The Dubious Timeline from Pincus’ Love Letter to Bob Bennett

I’ve already ranted about how irresponsible it was for Walter Pincus and Joby Warrick to publish Bob Bennett’s statement on behalf of Jose Rodriguez–a statement that Rodriguez refused to give under oath without immunity–on the same day that John Rizzo testifies before Congress. Nothing like assisting the obstruction of an ongoing investigation. But now that I’ve done my ranting (and enjoyed the sun), here is another rant about the dubious timeline offered in Pincus and Warrick’s article.

The article alternates between vague and specific in curious fashion. For example, the article specifies that the taping started in August and ended in December 2002.

According to interviews with more than two dozen current and former U.S. officials familiar with the debate, the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.

That detail directly contradicts the date offered in the CIA’s previous attempt to straighten out its story on the terror tapes, which claimed the taping started in spring 2002.

If Abu Zubaydah, a senior operative of Al Qaeda, died in American hands, Central Intelligence Agency officers pursuing the terrorist group knew that much of the world would believe they had killed him.

So in the spring of 2002, … they set up video cameras to record his every moment: asleep in his cell, having his bandages changed, being interrogated.

Now, there are two big reasons why the CIA might want to change that date. First, the CIA wasn’t authorized to torture until August 2002–so the later date magically makes any torture that happened legal, at least according to OLC. In addition, we know that Abu Zubaydah identified Padilla in the first several weeks of his captivity. By claiming no tapes were taken before August, the CIA pretends that any claim from Padilla regarding the tapes is irrelevant, since (if they really weren’t taken until August), the tapes would have no evidence relevant to Padilla’s case.

But here’s the problem with the new dates, beyond just the contradiction with the CIA’s earlier story: the CIA still wants you to believe they took the tapes to prove they weren’t killing Abu Zubaydah. But by August, he had already been under medical treatment for four months, presumably well beyond the time they needed to prove they weren’t killing Zubaydah.

And the changing date is all the more suspicious since Zubaydah’s health remains one of the chief reasons the WaPo’s sources give for stopping the taping.

By December 2002, the taping was no longer needed, according to three former intelligence officials. "Zubaida’s health was better, and he was providing information that we could check out," one said.

If the tapes were precipitated on Zubaydah’s health, then why didn’t they start until August, according to this latest iteration of the CIA story?

Interestingly, the article suggests another possible reason why the taping ended in December 2002: the departure of Cofer Black from the CIA.

… after the Sept. 11, 2001, terrorist attacks, [Jose Rodriguez] was promoted to deputy director of the fast-expanding counterterrorism center. He served under the center’s director then, J. Cofer Black, who had been his subordinate in the Latin America division.

When Black — who played a key role in setting up the secret prisons and instituting the interrogation policy — left the CIA in December 2002, Rodriguez took his place. Colleagues recall that even in the deputy’s slot, Rodriguez was aware of the videotaping of Zubaida, and that he later told several it was necessary so that experts, such as psychologists not present during interrogations, could view Zubaida’s physical reactions to questions.

Note that the taping started when Black was director of CTC, but ended when Rodriguez–the same guy who would eventually order their destruction–took over as director. And, at least according to Bennett’s statement for Rodriguez (which of course Rodriguez refused to give under oath), "the CIA" wanted to destroy the tapes as early as 2002, conveniently less than a month before the CIA IG investigation began.

But Rodriguez’ attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

Though I’m not sure I buy it, particularly given the squirrelly way they refer to the CIA IG investigation, which we know started before the CIA informed Congress that they were going to destroy the tapes.

An internal probe of the interrogations by the CIA’s inspector general began in early 2003 for reasons that have not been disclosed. In February of that year, then-CIA General Counsel Scott W. Muller told lawmakers that the agency planned to destroy the tapes after the completion of the investigation. That year, all waterboarding was halted; and at an undisclosed time, several of the inspector general’s deputies traveled to Bangkok to view the tapes, officials said. [my emphasis]

Pincus, don’t you think you could have pushed Bennett to ask Rodriguez why that IG investigation got started if you were going to do him the favor of helping to obstruct the investigation into the torture tape destruction? At least according to the IG, their investigation began in January, perhaps just weeks or even days after the claimed "December" intention to destroy the torture tapes. And not like it matters, but OIG says they saw the torture tapes in May.

The vagueness surrounding dates regarding the OIG investigation that are already (albeit just recently) in the public domain suggests that Pincus and Warrick didn’t talk to anyone in IG–presumably part of the anti-torture CIA faction–for their story. Which might be why this story makes absolutely no mention that the report concluded that the interrogations might be illegal.

Note to journalists covering this story: the one thing that can discredit you almost as much as printing up a witness’s statement that he refuses to give under oath in perfect timing to align testimony with another witness, it’s to ignore the CIA IG report and its conclusion that seems to be at the center of the decision to destroy the tapes. Just as an example, when you discuss the events surrounding the May 2004 discussion over whether to destroy the tapes or not, you might mention that the CIA IG had just concluded that the interrogation program might violate the law.

