Torture Tapes and Briefings

Isikoff has an article that basically catches everyone up on torture investigation. The big piece of news is that John Durham is flying spooks back from overseas stations to appear before the grand jury.

In recent weeks, prosecutor John Durham has summoned CIA operatives back from overseas to testify before a federal grand jury, according to three legal sources familiar with the case who asked not to be identified discussing sensitive matters. The sources said Durham is also seeking testimony from agency lawyers who gave advice relating to the November 2005 decision by Jose Rodriguez, then chief of the CIA’s operations directorate, to destroy the tapes.

There are lawyers probably named Robert Bennett quoted as saying, "maybe he’s just tying up loose ends," but that news, coupled with the news that Durham interviewed  Dusty Foggo, who had recently been hung out to dry by Porter Goss, suggests Durham has been able to break the omerta at the CIA and make some headway on this case.

But I’m sort of interested in this claim:

Durham was appointed by former attorney general Michael Mukasey shortly after the December 2007 revelation about Rodriguez’s decision. At the time, then-CIA director Michael Hayden insisted the tapes were destroyed only after "it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries—including the trial of Zacarias Moussaoui." But since then, declassified filings in the Moussaoui case show that around the time the tapes were destroyed, Moussaoui’s lawyers were seeking CIA records about the interrogation of Abu Zubaydah—who, according to recent disclosures, was waterboarded 83 times. On Nov. 3, 2005, Judge Leonie Brinkema even ordered government lawyers "to confirm or deny that it has video- or audiotapes" of interro-gations of potential witnesses.

Now, this is assuredly not news. The Moussaoui request has been on my torture tape timeline for well over a year, based on this and other reporting. And it is just one case where a party had made a legally binding request for any torture tapes–the other two being the ACLU FOIA and the 9/11 Commission request for any such materials.

(On the 9/11 Commission request, keep in mind that Philip Zelikow, Commission Executive Director, has been saying "let the prosecutor work" in his recent public critiques of torture; he may well have been interviewed in this case, so he may have reason to be confident in the quality of the invsetigation.)

Okay, back to Moussaoui. Not new news. But apparently news that Isikoff is focusing on at the moment. I’m interested in that not just because it says Durham would probably pin any indictments on an obstruction of justice charge. I’m interested because of the dates. There’s the November 3, 2005 Brinkema order, sure, which almost perfectly coincides with the destruction of the tapes. But the trial discussion about Zubaydah testimony went back much earlier.

Moussaoui requested on September 10, 2002, to "Free Abu Zubaydah from CIA Torture Chamber and Bring Him in My Open Court," and on October 16, 2002, Moussaoui made a motion "to Force Leonie Brinkema and her Government to Stop Hidding Abu Zubayda and Ramzi Binalshib Testimony in my Favor." Since the CIA has now admitted it had tapes through December, both these requests were made at a time when the CIA was still making Abu Zubaydah tapes. Perhaps more interesting still is the timing of 2003 requests. In January 2003, Brinkema ruled that Moussaoui could get testimony from bin al-Shibh, though the government subsequently refused to make him available. And on February 3, 2003, Moussaoui attempted "to Get Inform About the Decision Relating to Ramzi and Abu Zubaydah and Al Liby."

On February 5, 2003, the CIA told Porter Goss–who was Director of Central Intelligence when the tapes were destroyed–and Jane Harman they were going to destroy the Zubaydah tapes.

In other words, the apparent focus on the November 3, 2005 order to turn over videotapes came only after three years of requests on Moussaoui’s part to get testimony from Abu Zubaydah, and the decision to destroy the tapes was at least relayed to Congress (to Porter Goss, one of the key figures in the case) just after Brinkema first ruled that Moussaoui ought to get evidence from al Qaeda detainees. 

132 replies
  1. BoxTurtle says:

    This always seemed the easest target to me. We know the tapes existed after Brinkma ordered the government cough them up. We know they were destroyed by someone fully aware of the courts orders.

    That’s obstruction and they’ve admitted it, even if not in court. And if Harmon knew the tapes were going to be destroyed before it happened, this could tar her too.

    Would Goss fall on his sword to protect Bush or Dick? You know he had to have been ordered or authorized to destroy the tapes.

    Boxturtle (Were I Goss, I would avoid hunting trips and small planes)

    • perris says:

      comments always look off till there’s the number one post, just post away and the comments off thingy disapears

      sort of like bush disapeared some of these detainees

  2. Loo Hoo. says:

    Wonder if Harmon will end up before Whitehouse? Not to say she’s guilty of anything, but just for testimony.

  3. JEP07 says:

    One has to wonder if all the tapes were actually destroyed. I can’t imagine Cheney wouldn’t have a copy of at least ONE waterboarding, for personal use.

    • BoxTurtle says:

      If any of the tapes survive, it would be either a major blunder or the action of some mole somewhere who actually believes in the Constitution.

      Those tapes would be Nuclear Bombs. They’d certainly prove we tortured (like there is any doubt), and they would show that the torture didn’t work. Those two points, regardless of anything else that might be there, would destroy BushCo’s entire defense in a way that no lawyer could ever repair.

      If Cheney owns some torture tapes, he likely bought them off the internet. Better production values, all the victims are buff and oiled and you get female terrorists too!

      Boxturtle (And a Palin lookalike!)

      • perris says:

        If any of the tapes survive, it would be either a major blunder or the action of some mole somewhere who actually believes in the Constitution.

        there are patriots in the cia, this I know as a fact

        • BoxTurtle says:

          Agreed. I know it for a fact as well. But did any of those patriots have sufficient access to the tapes to preserve a copy? I doubt it, those were exactly the sort of people Cheney would have kept well clear of that particular compartment.

