CIA Inspector General: We Never Had Any Torture Tapes!

The CIA has responded to ACLU’s motion to hold the CIA in contempt for destroying the terror tapes. They argue they shouldn’t be held in contempt for destroying the torture tapes for three reasons:

The videotapes were held in operational files. The Court ruled that the CIA’s obligation to search for records responsive to Plaintiffs’ FOIA requests did not extend to its operational files. Rather, the Court ordered the CIA to search investigative files of the CIA’s Office of Inspector General (“CIA OIG”) for operational records produced to or collected by CIA OIG during the course of CIA OIG’s investigation into allegations of impropriety in Iraq. The tapes were not produced to or collected by CIA OIG. Thus, the CIA’s destruction of the videotapes did not violate the Court’s orders.

Moreover, the videotapes were not responsive to Plaintiffs’ FOIA requests because the activities depicted on the videotapes were not the subject of a CIA OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by CIA OIG. Under the Central Intelligence Agency Information Act (“CIA Information Act”), the CIA’s operational records are exempt from search or review in response to FOIA requests unless an exception to the Act applies. One exception is where the records requested are the specific subject matter of an investigation by CIA OIG into allegations of impropriety or illegality in the conduct of an intelligence activity. 50 U.S.C. § 431(c)(3). Here, CIA OIG did not conduct an investigation into allegations of impropriety or illegality relating to the interrogations on the videotapes prior to their destruction. Therefore, the tapes were exempt from search and review in response to Plaintiffs’ FOIA requests up to the time of their destruction.

Further, the Department of Justice (“DOJ”) has initiated a criminal investigation into the destruction of the tapes. That investigation is considering, inter alia, whether the destruction of the tapes was inconsistent with or violated any legal obligations, including those arising out of civil matters such as this Court’s orders. Accordingly, if the Court does not deny the contempt application outright, it should stay these proceedings pending completion of DOJ’s criminal investigation. [my emphasis]

In other words, their reasoning depends entirely on the technical status of the CIA IG investigation into detainee interrogation. The CIA submitted a declaration describing that investigation; here’s what they said.

Although OIG reviewed the videotapes that were destroyed in 2005 in connection with a special review of the CIA terrorist detention and interrogation program, OIG did not initiate an investigation of the activities depicted on the videotapes as a result of the special review. Moreover, OIG never had the videotapes or copies of the videotapes in their files.

OIG is making a distinction here between "investigation" and "special review," going on at some length to distinguish between them. It includes a copy of a document referring to "special assessment report," as if that’s proof that this distinction is meaningful–though the document refers to the treatment of reports, not to the treatment of investigation. In other words–it seems like a stretch to provide this as evidence that an investigation and a special review are different, since it doesn’t reflect OIG’s claims about the distinctions between the two.

General Assertions Standing in for Specifics about this Case

OIG then goes onto make very vague assertions about OIG’s practices regarding record-keeping.

8. Depending on the nature of the audit, inspection, investigation, or special review, OIG often sends a notice to those CIA components that OIG deems likely to have relevant information. Such notices describe the subject of the review and the categories of information sought and provide instructions to make potentially relevant records available to OIG to review. The instructions regarding records vary from case to case, depending on the nature and scope of the review. Depending on the volume and sensitivity of the records and the nature of the OIG inquiry, OIG may instruct the components to produce all records to OIG, produce certain categories of records to OIG, maintain certain categories of records on-site for OIG inspection, maintain all records on-site for OIG inspection, await further instructions, or some combination of the above. In addition, OIG may independently collect records without the assistance of other CIA components.

9. After OIG reviews records, whether on-site or in OIG offices, it determines what records are relevant to its review and what copies of records to retain in OIG offices. OIG does not use “markers” in its case files to designate records maintained in operational files. When OIG chooses to retain a record, it retains that record, or in most cases a copy of the record, in OIG files. If OIG has a reasonable basis to believe a federal crime may have been committed, the IG reports the information to the Attorney General. [my emphasis]

Notice all of this language speaks of general circumstances–it does not describe what happened in this particular case. It provides one motivation for seeking records with a particular entity. It provides two criteria (volume and sensitivity) OIG uses to determine how to use records. And it asserts that OIG decides whether or not to keep records–though, tellingly, it dosen’t describe the criteria by which it decides whether to keep its own records. And finally, it states that OIG will report information to the AG if it believes a federal crime has been committed.

But none of these details address the specifics of this case! Thus, we don’t know whether OIG informed the AG that the practices depicted in the videos that a federal crime had been committed in this case. That’s critically important, because we know the conclusion of the IG report was that, in fact, the CIA may well have been violating international treaties.

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 Against Torture].

[snip]

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.

By making this general statement, the OIG declaration seems to suggest that if the "special review" had found legal violations, it would have reported them to the AG. But it doesn’t admit that the central finding of the report is that the treatment may have been illegal (whether or not it violated "federal" law), nor does it explain what happened with that assertion in this particular case. Given that the CIA and the White House had high level meetings in the same month the report was completed, that seems like pretty important information!

Specific Description that Leaves Key Details Vague

Only after these general assertions does the OIG declaration describe its actual review of the tapes.

In January 2003, OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing.

[snip]

During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS to review the videotapes at the overseas location where they were stored.

OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified DOJ and other relevant oversight authorities of the review’s findings. At no time prior to the destruction of the tapes in 2005 did OIG initiate a separate investigation into the interrogations depicted on the videotapes.

Because OIG did not take custody or make copies of the videotapes, they were not among the materials that OIG provided to the CIA components responsible for processing Plaintiff’s Freedom of Information Act (FOIA) request–the Information Management Staff (IMS), the Office of General Counsel (OGC), and the NCS Information Review Officer.

Note the angst of this passage. First, it assures you that the "special review" was not, itself, a response to allegations of wrong-doing. This is surely an effort to insist on that distinction between "special review" and "investigation" on which CIA’s claims it didn’t need to turn over this tape rely.

Notice, too, the declaration’s reversion into a passive construction–"OIG was notified of the existence of videotapes of the interrogations of detainees." Want to bet some money that that use of the passive deliberately hides the back-story to how and why OIG learned of the tapes? Particularly in light of the earlier "OIG often sends a notice to those CIA components that OIG deems likely to have relevant information," this construction appears to be an attempt to avoid explaining how OIG learned they should contact Clandestine Services to arrange to see those tapes stored in some other country.

And then, after having made some effort to explain the criteria OIG uses to decide whether to get a copy of evidence for their own records in the more general section, the specific description of what happened in this case says only, "OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files." Once again, the declaration avoids one of the key questions: why didn’t they get a copy of the videotapes for their own records? Did they do so to avoid having custody of the tapes, and therefore exposing them to FOIA? Did DO refuse to give them a copy of the tapes? We don’t know … and I’d wager that’s no accident.

Finally, here’s the real doozy: "OIG notified DOJ and other relevant oversight authorities of the review’s findings." If OIG "notified DOJ," is that the same as reporting the information to the AG, as OIG would do if it had found a criminal violation of the law? If not, whom at DOJ did OIG inform? OLC? "Jack Goldsmith, you had better sit down and rewrite Yoo’s trash opinion, because it’s going to get some CIA officers arrested." It’s relevant that Goldsmith was still in charge of OLC and was in the process of ditching precisely the opinion that legalized this torture.

And what about this description? "OIG notified … other relevant oversight authorities of the review’s findings." Would those "other relevant oversight authorities" include David Addington, (thenWhite House Counsel) Alberto Gonzales, and John Bellinger, in a briefing at the White House at which they discussed destroying the torture tapes? Because if you told the President’s lawyer that the treatment of detainees violated international bans on torture, it sure seems that that treatment rises to the level of specific complaint which would then qualify it as an OIG file.

Who Writes the Declaration

As if all this vagueness wasn’t enough to make you take notice, consider the author of the declaration: Constance Rea.

I am the Deputy Assistant Inspector General for Investigations of the Office of Inspector General (OIG) of the Central Intelligence Agency (CIA). As Deputy Assistant Inspector General for Investigations, I supervise the Investigations Staff. I have served as Deputy Assistant Inspector General for Investigations since March 2004.

A couple of details. First, Rea didn’t start at this position until March 2004, when the report relying on the torture tapes was probably largely written (it was released in May). Add that to her description of who conducted this report,

The special review was led by the Deputy Inspector General and the team comprised personnel from across OIG, including the Assistant Inspector General for Investigations, the Counsel to the Inspector General, a senior Investigations Staff manager, three Investigators, two Inspectors, an Auditor, a Research Assistant, and a Secretary.

Unless Rea was one of those three Investigators she describes as having been involved in this review, she was not involved in the "special review," and she got involved after the decisions regarding whether to obtain a copy of the tapes were already made.

Even more interesting, Rea was not among those who decided how to respond to the ACLU FOIA, whom she describes as,

the Information Management Staff (IMS), the Office of General Counsel (OGC), and the NCS Information Review Officer

So she may not have been involved in the actual review, and she apparently wasn’t involved in the FOIA response. Interesting that the CIA had someone write the review who could be very vague about the key issues.

