What Does Dusty Foggo Know about the Torture Tapes?

The AP caught something rather curious.

Dusty Foggo, heading off to prison for his role in schemes involving Brent Wilkes, has a date to talk with John Durham, who is investigating the torture tape destruction, and because of that date, he’ll get to put off reporting to prison for a week.

Mr. Foggo seeks this brief continuance because he has agreed to be interviewed by Special Prosecutor John H. Durham concerning the destruction of videotaped evidence by the Central Intelligence Agency. The interview is scheduled to be held in Washington, D.C. on April 8, 2009. However, Mr. Foggo is currently scheduled to report to USP McCreary in Pine Knot, Kentucky on April 7, 2009.


Special Prosecutor Durham has consulted with the government and has informed counsel for Mr. Foggo that the prosecution team has no objection to the proposed continuance.

I find this curious for a few reasons. 

First, Durham was reportedly almost done with his inquiry, having determined that he could not bring charges. Yet here he is just now interviewing the third-ranking CIA guy during the period the tapes were destroyed.

More interestingly, Foggo would likely badly like to get revenge on some of the people who allowed him to face criminal charges, whether in the Bush Administration or CIA or former CIA witnesses. 

Just as one hypothetical, Porter Goss claimed to know nothing about Foggo’s problematic past (including his counter-intelligence problems). Yet, as Laura Rozen has reported, that was a lie.

A former US intelligence source thought that Brent "nine fingers" Bassett was the Goss staffer who recommended the hire of Foggo as ExDir.

He said that Goss lied in his testimony, that he was not aware about the problems with Foggo when he hired him for executive director. He said that a major fight had broken out between Goss staffer Patrick Murray and then associate deputy director of operations Michael Sulick about the Foggo hiring. "Murray told ADDO/Counterintelligence Mary Margaret that if Dusty’s background got out to the press, they would know who to come looking for. Mary Margaret tried to warn them that Dusty Foggo had a problematic counterintelligence file. Sulick defended Mary Margaret. Goss told [deputy director of operations Steve] Kappes he had to fire Sulick." After that, Kappes and Sulick quit. "Goss bears major responsibility here," the former intelligence official says. It was finally the "White House that demanded that Goss fire Dusty and he refused." So they both got fired.

Now, Goss’ apparently false claims did not contribute directly to Foggo’s decline; he was sunk long before Goss issued his statement on January 23 of this year.

Still, I can’t help but remember how carefully Goss has covered his tracks on the torture tapes, from the warning John Negroponte gave him against destroying the tapes, and from the role he should have had warning Rodriguez not to destroy the tapes.

I think CIA managed to create plausible deniability among its lawyers. But that may not be true of Goss.

And if, for some reason, the close or not so close former Goss associate (remember, there were questions of whether Goss attended Dusty’s poker games) Dusty Foggo wanted to cause some trouble–and maybe ease his own transition into prison–I can imagine that that might be of interest to John Durham. 

Now, Foggo’s testimony may have nothing to do with Porter Goss’ role in the torture tape destruction. But he was in a position that might mean he knows things about the torture tape destruction, and the CIA surely didn’t do any favors for Foggo as he headed to jail. 

57 replies
  1. nextstopchicago says:

    What exactly does “a problematic counterintelligence file” mean? I thought he was going to prison for corrupt contracting. Was he selling secrets too? Or is this vague phrase just suggesting that anyone with a scent of corruption is susceptible to offers from foreign agencies?

    • Rayne says:

      It’s crap like that which really gets under my skin.

      They’re spying on us, American citizens, because we might be a threat in the form of political dissent, yet they can’t keep a tighter leash on their own.

      • robspierre says:

        You are making the mistake of assuming that the purpose of Bush-era spying was something to do with the needs of the country. It was anything but. It was aimed at maintaining the state of fear–or reign of terror, if you will–that moved us several steps closer to the unary executive (i.e. dictator/monarch).

        In fact, I expect that future historians will be very interested in the extent to which Reagan- and Bush-era pols colluded with foreign princelings in the desert against American interests–for cash. We already know that a lot of secret warring was carried on with Saudi money when Congress wouldn’t pony up.

