldn’t use that motion as a defense to not providing the tapes that were not of military detainees and not part of the military detainee investigations..

  47. posaune says:

    to Deadlast @19 and LS re follow the money:
    and what was Kwasniewski (with Belka?) doing in their deals with Orlen (polish distribution of Russian Oil) during this period? involving polish military intel (WSI)? how much of the torture were they in on? remember, the WSI folks, 2004r. were essentially NKVD types, in fact, left over from teh 1970s.

  48. JodiDog says:

    What is this? The Lost and Found?

    First the Libby notes, then the AG emails, now these tapes.
    You keep wanting what no longer exists.

    What is the question? Did they torture?

    Yes. End of story.

  49. sojourner says:

    This is a BMAZ or MARY question, I think…

    If you were a well-regarded, competent, tough-minded, independent prosecutor, why would you want to take on a prosecution role in which you would be ham-strung from the beginning, and probably micro-managed to prevent you from arriving at any real truth or successful prosecution?

    I guess what I am wondering is what will John Durham’s appointment do for him besides sully his reputation?

    • bmaz says:

      You wouldn’t want any part of it; but, my guess is, he was selected and once you are told to do something like this you kind of go do it. Not to mention that pretty much all lawyers who practice at this kind of complex case trial law level are very cocky and ALWAYS have a belief that they are good enough and special enough to overcome anything in their path. Combination of those two factors is the best answer I have.

      • sojourner says:

        Thanks! I was just curious if there was any real upside to it… It sounds like it could be more a kiss of death than anything, particularly with this bunch.

    • bmaz says:

      If I get the gist of this correctly, the thought is that telcos need immunity because they were the conduits of the streaming torture video feeds or something similar to that. eh, I dunno. Even assuming there were such feeds and that they were conducted via telco cables and equipment (which I think is unlikely), they would have been encrypted and the telcos would not have been in on the whole deal; just encrypted data flowing through their toobs like it likely does every day form a whole bunch of sources in the business world. They don’t need immunity for that.

  50. LS says:

    “You couldn’t have more than one or two analysts in the room,” said A. B. Krongard, the C.I.A.’s No. 3 official at the time the interrogations were taped. “You want people with spectacular language skills to watch the tapes. You want your top Al Qaeda experts to watch the tapes. You want psychologists to watch the tapes. You want interrogators in training to watch the tapes.”

    People with spectacular language skills.
    Top Al Qaeda experts.
    Psychologists.
    Interrogators in training.

    That is at least 4 sets of tapes right there and each category is plural, so there could be tons of copies of the tapes out there somewhere.

  51. orionATL says:

    so how many times have “the torture tapes that never left the country of origin (ew speculates poland)”

    been reviewed/discussed/decisioned by someone in washington?

    did they not see at least parts of those tapes?

    if so, a question for scholastics:

    “how many feet of tape(s) does it take to show up at the white house or the doj or the cia or the dod before the tape(s) can no longer be said to have existed only in the “country of origin”?

  52. JohnLopresti says:

    There is a family tone letter from Luttig May 6, 2006 to Bush resigning from the federal bench. Noticeably more loose was the Luttig written December 21, 2005 opinion denying the government’s petition that he vacate his September 9, 2005 order which had been the military-confinement justification in re Padilla. The December 21 text mentions the ‘government’s (fretting) about sensitive evidentiary issues that might arise at (the) hearing’. Although corporate counsel work for Boeing might be the exciting alternative Luttig’s note described, the problems with ‘evidence’, even in the SC brig, might be something to which he was trying to draw attention. The issue December 21, historians recall, was SCourt pending review and government’s effort to end military confinement and POW genre charges, substituting civil confinement in FL and a civil action.

  53. klynn says:

    Well, I suspected by no one answering, my question at 117 was considered “stupid.

    So I did some research on my own to try and answer my own questions and came across this federal document with many redactions titled:

    Federal Bureau of Investigation’s Efforts to Improve the Sharing of Intelligence and Other Information Report No. 04-10, December 2003 Office of the Inspector General.

    Here’s the link:

    http://www.usdoj.gov/oig/repor…..dings3.htm

    Do I think retroactive immunity on FISA is tied to all of this? After reading this, yes. Especially of interest, the date of the document…

    I would summerize, but it’s a great read for all.

    Have you read this EW?

      • klynn says:

        EW,

        I still may be off base hear but after reading the noted document and one of the Justice Department list of post 9-11 accomplishments and then going back and reading the sections of FISA cited, I’m seeing an interesting use of the terms “intelligence gathering and transfer” verses “surveillance” in regards to internet , satellite and cable access for said purposes as well as the coordination of information gathered and transferred on such media between agencies.

        Forgive me if I am not making sense. I’ll keep trying to research this. Basically, it appears in sections of FISA, immunity would cover the transfer of any gathered intelligence (which I assume would include torture sessions video conferenced). If I am right on this,then the transfer of intelligence via conduits that are covered under immunity would make the information transferred and who it was teleconferenced to even protected under law? Thus, potentially protecting anyone who viewed and/or produced the tapes?

        I think I’m crazy, but it seems possible. I’ll keep checking the language on this. I realize FISA is about the gathering of information and surveillance but there is a great deal of language about the transfer of information. Thus, my question.

        • emptywheel says:

          I don’t think so. Immunity–at least as SSCI has described it–would extend only to the telecoms (Bush tried for more, but didn’t get it). And the crimes in question here are (first) the torture and (second) the destruction of evidence of hte torture. The collection of information about it would not seem to be a crime.

          That said, the CIA has already gotten retroactive immunity for torture, as part of the MCA.

  54. klynn says:

    So, the actual taping of the torture and the viewing of the torture tapes are not a crime as part of the MCA?

    I thought during Nuremberg, those that recorded the violent torturous actions against Jews in concentration camps (on film) were also considered guilty?

    Sorry, I’m beating a dead horse. You are so kind to help me out with my lack of understanding here. Many thanks.

  55. Hmmm says:

    I’m sure this is hopelessly EPU’d by now, but I think Klynn may well have a point — IF the telcos were not merely serving as data conduits, but also hoovering-up recordings of all data transmissions (as many people suspect), and later deleted said recordings. Further, if telco immunity kills this class of suits, then it also prevents all discovery in this area, where assertion of the state-secret privilege (the fave ploy to date) is likely to carry less weight.

    • klynn says:

      Thanks for your comment. This could really use some more debate and inquiry. Because, if I am correct, then teleco immunity HAS to be off the table or all of this regarding the tapes could be cooked.

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