The Torture Tapes, CIA, and Congress

But this entire declaration appears particularly disingenuous given the chronology of the CIA’s briefings to Congress on the torture tapes. Here’s a mini-timeline:

Fall 2002: Gang of Four briefed on the existence of the terror tapes–but no mention of destroying the tapes is made

January 2003: CIA’s OIG begins "special review" of detainee interrogations

"During the course of the ‘special review’": OIG learns of the torture tapes

February 5, 2003: Scott Muller briefs Jane Harman and Porter Goss on torture tapes, and tells them the

videotape of Abu Zubaydah following his capture … will be destroyed after the Inspector General finishes his inquiry

May 2003: OIG reviewed the torture tapes

First of all, the notion that OIG learned of the torture tapes "during the course of the review" is ridiculous. CIA’s Counsel was briefing Congress on the torture tapes in relation to the OIG investigation within a month of the beginning of the inquiry; OIG learned of those tapes right at the beginning of its inquiry, and those tapes may well have been involved in its decision to conduct such a "special review."

Furthermore, Scott Muller presented those tapes as fundamentally connected to the OIG investigation even before OIG had seen the tapes.

The CIA is desperately trying to claim that those tapes were only incidental to the OIG inquiry. But in February 2003, Scott Muller was telling Congress a different story.

And do you find it even a little suspicious that in Fall, 2002, the CIA apparently had no intention of destroying the terror tapes, but one month into an IG investigation into detainee interrogation, they had decided the tapes would be destroyed?

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111 replies
  1. klynn says:

    Hello EW!

    Excellent work. If they were only an incidental OIG inquiry, why? They really do not make that argument here.

    8. Depending on the nature of the audit, inspection, investigation, or special review, OIG often sends a notice to those CIA components that OIG deems likely to have relevant information. Such notices describe the subject of the review and the categories of information sought and provide instructions to make potentially relevant records available to OIG to review. The instructions regarding records vary from case to case, depending on the nature and scope of the review. Depending on the volume and sensitivity of the records and the nature of the OIG inquiry, OIG may instruct the components to produce all records to OIG, produce certain categories of records to OIG, maintain certain categories of records on-site for OIG inspection, maintain all records on-site for OIG inspection, await further instructions, or some combination of the above. In addition, OIG may independently collect records without the assistance of other CIA components.

    9. After OIG reviews records, whether on-site or in OIG offices, it determines what records are relevant to its review and what copies of records to retain in OIG offices. OIG does not use “markers” in its case files to designate records maintained in operational files. When OIG chooses to retain a record, it retains that record, or in most cases a copy of the record, in OIG files. If OIG has a reasonable basis to believe a federal crime may have been committed, the IG reports the information to the Attorney General.

    There should be some type of report reference which should explain WHY the tapes are not relevant? So when they review and believe a crime has NOT been commited, no filing is kept to explain WHY it is NOT relevant?

    BULL. Simply bull.

    • emptywheel says:

      They claim elsewhere that they don’t note the materials they use that they don’t keep–there would be no flag in the report for the FOIA officers.

      That’s what they claim, anyway.

  2. klynn says:

    EW,

    When they use the word relevant, it means that there HAS to be a flag in the report for the FOIA officers. Or a system to flag elsewhere and that “flag” was not specifically asked for in the ACLU’s motion. Thus, they will claim they do not need to address it or let us know there is a system of addressing. SO what, we are to beleive, inquiry is made, tapes are viewed as relevant. It is decided they are not relevant and no paper trail is created to explain their lack of being relevant? This is a bureaucracy we are talking about. NO possible way. And if so, how incredibly irresponsible.

    They used the word relevant. The door is open now.

    Please understand my next comment is not in reference to you . BULL.

    If I were the judge, I’d say, “Hey folks (CIA OIG) try again.”

  3. klynn says:

    Jeepers let me try again,

    When they use the word relevant, it means that there HAS to be a flag in the report for the FOIA officers. Or a system to flag elsewhere and that “flag” was not specifically asked for in the ACLU’s motion. Thus, they will claim they do not need to address it or let us know there is a system of addressing. SO what, we are to beleive, inquiry is made, tapes are viewed because they may be relevant. It is decided they are not relevant and no paper trail is created to explain their lack of being relevant? This is a bureaucracy we are talking about. NO possible way. And if so, how incredibly irresponsible.

    They used the word relevant. The door is open now.

  4. klynn says:

    Couldn’t the judge ask to speak with those who viewed the tapes to explain “how” they determined the tapes were not relevant (irrelevant)?

    I am stuck on the word relevant.

    English

    [edit] Etymology

    16th Century, from Medieval Latin relevans, from Latin relevāre, from re + lentāre to raise, relieve.

    [edit] Adjective

    relevant (comparative more relevant, superlative most relevant)

    Positive
    relevant

    Comparative
    more relevant

    Superlative
    most relevant

    1. Directly related, connected, or pertinent to a topic.

    His mother provided some relevant background information concerning his medical condition.

    [edit] Synonyms

    * applicable
    * significant

    [edit] Antonyms

    * irrelevant

  5. Neil says:

    OT – EW, What are you thoughts on a MI Democrat’s options to vote on Jan 15 if their candidate is not on the ballot or for that matter, even if she is?

  6. SaltinWound says:

    I’m parsing wildly–because experience has taught me that’s what these people do–but is it possible the activities Helgerson describes are not “federal” crimes because they are international crimes?

    • bobschacht says:

      “I’m parsing wildly–because experience has taught me that’s what these people do–but is it possible the activities Helgerson describes are not “federal” crimes because they are international crimes?”

      Or because they were contractors?

      Bob in HI

      • MadDog says:

        In response to SaltinWound and EW’s point vis a vis Federal Offenses, this may help you:

        On December 23, 1987, the CIA’s HR 7-1 was revised to incorporate the changes that had been established six years earlier by E.O. 12333. With regard to crimes reporting, Section d of the revised HR stated:

        . . . .
        (5) All employees shall report to the General Counsel via their components facts or circumstances that appear to indicate the commission of a criminal offense . . . . Pursuant to Section 1.7(a) of E.O. 12333, CIA is obligated to report, through its General Counsel, to the Attorney General possible violations of Federal criminal laws by employees and of specific Federal criminal laws by any other person as provided in the crimes reporting procedures in Annex D.

        • bmaz says:

          There you go! Ladies and gentlemen, we have a winner! Give me a Westlaw account, a law clerk and a couple of days and I can find a hundred different legal grounds for the same principle. These jackasses ought to be impeached for even attempting this perfidy. This is simply and sublimely insane….

  7. bonjonno says:

    The IG report seems like an intentional cover up piece. Reminds me of Addington’s work for some reason.

  8. pdaly says:

    I cannot get my head around the fact that CIA’s OIG was assessing the interrogation program in general but was not on its own finding evidence of illegal torture. What were they reviewing on their own, before they were informed about the existence of the torture tapes?

    I recall that FBI agents were concerned DoD interrogators at Gitmo were impersonating FBI Supervisory Special Agents in 12/2003 at the latest.
    Was there a overlap of CIA and DoD interrogation techniques? Were CIA agents impersonating FBI agents too in ‘03 prompting a review at the behest of the FBI?

    Could OIG’s phrase reporting their findings to the DoJ be a vague way of saying it responded to concerns brought up by the FBI?

  9. mamayaga says:

    Having been on the receiving end of several federal FOIAs, I can tell you that the existence of a flagging or file identification system for FOIA officers is beside the point. The office that has responsibility for maintaining the records in question is required to look at any scrap of paper that might be relevant to the request, whether or not there is a flagging system in place to make it easy for FOIA.

    Step back and ask how such a “flagging for FOIA” system might work — how could you possibly anticipate which topics would be the subject of a FOIA request? Filing systems are maintained for facilitating operations. In the case of the OIG, files are certainly organized by investigation. The FOIA request would require that the entire investigative file be scrutinized, document by document, for responsive materials. These documents should at least include a list of materials reviewed for the investigation, and almost certainly descriptive notes related to those materials.

    • klynn says:

      EW’s point about criteria would overlap your point above. In this case, do you have any perspective about criteria related issues?

      And it asserts that OIG decides whether or not to keep records–though, tellingly, it dosen’t describe the criteria by which it decides whether to keep its own records. And finally, it states that OIG will report information to the AG if it believes a federal crime has been committed

      .

      • mamayaga says:

        klynn –
        Re record retention: As I understand it, in the federal government, you can’t dispose of most records unless you have a records retention schedule approved by the National Archives that specifies which records will be destroyed and when. That doesn’t address what records an investigative entity like the OIG would typically acquire, however. That might be addressed by internal standard operating procedures, but I don’t know that it’s required to have such a thing. Lotsa luck getting your hands on it as well, especially for the CIA OIG (though FOIA might work if this administration respected FOIA at all).

  10. Mary says:

    Makes you wonder if Plame was all, or even the real topic, of conversation between Bush and Sharp – wasn’t that consult before the tapes were destroyed?

    I also go back to the Padilla press conf – how could it possibly be that DOJ did all that *unprecedented* review of all kinds of classified info so Comey could stand up and give that long description of how super duper corroborated all their info from Zubaydah was – – – – without anyone at DOJ knowing about torture tapes? Not possible imo.