        Dare we call it treason? Apparently not.

    • scribe says:

      But, IIRC, it was all in the file on him.

      Goss’ problem is that he made his assertions in an affidavit, IIRC.

  2. bobschacht says:

    I hope that he provides lots of juicy evidence about Porter Goss, who brought Bushie-style politicization deep into the CIA. It’s especially satisfying to see Bushies fight with each other about who is more venal. Maybe Porter will fight back with more juicy stuff about Dusty. I’ll be happy to get more popcorn ready.

    Bob in HI

  3. Arbusto says:

    So Durham isn’t going forward with indictments, Goss is protected by the Good ol’ boy Congressional network and Rodriguez is sitting pat. Ahhhhh to be so unaccountable in our personal lives as our Public Servants, in and around the Capital, are for their malfeasance and extra Constitutional deeds.

    • emptywheel says:

      See, I’m suggesting stuff may have loosened up.

      When it was reported that Durham was finishing up, he still had to talk to Rodriguez, the most likely person in the middle.

      Throughout this process, Bennett has proceeded by fingering others on this. He may or may not have been the source for the Isikoff piece (linked above) on Negroponte’s conversation with Goss on this stuff.

      Regardless, Goss was right in the middle of this stuff, and I can imagine a number of motivations Dusty might have to finger Goss.

  4. phred says:

    Wouldn’t it be delightful if Dusty not only fingers Goss but the WH as well? Ah well, I can dream can’t I? ; )

      • emptywheel says:

        Sign of a good defense attorney. When trying to save a sinking client, count the fingers of potential witnesses who might help said client incriminate others.


        “Yup, Foggo may be of help to me.” Bob Bennett

      • phred says:

        Good point ; ) Under the circumstances, perhaps I should have used the word “implicates” instead ; )

  5. emptywheel says:

    And here’s another detail, courtesy of Bob Bennett’s leaking and John Rizzo’s counter-leaking.
    At one point Rodriguez was asking for immunity. When he didn’t get it, Bennett basically suggested that Goss and Rizzo were in the loop.So if Foggo knows anything about that, it may well loosen things up.

  6. scribe says:

    A “problematic counterintelligence file” is one which contains things like “sharing a girlfriend with a Russian agent”, “hookers”, “putting girlfriends on the CIA payroll regardless of ability to do CIA work”, “steering contracts to cronies”, “probable kickbacks”, “getting kicked out of a friendly European country for being a major a-hole”, and stuff like that.

    In other words, in a world of sleazy (or amoral) people, he was exceptionally so and therefore deemed, at a minimum, to be either vulnerable to being blackmailed or of dubious loyalty/integrity.

  7. al75 says:

    It’s helpful to remember the big picture of Cheney/Rumfeld’s war on the CIA that began with w.’s decision to retain Tenet as DCIA. When Goss was installed, Cheney had finally won. Laura Rozen:

    “Porter Goss knew about Foggo’s reputation beforehand,” one former senior officer who left under Goss’s tenure told me yesterday. “Why was he allowed to appoint this guy, and how did he get away with it? Goss had a criminal running the Agency.”

    “What the Republicans keep saying is that Porter came in to reform the Agency,” he continued. “So Porter comes in and appoints to run the Agency a man everybody knew was sleazy and he paid no attention to the man’s past. And he brought with him in addition a bunch of people who knew nothing about the organization and its operations and then he himself was a hands off person who basically did not get involved in managing the organization. It was a disaster from day one.”

    Goss’s “reforms” included bringing in a number of shady characters, one of whom had to resign immediately due to a shoplifting conviction. And Goss’s promotion of Foggo was not a minor policy decision:

    Now, then-CIA director Porter Goss’s decision to appoint Foggo to the CIA’s number three spot had been a highly controversial and contentious one at the Agency.

    Foggo was well known in Agency ranks for philandering, gambling, a security issue dating to his Vienna days, and for generally being something of a sleaze.

    Suffice it to say, that senior Agency veterans left as a direct and indirect result of Goss’s controversial decision to appoint Foggo to the Executive Director position, among them the top two operational officers who have since returned.

