A Few Thoughts on the Torture Tape Inventory

The ACLU has released the inventory of torture tapes the CIA destroyed (h/t MD).

Silly me. I once suggested that the CIA didn’t have a torture tape librarian! This is, as it turns out, a fairly meticulous list of torture tapes.

The inventory makes clear something I had suggested on Monday. While there were over 90 tapes destroyed, they are still just torture tapes from two detainees. There are clear references to Abu Zubaydah in the first set (labeled Detainee #1), so the second set must be al-Nashiri (Detainee #2).

Note the description on the first tape "Do not tape over." Then tapes 89 and 90 are listed as "Tape and rewind." And the two al-Nashiri tapes are also "Tape and rewind" tapes. This suggests that at some point, the CIA stopped keeping each torture video, and started simply reusing them–much the same way the White House started reusing the storage tapes for its email (I’m sure that’s just a coinkydink, really). Al-Nashiri was captured in November 2002, so they presumably switched to tape and rewind by then. (That is, incidentally, around the time they first briefed Congress on the torture they were doing, though they claimed they were not yet doing it.)

But look at the numbering. Tapes 91 and 92–presumably of al-Nashiri–are labeled Tapes 2 and 3. This suggests there’s a Tape 1 that is not in this inventory. Where did Tape 1 from al-Nashiri go?

In any case, it looks like they took about six months of tapes of Abu Zubaydah’s interrogations, saved them for years, and destroyed them in 2005. You think that’s one of the many reasons they have never gotten around to charging Abu Zubaydah?

31 replies
    • emptywheel says:

      That’s actually not a reference to the tapes.

      Remember, this is a page from the CIA OIG report on torture. They’ve distributed it to ACLU before, in totally redacted form. So I think what you’re seeing is the end of a section–talking about waterboarding al-Nashiri–followed by a complete section on the torture tapes–which doesn’t include a reference to al-Nashiri I can see (or maybe I’m missing it). I don’t have the PDF of the copy previously turned over, but I bet that al-Nashiri reference was visible then.

      • MadDog says:

        That’s actually not a reference to the tapes.

        Remember, this is a page from the CIA OIG report on torture…

        Agreed! I was just using TPM’s description of the ACLU document link, and that probably threw me for a curve.

  1. MadDog says:

    I was curious about the classification markings listed in the header of each page on the “inventory” document and doing a bit of googling, found this:

    8.2 Security Classification Reminders…

    h. ?X1 through X8? are not approved markings for documents originally classified under EO 12958, as amended, and should not be contained in any originally classified documents on, or after, September 22, 2003.

    (My Bold)

    Not that I can infer anything from this, but it further piques my curiosity.

    • emptywheel says:

      Interesting point.

      Remember they reviewed 12958 in mid-March 2003 with EO 13292.

      So that may indicate they made the inventory before then.

      I wonder whether they closed up the Thai little shop of horrors in that time frame and sent the tapes and Abu Z and al-Nashiri to their new dungeon together? I know they went to Poland at some point, but they may have been someplace in between.

      In any case, though, if they followed the rules (ha!!!) then this inventory was done before September 2003. It may have been done around the time CIA OIG reviewed the tapes…

    • MadDog says:

      After more googling, I find that the “X1″ classification thingie on the document is a prohibited “Declassification Date” marking that was not supposed to be used after September 22, 2003.

      Here’s some government guidance for the government laggards who still used “X1″:

      …In order to ensure that classified national security information is properly protected, Executive Order 12958, “Classified National Security Information,” as amended, (the Order), requires that standard markings be applied to classified information….

      …Prior to the March 2003 amendment to the Order and the accompanying September 22, 2003, change to 32 C.F.R. Part 2001, ISOO Directive No. 1, information was subject to declassification after 10 years unless the information fell into one of eight exemption categories. In those instances, rather than indicating the date or event for declassification, an OCA was required to indicate X1 through X8 on the source document or classification guide, which would then be carried forward on the “Declassify On” line for all derivatively classified documents. This provision, which simply indicated that the OCA had determined that the material was not appropriate for declassification at 10 years, was cancelled on September 22, 2003. Since then, as noted above, the markings for exemption categories X1 through X8 have been prohibited for information originally classified on or after September 22, 2003…