          JEP, one thing I’m absolutely certain of is that Cheney does not have a copy of any of those tapes. And any record that indicates he EVER had access to them has been purged. The only way we’re going to connect Cheney to those tapes is if somebody involved gets religion and talks under oath.

          IMO, to connect Cheney to the torture enough to make an indictment, you’d have to roll Addington.

          Boxturtle (Or Maybe Scooter)

          • JEP07 says:

            “JEP, one thing I’m absolutely certain of is that Cheney does not have a copy of any of those tapes.”

            Only his hairdresser knows for sure…

      • JEP07 says:

        “If any of the tapes survive, it would be either a major blunder or the action of some mole somewhere who actually believes in the Constitution.”

        Correctomundo, BT.

        And I suggest that both are not only possible, but likely. Cheney’s a trophy hunter, he’s not about to give up some sort of momento, and he would only consider it a major blunder if, lo and behold, he ever got caught, which he and Rove and many others absolutely believe will never happen to them.

        Here’s hoping they are wrong and I am right, and that someone will, one day, walk onto Cheney’s mansion with a warrant and find his trophy case.

        And as for that constitutional mole, considering how many of them probably knew at the time they were crossing the line, so I would hold out some hope that at least one of them kept a copy, or took some photos surreptitiously, to protect themselves if that “permanent Republican majority” thing ever fell through.

  4. perris says:

    I want to make a point, some epu from one of your threads downstairs, it hasn’t gotten enough play, notice my bold;

    Phillip Zelikow made in his dissent to the torture memos known,here is what he says he wrote on the May 30, 2005 torture memo.

    At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies

    there’s the setup, now he goes on to say why the memo is pure crap, he says we can’t torture these detainees because that would give us the right to do the same thing to americans, and here it is, he describes what’s being done to the detainees;

    In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

    see that?

    he is CLEARLY telling us what is being done to these detainees, there is NO question they are being hung from the ceiling butt naked, that’s not hypothetical, that’s what we WERE doing, after these people were water tortured, sleep deprived “and all the rest”

    you know, one of my biggest problems with the term “water board” is that the term doesn’t represent the act, the act is clearly torture, they are drowning you until you demonstrate the throws of death, you can and do die at times and are then revived

    when you die under this torture, that’s murder, it doesn’t matter they were able to revive you, you have suffered death and experienced the throws of death, only to have the same thing happen again

    so that’s what “water boarding” really is but the administration is allowed to use the very benign sounding term of it

    however there is no benign sounding term for “being hung naked from the ceiling”

    we need to change the dynamic of dialogue we’re using and this form of torture needs to get into the discussion

    • perris says:

      I want to make another point;

      the people who designed these torture techniques were NOT interogatores, they were torturers with NO experience extracting information, none, nada, zilcho;

      it turns out neither Mitchell nor Jessen had any experience in conducting actual interrogations before the CIA hired them.

      “They went to two individuals who had no interrogation experience,” said Col. Kleinman. “They are not interrogators.”

      no shit

      hired at 1000 DOLLARS A DAY for their “expertise” regarding torture and it’s eficisaty had ABSOLUTELY NO experience interrogating anyone.

      they were there NOT to find answers, they were there to inflict pain.

      IF they had ANY experience with interrogation they would have informed the sadists;

      “we get far more information, far more valuable information, far more actionable information if we use techniques that are NOT torture”

      “when we get ANY information using torture we pay the price of increasing the numbers of our enemies, for every person tortured you turn their entire family, all their friends, all their associates into terrorists against your cause”

      we could have guessed they had NO experience gathering information since ANYONE with experience would have asked them;

      you want a torture profram?…why?…”do you WANT more war?, do you WANT more insurgents?…do you WANT more unrest?…do you WANT to LOSE valuable information?”

      that’s what ANY interrogator with experience WOULD have asked before they created Cheney’s house of pain

      • plunger says:

        Haven’t we witnessed enough examples of this to confirm it as a strategy? The Bush Administration INTENTIONALLY put unqualified individuals in underfunded, understaffed, yet exceptionally powerful positions IN ORDER TO GUARANTEE FAILURE ON PURPOSE! They provide themselves with plausible deniability in pursuit of their true goals (successful failure) when they do things like fire the General who stated that vastly more troops we be required to truly succeed in Iraq.

        “Heck of a job, Brownie”

        Did you check this one out yet?

    • RevBev says:

      I think Amy Goodman had a guest, mayby McCoy, also describing waterboard. That the human response to fear of drowning is one of the most primitive & deepest fear. Exactly the definition of assault, the fear of bodily harm. As the speaker described the experience, it certainly sounded tortuous, and not these little pissant games that Sean, et al make it out to be.

      • perris says:

        the reason you have this fear rev is the fact that you are dying, they are indeed killing you and they are your last thows to survive

        the reason you think you’re dying is because you are dying

        • tjbs says:

          How ’bout they heard the screams stop permanently of one of the 100+ that didn’t make it.
          Yea they were scared to death. Who’s on the chain of custody on the tapes and who has viewed them.
          If Mc Connell was moving the data for george he split off of a copy. Who in the White House was smart enough to know.
          He was deposed and had to know one always needs to keep a silver bullet.

          • Nell says:

            Apologies, perris, didn’t see that someone else had already made the correction. I let a lot of misspelling go by, but that one just rankled, partly because your point is an important one.

    • jayt says:

      he is CLEARLY telling us what is being done to these detainees…

      good point.

      although I retain serious doubts about whether Zelikow ever executed any such document. Awfully easy to claim to have written a vigorous, principled objection – but “hey, *somebody* (don’t know who, ya know”) destroyed all the copies.”

      • barbara says:

        Shhhhh. Listen. Little rat feet scurrying to a document bonfire, somewhere deep in Cheney’s new bunker. Shhhhh . . .

