John Durham’s Torture Tape Documents

Jason Leopold reported on and posted a late update to the ongoing torture tape FOIA exchange. If I read the latest exchange correctly, Special Prosecutor John Durham is at least preparing to identify–and potentially make available through FOIA–a number of older documents on the torture tape destruction, as well as admitting that some more recent documents on the torture tape destruction exist.

Today’s letter does two things. First, it withdraws John Durham’s objection to Judge Hellerstein’s order that:

The government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002. I find that the period for such production should be April 1, 2002 through June 30, 2003. If this longer period imposes an unreasonable burden, the Government should show why, and whether a reasonably shorter period would provide sufficient disclosure.

Today’s letter states:

For the reasons stated in the enclosed ex parte letter from John H. Durham provided for the Court’s in camera review, we write to advise the Court that Mr. Durham withdraws his objection to paragraph 4 of the Court’s April 20, 2009 Order.

In addition, the letter admits that the CIA has documents pertaining to the torture tape destruction,

that fall outside the date range provided in the Order; namely, April 1, 2002 through June 30, 2003. Mr. Durham may have objections to the production of documents created outside the date range specified in the Order.

This news is not surprising–it had always bugged me that the otherwise thorough Hellerstein hadn’t demanded documents for the period right up until the destruction of the torture tapes in November 2005. Now, Durham is admitting such documents exist–which we knew, because among other things, we knew that John Negroponte sent Porter Goss a memo in 2005 telling him not to destroy the tapes. But it’s nice to know that Durham is willing to go out of his way to admit that such documents exist.

If I had to guess, I’d say that Durham has finished his investigation of the earlier period–through June 30, 2003–so is now willing to produce at least a Vaughn Index of what documentation exists for the period (note, this should include the documents surrounding the Jane Harman briefing from February 5, 2003, including her letter telling the CIA not to destroy the tapes, and any paper response Scott Muller made internally at CIA). And I’d guess Durham has finished any interviews in which he would have wanted to avoid disclosing that there are documents of any sort from the later period. But it sounds like he’s not willing to give these later documents up. 

Yet.

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21 replies
  1. fatster says:

    Pardon my interruption, but . . . OMG.

    Obama Is Said to Consider Preventive Detention Plan

    By SHERYL GAY STOLBERG
    Published: May 20, 2009

    “WASHINGTON — President Obama told human rights advocates at the White House on Wednesday that he was mulling the need for a “preventive detention” system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried, two participants in the private session said.”

    http://www.nytimes.com/2009/05……html?_r=2

  2. bmaz says:

    Interesting that, not all that long ago, Durham was indicating that the gig was all but wrapped up and there was little of interest that would come from it.

  3. readerOfTeaLeaves says:

    Well, a quick pop over to the EW Torture Tape Timeline helps explain why that extra six months (Jan – June 2003) would be a useful addition to the Na.Ra.Tive:

    November 27, 2002: Haynes recommends Rumsfeld approve most aggressive techniques for use at Gitmo.

    December 2002: CIA stops taping interrogations.

    December 2, 2002: Rumsfeld approves aggressive techniques for Gitmo.

    2003, unknown date: CIA stops using water-boarding.

    January 2003: CIA OIG starts investigation of detainee interrogation.

    January 15, 2003: After having three-times orally warned Jim Haynes that Gitmo interrogation techniques “could rise to the level of torture,” Alberto Mora drafts memo and threatens to sign it unless techniques stopped. Techniques stopped. Rumsfeld convenes “Working Group” on interrogation, but Haynes directs Yoo to draft memo anyway.

    January 28, 2003: Tenet writes memo to OLC outlining acceptable interrogation methods and stating that records must be kept.

    February 2003: CIA claims to have informed Intell leadership of torture tapes‘ destruction; though SSCI has no records.

    February 5, 2003: Jane Harman and Porter Goss briefed on interrogation methods and torture tape.

    February 10, 2003: Harman writes letter advising against the destruction of the tape.

    February 28, 2003: Scott Muller responds to Harman without addressing the tapes.

    March 2003: According to NYT report, the CIA briefs Congress on destroying the torture tapes.

    March 2003: Public Affairs Guidance for Media Coverage of EPWs and Detainees allows photos (within guidelines) but prohibits photographs of custody operations or interviews.

    March 1, 2003
    : Khalid Sheikh Mohammed and al-Hasawi captured.

    March 5, 2003: Majid Khan captured.

    March 6, 2003: KSM’s torture begins.

    March 13, 2003: Jay Bybee leaves.

    March 14, 2003: John Yoo opinion on torture, governing interrogations by DOD.

    May 2003: Government tells Leonie Brinkema it has no interrogation tapes.

    May 2003: CIA OIG reviews torture tapes at black site.

    June 6, 2003: 9/11 Commission requests “‘all TDs and other reports” of intelligence information obtained from interrogations of forty named individuals from CIA, DOD, and FBI.