      …In the interim, in order to resolve any ambiguity and to aid agencies that receive improperly marked classified information from other agencies, hereafter all documents derivatively classified from classification guides or source documents created on or after September 22, 2003, with the unauthorized markings X1 through X8, shall be marked with a “Declassify On” date of September 22, 2028. This date represents twenty-five years, the maximum duration of classification which an OCA can establish under the Order, from the last possible appropriate use of the X1 through X8 marking. Absent further instruction from the OCA, it is otherwise impossible to determine the duration of classification intended.
      As before, when the exemption categories X1 through X8 appear on information dated before September 22, 2003, the information shall be declassified 25 years from the date of the original decision. Of course, in both cases, the information will not be declassified at the 25 year mark if an agency has taken all of the proper steps to extend classification beyond 25 years under section 3.3 of the Order…

      My bottomline SWAG is that the usage of the “X1″ declassification date was meant to mean “nope, never, not fookin’ ever!”

      • emptywheel says:

        Isn’t it a REASON why it can’t be declassified, rather than a number of years? Sort of like the FOIA codes that explain why something can’t be declassfied?

        I’d say X1 was “sources and methods” but in this case, it’s probably: This guy is still going to be held with no trial and the GWOT is still going to be going on.

        • MadDog says:

          Here’s more of what that X1 means:

          …Declassification date must be marked by an eight-digit number (year, month, day), exemption category (such as X1)

          (My Bold)

          I guess we’re both right. *g*

          It is an exemption category for the declassification date:

          (A) Exemption categories in E.O. 12958.

          X1: reveal an intelligence source, method, or activity, or a cryptologic system or activity;
          X2: reveal information that would assist in the development or use of weapons of mass destruction;
          X3: reveal information that would impair the development or use of technology within a United States weapons system;
          X4: reveal United States military plans, or national security emergency preparedness plans;
          X5: reveal foreign government information; X6: damage relations between the United States and a foreign government, reveal a confidential source, or seriously undermine diplomatic activities that are reasonably expected to be ongoing for a period greater than that provided in paragraph (b)above, [section 1.6(b) of the Order];
          X7: impair the ability of responsible United States Government officials to protect the President, the Vice President, and other individuals for whom protection services, in the interest of national security, are authorized; or
          X8: violate a statute, treaty, or international agreement.

    • nextstopchicago says:

      In addition to the fact that categories were changed in ‘03, there’s also the heading at the very top “all dates are 2002.” You two may feel that goes without saying, but I thought I’d make it explicit for other readers — the tapes are from ‘02, and the question is when the inventory was made.

      • MadDog says:

        And per an earlier EW post:

        In a HuffPo column arguing for a Commission to look into Bush era crimes, John Conyers mentions something people on the Hill rarely talk about: the 2004 CIA Inspector General report on torture.

        …Furthermore, much of this information, such as the Central Intelligence Agency’s 2004 Inspector General report on interrogation, remains highly classified and hidden from the American people

        My SWAG is that the inventory had to have been made either:

        1.Immediately and recurringly at the time the tapes themselves were created (an ongoing set of interrogations over time), or
        2. After all the interrogations were done, but at or before the time the CIA IG viewed them (May 2003), or
        3. As a result of the CIA IG viewing and further production of the 2004 still-classified report.

      • emptywheel says:

        Right. But that is the question–when the inventory was made (and thus the classification on the index). That might tell us how the tapes were used.

  2. rkilowatt says:

    OT, but reply to ReaderofTeaLeaves et al wrt possibly why AIG and other insolvencies defy handling.

    from http://www.fdic.gov/bank/analy…..05fyi.html

    Excerpts: [[see below for quickie definitions]]

    While much has been written about the consumer bankruptcy parts of the Bankruptcy Act of 2005, other key parts of the bill have received little attention. For example, Title VIII adopts a new chapter 15 of the Bankruptcy Code that should make the administration of international bankruptcies much more predictable and effective. Title VIII, however, is probably not the most significant non-consumer part of the Act. That label better applies to Title IX and its restructuring of U.S. insolvency laws governing the financial markets.