  5. tjbs says:

    Let’s roll the tapes .
    Are they bell& howell 16mm or what.
    If they are digital they are out there.
    IT Mc Connell had to keep a copy for protection.
    Was there a live feed between the WH and the torture chambers.
    Could bush or condi or dicks voice be heard on the tapes.

    Pancakes up I’m out

  6. JEP07 says:

    “In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked,”

    Or beat to a pulp by a big bully you threw a tennis shoe at?

    Americans, jailed fairly or unfairly, aren’t exactlt “safe” once they are arrested, and not just at the hands of jailhouse bullies, but at the hands of our own law enforcement bullies.

    From what I’ve heard, Alaska’s local “authorities” act a lot like Blackwater on donuts in the way they treat their charges.

    Anyone who thinks American citizens are somehow magically protected by our constitution from jailhouse torture hasn’t been to jail. City, county, state or federal, there is a culture of “blue-meanie” oppression that has only grown worse over the past decade. And when they can’t get away with it themselves, some guards hand their victims over to certifiably violent inmates who will do the damage for them.

    Remember in Animal Farm how the pigs took the doberman puppies and turned them into killers? The past decade has seen that happen in our own era. It’s time for teaching the Constitution to our rookie cops again, as the first step in their law-enforcement education.

    • perris says:

      being protected by our constitution doesn’t give you immunity from those who defy her nor from those who break our law, it’s there to give you the avenue to persue justice

      • JEP07 says:

        Which is why I suggested we teach the Constitution as the primer, not some casual addendum, in law enforcement classes. The Constitution would offer those protections before the fact, as a preventative, rather than after the fact, punitively, if the basic rights there-in are fully understood by law enforcement.

        Unless I am mistaken, even state-level and local oaths start with the words “protect and defend the Constitution of the United States.”

        My real point is, the same culture of vindictiveness that created the term “enemy combatant” is also at work domestically, and American citizens, too, have felt the sting of this enforcement-by-revenge mentality.

        The terms “enemy combatant” and “alien sedition” might well be considered synonymous. As we work to clean up the mess Cheney created by trashing our world image as a nation supposedly built on the rule of law, we should carry it over to domestic law enforcement.

    • perris says:

      It’s time for teaching the Constitution to our rookie cops again, as the first step in their law-enforcement education.

      me likey!

      imagine if that course had to be passed before any other, imagine how hard it would be to change the perspective as they’ve managed to change it

      • JEP07 says:

        “imagine if that course had to be passed before any other, imagine how hard it would be to change the perspective as they’ve managed to change it”

        Remember how the movie “A Few Good Men” ends? Two marines exonerated for murder but dishonorably discharged because they forgot a basic rule of Marine code, to protect the innocent?

        Someone failed to emphasize that particular part of the code when they taught those marines. Had they been trained properly, they might have refused the illegal order for the Code Red.

        This is what I mean about teaching ALL law enforcement the Constitution FIRST, teaching it seriously with a deep sense of gravitas, and THEN teaching them how to use their handcuffs, pistols and stun guns.

    • scribe says:

      Don’t forget – while in London, he also visited the Tower and had a tour of the torture chambers and an education from the tour guides.

  7. klynn says:

    On February 5, 2003, the CIA told Porter Goss–who was Director of Central Intelligence when the tapes were destroyed–and Jane Harman they were going to destroy the Zubaydah tapes.

    In other words, the apparent focus on the November 3, 2005 order to turn over videotapes came only after three years of requests on Moussaoui’s part to get testimony from Abu Zubaydah, and the decision to destroy the tapes was at least relayed to Congress (to Porter Goss, one of the key figures in the case) just after Brinkema first ruled that Moussaoui ought to get evidence from al Qaeda detainees.

    And what is the possibility that a judge in Spain just might have put this together as well?

  8. foothillsmike says:

    Friday evening I attended a town hall with Sen Michael Bennet At the end of the meeting I had the opportunity to have a great one on one with him. Fortunately I was armed with all of the great info from FDL. With regard to the torture issue he (a former USDOJ deputy AG) said that it has made the hair on the back of his neck stand on end. Additionally, he indicated that there will be a great deal more to come. He is hopeful that Holder will pursue prosecutions including of CIA staff that have committed the more aggregious crimes. He would like to see it kept out of the political arena so that the agenda of health care and environment can proceed but that if Holder does not proceed adequately they will take it up in the congress.

  9. AbbieT says:

    I don’t recall who the military person was who said it, but it stuck with me. He said there is only one reason for torture – revenge.

    • perris says:

      the real pupose of torture is not revenge when it’s the government doing it,the purpose is because you do not want peace, you know you are creating more insurgents, you are in fact instigating your enemies on purpose

    • plunger says:

      Actually, there is one other reason.

      Perception of an entire race/culture as sub-human…therefore not worthy of “humane” treatment.

      Now what country would have fostered such rhetoric as to have Arabs perceived as “less than human?”

      • fatster says:

        Surely there is a proportion (and no matter how small a proportion, it’ s still too large) of people in this country who “perceive Arabs as ‘less than human’”, but the entire country does not. And those who do not are well represented here.

  10. cbl2 says:

    hey firedogs,

    a loosely related question: caught a Big Orange diary late the other night – it made the claim DoD Interrogators attempted to pass themselves off as FBI or State Dept employees –

    has that ever been a subject of legitimate discussions here or at the Lake ?

    not that any of us would be surprised, just don’t remember it coming up before.

    • scribe says:

      It’s been out there for a long time, but never tied in here.

      In fact, I remember the impersonation of FBI by interrogators to have been one of the first facts revealed by an early FOIA; the other impersonation was interrogators telling the captives that their lawyers really worked for the government, so as to dissuade the captives from even wanting to talk to their lawyers. Very effective, that tactic.

    • Rayne says:

      Do you recall where the reference to the masquerade as FBI agents popped up? I can’t recall, and I know I’ve run across it in the last 2 days.