    June 26, 2003: In speech, Bush says we will prosecute those who torture. In response, Tenet requests and gets memo approving of water-boarding–giving the program “top cover.”
    ———————————–
    So during this six months, it appears that the CIA/contractors may have stopped taping, and that Moro and some of the uniformed military (and we know from last week’s testimony, the FBI) were ‘pushing back’ against torture policies that were obviously coming out of the WH/OLC — and political appointee Haynes (Shadow OVP) at DoD.

    I’ve put in the items that included the word ‘tapes’, along with some others for context. Maybe it will help some of us to see a bit more clearly what was going on.

    The next step is for interested readers to combine this info with the Ghorbanifar Timeline for this period, and also the “WH Emails Timeline” for this period. Then — and it’s late, I’m tired, so if anyone else is interested… putting up a note about how many US military had been killed by 30 June 2003; I think it was several hundred. Hard to figure out from this data how torture made the US safer, although perhaps Cheney will explain that tomorrow.

    One of the striking things in this bit of timeline is how the torture memos were written by political appointees, with the uniformed military (Moro) objecting strenuously. Tragic.

    Thanks to both EW and Jason Leopold.

    • thatvisionthing says:

      Final paragraph of Joseph Wilson’s July 6, 2003 NYT op-ed What I Didn’t Find in Iraq:

      But were these dangers the same ones the administration told us about? We have to find out. America’s foreign policy depends on the sanctity of its information. For this reason, questioning the selective use of intelligence to justify the war in Iraq is neither idle sniping nor “revisionist history,” as Mr. Bush has suggested. The act of war is the last option of a democracy, taken when there is a grave threat to our national security. More than 200 American soldiers have lost their lives in Iraq already. We have a duty to ensure that their sacrifice came for the right reasons.

      And to help put that in context, there is this paragraph from Nicholas Kristof’s May 6, 2003 NYT column, Why Truth Matters:

      Let’s fervently hope that tomorrow we find an Iraqi superdome filled with 500 tons of mustard gas and nerve gas, 25,000 liters of anthrax, 38,000 liters of botulinum toxin, 29,984 prohibited munitions capable of delivering chemical agents, several dozen Scud missiles, gas centrifuges to enrich uranium, 18 mobile biological warfare factories, long-range unmanned aerial vehicles to dispense anthrax, and proof of close ties with Al Qaeda. Those are the things that President Bush or his aides suggested Iraq might have, and I don’t want to believe that top administration officials tried to win support for the war with a campaign of wholesale deceit.

      I don’t know why Kristof’s column doesn’t get more attention. He was two months ahead of Wilson.

      • bmaz says:

        Mostly because Kristof’s 5/6/03 column was based on his discussion with, and information from, Joe Wilson, so they both kind of blend/merge into Wilson.

        • thatvisionthing says:

          Still, it was published two months earlier — was Cheney using those two months to put his get-Wilson offensive together? Because it seems like it was Wilson’s op-ed that set everything off — the leaks to reporters — not Kristof’s. Like he panicked.

          • Peterr says:

            It’s one thing if you’re the VP and some columnist goes off on you and calls you a liar in print. It’s quite another if a former US ambassador with specific knowledge of the situation does so, and does so quite publicly.

          • freepatriot says:

            was Cheney using those two months to put his get-Wilson offensive together?

            cheney started the offensive against Wilson in the first weeks of March, (the 8th or 9th, IIRC) when Wilson appeared on Television with the same message he had all along

            the first “whitehouse Iraq Group” meeting was in late march (the 22 IIRC)

            NO WMDs in Iraq

            and I think Wilson’s first public appearance was in December of 02

            we is ALL just a gaggle of plameologists round here. You know that, right ???

          • emptywheel says:

            OVP was already worked against Wilson in May, and things took off on June 9, 2003 when Bush told Libby he was worried about Wilson’s allegations. Within days, Cheney had dug up Plame’s ID and was trying to launder it into the press.

  4. JohnLopresti says:

    I wonder if there is any description of the physical media, acetate 3/4″ VHS, 1/4″ CCTV, for the “tape” utilized. There is a question also mentioned in several places concerning “training”, and “virtual tour” maybe ?realtime?, on ‘tape’, PAL, SECAM, NTSC,

  5. JasonLeopold says:

    You are the world’s fastest and most thorough reporter. Thank you for the mention of my story. I am very grateful.

  6. bobschacht says:

    @9-11
    It’s late and maybe my brain is foggy, but might this show that Kristol was the channel whereby Cheney learned of Wilson’s work?

    G’nite, y’all. I’ve had computer problems tonite, so late catching up.

    Bob in HI

  7. Mary says:

    bmaz @ 2 –

    Actually, I think that this may have a lot to do with him shutting down.

    From the case history and Jason’s report:

    The reversal comes after Hellerstein demanded that Durham and other officials provide the court with a sworn affidavit to back up the CIA’s claims that Durham’s probe would be hindered by the production of relevant documents.