In May 2004, CIA operatives became concerned when a Washington Post article disclosed that the CIA had conducted its interrogations under a new, looser Bush administration definition of what legally constituted torture, several former CIA officials said. The disclosure sparked an internal Justice Department review of that definition and led to a suspension of the CIA’s harsh interrogation program.

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

And while I’m not certain, I think that that May 2004 is actually the June 8, 2004 WaPo article revealing the contents of the Bybee memo–which wouldn’t have factored into the reported May briefing at the White House, but which would have alerted the CIA that people–probably within the CIA–were leaking the justifications for torture, presumably in an attempt to get the CIA out of the torture business.

Also, that claim that the White House was involved in discussions about destroying the tapes just twice? That’s impossible, given other details in the story. Given the description above, the discussions with the White House would have included the May 2004 briefing, and another one that happened before Scott Muller left in July 2004 (it was probably in February 2003, since I doubt CIA would tell Congress it was destroying tapes without first alerting the White House). But if that’s true, and those were the only two briefings the White House participated in, then this statement cannot also be true.

Those known to have counseled against the tapes’ destruction include John B. Bellinger III, while serving as the National Security Council’s top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA’s general counsel; and John D. Negroponte, while serving as director of national intelligence. [my emphasis]

Harriet did not become White House Counsel until late 2004, after Muller had already left the CIA. So if she participated in discussions about the torture tapes as White House Counsel, then there was at least one more discussion involving the White House before the tapes were destroyed.

One final detail about the timeline presented in the WaPo story. Note how vague it is regarding precisely when the Thai station chief asked to destroy the videotapes.

In late 2005, the retiring CIA station chief in Bangkok sent a classified cable to his superiors in Langley asking if he could destroy videotapes recorded at a secret CIA prison in Thailand that in part portrayed intelligence officers using simulated drowning to extract information from suspected al-Qaeda members.

I find that particularly curious, since the next precipitating factor for the destruction of the tapes is the appointment of Porter Goss and the assumption, by John Rizzo, of the acting Counsel role, both events that happened in 2004.

The CIA had a new director and an acting general counsel, neither of whom sought to block the destruction of the tapes, according to agency officials. The station chief was insistent because he was retiring and wanted to resolve the matter before he left, the officials said. And in November 2005, a published report that detailed a secret CIA prison system provoked an international outcry.

Now, I suspect these details come from Jose Rodriguez (have I mentioned that he wouldn’t testify to these details under oath?) so who knows how reliable they are. The detail about Goss and Rizzo might be an attempt to throw blame their way, as this statement from appears to do as well.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover."

And the three factors Bennett lists for Rodriguez’ decision to finally order the tapes be destroyed obscure the congressional debate on torture, the multiple court orders and 9/11 Commission inquiries regarding torture tapes, and the ongoing leaks from the CIA anti-torture faction. All of which suggests the timeline–the entire timeline, with all its contradictions and vagueness–is suspect.

35 replies
  1. MadDog says:

    Also, that claim that the White House was involved in discussions about destroying the tapes just twice? That’s impossible, given other details in the story. Given the description above, the discussions with the White House would have included the May 2004 briefing, and another one that happened before Scott Muller left in July 2004 (it was probably in February 2003, since I doubt CIA would tell Congress it was destroying tapes without first alerting the White House). But if that’s true, and those were the only two briefings the White House participated in, then this statement cannot also be true.

    And I know it is only one source, but the AP claims:

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

    “The clear recommendation of Bellinger and the others was against destruction of the tapes,” the official said, speaking on condition of anonymity because of the sensitivity of the matter. “The recommendation in 2003 from the White House was that the tapes should not be destroyed.

    I’ve yet to see any other source for a 2003 meeting/discussion by WH legal beagles, but like you EW, I find it hard not to believe.

    • emptywheel says:

      Good enough for me, for a start.

      Which still suggests they’re trying to pretend there wasn’t a meeting in 2005, when all logic says there was, which thereby distances the White House from any decision to destroy the tapes.

      Besides, if you’re having a meeting with Negroponte in 2005 about destroying the tapes, don’t you think the White House gets a meetign too?

      • bobschacht says:

        “Which still suggests they’re trying to pretend there wasn’t a meeting in 2005, when all logic says there was, which thereby distances the White House from any decision to destroy the tapes.
        Besides, if you’re having a meeting with Negroponte in 2005 about destroying the tapes, don’t you think the White House gets a meetign too?”

        Bingo. Which means they’re hiding that meeting, and for a nefarious reason. And the fact that Negroponte’s involved somehow comes as no surprise to me.