      I think somebody was trying to make use of the hole in Bush’s February 7, 2002 memo-cum-unenumerated-executive-order, in which it says,

      As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

      FBI/CIA/State personnel aren’t included in this “order.” Conveniently, SecState, SecDef, DCI, VP are sent this same document.

        • Rayne says:

          Thanks, barbara, hadn’t made it over to the Great Orange Satan this morning.

          It was the ACLU Torture Documents collected via FOIA in which I’d seen the reference in the last 48 hours.

      • cbl2 says:

        it’s right here. didn’t want to link it until I had confirmation – oh, and that verbiage “left holding the bag” kinda stuck out, didn’t sound all that bureaucratese to me.


        gotta go serve the local talibangelicals their chicken-frieds


        mad progressive love.

  11. BoxTurtle says:

    While I’m all for teaching the Constitution (to everybody), that would not have helped in this case.

    Ask ANY cop if it’s legal for them to waterboard that rapist, and they’ll tell you “No”. Flatly, and without any legalistic qualification.

    This is not an education issue, the people involved knew what they were doing was wrong. From top to bottom.

    Boxturtle (I used to be disgusted by the justifications and legalizations, now I’m just amused)

  12. foothillsmike says:

    “Someone failed to emphasize that particular part of the code when they taught those marines. Had they been trained properly, they might have refused the illegal order for the Code Red.”
    However this is to overlook the power and authority of the leadership which is also taught and constantly reinforced.

    • barbara says:

      More than once, it has occurred to me to wonder about the level of raw courage it might have taken for “underlings” to buck the torture system. “If I don’t play ball, and if I don’t keep my mouth shut, they might do these things to me.” Is it safe for them to speak, even now?

  13. cbl2 says:

    thanks as always m’am!

    was kewl to see some of the commenters expressing skepticism by invoking you:

    ‘emptywheel smell test’

    ‘don’t recall emptywheel discussing this . . .’

  14. scribe says:

    To mention something: if a half-crazed Moussaoui in his cell working pro se could come up with the motions cited here, think what could have been excavated if he’d been persuaded to allow his lawyers to represent him.

    I’d argue he has a good case to withdraw his guilty plea. Brinkema is and has been seriously chapped with the DoJ for a while now.

    And totally off topic, just now on TV (in response to a question on health care), Specter, Stomping his foot: “I did not say I am a loyal Democrat.”

    In case you had any doubts.

    • jayt says:

      Specter, Stomping his foot: “I did not say I am a loyal Democrat.”

      In case you had any doubts.

      Nah – I didn’t.

      But I am finding it increasingly entertaining to watch Specter screech against EFCA, Dawn Johnsen, and now against his own party – in the context of an obviously well thought out 2010 election campaign.

      ok – so maybe not so well thought out.

        • jayt says:

          what’s Arlen’s platform gonna be?

          “I’m not really a Democrat, you know. I hate those fuckers, truth be told. I also hate what the Republican Party has become, so what is left is *ME*!! And yes, I am shamelessly perverting the electoral system for my own craven benefit.”

          “But I’m really, really good at being a Senator – I LOVE being a Senator – and it’s all I really know how to do. So I ask you today for your vote.”

          • foothillsmike says:

            Pretty close to it. Interesting that Tom Ridge is thinking about running. Wonder if he would declare a code red right before election day.

          • behindthefall says:

            Sounds familiar. Change a few words around. Where have I heard that recently. CT? Wonder if he would run as an independent: “Pennsylvanians for Specter”.

      • scribe says:

        Just start running (radio) ads with that quoted sentence or with audio from any of his other Republican-supporting escapades and then cap it with “do we need more of him, or a real Democrat” (or something similar contrasting him to a real, loyal Democrat).

        Don’t even need a candidate for the Dem primary (yet) – just show he’s purely about himself. That does not play well in PA, if it plays well anywhere.

    • emptywheel says:

      Yeah, but somehow he stayed up on the case pretty well. He seemed to know precisely the moment when KSM refuted the claim he was the 20th hijacker (I think this was before they copped on to who Qahtani was, so it had to have come from KSM’s interrogation), and then he went after Ashcroft for claiming he was part of a second phase plot. That’s pretty interesting especially bc it all shows up in teh first month of KSM’s captivity, so when he was waterboarded.

      • rkilowatt says:

        “…seemed to know precisely the moment when KSM refuted the claim he was the 20th hijacker “…

        That’s telling. The torture-tapes perhaps show “confession” that Moussaoui innocent? Then how to distinguish any confession from faux-confession that seeems the basis for Constitution’s 5th Ammendment?

        • emptywheel says:

          No, the idea is that within a month of KSM’s capture, Ashcroft switched his argument about Moussaoui, from calling him the 10th hijacker (like I said, I don’t think they knew they had al-Qahtani yet), to saying he was going to lead a second attack. Well, we know THAT comes from KSM, who appears to have said right away that Moussaoui wasn’t part of the attack. So Mouusaoui started calling out Ashcroft.

  15. foothillsmike says:

    He caught hell over his vote on the cramdown but explained his opposition to some of the details. He is very enthusiastic about the Obama plan and can support single payer. He is close to Dawn Johnson and especially Chou (sp) and working for the latters confirmation. Generally speaking I feel that on most issues he will get a very high passing grade.
    He was also pushed hard on EFCA but noncommital.

  16. Loo Hoo. says:

    I’m guessing Specter’s deal with Obama is that he votes the right way if he gets campaign time from Obama/Biden.

  17. atonemusic says:

    Can someone help me with a definitive response? The following appears daily, in some form, in our local paper’s comments section. I know it’s been published as such in the Washington Times but I have no evidence to dispute this absurd claim:

    “It wasn’t 183 separate incidents of waterboarding. Each time some more water was poured on it was counted.”