    Foggo and Goss have fallen, but we don’t really know what the mission was. Foggo was placed in charge of OPERATIONS. What was he supposed to operate?

    Maybe it was just a whim on Dick Cheney’s part, but I doubt it.

    I suspect he had something specific in mind. And if Foggo was instantly blackmailable, so much the better.

  8. scribe says:

    More on to point – answering the question about what Foggo might have known about torture tape destruction: someone had to send all those blank DVDs overseas (or arrange for local purchase) and the recorders and the shredders and all the other office equipment that went into making, retaining and destroying them.

    Foggo’s job was (in addition to being a sleaze) getting that equipment (and all the other equipment) from vendor to user.

  9. WilliamOckham says:

    Here are a few facts that you might not be aware of. From the Vaughn index that the CIA produced in the ACLU’s FOIA suit about torture and detention:

    1. On Aug. 6, 2005, the ODNI (Negroponte’s office) sent a four page, Top Secret/SCI memo to two Assistants to the President (one of whom would have been Scooter Libby). The subject of the memo was “Policy Approval”. The timing would suggest that this might have been about the torture tapes (Negroponte and Goss met some time in the summer of 2005 and the tapes were destroyed in November).

    2. On Aug. 11, 2005, the Principal Deputy Director, ODNI (who was that? I’ll have to google that one later) sent another Top Secret/SCI memo to an Asst. to the President (I’m betting that was Scooter) with the subject “Policy Approval”.

    1. On Aug. 15, 2005, the CIA ExDir (that would be our man, Dusty Foggo) sent a letter (also Top Secret/SCI) to a member of Congress regarding “Appropriations”. I find it fascinating that this letter was relevant to the torture/detention FOIA. At the very least, it suggests that Foggo was somehow involved in the secret prisons/torture conspiracy.

  10. Mary says:

    Durham was reportedly almost done with his inquiry, having determined that he could not bring charges

    If I saw that, it hadn’t sunk in. Probably bc it was nothing more than what has been expected all along – a Mukasey work around.

    If there really is any meat to the meeting, and I have a hard time thinking there is, it might walk back to someone like Rizzo or Chertoff just as well as Goss, though (or all or any combo). I know they’ve muddied the water a lot on Rizzo and what he did or didn’t know or agree to, and no one has ever really dug into whehter or not Chertoff gave specific DOJ -Crim sign offs on immunity for torture, but the lawyers have a pretty clear path to perfidy if they did have any role. Who knows. I guess we can just sit back and rest assured that Mukasey [striken dumb while defending torture in a speech] appointee Durham [who apparently had already “reportedly” determined he could not file charges], in conjunction with CIA head Panetta [here, let me put it in writing guys-Presidential torturers won’t be investigated!] and President [lions and tigers and bears – don’t look behind you!!!!!!!] Obama will take care of everything.

  11. Mary says:

    19 – or maybe in contracting for the flights – wasn’t he going to get some plane biz for Wilkes or Wade or someone? His main mistake might have ended up being trying to mess with a Boeing boondoggle.

  12. Mary says:

    OT – but via this Oxdown diary:


    Comes this BBC story:

    Judge Bates has ruled that detainees taken into custody outside of Afghanistan and transported to Bagram for torture are in virtually the same position as those taken form other non-battlefield settings and shipped to GITMO and they have a right to habeas.


    A fourth detainee, Haji Wazir, who had also brought a lawsuit seeking his release is an Afghan citizen.

    Judge Bates reserved judgement on his case, saying the implication that he could be released could create “friction with the host country”.

    “Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan and who have been held for an unreasonable amount of time – here over six years – without adequate process” have the legal right to challenge their detention in US courts, Judge Bates said in his 53-page opinion.

    Link to the opinion:

    I haven’t read it yet.

  13. cbl2 says:

    cue the Dragnet theme . . .

    pay no attention to that rustling in the bush Mr Goss, it’s just the lioness Wheeler, don’t you go troubling your silvered head with it now

    thanks EW!