        Bob in HI

  2. phred says:

    Reliving old times, EW? Shouldn’t this say Rodriguez instead of Gonzales?

    Pincus, don’t you think you could have pushed Bennett to ask Gonzales why that IG investigation got started

    These guys are going to run out of buses to throw people under…

    • emptywheel says:

      Yes, it should, thanks.

      I got rid of another Gonzales for Rodriguez. Once I think about latino names with a z in it I seem to default to good old Gonzo.

      • phred says:

        Perfectly understandable, since he seems to be involved in every scandal, including this one. Gonzo probably does know why the IG investigation got started ; )

        • emptywheel says:

          And if he doesn’t, I guarantee you he knows what it concluded… Remember, OIG shared its results with “other oversight bodies.” or whatever it said…

          • phred says:

            Yep. He was also one of the WH lawyers briefed along with Miers and Bellinger and Addington, wasn’t he? Not that Pincus bothered to mention Addington and Gonzo.

          • bmaz says:

            AGsquared may know, but I guarantee you he doesn’t recall. As to the spring/August controversy; much ado about nothing. Clearly you have a pre-9/11 seasonal mindset. What you are obviously failing to do is account for the seasons in Thailand as well as the US! See, it all makes sense that way…..

  3. bobschacht says:

    Coverups are like trying to contain a hydra by chopping off its head. But how can we speed up the cycle of investigations and court cases? Obviously, there is a frantic effort going on to drag everything out as long as possible, even at the risk of further charges of obstruction of justice. All the more reason for a special council. How can we get that to happen?

    Bob in HI

  4. phred says:

    That reminds me bmaz, when I read the article this morning, I thought the most interesting bits were the confirmation that the tapes were in Thailand (not Poland — or Romania, don’t forget Romania ; ) and that the precipitating factor was the CIA station chief (as opposed to a freaked out local government official(s)).

    So what I’m wondering EW is whether you think those two assertions hold up on closer scrutiny or whether you think they are red herrings. Since I don’t trust Bennett any farther than I can throw him, do you think he’s including these facts as a distraction or because they won’t cause any further harm?

    • emptywheel says:

      I buy them–too much detail to be false. but that gets us back to where there’s no good reason for Dana Priest’s article to be the precipitating factor, which is why I tested that theory in the first place. Which suggests that perhaps Doug Jehl’s article–revealing that the IG thought the torture might break the law–more important. As well as the request from Brinkema and a host of other things that, if they were the precipitating factor(s), mean that the CIA knew it legally couldn’t destroy those tapes.

    • bmaz says:

      I don’t know Bennett (boy would I love to buy him some drinks and chat him up though), but I know a lot of extremely high level criminal defense lawyers. Based on that, I can with pretty much certainty state that there is not a chance in hell he would fabricate or present a fact or statement falsely. That said, he would shade and phrase things in any manner short of that that puts his client and case in a favorable light. So, you are probably wasting your time looking for false statements; look for the alternate and convoluted meanings as EW is doing (and EW is one of the best I have ever seen at ferreting out such alternate/real meanings).

      • phred says:

        Sorry bmaz, I didn’t mean to suggest Bennett would make things up. However, I assume since a lawyer is supposed to present things in the best light for their client, that they may be selective in what they say or don’t say, with the hope of redirecting attention without actually misleading or lying. That was what I meant by “not trusting” Bennett, as in to not leave a false impression.

  5. FrankProbst says:

    In Bennett’s defense, his job is to keep his client out of jail, not to inform the public of what his sleazy client did. His strategy for doing so appears to be a PR push in favor of his client, which will help him sucker someone into agreeing to an immunity deal. Thus far, I say he’s doing pretty well, but I think he’s probably disappointed that he doesn’t have his immunity deal nailed down already.

    • bmaz says:

      Naw, I think Bennett is probably right on his expected track. Nothing was going to happen during the recess; eliminate that break, and things are moving right along.

    • emptywheel says:


      Please don’t forget–he is also letting Rizzo know what Rodriguez’ testimony will be, if he ever gives it. While ostensibly legal, the apparent intent of this is to fuck with the investigation by getting the CIA on the same page. That’s why I’m so appalled by this–and it’s obviously not the first time the WaPo has done it.

  6. maryo2 says:

    GW Bush went to Thailand October 19-21, 2003.

    Did he see the tapes or discuss the detention center at that time?

    • emptywheel says:

      I’ve been wondering about that–great find.

      The tapes were in the embassy–Zubaydah and Nashiri were no longer in Thailand. So he could have watched the vids without too much trouble.

  7. BlueStateRedHead says:

    Thanks for the laugh. We know he reads, we saw him do it on 9/11. However, are you sure he writes anything other than signing statements?