    Finally, while the FDI Act permits the receiver for a failed insured bank or thrift to transfer QFCs to new counterparties or to disaffirm the contracts and, thereby, limit the liability of the receivership estate, the Bankruptcy Code does not provide any similarly effective rights to a bankruptcy trustee. The immediate transfer and repudiation rights provided to the FDIC as receiver for a failed bank or thrift give receivers greater flexibility and allows the FDIC to capture the value in a derivatives portfolio. While these powers are crucial to reduce losses to the deposit insurance funds and implement the least costly resolution strategy, they also can reduce the risks of market disruptions by providing a mechanism to maintain ongoing hedge transactions or other derivatives that continue to benefit the solvent counterparties as well as the receivership. This distinction between the FDI Act and the Bankruptcy Code could be significant in the insolvency of a major participant in the financial markets during times of market instability because the risk of market disruption could be greater from a failing non-bank participant since its counterparties would have no option but to immediately liquidate their contracts and dump collateral on the markets.12 This difference remains after Title IX.

    Finally, Title IX reconfirms that the FDIC can use its powers to fashion a flexible resolution for a bank with derivatives. The FDIC’s power to transfer QFCs to another open bank or to an FDIC-owned bridge bank within a business day after appointment of the FDIC as receiver allows the FDIC the flexibility to choose a resolution strategy that may retain the value in a portfolio of QFCs or maximize its value through more gradual sale. In addition, a transfer of QFCs to another bank or to a bridge bank also may avoid the potential market disruption that could result from an immediate liquidation of a large portfolio. This flexibility is one way in which the FDI Act continues to differ with the Bankruptcy Code, which allows counterparties the immediate right to terminate and close-out net their financial market contracts. This difference reflects the importance that U.S. law has on flexibility in bank resolutions principally to limit the losses to depositors and the deposit insurance funds, but also to reduce the potential for disruption caused by bank failures.

    Bankruptcy Act of 2005 = On April 20th, President Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Bankruptcy Act of 2005).

    FDI Act = Federal Deposit Insurance Act

    QFCs = Qualified Financial Contract; includes, but not limited to, securities contracts, forward contracts, repurchase agreements, and swap agreements.

    receiver = A bankruptcy practitioner appointed by secured creditors to oversee the repayment of debts. A person or entity, including a government agency, appointed to handle the assets and liabilities of a failed insured depository institution. The U.S. Congress requires the FDIC to be the receiver for insured federal depository institutions.

    Title IX = a section of the 2005 Act

  3. Hmmm says:

    In re. “Tape and rewind,” just wanted to mention I think we developed a theory last year that interrogations could be videotaped and then afterwards (overnight?) the tapes could be either copied and the copies couriered out-of-country — or else transmitted out-of-country by playing over a live, presumably secure, channel — to Iraq, to Washington, to Gitmo, to wherever. So the day crew records the event, then rewinds the tape and leave it for the night tech. The night tech plays it to copy or send it, then rewinds it and leaves it for the day crew to record over again tomorrow.

    So “Tape and rewind” might mean nothing more than the “Please be kind, Rewind!” stickers on the VHS tapes at the corner video rental place. Talk about yer banality of evil…

    Of course if correct then this theory would mean that those few “Tape and rewind” cartridges actually represent some larger number of interrogations, and that any copies made of those are not represented in this catalog. Oh dear.

    • MadDog says:

      I’m actually more in EW’s court on the “tape and rewind” comment. That’s because it is only listed on a very few tapes on the inventory list.

      I get the impression that the “tape and rewind” procedure came later in the torture/interrogation processes as the inquisitors got tired of keeping a ton of tapes. The thought process probably disintegrated down to:

      “Man what a PITA to have to keep putting a new tape in the recorder. Let’s just use one tape over and over. If we get something good, we’ll keep it and only then buy a new tape.”

      …Talk about yer banality of evil…

      I agree there is the definite whiff of the “banality of evil” here.

      • Hmmm says:

        Sure, I was just harkening back. Of course under that theory you’d only need one tape around at a time, since you’d be re-using each one for a long time — months? — at a stretch. In any event, you’ve got an obvious question of why they changed their system from record-and-save to recycle-tapes. Personally, I’d more expect that to be about minimizing exposure to evidence-spillage, and not so much about keeping the tape shelf tidy. (When did the Abu Ghraib pix break relative to these timelines?)

        And I guess I’m not quite buying the idea that after a certain point the sessions got so boring and so repetitive that all tapes of all sessions except these 3 or so could be recycled without anyone else ever looking at them, and without preserving the info for possible later study. Wasn’t the whole idea to cross-analyze what lots of detainees were saying, to spot patterns and sort good leads from bad?