    What are the contrary facts? Thanks.

    • emptywheel says:

      They did not drag him from his cell 183 times to waterboard him. But they poured water on him, then let him breath, then poured water on him, let him breath, and so on.

      But the key issue is that CIA considers it 183 waterboards–this is not coming from the ICRC.

    • WilliamOckham says:

      The simple response is this. The CIA says that they partially drowned him 183 times. Does it really matter whether they unstrapped him in between?

      The longer response is this:

      Which would you prefer: To be strapped to a board and suffocated with a wet cloth over and over or to be taken back to your cell in between each suffocation? Are you saying it’s somehow more humane to do it repeatedly without giving him a chance to recover? You do realize that the worst physical effect of the suffocation is cutting off oxygen to the brain. It’s certainly more dangerous physically to do it repeatedly without recovery time. Now, whether or not it’s more psychologically damaging to do it repeatedly without a break, I honestly don’t know. Are you volunteering to undergo ‘183 pours’ so that you can find out for yourself? I didn’t think so. Maybe you should just STFU.

      • atonemusic says:

        Perfect! Thanks for putting it in perspective, and for giving me the ammo I needed.

  18. barbara says:

    Here’s the deal. We/I make a lot of fun of ourselves/myself re tinfoil hat mode. And it is kinda funny (sometimes) and knee-jerk (sometimes) and jejeune (sometimes). But I do think the ability to move beyond ridicule (at least, far enough to thoroughly research) is what ultimately unearths the truth (sometimes).

  19. wavpeac says:

    This one cognitive distortion is likely THE most destructive distortion that humanity has ever made. It’s the one cognition that continues to thrive, and the one that is created by torture. It is the fuel for all war and all torture.

    That is why the words “All men are created equal” were so groundbreaking. It represented a true paradigm shift, and it alone is the reason that the U.S was blessed with prosperity. It is a shift in thinking that has yet to be fully realized. That statement is at the center of our success as a nation, but we do not realize this fully. We have confused the reasons for our success with the cognitive distortion that “we deserve our success, that we are better than other people, that we are in fact, not equal”. And for that shift backwards their are natural consequences.

    The fuel for all war is to invalidate other human beings.

    The opposite polar would be to “validate” the kernal of truth in every culture, every position…but only validate that which facts support to be true.

    That is the synthesis that would shift us from warring people to peace makers.

    • JThomason says:

      So true. One would think that in the context of the idea of progress and of modernity that the idea of the sanctity of the human body and human dignity would, as a touchstone principle of enlightenment and democracy, not be at issue. These ideas are at the very heart of the idea of a limited constitutional government. The mutual human respect embodied in these ideas is a fundamental point in the rejection of tyranny and totalitarianism. And the rejection of tyranny and totalitarianism is also the rejection of arbitrary wrongs to the body arising of authority.

      I am grateful for the vigilance here. The threat to the institutionalized recognition of these fundamental principles so necessary for the establishment of humane and democratic states is severely threatened by the black tyrannies of the twisted unhinged pleasures represented in the exercises of arbitrary, immoral and lawless power by the Bush administration under the guises of grotesque fabricated pretexts and fantasies of banal absolutism. What leads one to wonder is that so many persons ostensibly educated in the fundamentals of democracy, and likewise who have garnered the benefits of the reasoned and institutional approach, acquiesced in the administration of these cruelties so easily under the shadows of a temporary claim to power.

      Thank you all who post and comment here against these excesses.

    • rkilowatt says:

      and @28 plunger’s “…Perception of an entire race/culture as sub-human…therefore not worthy of “humane” treatment.”…

      It was also the Pope Nicholus 1452 justification for slavery in his Bull Dum Diversus response to kings of Spain and Portugal, who asked permission to nab Africans.

      It’s the trump in every colonizer’s mind to “make it ok”.

  20. Cheryl says:

    Thanks for all of the great information EW. I don’t think there is any way to thank you enough. I would add to the fund for your writing but am unemployed. Anyway, my question is regarding Jose Rodriguez. Isn’t he the nephew of Silvestre Reyes? I thought I read that somewhere and I’ve wondered about his being the Chairman of the Permanent Select Committee on Intelligence. I also remember that Reyes wasn’t necessarily the next person in line for that position but my memory is probably fuzzy. Do you know anything about that?

    • bmaz says:

      They are not formally related. They are friends, and there is some evidence that Rodriquez is in a business of some sort with the brother of Reyes, but that is it.

      • Cheryl says:

        Thanks BMAZ. My memory is fuzzy! I appreciate the answer and everything that you contribute. I always learn something here at FDL.

    • emptywheel says:

      Ken Silverstein reported that Reyes’ brother was doing business with Rodriguez, but completely retracted that story.

      And Reyes was not next in line to be HPSCI chair–Jane Harman was the senior Dem on the committee at the time. There have been a number of explanations for why Harman was passed over–most recently the story about her being picked up on a wiretap.

        • emptywheel says:

          It has been my experience that Harper in general doesn’t always retract as noticeably as one would like.

          But he did retract it in no uncertain terms.

          This story, which originally appeared under the title “Where is Jose Rodriguez? Apparently in business with the brother of top Democrat on Intel Panel,” describes Jose Rodriguez Jr., the former head of the CIA’s clandestine service who has been identified as making the decision to destroy videotapes showing the interrogation of two Al Qaeda members, as doing business with a brother of Congressman Silvestre Reyes, the Democratic chairman of the House Permanent Select Committee on Intelligence.

          A Reyes staffer has told me that the story “is absolute fiction” and that Rodriguez has never had any discussions about doing business with any member of Reyes’s family. “There’s absolutely no truth to” the story, the staffer said. He said Reyes’s planned a “rigorous inquiry” into the destruction of the videotapes and that, “We are going to follow the facts wherever they may lead.”