  14. tejanarusa says:

    OT-Mary – from a skim of the last few pages–Judge Bates found Military Comm. Act sec. 7 unconstitutional as to the first three, but separates Wazir for, apparently, further development of separate issues, and reserves ruling on govt’s petition to dismiss his habeas claim. (reference to a separate order, haven’t seen that). In the other three, govt’s petition to dismiss their habeases is denied.

    (NO doubt Mary is reading the whole thing right now and will give a much better synopsis than mine)

    In a footnote, specifically states order doesn’t apply to claims re conditions of confinement.

  15. greenwarrior says:

    two things cross my mind:
    1. what’s to keep foggo from meeting with an unfortunate accident?
    2. and i think more likely, since it seems like durham’s got his mind made up, what’s to keep him from listening to foggo and then ignoring him.

  16. Mary says:

    More OT – Andy Worthington had this piece up that indicates that Noor al-Deen is the unnamed teenager from the interview in Grey’s Ghost Plane with Abdullah Almalki (one of the other Canadians seized and tortured at the Palestinian branch)

    In 2006, Almalki was interviewed by Stephen Grey for his book Ghost Plane, and explained that two suspects seized with Zubaydah — Omar Ghramesh and an unnamed teenager — were rendered to the “Palestine Branch” on May 14, 2002, along with Abu Abdul Halim Dalak, a student seized in Pakistan in November 2001. Ghramesh explained that in Pakistan U.S. agents had shown him photos of Abu Zubaydah looking battered and bruised, and had told him, “If you don’t talk, this is what will happen to you.”

    Until now, the identity of the “unnamed teenager” was unknown, but it is now apparent that he was Noor al-Deen. The Post explained that U.S. officials had stated that, “perhaps because of his youth and agitated state,” al-Deen “readily answered U.S. questions,” confirming that Zubaydah “was a well-known functionary with links to al-Qaeda, but he knew little detailed information about the g*roup’s operations.” Nevertheless, his questioning “went on for months,” first in Pakistan, then in Morocco, and then in Syria.

    The Post noted that “attempts to firmly establish his current whereabouts were unsuccessful,”

    Worthington goes on to point out that the men [and women? and children?] handed over to foreign governments or otherwise more permanently disappeared by the President’s torturers are the the men and women who truly have no options – no possibility of habeas, no chance that the ex-President, current President, or their Executive branch torturer conspirators will ever make an accounting. The numbers might be hundreds, they might be more.

    For my own part, I still have to wonder why the only children we ever hear about are the hypothetical ones having their testicles crushed by Yoo’s imagination. There have been some actual children that we seem to have left permanently disappeared. I guess in the Presidential torturer’s version of the New Testament, suffer the little children takes on a “classified” meaning.

    29 – I think a fast skim leaves things about where the article mentions. We still don’t seem to have sorted out what happens when a US court grants habeas to victims of Presidential military detention – if Gitmo’s military command gave rats asses about the rulings it has received, it hasn’t bee all that clear. I think you can expect less from Bagram and right now I expect almost nothing from Obama. But we’ll see. What I did go look for a bit was info on whether or not Bagram is part of the “NATO” contingent in Afghanistan or the “US Only” contingent. At least the NATO contingent has some bare outline of a SOFA type arrangment applicable, under which I think you could make some arguments that the deferral of native/domestic law invokes application of the detaining authority’s laws regarding something like habeas.

    I think the US has basically nothing – maybe a bullet points letter – so they operate with complete carte blanche. Always a good idea. Or not.

    • bmaz says:

      Aw come on Mary; we should give him a chance for at least a year or two cause he’s playing eleven dimensional chess don’tcha know.

      Now, on a serious note, I would like to bring the subject back to the torture tapes destruction. I am at a complete loss how Bullshit Durham can blithely conclude that there is no criminal case to be had whatsoever. In fact, I would argue that it is pretty easy to find chargeable criminal acts; you damn near have to dance the tango to get around them. That is not to say that they are not fraught with CIPA/state secrets-national security implications; they are, however, it is false and baloneyous to flat out say there are no criminal implications.