        • MadDog says:

          …And I guess I’m not quite buying the idea that after a certain point the sessions got so boring and so repetitive that all tapes of all sessions except these 3 or so could be recycled without anyone else ever looking at them, and without preserving the info for possible later study. Wasn’t the whole idea to cross-analyze what lots of detainees were saying, to spot patterns and sort good leads from bad?

          Which is why we all still are scratching our heads.

          How could the US government not record these interrogations? How do you accurately transfer the intel obtained if there isn’t a record?

          Or is the US government merely playing a word game where they claim all the videotapes have been destroyed, but nobody asked them about audio recordings.

  4. emptywheel says:

    They went to rewind and tape LONG before Abu Ghraib (which started breaking in January 2004)–they went to rewind and tape by November 2002.

    One reason they said they first took the tapes was bc of AZ’s wounds. They wanted to prove they didn’t kill him.

    But that might just be a good way to excuse their psychopathology.

  5. FlakeyFoont says:

    If the tapes were used for multiple interrogation/torture sessions, maybe “rewind” meant “rewind to the beginning of the most recent interrogation,” so they didn’t have to search for the break before streaming it to HQ. Just a thought.

    • cinnamonape says:

      I am still stunned that in this day of digital recording that they were still using tape. So perhaps when they said they destroyed the videotapes…they are not saying that they destroyed digital copies made of them.

      “We made tapes…and all tapes and copies were destroyed” might simply mean that they changed formats. As well, any “transmission” would likely require conversion to a digital format. Unless the tapes were carried by couriers, a quite archaic methodology (one would have to wonder about the CIA if this were the case), I’m suspecting that they made a digital copy.

  6. Mary says:

    One thing to keep in mind is that Crawford, in the military (not CIA) setting, has acknowledged that there are torture cases there that have nothing to do with waterboarding and insteand have to do with multiple other tactics and techniques that were authorized for military use and applied. The Bush lawyers have continued to argue this is wrong – authorized techniques were just exercises in good faith, not torture. Holder has anted up on waterboarding, but nothing else very specific.

    I’m kind of wondering, not so much on the video issue, but in general for torture information, how these cases proceed when no one really knows what the CIA is acknowledging would be evidence of torture – or of abuse – or of, as prohibited by the Constitution’s prohibition of Attainder – the infliction of punishments and penalties on people who have not faced trial.

  7. phred says:

    EW, just a quick drive-by to ask… Wasn’t there a court order telling the CIA to preserve these tapes? Now that the CIA has owned up to destroying them, are we likely to see the court do anything about having their instructions completely blown off?

    • emptywheel says:

      Still being litigated, but the ACLU, Moussaoui’s lawyers, the 9/11 Commission, and Jello Jay all had legal requests in for these tapes.

      • phred says:

        Thanks EW — So by that you mean that we don’t know yet what the judge might do? Do we know what is possible for a judge to do? In other words is the worst case scenario for the CIA a sternly worded letter, a fine, jail time? It seems to me that there should be serious consequences for this, but I don’t know what the law permits.

  8. Leen says:

    and what about those alleged professional torturers that were brought in to do the “enhanced interrogation techniques” do they have copies of their work?

  9. ondelette says:

    Two points: Just because they are using tapes does not mean they aren’t using digital recording, depending on what kind of tapes they are using (DAT for example). And the tapes destroyed may not be because they portray interrogation techniques rising to the level of torture, since they believed themselves covered by consent from higher up and by Bybee’s ‘Golden Shield’. They may have destroyed tapes that contain information that has been used in trial, in order to conceal that the information came from torture.

    • bmaz says:

      Or, perhaps just as bad or worse for the torquemadas, they show torture producing useless and false information.

      • ondelette says:

        Could be. But there are two plots that were used extensively by the Bush administration in arrests and in some cases prosecutions. One is from Khalid Sheikh Mohammed and has to do with crippling the U.S. energy infrastructure, apparently by blowing up gas stations. The other is from Abu Zubaydah and is the plot to build and detonate a ‘dirty bomb’. People are actually in jail or in uncharged detention over both plots. Both plots are the yammerings of people being tortured. KSM has said the people he named in the plot were just people he’d heard of or had been in the news. Abu Zubaydah is known to have used a satirical web site combined with names of people who stayed at his safe house. Even if there were any merit to either plot, it is not legal to have used such information, even just to prejudice a jury or increase the sentence, in court. cf. Jose Padilla, Binyam Mohamed, Uzair Paracha to name some of the ones where real courts actually got involved.

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