          I have retraced my steps in reporting the story and it’s clear that what I wrote was wrong. The responsibility is mine alone. I regret the error and apologize for it. That section of the story has been eliminated from this version of the post.

      • Cheryl says:

        Well, what a tangled web. I knew I had heard something quite some time ago about a relationship between Reyes and Rodriguez but couldn’t remember what. Thanks for the answer. Usually I just lurk because I so seldom have much to add but I have been wondering about the Reyes appointment becasue I’ve seen him speak in hearings and whatnot and have not been impressed to say the least so I was surprised by his appointment as Chairman.

  21. PeterK says:

    Question for the legal types out there: If the prosecutor finds evidence of other crimes, can he indict for them as well, or instigate some other legal action? Ie is he limited to the question of destruction of the tapes?

    • BoxTurtle says:

      If he finds evidence of other crimes, he can try to get an indictment for them as well. Sometimes a prosecutor will indict for a minor crime in hopes of using the search warrents that come from that to uncover bigger crimes.

      Boxturtle (Giving them enough rope to hang themselves is also a time honored strategy)

    • bmaz says:

      Durham is nothing more than a specially assigned regular prosecutor for the DOJ; he maintains full normal jurisdiction. Under the old independent counsel statute, and some iterations of special counsel, there is limited jurisdiction; to the best of my knowledge this does not apply to Durham.

      • PeterK says:

        So this means that Durham most likely could bring an indictment for something else, if he finds evidence of it? Could he charge people with torture, for ex? Surely the tapes are evidence of that.

      • LabDancer says:

        But does there really need to be a special widening of Durham’s protocol in the first place? Or could a recent [post-inauguration-and-Holder-swearing-in] widening of the parameters of his investigation be simply put down to prior constrictions being removed?

        This may seem too prosaic for you and others here, particularly the lawyers, but I think it’s worthwhile to consider the simple mechanics of what has to be involved in the task of someone who’s received the instructions that Durham must have being given: ie chase down who “destroyed” the recordings and on what basis she/he/they did so. My own preference, from either side of the courtroom but particularly from the prosecution/investigation side, has been to precede chronologically, thus:

        1. Who physically made recordings?
        2. On what directions or instructions?
        3. Were such directions always adhered to, and if deviated from, when and how?
        4. On what basis[es] were recordings distributed, inventoried, accounted for and gathered up?
        5. Where are those recordings now?
        6. Who physically “destroyed” or otherwise compromised recordings?
        7. On what basis[es], direction[s] and/or instructions were recordings “destroyed” or otherwise compromised?

        Those simple chain-of-custody questions on mechanics presumably end up with people saying things like: I was directed by X; X saying I was directed by Y; Y saying I was directed by Z; and Z saying I received legal advice.

        But legal advice on what basis? Personal or ‘corporate’? If corporate, then the corporate ‘client’ is the United States [and ultimately the People]–at which point the inquiry is open to getting bogged down in privilege–client privilege, not witness privilege.

        But what if things were to happen, from say late January of 2009 on, which prompted the client to change its mind about asserting the privilege? One would expect that if that were to happen, or to have happened, then a lot of doors which were shut and locked would be opened, and lead on and on, up and up.

        So I don’t think it’s necessarily the case that a change in the parameters of original protocol would be required to widen the investigation; all that would be needed is something that happens to remove the barriers.

        In that vein, it’s worthwhile, IMO, considering the sort of things Durham has specialized in over most of his career — and noting that there have been a number of instances where the fruits of his investigations have led to quite tough consequences for the government, including overturned convictions, criminal convictions of government actors in their stead, and civil judgments in favor of the wrongly-convicted, in excess of $100m.

        • bmaz says:

          All I am saying is that there is no legal limitation on his jurisdiction; what he and his superiors consider to be his parameters are a far different thing.

      • Mary says:

        You think he’s got that much authority under his assignment? None of what happened occured where he is a prosecutor and he isn’t a part of Main Justice, so I would think that he’s limited to what he was mandated to investigate. It’s not as clear as it was with the special counsel appointment of Fitzgerald that was spun from specific matter recusals, but I’d wonder how far he can go with non-Connecticut crimes unless he had the right mandate.

        • bmaz says:

          He is assigned to the matter, as long as charges were filed in the right jurisdiction, I think (emphasize think) he has the ability to do so. That is different than the question of what the DOJ and he understands to be his purview, which, I agree, will be the controlling aspect.

    • Mary says:

      With this prosecutor in this case, maybe not. He is acting in essence out of his bailiwick on a special matter (the tapes) assigned to him. If he’s going to go further, he would have to ask for an receive additional delegations or authority.

      • PeterK says:

        Thanks, Mary. Just curious: Suppose he finds something, and goes to the DOJ saying “i have credible evidence of torture”, or maybe even homicide. Can they just tell him to forget it (and not say anything about it)? Would they be somehow obliged to investigate further? Ie, how much discretion is there?

  22. valletta says:

    Coinky-dink? February 5, 2003 was also, if memory serves, the day that Colin Powell sold out to the U.N. Security Council, making the case for the invasion of Iraq.
    Cheney knew that they had no connection between 9/11 and Iraq and had to go to Plan C, using Powell as a substitute for a coerced confession.

  23. WilliamOckham says:

    Maybe this is why Isikoff’s piece got published (since nothing in it except ‘the Durham’s still interviewing people’ bit is new):

    Laura Rosen comments:

    One read of Newsweek piece: did something recent cause Durham investigation to ramp back up? Could that something be Foggo’s recent testimoony?
    Have recently learned that Foggo’s lawyers approached HPSCI chairman last year to testify about what he knew on torture tapes destruction in exchange for immunity.