      • phred says:


        Thanks bmaz, that is my new favorite word — I especially like the way it rhymes with felonious ; )

        I have a couple of quick questions… The fact that Bull Durham was ready to throw in the towel on this has been mentioned in multiple places, but does anyone have a link? I don’t remember that being reported. Second, even if Bull doesn’t file any charges, aren’t the folks who instigated/participated in the destruction still on the hook from the point of view of the court? Aside from his role as the whitewash artist, it’s not clear to me that Durham is the end all be all here, if the court can still hold those responsible to account. Am I mistaken?

  17. Styve says:

    I agree with the poster up a few…old Dusty is going to be dusted during his week prison reprieve.

  18. JohnLopresti says:

    Cq’sJStein has written rarely about the Goss years as Bush appointee. Then there was the McClatchy quote of an intell guidance presentation, ‘If the detainee dies you’re doing it wrong.’ The latter link mentions Rizzo, Cheney, Addington, et al.’s junket to Gitmo2002.

  19. Mary says:

    34 – to me, at least from the time Gonzales wrote to Bush in the Jan 2002 memo that future administrations might want to have War Crimes Act investigations, you end up with preservation duties.

    Then you start adding in everything else –

    *the inherent torture aspects of what was going on such that “following orders” could not have been a defense;
    *the allegations by Padilla’s defense lawyers that the sources (Zubaydah and Mohamed) for the material witness warrant were tortured or otherwise abused or coerced;
    *Brinkema’s orders in connection with the Mousaoui case;
    *Hellerstein’s orders re ACLU case;
    *Harmon’s letter;
    *Muller’s supposed advice against destruction (not sure I buy that);
    *Multiple ongoing investigations and questions by members of Congress not “briefed in” on the programs;
    *Judge Roberts’ orders and pending cases;
    *Judge Kennedy’s orders and pending cases;
    *ongoing Sup Ct status of Padilla’s case with its underlying allegations relating to Zubaydah and Mohamed;

    and yada yada yada yada. Good lord, if there is any evidence that has clearly, for years, been subject to preservation duties it is the evidence of the torture programs.

    • bmaz says:

      Heh, absolutely. But that is ignoring the most patently obvious of all – the cases of abu-Zubaydah and al-Nashiri themselves. They had an absolute right not to have evidence pertaining to them destroyed.

  20. Jesterfox says:

    If we throw out Steven’s conviction because the defense was denied evidence that they were entitled to, where does that leave us with these cases. This evidence was destroyed rather than give it to the defense.

  21. WilliamOckham says:

    Is anybody else getting database connections errors? Of course, if this post goes through, I’m not getting them anymore…

  22. JohnLopresti says:

    I wonder if Radack saved the Lindh emails in hardcopy before they were erased at the time she was ushered out of DoJ’s ethics section, or if her book proffers specifics.

  23. Mary says:

    34/37 – further to the points made on destruction, etc. a boatload of the doc descriptions in the first link at least (as far as I’ve looked) indicate that they were “prepared by attorneys in contemplation of potential litigation and/or administrative proceedings” and that they are withholding it under work product privilege.

    You know, if anything at all in those memos indicated they were operating in “contemplation of potential litigation” vis a vis torture and they didn’t get a preservation order out, and not only that, they sat back and let evidence be destroyed, that’s gonna be pretty damning.

    “Potential litigation” docs include:
    Doc 1, April 8, 2005 memo, DOJ/OLC to CIA/GC, “draft” legal opinion prepared in contemplation

    Doc 6, May 30,2005 memo, DOJ/OLC to CIA/GC legal opinion prepared in contemplation

    Doc 7, May 10, 2005 memo from DOJ/OLC to CIA/GC, legal opinon prepared in contemplation

    Doc 8 (although this was after the destruction), a May 5, 2008 “Draft” memo, from DOJ/OLC to CIA/GC, prepared in contemplation of litigation.

    Doc 9 (although this was after the destruction) …

    In any event, there were pretty clearly memos being prepared, by DOJ’s own adminssion, “in contemplation of litigation” that dealt with the torture topic. So where were the preservation notices and orders?