    And all kinds of lawyers in the Administration involved in the toture solicitation, implementation and cover up – – whether they were at CIA or DOJ or WH or OVP or elsewhere — when they all had actual knowledge of the ongoing torture they had worked to solicit, even while Clement was making his statements to the court in Hamdan and Padilla – – that silence in the face of known, absolute misrepresentations to the court, well, I guess that’s just what “government service” means these days. It’s a proving grounds to show how well you’ll do covering up and destroying evidence of corporate malfeasance when you leave gov.

    It’s a particularly nice touch to tell the judge that he can’t decide whether or not to hold lawyers in contempt of his orders until the DOJ furthers its own little criminal cover up proceedings. Then they’ll tell him who isn’t in contempt of his orders. As a matter of fact, he can just go home and have a nice hot toddy – his services interpreting the law aren’t really needed. DOJ can do that for “its own” without his help.

    Saltin – I think they mean no “federal crime” because the if the president authorizes it, it’s not a crime. And, of course, if “we” at DOJ don’t want to prosecute “our” criminals, its the same as it not being a crime.

    The sad and repellant parts of the story aren’t what the loyal Bushies at DOJ were willing to do – it’s what everyone else at DOJ was willing to not do.

    • bmaz says:

      How come nobody ever discusses that the freaking tapes were (are?) not just material evidence, but potentially exculpatory evidence, in the cases against the detainees depicted in the tapes themselves? End of story; they can’t be destroyed. Period. The rest is window dressing….

      • mamayaga says:

        …potentially exculpatory evidence, in the cases against the detainees depicted in the tapes

        Cases? What cases? Judging from the many Rubicons that were crossed, early and often, it’s clear that from the beginning there was never any intent to provide “high value detainees” any trials that we would recognize as meaningful judicial proceedings. The intention was to disappear them forever.

        • klynn says:

          I would have to agree. I pulled up this article from 2001 NYT’s. Just posted it at FDL on what could be a related issue down the line. Some of the comments (why we did not send detenees to Guam) would support you…

          http://query.nytimes.com/gst/f…../Terrorism

        • bmaz says:

          Easy. Whatever the ginned up “process” they claim to be holding them under, “combat status review”, whatever it is they claim as their legal basis for not walking these guys out to the street and giving them a bus token, that constitutes the “case” against them.

          • mamayaga says:

            Sure, but that kind of “case” doesn’t require any “evidence,” especially of the exculpatory kind.

            • bmaz says:

              Oh, OK; silly me…. Um, how about the thought that the tapes showed the clear commission of crimes by officers and agents of the United States Government, and this fact was known by the most senior law enforcement officers and attorneys (including the Attorney General) in the country and there was knowledge and/or reason to know that said crimes were ordered by Constitutional officers of the executive branch?

              • mamayaga says:

                …the tapes showed the clear commission of crimes by officers and agents of the United States Government…

                See, that is SO pre-Post-Law Era… you know, the 20th Century is, like, over. In our brave new world, if the president does it, that means it’s not illegal.

                What I was trying to say is that the treatment of these detainees and destruction of the tapes show that there was never any slippery slope that Bushco reluctantly slid down. It was not a matter of ratcheting up the intensity of interrogations out of frustration in a desperate attempt to prevent more terror attacks. Like the wholesale spying undertaken prior to 9/11, the use of torture was fully embraced from the beginning as a matter of Bushco policy, not expedience. They taped the torture sessions without any thought that there might be legal implications for themselves or the persons who directly carried out the torture. Legal liability was an unpleasant afterthought, raised by someone unknown, and expeditiously taken care of through destruction of the evidence as soon as it was seen to be a potential problem. Everything we have seen since Abu Ghraib has been improvised backing and filling. And as Mary points out, the expectation that they would never really be called to account has so far panned out just as expected.

                • bmaz says:

                  I understand your point, but there really has been a slippery slope going for some time now if you look at the bigger picture of due process law, so as to include criminal law and procedure. The effort in chief by the authoritarian/neocon crowd began with the formation of the Federalist Society for the express purpose for engendering these trends in American law and jurisprudence. You are merely witnessing the endgame of that process now.

                  • CTuttle says:

                    They’ve certainly undermined the Justice’s pillars, stacking the courts and DoJ with their minions, it’s gonna take decades to remove the rot, if ever…

  11. JohnLopresti says:

    There is a conference at which Brinkema will address the experience of overseeing trials of habeasless detainees in the context of suggestions to expand what likely would become a nearly entirely in camera forum paralleling fisa next month.
    In the foia matter, the timeline seems to show how diaphanously disingenuous the pleading’s argumentation is. I still sense the bench is as tentative as the G4, G8, have been in an ambience of concern. It seems appropriate to fit the timeline as well to the shifting ostensible degrees of permitted tortcha, as the post begins to do. Something in the Garcia MemoOfLawInOpposition makes me think a swath of germane DoD communications with TheCompany is missing, though in the archived version all the exhibits are missing, as is common for pleadings in the court websites, though, given the Efiling method of transmittal of Garcia’s MemoOfLaw, maybe those support documents are available in some ecf link. If I located the MHayden December missive which is one exhibit, probably it would be something NYT had paraphrased already; still, the legalAssistant instinct has a yen to see the whole packet filed including those ’side’ files.

  12. TheraP says:

    1. Does any of this nonsense (i.e., the administration’s assertions) point to how/why emails might be “explained” as missing? That the millions of missing emails might be “filed” as “x’s” when the interested parties seem to be seeking “y’s.” Not that I trust a word they’re saying, mind you.

    2. This whole “explanation” reads like some kind of “jeopardy-type” board game, where you have teams of players, who are presented with an outcome and some facts. And their job is to find a set of reasons why the facts can be rearranged or parsed or “processed” by some set of rules in order to arrive at the already determined outcome. Reminds me of how the intelligence was “found” to fit the plans for war, etc. So, if you think of a mathematical equation, these teams have to figure out how to do an equation, involving a series of operations, in such a way that you end up with something resembling the “answer” that must be arrived at. Or you could call it “liar’s jeopardy” where you have the answer and then all you need is the trail of lies that leads to the answer.

    I know I haven’t said anything novel here. But truly, this whole thing reads like some tv game of jeopardy gone mad! And all that matters is to convince the audience that your equation or set of rules would be sufficient to arrive at the answer.

    It just makes your stomach turn – it’s nothing but slight of hand, like some series of magic tricks. And voila…. a rabbit out of hat!

    I commend your analysis, EW.

  13. bmaz says:

    Reader’s Digest Version:

    The IG Helgerson was concerned about liability of Agency employees because, you know, the the tapes showed them fucking torturing these people, acts that constitute incontrovertible crimes and war crimes. Because the IG was worried about said employees, we felt it necessary to destroy the tapes because again, you know, they showed these crimes and war crimes that not only directly inculpate the agency folks, but also the entire executive branch of our government. So, for the good of the country, we destroyed this material evidence. Move along now.

    • Rayne says:

      Still reading Stephen Grey’s “Ghost Plane”; in regards to the rendition of two persons from Sweden, Grey writes about a witness’ testimony:

      “I think there were four or five people who were around every suspect, so it was at least twelve or fifteen persons in my little staion. The first guy was coming in, they asked, ‘What room can I use?’ So I just showed them inside there [an inner room] and pointed with my fingers.” Forell described the agents as weraring black masks, with small holes that showed their eyes.

      There are repeated references to operatives wearing black masks or balaclavas.

      When did they take them off? Why all the worry about putting operatives/personal/contractors at risk if they’re wearing masks??

  14. phred says:

    EW, excellent analysis, two quick questions for you…

    1) If the judge finds the CIA in contempt, what sort of penalties may be imposed?

    2) Given that this explanation was written by someone who appears to not have any first-hand knowledge, can the judge require a more detailed explanation from one of the parties involved or must the judge make the decision based on this document alone?

    • bmaz says:

      …require a more detailed explanation from one of the parties involved…

      Wow! What a novel concept! Actually have the people who know make the declarations of what happened! Instead of taking the unsupported allegations of members of the DOJ and CIA that weren’t involved and have both a HUGE self interest because their butts are on the line too AND have an unblemished record of giving misleading misrepresentations to every court they have been in front of on detainee issues. What a concept!

      • phred says:

        You know me bmaz, unorthodox solutions are my calling card ; )

        Honestly though, can’t the judge require such a thing? I mean if I was personally charged with something, I don’t think the judge would let me have a friend who wasn’t a direct witness write up an explanation for me, would they?

  15. emptywheel says:

    Here’s another passage where the CIA pretends that the IG report wasn’t investigating any violation of law:

    The statute further “provides an exception to that exemption where an ‘impropriety, or violation of law, Executive Order, or Presidential directive, in the conduct of an intelligence activity’ is being investigated by the congressional intelligence committees, various agencies of government, or the ‘Office of Inspector General of the Central Intelligence Agency.’” Id. (quoting 50 U.S.C. § 431(c)(3)). The videotapes did not fall within “an exception to [the] exemption,” ACLU, 351 F. Supp. 2d at 267, and thus were not responsive to Plaintiffs’ FOIA request.