    • bmaz says:

      I think the ground that Durham though he was standing on when the indication was made that there would probably be no charges has shifted for several reasons, but it sure seems on the surface to look like Goss may be a significant factor. Yanking spooks in from overseas is significant and has to really ruffle feathers at the CIA. That doesn’t strike me as something done lightly. And that clearly came on the heals of the whole Foggo sentencing- debriefing sequence.

    • klynn says:

      And how many times has EW concluded this? Many.

      Foggo, Abramoff, Harmon…AIPAC…

      ( WO- Left a response for you in the last post. EW and Mary weighed in too. Thought you might be interested.)

  24. Leen says:

    Scott Horton interviews Ray McGovern on Torture (Scott Horton went off in a good way)…..govern-16/

    Yesterday I was with three friends who are Vietnam Vets. We had a long conversation about this torture issue. All three of them are extremely pissed off by the torture that has taken place. Really pissed off

    Ray McGovern “laws against torture because it is plain wrong”

    ### McGovern has such calm, cool, clear thinking

    • Leen says:

      McGovern points at Rockefeller in this interview

      McGovern “even now the fix is in. O.k. First there are the Rockefellers of this world. Now he knew chapter and verse about torture. He didn’t say anything about it. He didn’t do anything about it. And now he is complicit”

      McGovern “I don’t rule out Eric Holder living up to his responsibilities”

      • emptywheel says:


        But as we’ve seen from the narrative which teh CIA doesn’t dispute and a series of posts I’ve done on it, that’s not correct.

        I’m no fan of Jello Jay. But that is an incorrect statement of the facts as they pertain to Jello Jay.

        • Cheryl says:

          I’m no fan of Jello Jays either after making phone calls for two years asking for the Phase II investigation information to be released. However, I do remember his handwritten note to Cheney about the torture briefing which he put in his safe. I also thought the reference in his note to the TIA program John Poindexter brought to the Bushies was very intersting. I don’t know what to make of that.

          • emptywheel says:

            Jello Jay’s note to Cheney was exclusively about the illegal wiretap program–and as you point out, he referenced TIA, which may serve as critical legislative record if we ever go to court on any of this.

            Harman’s the one who complained about torture, in her case, to CIA’s GC.

            All three main players–Harman, Jello Jay, and Pelosi–who had briefings had some good moments and some bad ones on both illegal programs. But on torture, Jello Jay and Harman have established a track record of complaining.

            • Cheryl says:

              Thanks again! You know, it’s getting harder and harder to sort through all of the different illegal activities and I appreciate being able to read your ideas and clear thinking. There are so many dots to connect and you do it well.

  25. TheraP says:

    Serious Question:

    If another nation were to have intercepted the tapes’ transmission or kept a copy of interrogations done in a black site on their territory, who might have that capability or who would stand to gain from divulging that?

    Cuz I’m just wondering if some other country has a record that was not destroyed.

  26. Mary says:

    Some random thoughts –

    1. If the NYT piece profiling Martinez is correct, then it is very unlikely that the tapes would show any intel coming during the sessions. According to that piece, the actual interrogators were not even present during the torture sessions, according to that piece (although I think it’s been pointed out that spooks lie, as do criminals). Instead, they would decide someone wasn’t giving them what they wanted and put them in the torture que, then go away. After the torture sessions, they might not come back for a day or more to actually ask questions. If that scenario is correct and not just an invention to help “cleanse” the interrogators, then there’s not much chance the torture sessions would show anyone “giving up” good intel, as much as being told the kinds of things they needed to talk about when they interrogator came to talk to them again.

    2. McNulty’s USAtty office sat point on Moussaoui’s case. Actually, once Moussaoui framed his issues on access to the info, McNulty’s office (ED VA) should have been sending out lit holds. IMO – for that matter – once Gonzales penned his Jan 02 memo saying that they were doing things for which a later administration might pursue War Crimes Act claims, a flurry of lit holds should have gone out. But definitely once Moussaoui framed his requests in any form – much less the later Padilla case objections to the material witness warrant sources, much less ACLU requests, much less Robertson and other GITMO hearing Judges’ orders. I’ve always wondered about the due diligence on getting responsive info and lit holds. So for me one of the most interesting statements in Isikoff’s article was the parenthetical info: Rodri-guez(sic) was unaware of any judicial orders for the tapes and “did absolutely nothing wrong,” said his lawyer, Robert Bennett.

    Lit holds should have been well papered and should walk back to at least Rizzo, if not Rodriguez. But DOJ interaction with CIA in general should be papered to show what kind of due diligence DOJ undertook in discovery. These are all the reasons why I think that the SJC could go a lot of places without needing a truth commission to do it. All the interactions of DOJ (and aother admin lawyers for that matter, like Rizzo) lawyers with SJC and the courts should be something they can dig into hard and it will show a lot of issues that go beyond, in anyone’s book, writing a bad opinion.

    3. All that said, it may be I’ve become way too cynical but I don’t see anything much coming from the Durham investigation. It was inhoused for a reason and that reason includes the ability of first Mukasey, now Holder, to sit on and edit what comes out of it. Holder and Obama have already set their policy – it is to provide full cover to the CIA field agents and to select CIA top brass (like a Kappes). I’m sure they won’t mind tossing a Rizzo under the bus, by framing a finding that he gave improper advice, or failed to properly protect potential evidence, etc. but Durham’s mandate, his structure, etc. is such that I think his “investigation” can be used to achieve a goal were Obama/Holder can say ‘tsk tsk, bad lawyering (like the OPR will show as well) and maybe use some professional avenues vis a vis some of the attorneys, and pretend that means something was done, then, go on. But here’s hoping I’m wrong.

    • bmaz says:

      But, of course, you are not wrong, you are right. Of course litigation holds should have been placed. They ought to be everywhere in the various records; that they are nowhere to be found is not mere negligence. The placing of such protections of records for the record is an elemental and basic concept. You have to work hard and intentionally to avoid it on this scale.