  8. maryo2 says:

    APEC Summit –
    “The US President’s official entourage included Andrew Card, Jr., White House Chief of Staff; Dr. Condoleezza Rice, National Security Adviser; James Kelly, Assistant Secretary, Bureau of East Asian and Pacific Affairs, Department of State; and James Moriarty, Senior Director for Asia Affairs, National Security Council.”


    October 18-21, 2003
    Attended the APEC Summit meeting.

  9. maryo2 says:

    Pincus says “The tapes had been sitting in the station chief’s safe, in the U.S. Embassy compound, for nearly three years.”

    Are US Embassies considered US soil? Wasn’t there some argument that the tapes were never on US soil? Is this relevant?

    • bmaz says:

      That is in relation to an exception provision that was floated as a defense for the destruction of the tapes. However, that provision uses wording indicating “the continental United States”, not “US soil”. See here for more.

  10. CTuttle says:

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

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

    Err… They haven’t complied with any of that…

  11. Mary says:

    First, the CIA wasn’t authorized to torture until August 2002

    They didn’t have the OLC opinion, but according to some of the articles, they had authorization from WH lawyers – including a thumbs up to burying alive.

    I still find the fact that no one is mentioning DOJ (other than in the context of its own in-house efforts) and for several reasons. First off, you have on the record DOJ and other sources (like the GITMO team) who made in house complaints very early on that there were illegal interrogation tactics being used. So – why didn’t DOJ issue any warnings about preservation once those complaints began to surface? That’s where I thought Mukasey’s initial pick of Wainstein was extra interesting, since he was wrapped in at FBI during a lot of those operative time frames – as counsel and as COS.

    But more than that, CIA demanded OLC memos to cover its torturers, but then never bothered, despite the years of wrangling over destroying the tapes, to get an OLC memo that authorized destruction of interrogation materials? I don’t see any journalists asking the very basic question of, “Why didn’t you ask the Dept of Justice for its opinion on destruction?” Or even asking a source to confirm that no one at DOJ knew about the tapes at all.

    Bc I don’t believe that for a minute. They knew, from multiple reports and complaints from people like Coleman and Fallon that there were allegations of abuse, coercion, cruel, inhumane and degrading treatement and torture. But no one ever issues any advice to preserve? And no one ever even asks if there is any evidence? No one at DOJ is reviewing any of the Zubaydah info for possible prosecutions on related items like money laundering, etc.? No one at DOJ had any clue about any of this?

    The biggest head scratcher, though, would be that no one said anything to DOJ while Yoo was still there in 02/03 about coughing up a memo authorizing evidence destruction. Not that he was always a sharer when it came to his OLC opinions:…..38;emc=rss

    Mr. Yoo said he had always duly notified Justice Department officials or other agencies about the opinions he provided except when “I was told by people very high in the government not to for classification reasons.”

    I just don’t buy that no one at DOJ knew enough about torture allegations to issue a direction to preserve, and I also don’t buy that no one there was ever consulted on destruction of the tapes and authorization for that activity. And even if I were inclined to buy it, I’d still be “perplexed” over why no journalist is even asking about where DOJ fit into the conversations on whether or not it was OK to destroy evidence.

    • bmaz says:

      Well, can’t vouch for anyone else, but I have no question but that DOJ, in some form or another, was solicited for advice and/or enabling opinions. No question whatsoever. Just for starters, lets keep in mind who was AG at the time of destruction; that would be AGAG who, we know for a fact, was involved in the prior discussions on destruction when he was at the White House. It is pretty telling that they couldn’t even get someone like Yoo or Bradbury to underwrite their destruction eh? There ought to be a GJ impanelled and a whole laundry list of Bush Administration trailer trash run through it’s docks, one at a time, inquiring under oath what they know and who they spoke to regarding the torture, the tapes and the destruction. This is not a hard investigation. Line the clucks up and start asking questions.

  12. bmaz says:

    Now its my turn for a minor vent. This part of the Pincus soft sell really pisses me off (in fairness, it is a line emerging from the WH since the start):

    Congressional investigators have turned up no evidence that anyone in the Bush administration openly advocated the tapes’ destruction, according to officials familiar with a set of classified documents forwarded to Capitol Hill.

    Well, isn’t that nice? I highly doubt it is true (there have already been reports that one or more WH officials were fairly enthusiastic on the destruction; the locals here have placed smart money on Addington); but even if it was true, that is not the freaking standard of care. The Administration was under a direct legal, ethical and moral duty to affirmatively see to it that the tapes were preserved. Wantonly and willfully standing around while they were destroyed, without taking steps to prevent it, is the dead nuts equivalent to authorizing their destruction.

  13. Mary says:

    I’m with you on your vent, and in particular like the use of the word “openly” in that quote.

    I also have to wonder how a direction to quit taping the torture and preserving that evidence of torture that had been standard to take and keep fits in to the overall scheme of duites. No wonder people got so snitty with the USA (was it Charlton?) who wanted to push having all interrogations taped.

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