    Note they don’t make the logical step this assertion requires: after describing the exception, they need to assert “This investigation did not investigate any impropriety or violation of law.”

    But they don’t. And there’s a reason for that–because OIG was investigating a violation of law.

  16. emptywheel says:

    They’re also parsing wildly on the distinction between an investigation launched as a result of an allegation of an impropriety and an investigation that investigates an impropriety. I suspect they see they’re going to have to admit that the report FOUND improprieties (at least), whether or not that was the reason for the investigation (though I woudl like to see the reason for it…)

    • LabDancer says:

      LD – I think your non-dichotomy dichotomy is close – – but have you overlooked a critical precedent?

      From the Mad Tea Party, Lewis Carroll’s “Alice in Wonderland”.

      “You should learn not to make personal remarks,” Alice said with some severity: “It’s very rude.”
      The Hatter opened his eyes very wide on hearing this; but all he SAID was “Why is a raven like a writing-desk?”
      “Come, we shall have some fun now! “thought Alice. “I’m glad they’ve begun asking riddles –
      I believe I can guess that,” she added aloud.
      “Do you mean that you think you can find out the answer to it,” said the March Hare.
      “Exactly so,” said Alice.
      “Then you should say what you mean,” the March Hare went on.
      “I do,” Alice hastily replied; “at least – at least I mean what I say – that’s the same thing, you know.”
      “Not the same thing a bit!” said the Hatter. “Why, you might just well say that ‘I see what I eat’ is the same thing as a ‘I eat what I see’!”
      “You might just as well say,” added the March Hare, “that ‘I like what I get’ is the same thing as ‘I get what I like’!”
      “You might just as well say,” added the Dormouse, which seemed to be talking in its sleep, “that ‘I breathe when I sleep’ is the same thing as ‘I sleep when I breathe’!”

      This is no less mundane than tea but I think it’s important to bear in mind the modern concept of bureaucracy reflects its significant development in France, where, as we know, “bureau” is lingua franca for “office. Under the French conception, every ball of string which a government has or might aquire is sorted into piles & each pile delegated to a “bureau”, to which all who wish to move anything off that particular pile must attend given that office has been delegated the responsibility for starting those particular balls rolling – with each such action that office is entitled to undertake having being written down in advance so the bureau & all who may sail to it know [“codified”, as in the Napoleonic Code] – & that office is expected to maintain records of whatever was done “by” it – which actions are organized into files, with folders separating the records of acts taken under one power in the code from those pertaining to other codes – & with a label on every folder – on which appear words or numbers or both which track back to the codes.

      Absent pointing fingers at individual CIA OIG staff for having colored outside the lines

      [which in these circumstances where those involved were led from the top of the pecking order and “comprised of personnel [drawn so broadly] from across the [entire]” office & given as well the passage of time – going on pretty close to five years now – without the whiff of an accusatory finger having been pulled out – & given the raison d’etre of this particular government office is to conduct “audits” & “inspections” & “investigations” – IMO what this shows is that the Bushistas decided it was not possible for the CIA to assert that whatever the hell “those involved” were doing did not fall within the authority of the CIA OIG simply because that would raise issues which bureaucratically-organized governments are categorically unequipped to parse.

      Coming as I do – as do all ex-prosecutors – from government bureaucracy – I muse it more likely that the precise parsing is between:

      – a look-see prompted by expressions of mild perplexity &
      – an investigation initiated by allegations or complaints.

      Which would make the field trip “overseas” in May 2003 to …wherever … was to take “a little look see” simply to “make sure we have a handle of the cause of this sudden outbreak of mild perplexity”.

      Which in turn would suggest that the little lookee-poo didn’t concern the depravity of the scenes depicted on the tapes – but on “our boys” just to “see how their fitting in” as they proceeded through summer camp learning to do some things which may – or may not – have some bearing on the rendering of those scenes.

      To put it in summer stock theatre terms, the look see wasn’t so much by the equivalent of the financial backers in an effort to protect their investment & decide how much deeper they’re prepared to dig to make sure that Yes Yes Nashiri is a Beltway hit, as to see whether this is really something we ought to be encouraging our young charges to pursue.

      Accordingly the focus would be on forming a view as to the propriety of which – if any – of those bits it might be appropriate to nurture CIAs – & which – if any – might better be left to others more likely to show the particular aptitude & enthusiasm which those bits seem to require – & otherwise storing the experiences on the road trip in the old brain pans should it come to pass that the OIG might, at some future time, be called upon to exercise its authority.

      Thus it may be readily appreciated that in the course of viewing depictions of persons doing the things the propriety of which the OIG was so interested in that it travelled a great distance, that the OIG personnel “involved” paid particular if not utterly exclusive attention to what the persons doing the things were actually doing & for how long & with what degree of assiduousness & expertise & skill & dedication,

      Whereas the actions or reactions of others depicted in those scenes, were filling roles & doing things which the OIG lawyers could feel safe in assuming to a high degree of confidence were greatly unlikely to be filled & done by CIA persons, so that – taxonomically speaking – it did not lie comfortably within the authority vested in the OIG which they represented for them to dwell on.

      Again – whereas whatever may have been seen to be done by CIA persons, or by persons filling the roles under contemplation for being filled by CIA persons, would definitely fall within the scope of the “look see” which brought the OIG to see the scenes, whatever persons assuming other roles which were not under contemplation for being filled by CIA persons to fill might choose to do – whether it be exchanging pleasantries whilst passing the teapot, engaging their companions in witty repartee, struggling, writhing, gagging, choking, whimpering, moaning, pleading, crying, howling, screaming – whatever – would be, taxonically speaking – “incidental” to the exercise of the authority of the OIG on which the “look see” was predicted.
      Such a rationalization might also explain the casting of the “look see” as a “special review” in the court setting, a “special review” being a category of OIG activity which is, or at least is argued or parsed as:

      [1] despite the impression that might be left from “the Assistant Inspector General for Investigations, … a senior Investigations Staff manager [and] three Investigators” being among the OIG staff involved, indeed fully 5 among the 12, NOT an “investigation”;

      [2] despite the impression that might be left from “an Auditor” being among the OIG staff involved, NOT an “audit”, and

      [3] despite the impression that might be left from the OIG staff involved being “led by the Deputy Inspector General, NOT an “inspection”,

      but bearing in mind the critical inclusion of “a Research Assistant”, and the natural bureaucratic aversion to being needlessly subjected to parody, it occurs to me that it would be very unlikely that athe CIA or its OIG would any more comfortable that it be formally designated “research” & all that word connotes to a demographic that sees stem cell research as torture & murder, than if it were formally designed a “gander” or “look-see” or “little lookee-poo”.

      And so, after already have determined it more appropriate, not to mention convenient, to un-audit it of its auditor, to un-inspection it of its inspector, & to un-investigation it of its investigators, to then remove the option of filing it under either of its most accurate informal label, in a good faith effort to have the label reflect that this was clearly quite out of the ordinary & they really didn’t have the appetites for looking under more of the slimy rocks under which this was occurring, and yet at the same time avoid any unnecessary risks of misunderstanding which enure from using a term such as “extraordinary smell test”, the label “Special Review” is entirely understandable.

      • BayStateLibrul says:

        I think that sums it up.
        The Intell Committee is meeting Wednesday. (closed doors)
        Should Immunity be granted.
        My first reaction is yes… I just want the fucking truth
        on exactly what happened…
        I want us to look into the darkest corners of this administration,
        and unmask the gang of murderous thieves who have hijacked justice.

        • Hugh says:

          I think that sums it up.
          The Intell Committee is meeting Wednesday. (closed doors)
          Should Immunity be granted.
          My first reaction is yes… I just want the fucking truth

          on exactly what happened…
          I want us to look into the darkest corners of this administration,
          and unmask the gang of murderous thieves who have hijacked justice.

          Believe me whether immunity is granted or not you are not going to get the truth. What you will get is just enough to cloud the issues and for Rodriguez to skip on the potential charges against him.

  17. emptywheel says:

    Oh, this is nice–as precedent for their claim that this was not an investigation, they’re citing the exemption of “activities relating to Cuba” from inquiry by the Church Committee.

    What they were hiding then, of course, were plans to assassinate Castro. No impropriety there…

  18. JodiDog says:

    Let me remind you once again.

    The tapes as everything the CIA does is secret until the appropriate authority declassifies the tapes or the existence of the tapes.

    Further, there is no standing requirement that the CIA keep records of it’s secret operations. I repeat

    NO STANDING REQUIREMENT THAT THE CIA KEEP RECORDS.

    • emptywheel says:

      BC Bush had approved this–defining all the laws specifically addressing torture (except the war crimes act) in terms that made this no longer torture. THe international laws did specify it as torture, and it was specifically the Convention against Torture that Helgerson concluded the CIA had violated.

      • bmaz says:

        Well, yeah, not to mention that whole thing about Presidential EOs (not to mention an OLC opinion which arguably having no legal effect whatsoever as law) cannot supersede established statutory law and precedence. If I argued blatant crap this idiotic in court on any kind of normal case, my client’s case would be heaved out and I would literally be sanctioned for making specious, bad faith arguments and pleading.