    Doc 16 (another May 30,2005 OLC/DOJ memo to CIA/GC) looks a lot like doc 6 from the brief description buy has more pages and a different doc number, but it looks like May 30 was a big dead tree day for OLC-CIA communications in contemplation of litigation.

    There are other non-OLC opinions that are also listed as being prepped in contemplation of litigation (or that contain references to info prepped for litigation) like doc 18, a memo from Oct 2004 from the CIA Insp Gen to the DCI, which supposedly refers to legal guidance previously given by the CIAGC and which also indicates that it was not only prepared in contemplation of litigation, but also that “this document refers to information pertaining to an ongoing criminal investigation by a federal law enforcement agency”

    The lists get long, but with that many work product privilege claims for that many DOJ memos prepared in contemplation of litigation, all supposedly responsive to requests relating to detainee abuses, I just keep coming back to where I was a long long time ago.

    Where were the preservation notices?

    Who destroyed information in the face of so much “contemplation of litigation?”

    What lawyers knew or should have known that preservation notices should go out and/or that courts should be advised of the destruction of info?

  24. Mary says:

    40 – that’s said like a crim def lawyer *g* If you wanted to give these guys (the DOJ lawyers and cia laywers and info destroyers) the barest fig leaf, though, they might argue that they thought that Zubaydah and al Nashiri were not going to trial – at most, they were going to a Philbin memo/Bush order authorized commission that was going to have *special* rules where they weren’t entitled to access to evidence.

    But I don’t think once the War Crimes Act was mentioned that fig leaf can still be clutched. Once you were mentioning possible prosecution against the presidential torturers and president, then there should have been preservation notices.

  25. pdaly says:

    Slightly OT: Was reviewing EW’s torture tape timeline.
    Looks like 2003 should be 2005 in excerpt below, unless I’m misunderstanding something:

    May 30, 2005: DOJ produces another memo superseding the two May 10 ones.

    ?=> Summer 2003: Negroponte writes a memo to Porter Goss strongly advising him not to destroy the torture tapes.

    ?=> June 2003: Senior CIA Officer tells SSCI the CIA does not engage in cruel or inhuman treatment.

    July 2, 2005: Public Affairs Guidance for High Value Individual Capture permits photographing high value detainees (within guidelines).

  26. antibanana says:


    How much of most egregious torture was performed by contractors rather than US Govt. employees? Perhaps that’s why Durham is interested in talking to Foggo.

    It would be interesting to know who the contractors were, and what else they worked on.

    • MadDog says:

      Good point, and likely one of the reasons that Congress was legislating that “only” official US employees be allowed to conduct interrogations in the future.

  27. orionATL says:

    destruction of tapes is the special interest of the federal prosecutor with whom foggo has a date

    as far as WHY foggo was appointed –

    isn’t it a central theme in the cheney-bush presidency to appoint someone to a major federal agency job whom a well-intentioned president would never appoint (doug feith?).

    because? because why?

    because you have a person you can control.

    were i a federal prosecutor, i would look carefully at the behavior in office, conjointly, of a set of officials appointed by the cheney-bush administration.

    – paul bremmer (looting thru contracts)

    – femas’s heck-of-a-good-job brown (looting thru contracts?)

    – dusty foggo (looting thru contracts).

    feel free to add to the list.

    maybe interior dept top officials?

    dod top officials?

    next question:

    were there kickbacks to cheney or bush for the looting?

    or was it just a matter of their friends being permitted to keep the loot in order to retain and enhance power cheney-bush power.

    • Palli says:

      Is there any hope that investigations of tax havens will reveal this wide scale corruption, placing names and numbers together?
      At the top Cheney might require only satisfaction for a job well but below, the dedication to fascism was probably less substantial…and $ seems to work. Everybody can’t work at AIG.
      But we shouldn’t forget the opportunity to review torture tapes for jollies… that was a nice perk. (I wouldn’t be surprised if some copies will someday turn up in some gentleman’s exclusive porn collection.)

      @ 30 Heart attacks are easy in prisons; small planes are getting obvious anyway.

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