      And I return to my repetitive ways to again emphasize that this pure unadulterated bunk about there being no relevance to any outstanding cases is mind blowing. The tapes were of KSM and AZ. They are being held for some reason, the tapes were inherently germane to any proceeding and/or detention of KSM and AZ themselves. Evidence that they were tortured is inherently germane to them and they had an absolute right to have it maintained. Anything to the contrary is simply disingenuous, if not an outright lie.

      • Mary says:

        the tapes were inherently germane to any proceeding and/or detention of KSM and AZ themselves

        Well that is absolutely the be all and end all, you’re right. I guess I’ve been approaching it from the standpoint, though, that they were never originally going to bother with trials of those guys and were going to use that “CIC” crap to dump in unmarked graves or whatever and at that point the lawyers might have felt some insulation. They might say, for example, no holds on that info bc it was all being handled as a part of the military, with the Pres having the power to constitute a kangaroo court for executions and none of it involved domestic courts. But once DOJ was bringing people (defendants) into a court, any court, or speculating that their gov clients might very likely be brought before domestic courts, then that’s the point of focus I’ve had.

        But yeah – as evidence on their own cases, there’s just no getting around it, is there?

        • bmaz says:

          Oh, no, I understand the need to approach the question that way. Still, other than here, I have never seen anybody realize the obvious – the tapes were direct evidence to KSM and AZ themselves. Even under the kangaroo BS of the Bush military tribunal system, I simply do not see how such evidence could be deemed non-material and/or non-probative. I have not seen any provisions of US, nor international, law that indicate to the contrary. If they exist, I would like someone to so point them out, because I cannot fathom it.

        • emptywheel says:


          But even under the military commissions when they were full steam ahead, AZ was never charged. KSM, yes. But I figure everyone expects AZ to rot away in the his own little world.

          • bmaz says:

            I would argue that the tapes were absolutely material (even if for some reason not ultimately admissible) to even the case for detention of the individual. Even under the Bush kangaroo structure, there was the patina of some formal process for establishing a case for detention. In theory, at least, even when it was the unilateral determination of the executive. If part of your case is what the individual did or didn’t say in interrogation, then the facts, circumstances and evidence of all the interrogations of him must be preserved. Same goes for the situation where interrogation of one subject served as the basis for action as to another. There is only one reason not to do so.

            • bmaz says:

              And, I should point out that I have been saying AZ and KSM on this line of thought. That was sloppy of me as the two detainees at issue on the destroyed torture tapes are indeed AZ and al-Nashiri. Realized this inadvertent negligence after reading a comment on the next thread by Aeon. My bad.

    • emptywheel says:

      While I don’t thikn we have any evidence one way or another on Holder besides all his statements which say no prosecution of those within the four corners of the OLC opinion, I do agree that McNulty deserves more attention.

      He resigned in July 2007. The preservation order for Mitchell and Jessen went out at DOD (at least) in May 2007 or earlier. Rodriguez resigned in July 2007. And CIA first told DOJ of the torture tapes in September 2007.

      • Mary says:

        LOL – as I read through and caught up, I was tacking on a bit more about McNulty just as you were framing the query about him too.

    • Mary says:

      To connect to my point #2 on McNulty – here you have him playing point on that case. Then you have in 2003 the mass exodus starting, including Larry Thompson.…..7619.shtml

      And by then Thompson is looking at the lawsuit from Arar, bringing what he had thought would be his secret torture escapade into relief and not with a KSM as the subject of his torture, but with a guy that they aren’t going to be able to claim was a high up al-Qaeda operative.

      Chertoff is getting his judicial appointment then (like Bybee earlier) and crew who all got what they wanted (like Viet Dinh) are moving on. Next up you have Comey, who does oblige the Dept and pals like Thomspon on the Arar states secrets invocation and the Padilla presser (if OPR doesn’t have anything to say about that, it’s a whitewash), but he’s causing some trouble and now the IG is looking into multiple “mistaken” renditions and there are torture deaths etc. and Comey makes trouble on the wiretapping (imo, bc he doesn’t want to get crosswise with FISCt judges).

      So as he is on his way out, who do they come up with as DAG to Gonzales’ AG (after all, we know Gonzales would do anything and not have any scruples on destroying evidence – so who do they get to play along with the cases in the offing)? Flanigan – the guy who was Gonzales’ and Addington’s backstop – the guy who got a direct briefing on how many people at GITMO were innocent and went along with saying “eh, who cares” So at that point there were some sighs of relief probably – evidence was going to be able to be destroyed with no problem. Then you end up with Flanigan withdrawing – so the tapes are destroyed in that nebulous period after Flanigan is out, but before the new choice is in, while McCallum is acting.

      Tapes destroyed, McCallum heads off to Australia and McNulty, who had the vested interest in the tapes not coming into the Moussaoui case anyway, ends up as DAG. And goes on to start to purge the USA ranks.

      Not a lot of smoking guns there, but what a sordid little tale.

  27. rosalind says:

    ot: from boing boing – “Britain’s secret spy-on-every-call-and-email plan already well underway”


  28. wigwam says:

    Scott Horton just now said on KPFK that Durham “seems to be going after somebody.”

  29. perris says:

    quick question for you bmaz

    I agree with your point whenever someone says they think obama is playing some 12th dimensional chess regarding bush positions in court, it makes no sense

    I want to ask your opinion from a practical perspective, aren’t we better off if the courts decides those positions cannot be supported uner law rather then having obama refuse dedending them?

    I would rather the courts say it loud and clear rather then the cases simply be dropped by the principle

    • bmaz says:

      What Obama ought to do is repudiate the asinine positions that have been lodged with the courts, and quit obstructing justice by duplicitous invocations of state secrets, so that the courts could actually make intelligent and lasting rulings. Of course, this is exactly what he is NOT doing.

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