      • MadDog says:

        And in case anyone needed reminding, guess who was assistant general counsel for the Central Intelligence Agency when “the Memorandum Of Understanding between CIA and DoJ on reporting Federal Crimes” was put in place.

        Wait for it…David Addington.

        And another wee bit of conspiratorial pixie dust to throw in the mix:

        As of March 2, 1982, the terms of the 1982 CIA-DoJ Crimes Reporting MOU under E.O. 12333 no longer required that CIA report to DoJ narcotics trafficking allegations regarding individuals, assets, or independent contractors associated with the Contras because assets and independent contractors were not considered employees for crimes reporting purposes.

        If contractors were used for the Torture Interrogation sessions, then the CIA is not bound to report to the DOJ even Federal violations of the laws.

        • JohnLopresti says:

          Interesting to see Gerry Ford and R.Thornburgh involved in the oversight question, especially given RT’s continuing blue ribbon committee work in the current administration, as elaborated in a secondary link contained in the dust ZoomInfo article. I think this is what Ashcroft waived as soon as Patriot passed and Yoo set up the monarchy construct. Since the Iran Contra oversight agency designee was DoJ, it becomes clearer why Whitehouse was so strident in the graphic chart presentation concerning the opening of DoJ’s doors to political liaisoning by hundreds of contact points instead of letting there be a benign bottleneck to preserve some measure of separation.

          • MadDog says:

            In response to JohnLopresti and bmaz at 55, it is very interesting how the past prefaces the present (but hopefully not the future anymore).

            Immediately after Watergate, Deadeye Cheney was Ford’s Chief of Staff when the E.O. 11905 was signed requiring the CIA to report Federal crimes to the DOJ.

            Then Deadeye’s good bud (and his current Chief of Staff) David Addington was assistant general counsel for the Central Intelligence Agency when the exceptional “Memorandum Of Understanding between CIA and DoJ on reporting Federal Crimes” was agreed to.

            This MOU allowed the CIA an out for independent contractors dealing drugs as part of the Contra funding. As well as it seems any other Federal crime as long as the folks doing such crimes were independent contractors

            Then both Deadeye and his BFF David Addington were the primary objectors via the Minority Report on the Congressional investigations into Iran/Contra.

            So along comes the GWOT, and lo and behold, who’s driving the bus wrt to the “gloves came off” detainee treatment? Same folks, different era. Deadeye and his BFF David Addington.

            I’m guessing that both Deadeye and Addington were instrumental in:

            1. Insisting that detainees be held overseas outside the reach of US Courts,
            2. That boot-licking toadie Yoo write OLC memos that torture ain’t torture,
            3. That said torture, including that lovely experience called water-boarding, be conducted by independent contractors (Addington would have reminded Deadeye of this out),
            4. That videos of said torture would be “neato” and help Deadeye’s sex life (such as it is with a pacemaker that shocks him and his partner both),
            5. And oh btw, destroy the tapes ’cause Abu Ghraib means they’ve been found out, and sure as shit, somebody somewhere is gonna find the CIA torture tapes too.

            Three decades of malevolent criminal conspiring have borne all that rotten fruit, and probably much, much more we can’t even begin to imagine.

  19. [email protected] says:

    If you will recall, the president has repeatedly claimed we do not torture. How can he do that when waterboarding is specifically a torture under international treaty. You will recall Senator Whitehouse telling us how that happens.

    “In a nutshell, these three Bush administration legal propositions boil down to this:

    1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”
    2. “I get to determine what my own powers are.”
    3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”

    By simple secret declaration he has declared waterboarding not a torture. Any one want to lay some money against that proposition? Needless to say, such entities as the CIA OIG will take full notice of such a secret declaration. How else do you explain the weird statements being made to the court?

  20. emptywheel says:

    Man, I hope the ACLU makes mincemeat of this motion. Watch this illogic:

    But regardless of the source, the House Report makes plain that the exception is implicated only where there is [note, the House Report uses none of the “trigger” language the CIA uses–and therefore doesn’t require the allegation be the cause of the investigation] an investigation into “allegations of impropriety or illegality in the conduct of an intelligence operation.” H.R. Rep. 98-726, at 28-29.
    In this case, CIA OIG’s special review of the detention and interrogation program “was not initiated [and here the CIA inserts the word “initiated” that was not in the House report] in response to an allegation of wrongdoing.” Rea Decl. ¶ 11. Nor did CIA OIG’s
    review of the videotapes lead to a separate investigation [that’s because the conclusion of the report was that the torture was probably just that] into the interrogations depicted on the videotapes prior to their destruction. Id. ¶ 13.7 The CIA OIG special review was thus not an
    investigation into “allegations of impropriety or illegality” contemplated by the legislative history to the statute.

    Perfectly logical, if you insert that word “triggered” or “initiated” to avoid admitting that the conclusion of the damn investigation in question was that a law had been broken!!!

    • phred says:

      Of course that begs the question of what did trigger the investigation — a slow day at OIG? Someone was bored to tears twiddling their thumbs at their desk, so they start pestering people with innocuous questions like “How’s that coffee Bob?” and Bob says, “I wouldn’t know, I tripped and spilled it all over that poor s.o.b. on the water board?”. Somehow, I don’t think so…

    • klynn says:

      Then WHAT was the “special review of the detention and interrogation program” of the tapes if none of the above?

      That would be my question to CIA OIG…”Special review” is their language…

  21. Mary says:

    22 – What be this thing called “exculpatory?” You know in one of the GITMO detainee proceedings, they had about a couple hundred pages of “classified” info. Cue the bass clef notes to sound.

    Of course, as it turns out the whole of that info, from various intel sources invovling more than one country – were all EXCULPATORY. Yep. Except there was this one memo,also classified, about how the detainee was obviously a terrorist because he prayed during the National Anthem.

    Gee, wonder why people who would have Article 49 violations and grave breaches of the Geneva Conventions by disappearing this guy into abuse at GITMO would want to have all that exculpatory information “classified” And if it all could have just been destroyed, how much nicer life would have been – well, not for the DOJ victim, but in general. *Great guys* like Jim Haynes, with Goldsmith’s redone DOD opinion in hand, could just coo away and soothe all the concerns over torturing and abusing guys with hundreds of pages of classified exculpatory evidence in their files.

    Well, most of it really doesn’t matter, does it? The one thing that is pretty much a done deal after 7 years with the likes of Ashcroft, Thompson, Gonzales, McNulty, Mukasey, Comey, Goldsmith, Bradbury, Yoo, etc is that this country really a nation of men – men who get nice little payoffs of puffery and respectablity while their victims stay in isolation cells and abuse. Law as a constraint on the Executive Branch is an absolute fiction and the men who helped make sure that abuse took place and was covered up will get payoffs for their silence and will have the ability to make sure they protect each other and “their” guys no matter what is done. And no one will ever do anything about it. Period.

    The most that will happen is someone will show up spouting that we can all “hope” for a future where better men are given the absolute, unchecked power to torture, maim and kill on whim. Hope for a future where, while there is no penalty for anyone involved in the misuse of the American system of justice to victimize the helpless at will, some people will just voluntarily act better.

    You know, old old common law dealt with the reverse of this concept that Yoo and the CIA counsel for their tapes have espoused. Back then, when a man commited a crime and then tried to benefit by removing himself outside the jurisdiction of the courts, there was a name for it. Outlaw. Once a writ of outlawry issued, that man couldn’t avail himself of any of the protections of the law, he had put himself outside the law by his own choice and if any other man chose to take revenge on the outlaw, they could, with impunity.

    Now we have this situation where the Bush torture conspirators decided to try to commit their crimes and keep the evidence of their crimes outside the jurisdiction of the US courts – outlawing their crimes and the evidence of those crimes, while staying themselves within the jurisdiction of the courts. ANd they could. Because they owned the prosecution function in this nation – DOJ was a wholly owned branch of the torture conspiracy. As bad as that was, the sadder part has been watching what even those conspirators were sure would never happen – that the torture wouldn’t move onto US shores, that the torture would prevent US prosecutions as US courts refused to ally themselves with torture — watching all that be wrong. Watching the whole systems so far collapse that even the brakes that men willing to conspire at evil thought would be hold, fail.

    I read opinion after opinion, and couldn’t be more depressed and disheartened by it all. So Bush is almost gone – so what? What has been done is done.

    • masaccio says:

      The biggest issue in the election is whether any of the Dems have the will to punish these outlaws, by prosecuting them or at least by naming and shaming. I’m not seeing that from Obama, with all the sweetness and light talk about moving forward. Maybe Edwards, or HRC.

      When Bill Clinton got elected, I thought he would prosecute the criminals from the 12 Reagan/Bush years, and I would have signed up for that duty, but no.

      If he had prosecuted, the miserable repubs would have been shoved off-balance, and wouldn’t have been ablt to hit out at Bill. But whether you do it for self-protection or on principle, it needs done.

  22. MadDog says:

    I especially like this part of Constance Rea’s declaration:

    Although OIG reviewed the videotapes that were destroyed in 2005 in connection with a special review of the CIA terrorist detention and interrogation program, OIG did not initiate an investigation of the activities depicted on the videotapes as a result of the special review.

    Shorter Constance Rea: “The OIG watched the torture tapes with their hands over their eyes. Trust me, they didn’t see anything.”

  23. chetnolian says:

    The internal wrangling and parsing of US law is fascinating. However…..as the US has not actually resiled from the Geneva Convention there ought to be a few people in the current administration who shouldn’t plan, ever, to visit any country in the European Union. Don’t care what John Yoo, or GWB, said, out in the big wide World we KNOW waterboarding is torture.

  24. bmaz says:

    There is an op-ed in today’s NYTimes by John Farmer, a former attorney general of New Jersey and senior counsel to the 9/11 commission, who teaches at Rutgers Law School. I actually find most of it fairly shallow, but it is worth reading in conjunction with the discussion in this thread. Here is the central premise:

    The broader trouble here is that the federal court decision rejecting Mr. Lakhani’s appeal is considered “precedential” — that is, the court sees it serving as a model. When terrorism cases are treated as ordinary criminal prosecutions, the principles of law that they come to embody will guide law-enforcement conduct and be cited by the government not just in terrorism cases but in other criminal contexts.

    Over time, we may well transform the law of conspiracy to the point where an agreement alone is a crime. This would render thoughts punishable, reward government overreaching and erode our civil liberties. All because the criminal law is being used not primarily to punish crimes but for purposes of detaining people we are worried about.

    I don’t question that people like Jose Padilla and Hemant Lakhani can pose an unacceptable risk to public safety. But their prosecutions should transform the debate over how to deal with domestic terrorism. They cry out for the creation of a form of preventive detention adapted to terrorism, and outside the criminal justice system.

    I can see both sides to Farmer’s argument for a “different system”, but irrespective of that, it sure strikes me that the biggest problem with the regular criminal system creating all this erosion and bad precedence is the abhorrent conduct of the Administration and their legal minions. How about the thought of just doing it right and not setting all this bad precedence Mr. Farmer? We have had 3,000 people killed within the continental US by foreign sourced terrorism in the last – what – 100 years? Just do it right and live with the consequences; same as with any other crime.

    • CTuttle says:

      They cry out for the creation of a form of preventive detention adapted to terrorism, and outside the criminal justice system.

      Hmmm… sounds a lot like preemptive strikes to me, let’s not throw the baby(Habeus), out with the bath water…

    • phred says:

      I think a premise here that is seriously debatable is the presumption that such extensive secrecy is necessary. I would bet quite a lot that terror prosecutions could proceed openly with little threat to national security concerns. But that’s a debate we can’t even begin, since any evidence we might be able to use to bolster such arguments is classified. Our democracy will be doomed if we fail to restore openness and real accountability. Sternly worded letters and Congressional hearings are not accountability.

      • CTuttle says:

        …is the presumption that such extensive secrecy is necessary.

        First and foremost, let’s examine Dead Eye’s insta-(de)classification ’system’…

    • bobschacht says:

      There is an op-ed in today’s NYTimes by John Farmer, a former attorney general of New Jersey and senior counsel to the 9/11 commission, who teaches at Rutgers Law School. . . . Here is the central premise:

      . . .

      I don’t question that people like Jose Padilla and Hemant Lakhani can pose an unacceptable risk to public safety. But their prosecutions should transform the debate over how to deal with domestic terrorism. They cry out for the creation of a form of preventive detention adapted to terrorism, and outside the criminal justice system.

      Have you seen the movie, Minority Report? It not only plays with the notion of preventive detention, but preventive criminal prosecution that goes far beyond criminal conspiracy.

      We’re moving towards an orwellian system where people are vulnerable to thought crimes.

      Bob in HI

      • phred says:

        Indeed. I heard a report on the BBC World Service last fall (never managed to find the link, sorry) that DHS was funding the development of software to use in US airports (by 2010 I think) that would use biometrics to discern “hostile intent”. That would be sufficient to detain someone. I can’t imagine what nitwit came up with this idea. Clearly they don’t fly enough to realize hostility is all in a day’s work with frequent fliers. At any rate, when I heard that story, the first thing that came to mind was “pre-crime”. Unbelievable. So how soon do we get to change the lyrics of “land of the free and home of the brave”. Seems inappropriate these days.

  25. Mary says:

    52 – [insert Gomer Pyle excited utterance]

    56 – we may not have resigned from the Conventions, but Don Rumsfeld and George Bush and a cartload of known CIA agents and John Bellinger and a bunch of ex-Admin lawyers – now VPs with multinational Corporations — they all seem to travel pretty unimpeded. And that UK/BAE investigation was killed fairly fast. I think its wishful thinking to hope that Europe would have more courage and commitment to handling our dirty laundry than we have ourselves.

    61 the biggest problem with the regular criminal system creating all this erosion and bad precedence is the abhorrent conduct of the Administration and their legal minions. How about the thought of just doing it right and not setting all this bad preceden[t] Mr. Farmer?

    A freaking Men.

    That’s one of the big parts of the degredation of this country and its courts by the Dept. of Justice that gets so overlooked. We now have precedent for using torture for arrest warrants. IIRC, the courts have ruled twice on that now – once in NY and once in FL. And the courts have said that they will just believe the FBI/DOJ when they say a disappeared source who is being held under OLC approved “harsh interrogation” wasn’t “tortured”

    And it’s not just all the steps taken to encourage participation in torture, it’s all the steps taken to insure the torturers that even those in DOJ who flinch a little at disappearing 6yos will still protect the torturers over their victims, no matter what. Well, that becomes precedent of its own kind, to where now there is some kind of “accepted wisdom” in the inane observations that an OLC opinion “immunizes” bestial behavior.

    Fitzgerald’s Salah case was pretty much a torture evidence case for that matter. And it has spawned precedent too. None of it good, and for what? For a mostly lost case – but a win for putting torture in the courtroom with court acquiesence. The “heroes” of the DOJ scenarios are all people who have been fine making the US a state sponsor of torture. Count on your fingers the number of men and women who have left DOJ after the torture revelations began to surface and who have said, “we need to try and convict criminals who disappear innocent (or guilty for that matter) men, who abuse and who torture and we need to try and convict those who gave the orders and formed the policies as well.”

    Let’s see. We can start with …

    There isn’t anyone. Think how many men and women, and there’s no one. Even the “heroes” of all the pieces have done nothing more on the torture front than provide avenues for cover up of DOJ involvements (as with the Arar case in particular) and engage in obtaining court approval and support of torture in the issuance of its process and opinions.

    Take Maher Arar’s children and find one picture of one person currently or formerly in the Bush DOJ and tell me how you would explain to them that the picture you are holding is of a moral man. Explain to them how a moral nation can have a Dept. of Justice devoid of even one moral man.

    It really breaks my heart, but I’ve finally accepted it.

    • readerOfTeaLeaves says:

      Easy to despair, but probably fruitless.

      This links to one of today’s NYT ‘most read’ articles (by Steven Pinker): The Moral Instinct.
      —————–
      http://www.nytimes.com/2008/01…..ei=5087%0A

      ...The first hallmark of moralization is that the rules it invokes are felt to be universal…The other hallmark is that people feel that those who commit immoral acts deserve to be punished. Not only is it allowable to inflict pain on a person who has broken a moral rule; it is wrong not to, to “let them get away with it.”
      …..The moral sense, then, may be rooted in the design of the normal human brain.
      People everywhere, at least in some circumstances and with certain other folks in mind, think it’s bad to harm others and good to help them…

      ….The ranking and placement of moral spheres also divides the cultures of liberals and conservatives in the United States. Many bones of contention, like homosexuality, atheism and one-parent families from the right, or racial imbalances, sweatshops and executive pay from the left, reflect different weightings of the spheres. In a large Web survey, Haidt found that liberals put a lopsided moral weight on harm and fairness while playing down group loyalty, authority and purity. Conservatives instead place a moderately high weight on all five. It’s not surprising that each side thinks it is driven by lofty ethical values and that the other side is base and unprincipled.

      The moral sense, we are learning, is as vulnerable to illusions as the other senses. It is apt to confuse morality per se with purity, status and conformity. It tends to reframe practical problems as moral crusades and thus see their solution in punitive aggression. It imposes taboos that make certain ideas indiscussible. And it has the nasty habit of always putting the self on the side of the angels.

      ——————

      It’s a long article, but well worth the time of anyone interested in this thread.
      We are now in a period when fMRI’s can reveal much more about when, how, and why it is important to act in ways that are widely viewed as ‘moral’.

      Sad to say, it certainly seems (at least some of) the Bu$hBot$ erroneously believed that they were acting in American interest, and failed to recognize that their actions subverted what they sought to protect. The videos would not doubt make quite clear to the degree to which they were mistaken.

  26. Mary says:

    71 – I’ve decided that not one of them does. That’s why I’ve pretty much lost interest in who gets the nod. Any Dem on the list so far will do a better job managing social domestic programs and managing foreign policy than the Republicans. That’s really all the change that’s on the table IMO. Nothing much else. What happens with the Iraq war will be dictated by the military, which is struggling, and large mulitnational interests.

    On the Executive Branch crimes front, nothing is going to happen. It’s pretty much signed, sealed and delivered by the lawyers that have “served.” The only thing lacking in their SWAK are a few additional letters and a snappy salute.

    OT – but on the Padilla v. Yoo case, David Luban has this at balkinization: http://balkin.blogspot.com/200…..v-yoo.html an he mentions a suit filed earlier in So. Car. by the same clinic against most of the other players. I don’t have a link though.

    Also at Balkinization, Stephen Griffin takes on the “newspun” from Posner and Goldsmith’s casebook, that “no one could have known” Korematsu was bad law and bad policy AT THE TIME and so its critics should stand down.

    http://balkin.blogspot.com/200…..isdom.html

    After all, it’s not like anyone could guess that concentrated, absolutist powers of incarceration without habeas could be misused.

  27. klynn says:

    O/T but about Addington

    Addington graduated from Sandia High School in Albuquerque, New Mexico in 1974. He is a graduate of the Edmund A. Walsh School of Foreign Service at Georgetown University and holds a J.D. from Duke University School of Law. He was admitted to the bar in 1981.

    Addington was assistant general counsel for the Central Intelligence Agency from 1981 to 1984. From 1984 to 1987 he was counsel for the House committees on intelligence and international relations. He served as a staff attorney on the joint U.S. House-Senate committee investigation of the Iran-Contra scandal as an assistant to Congressman Dick Cheney, and was one of the principal authors of a controversial minority report issued at the conclusion of the joint committee’s investigation.[5]

    How does someone end up general counsel to the CIA the same year they are admitted to the bar?

  28. pdaly says:

    klynn, are you suggesting Addington could have been working for the CIA before or during law school? making the transition to CIA so swift?

  29. JohnLopresti says:

    [email protected], Griffin’s parsing of Korematsu was chilling but I think the social fabric is too changed to rollback modern cooperativeness; JB himself December 30, 2007 on that same website wrote a nice study of how legal slavery laws sunsetted in MS; I thought that was JB’s impression, as well, that the neocon gravitation toward caste management as a balm for fear is specious, as the history of the southern states showed over the 150 years following the founding of the republic; v.eg. an 1841 case JB cites. Contemplating the knotted difficulties which the tortcha policies have spawned is discouraging, but there is some fragmentary progress, ostensibly, in DoJ, where Tanner and two senior people who had been the butt of critiques by many folks who quit the civil rights section were ‘demoted’. I worry a lot about the elections, as FEC now has insufficient members to achieve quorum; and the executive is still angling to package vonSpakovsky with 2Democrats.

  30. Mary says:

    BTW – that 72 means from Posner, and from Goldsmith’s cowritten (but not with Posner) casebook, not a casebook by Posner and Goldsmith.

  31. Hugh says:

    Excellent post. I came very late.

    A few clarifications. A special review is easily distinguishable from an investigation. Special reviews are conducted on odd days of the week. Investigations are conducted on even days. What decides whether the day is odd or even depends on the nature of the request. In general, if you ask for investigation files then it was an odd day, and vice versa.

    Similarly, investigative files that reference operational files are not the same as the operational files. For purposes of FOIA, if there is no copy of an operational file in the investigative file, it doesn’t exist. Its existence elsewhere or even referenced in an investigation is irrelevant.

    Finally, the question of whether a federal crime has been committed is such a vague and nebulous concept. I know that if I saw video of somebody being waterboarded, it would never occur to me that I was witnessing torture. And even if someone pointed this out to me, I would almost certainly not make the far more abstract connection between the torture I had seen and a federal crime being committed. We are not all Sherlock Holmes. True, I might call the DOJ about it. For one thing my brain would probably be hurting at this point from all the thought I had been expending so I would want to let somebody else take care of it. And telling someone at the DOJ is almost the same as telling the Attorney General. After all, somebody over there must know him or her.

    Again Marcy, I think you are making too much of this. If you want a good primer on this, I suggest Kafka. Not only did he understand all this but he wrote about it much better than the lawyers at the CIA.

  32. pdaly says:

    Slothrop, we don’t even have to back that far.
    How about 1991-1993?
    See this excerpt from Chris Floyd at Empire Burlesque
    And I’m sure emptywheel and Mary could give more examples.

    When three BNL officials were indicted in 1991 for a fraud scam used to mask payments to Saddam, Bush I moved to throttle the investigation. He appointed lawyers from both Cardoen and Matrix to top Justice Department posts – where they supervised the officials investigating their old companies. The overall probe was directed by Justice Department investigator Robert Mueller. Meanwhile, White House aides applied heavy pressure on other prosecutors to restrict the range of the probe – especially the fact that Bush cabinet officials Brent Scowcroft and Lawrence Eagleburger had served as consultants for BNL during their pre-White House days as partners in Henry Kissinger’s lobbying outfit, Kissinger Associates.

    [In addition to these connections with the criminal network, another of Kissinger’s partners, retired Brazilian diplomat Sergio da Costa “served as the front-man” for the BCCI takeover of a Brazilian bank, Senate investigators found. Tellingly, the Senate report’s chapter on Kissinger Associates’ contacts with BCCI was deleted from the final, published version – reportedly after pressure from Kissinger himself – although it can still be found in the FAS version noted above. Kissinger, of course, would later turn down an appointment from Bush II to direct the official investigation into the 9/11 attacks – in order to avoid public scrutiny of his business affairs.]

    The Kerry report found that the 1991 BNL probe had been unaccountably “botched” – witnesses went missing, CIA records got “lost,” all sorts of bad luck. Most of the big BCCI players went unpunished or got off with wrist-slap fines and sanctions.

    One of the White House aides who unlawfully intervened in the BNL prosecution was a certain factotum named Jay S. ByBee. In 1994, ByBee was appointed by George W. Bush to a place on the federal appeals court – a lifetime sinecure of perks and power. Mueller, meanwhile wound up as head of the FBI, appointed to the post in by George W. in July 2001, where directed the FBI’s response – or lack of response – to the torrent of terrorism alerts during that fateful summer.

  33. wavpeac says:

    This is what I have been saying for a long time. You cannot “prove” the other side wrong from a moral point of view, unless we collect information and facts that show their is a down side to using violence against people. The work done proving death row inmates innocent has gone a long way to help the “moral” argument about the death penalty. I think dems make the mistake of using “just” the emotional argument without backing it up with facts. I believe the down side of violence exists, I believe MRI’s can show the long term affects of war and violence on the brain. I believe we could make some arguments about how long a culture pays for war in terms of quality of life issues, (depression, substance abuse, child abuse). But in our very violent world, it’s difficult to get funding for these types of studies and research.

    Violence injures the brain by watching it, by suffering it, by inflicting it. This truth has yet to be divulged so we can raise the discussion from that of morality to one of facts, and long term consequences.

    This is my passion.

    • TheraP says:

      I share your passion. And I agree that violence, in general, injures the brain. However, I am also interested in the role of “mirror neurons,” those neurons that seem to underlie empathy. For sociopaths there may be a lack to start with in the sensitivity of mirror neurons. And that is a research avenue that needs to be pursued. Because if some people are incapable of feeling empathy for others, then the “moral sense” is defective for them. These would be your hardened criminals and your soldiers who never break down in battle. It’s beginning to be an open question, in my mind, whether criminality will ultimately be identified as overlapping with brain defects. And then of course there’s the question of whether those defects are genetic or environmental or to what extent both.

      Mirror neurons. They may ultimately differentiate saints from sinners.

      I would add one more thing, re the NY Times Magazine piece on “morality” as evolutionary biology or psychology. That’s a theory. I’m not convinced. Even though the theory has some very logical points to it, the logic is not based on anything scientific, but is more of a philosophical argument in my view.

      And that’s why I agree with wavpeac’s contention that you can’t prove morality. That can be rationalized easily by using the categories the article identifies – or your own categories. It all depends on which values we place highest… of the values most people would agree on.

      But I still go back to the description of Hamdi in a fetal position in his cell… and I think most normal people from any culture, seeing that, would be alarmed and think the person needed immediate social and medical attention, not incarceration. That…. and whatever treatment resulted in his deteriorated mental and physical condition.

  34. chetnolian says:

    Mary @67 if you read this, probably not on account of time zones two qualifications. One , GWB is still in power. It’s afterwards it gets difficult. Two, I wasn’t thinking of the UK system,which I agree is unlikely to care, but more of someone like Judge Baltasar Garzon in Spain, the guy who nearly got Pinochet on trial if he hadn’t become “senile”.

  35. skdadl says:

    Instant classic, Hugh.

    So much educational reading on this thread. Mary @ 72, I especially appreciated Stephen Griffin’s article on Korematsu. IANAL, but whenever I hear/read someone making that claim — “No one could have known at the time” — I go investigating, and on these kinds of grounds, the political, the moral, it’s almost always wrong. You don’t have to be a lawyer; good citizens know at the time.

    Very sorry to read that Goldsmith is teaching his students the hindsight excuses.

  36. LS says:

    Al Qahtani – Camp X Ray, Gitmo prisoner 063…

    “The log, titled SECRET ORCON INTERROGATION LOG DETAINEE 063, offers a daily, detailed view of the interrogation techniques used to obtain confession from him from November 23, 2002, to January 11, 2003.”

    In the interrogation log:

    “0140: Detainee confronted with evidence of another detainee identifying him at a safehouse in Kabul.”

    What was he shown as “evidence”????

    Does this say that another detainee identified him (while identifier was in the safehouse or identified that Al Qahtani was at a safehouse…it is a little unclear) at a safehouse in Thailand Kabul.

    In any case Al Qahtani identified Zubaydah.

    Al Qahtani was considered unprosecutable because of his interrogation treatement (per Wiki).

    I’m wondering if he was shown video tape of Zubaydah perhaps identifying him, because they frequently showed him 9/11 videos during interrogation…if so the tapes may have been in the possession of others than CIA and present at Gitmo (which is “overseas”).

    Also, it has been written that Zubadayah was interrogated in a “safehouse” in Thailand. I’m wondering if he was interrogated at a “safehouse” in Kabul.

    Also, Al Qatani is reported to have been the falconer for the Princes as well as OBL. I believe this to be true (why? because…) …at least the part about the princes. See a whole bunch more about that at http://www.savethefalcons.org.

  37. TheraP says:

    Occurs to me that the Japanese “whale research” is similar to the torture issue.

    Who believes the Japanese “hunt” is for research purposes? What would video show and how might the video influence the views of people regarding whether or not the Japanese are really doing “research” on whales? And if they had destroyed videos of their “research,” would we suspect they were trying to conceal evidence?

    Boils down to the same thing as the torture videos issue.

  38. JohnLopresti says:

    There was a cost to a translator who participated in some interrogations; would need to compare it to a publicly available timeline for September 2003 to see which maltreatment policies were in effect at the time. There is a related paywalled series of articles by GMitchell, if some reader has an E+P subscription. If the demised translator was in the video, one could understand now the added complication it would be for her employing agency or branch of the pentagon, to show footage with her or her voiceover in it.

    • LS says:

      Interesting from that link:

      “Peterson objected to the interrogation techniques used on prisoners. She refused to participate after only two nights working in the unit known as the cage. Army spokespersons for her unit have refused to describe the interrogation techniques Alyssa objected to. They say all records of those techniques have now been destroyed. …”.

  39. rapt says:

    Long read, good comments but but but…

    Isn’t it a waste of time to argue the fine points, get sucked into the minutia of parsing the law, etc., when really more extreme measures are called for? It is quite obvious that the govt has been taken over by reptiles (Thera P would call them sociopaths), the law isn’t doing anything about it nor should it be expected to, given that lawmakers & enforcers are complicit for whatever reason.

    Now I don’t have a magic solution to offer, but whiling away your day patting each other on the back about how horrible it is ain’t gonna do much.

  40. wavpeac says:

    TheraP,

    I absolutely agree, and am also interested in the research about the sociopathic brain. I am also interested in the impact of severe invalidation on the ability to empathize. There was an interested study about death row inmates, serial killers. Current stats say 50% of serial killers had childhood trauma and abuse. You know how they get that stat? They ask them upon entry into the prison system. So, this researcher not only took their assertions, but then interviewed neighbors, sibling, parents, uncles, and aunts, social service workers and collected social service records. She found that those who negated childhood trauma had the most severe trauma. She was the one who uncovered that Dahlmer was being sodomized since about the age of 4 by a pedaphile in his neighborhood.

    Supposely true sociopathy is very rare. But I agree that research about mirroring is interesting. For me it dovetails nicley with the invalidating environment as a variable in the creation of personality disorders…and of course we know that all violent perps use minimize, deny and blame (which is invalidation of the behavior of question).

    There were some interesting peices coming out of the philosophy folks about how morals were ceasing to be attached to inductive or deductive logical discussions but were mutating into discussions that were more rooted in flexibility and variances in regard to the variables of the situation. That a flexible kind of morality was starting to develop that would not be based on structure but on here and now consequences. Anyway, facinating stuff problematic on the campaign trail because we have a lot of black and white thinkers in our country who want “right” and “wrong” and their are plenty of folks who think violence is “right” for the “right” reasons.

    I am very interested in the effects of invalidation and if chronic, severe invalidation actually affects the physiology of the brain, the connections the brain makes and doesn’t make, the structure of reality and how it is composed.

    • TheraP says:

      “mirroring” is different from “mirror neurons. Because if the mirror neurons are deficient, all the mirroring (eg.validation) in the world simply won’t impact the person.

      true sociopathy.” I simply don’t think you can parse that. It’s like pregnancy. Irregardless of how the person got that way… well, there it is!

      I agree that many violent crimes are committed by victims of abuse. But not all victims turn violent. Even people who know they’ve been abused, even some abused terribly, would agree that if they had done something bad, they deserve to be locked up.

      We need a category of mentally ill but guilty in this country. Think of how many mentally ill persons we’ve locked up in solitary. Not to speak of how many we’ve made mentally ill by such treatment. We need prison reform along with a better mental health safety net.

      I have no doubt that invalidation is toxic for the brain. And once wired a certain way… our brains tend to keep going along the same circuits.

      Lots of interesting stuff to discuss. But sadly, none of it seems to pull our nation back from the brink. And if the primaries are any indication, I fear our huge problems are NOT going to get better any time soon. As for philosophy…. issues have never been resolved by philosophers… just debated.

    • LS says:

      I assume you believe Valerie Plame, who was working on nuclear proliferation, should have been able to continue to do her job, protecting you. I thought you did.

      • JodiDog says:

        LS, this is what I think.

        Valerie took the fall for hubby Joe who wanted to be in the limelight with the NYt OpEd article. She could still be in the CIA except for that Vanity Fair cover shot of her in sunglasses with Joe is his old Porsche. I understand that is what finally tore it with her and her superiors at the CIA.

        Still with publishing and script money along with speech honorariums, and of course pensions and later Social Security she and Joe will do fine.

  41. Jeff says:

    And do you find it even a little suspicious that in Fall, 2002, the CIA apparently had no intention of destroying the terror tapes, but one month into an IG investigation into detainee interrogation, they had decided the tapes would be destroyed?

    Also, it was reported that the decision to stop taping was made at the end of 2002, if I recall correctly. Was that motivated by, say, a heads-up on the coming IG investigation, begun the next month, at least in part?

    • emptywheel says:

      Good question, that.

      I also wonder how the detainee deaths fit into this–the one DOD and one CIA death in late 2002. How does that play into allegations of impropriety?

  42. Hugh says:

    And do you find it even a little suspicious that in Fall, 2002, the CIA apparently had no intention of destroying the terror tapes, but one month into an IG investigation into detainee interrogation, they had decided the tapes would be destroyed?

    McCain’s Detainee Treatment Act passed the Senate on October 5, 2005 and a month later the torture tapes were lumps of melted plastic.

  43. readerOfTeaLeaves says:

    Hugh – another instant classic in your Orwellian comment, but am also taken aback (in amazement) by your 107 — I’d certainly never made the connection.

    Lab Dancer @92… brilliant. You’ve detailed the thought process in all its minute machicolations; webs spun of filaments so fine as to be demolished without so much as a startle. Chilling.

    wavpeac @ 87, 97. Violence injures the brain in a number of way, primarily: (1) physical injuries, but also (2) unusually high releases of specific neurotransmitters (produced in response to anxiety or trauma).
    If you are interested, the most readable resource is probably “The Paranoia Switch” (2007).

    Mirror neurons are important for learning, and also for social (and emotional) attunement. Hot research area; social skills are increasingly a challenge in a globalized world, but they are also increasingly important.

    Humans are social. Society is not possible without generally agreed upon norms, or ‘mores’. Damaging the health and well-being of the group is anti-social, and widely regarded as ‘immoral’.

    In the mid-20th century, ‘the group’ was ‘my family’ or ‘my neighborhood’ or ‘my town’, or ‘my country’. Then man walked on the moon and we saw a little blue-green miracle floating in the vast, heartless, cold expanse of the universe. So what does ‘my group’ mean in 2007? It’s complicated.

    Extremists are always dangerous, but as the world shrinks they pose a threat to everyone. Whether that is the person described by Lab Dancer who is ‘NOT investigating,’ because they lack a strong commitment to a system of clear laws, or whether they’re willing to use violence to harm those they believe oppress them… either way, given the weapons and the speed of circumstances, it’s a lethal mix in this historical era.
    Shorter: we can’t afford to let these people call the shots.
    Go look at that photo of earth, taken from the moon, if you doubt me

    Another useful book if you are interested: The Mindful Brain (Siegel), 2007. If you read that one, you’ll see why Putin’s mastery of martial arts has some very interesting, intriguing implications.

  44. pdaly says:

    Thanks for the reading suggestions, ROTL.
    Looks like you’ve been studying more than just tea leaves. *g*

  45. Jeff says:

    In the least shocking news of the day, Jose Rodriguez will not be testifying before Congress this week, though it remains slightly worrisome that

    The committee has made no decision on a possible grant of immunity, so it postponed Mr. Rodriguez’s appearance.

    Apparently, Silvestre Reyes, chair of House intel committee, is a fan, so it is worth keeping an eye on any effort to give Rodriguez immunity to botch the criminal investigation.

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