    They were trying to play this both ways – Durham not doing anything of benefit to anyone but the CIA saying that they couldn’t possibly turn things over bc it might hinder his investigation.

    Now that they’ve killed enough time to let SOL’s die off more and also had time for Obama to publically announce his confiscation of prosecutorial rights in the Dept, it’s pretty clear there aren’t going to be prosecutions. So Hellerstein made them fish or cut bait — if BullBoy is actually doing something other than helping with the cover up, put it in an affidavit and file it in my court.

    As seems to have happened with the boys at DOJ when Keller-Kotelly took the same position on the breaches of her orders (that Ashcroft, his DAG, Mueller, et al were going to have to start signing off certifying that those orders had been complied with and if they weren’t face the consequences, the lawyers involved get a little glimmer of religion once their name hits a line with direct liability to the court.

    So anteing up the docs is bc Durham can’t and won’t certify in an affidavit that he is actually going to be doing anything. Hard to come up with an affidavit that releasing docs will interfere with your investigation when your only job is to cover up.

    • emptywheel says:

      Then why ‘fess up to having the docs when Hellerstein never asked about them. While I agree that the affy is one thing that set this off, it looks a lot more like Durham is trying to protect the 2005 docs (rightly, since they lead at least to Porter Goss), and not the 2003 ones. But he didn’t have to ‘fess up to the 2005 ones at all, bc Hellerstein had never asked for them.

      • Mary says:

        It isn’t actually Durham as Spec Prosecutor who is making the FOIA response or who is looking at “his crew” being the subject of Hellerstein’s contempt proceeding.

        What you had was CIA (and DOJ) violating Judge Hellerstein’s original production orders, way back when. Then as it became clear over the years that they were pissing in the courtrom, and one or two judges thought holding up an umbrella wasn’t really a sufficient response, they began to hold the lawyers feet to the fire vis a vis mutterings on contempt. Mukasey then appoints a whitewasher to make it look like he did something. CIA and the lawyers looking at contempt then ran to the courts and said, “hey, sure, you know, we’d love to quit violating court orders and all, but golly, now there’s this special prosecutor looking at some of this and we can’t produce bc it is all a subject of his investigation.

        And Durham played along with that originally – yep judge, I’m busy busy busy making sure people who violate court order and destroy torture evidence get investigated. You need to just go away and leave me be. So Hellerstein called their bluff and said, Alrighty boys and girls, if that’s true, that Durham is actually involved in the kind of ‘for real’ criminal investigation that is going to generate charges and where my proceedings might interfere and screw up those charges, I want that in writing, signed off on under penalty of perjury, by Mr. Durham himself.

        So I think you have two elements. The first on the Durham objection to paragraph 4 had Hellerstein call their bluff and they folded.

        The second element, though,(revealing the existence of responsive documents outside the date paramenters) walks back to the original production requirments and the Judge’s expressions of interest in pursuing contempt against the agency. What I would say is that there is concern on any one of a number of fronts that at some point, something from beyond the period in the order will come out otherwise and the lawyers and officers already looking at contempt don’t want to be explaining to the judge why they were less than candid with him.

        Keep in mind that the failure of the parties to be able to work something out is what resulted in the Judge picking the responsive dates and CIA made him pick those dates without even skeletal production. So it is likely that the production they make from those dates will make it very clear that there is likely to be more outside that cutoff date and then you’re going to have a pissed off judge, getting very sick and tired of the games playing. So fessing up on the docs isn’t really something Durham is doing IMO, it’s something that the agency and its lawyers who are looking at contemp has done.

        Then Durham and the agency have to pretend that they aren’t both trying to accomplish the same thing – cover ups – by the agency saying, “We’re not so confused now on our duty of candor to the court, Judge, so we’ve mentioned that when you see what we have to produce under you’re order you’re going to know your cutoff date was too short. Aren’t we good? Oh, but by the way, we have no idea what that mean, tough, thorough investigator who is going to laugh off Obama and Holder’s directions to protect torturers might be doing so who knows, he might have some objections to you making us produce those younger docs. Golly, we just don’t know.

        In general, if you were arm’s length the lawyers handling the CIA’s response would never claim to be able to speak to what position the Special prosecutor investigating the CIA and its lawyers might take on docs.

        But I don’t think Durham is why we are finding out about the docs past June 2003 — I think that the lawyers for the CIA who can tell the judge is about to shut down their urinal privileges in his court have decided to try to fly right. I do think that Durham’s failure to be able to make a worry-free affidavit, under penalty of perjury, that he is actually pursuing criminal charges is why the production is going forward on the pre-July2003 docs.

        fwiw – my take only.

  8. greenbird4751 says:

    at the end of all this, no, well before, i will have enlarged my knowledge. thanks to you, marcy, and your dynamic pups.
    “VAUGHN INDEX – The term “Vaughn Index” originated from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), wherein the court rejected an agency’s conclusory affidavit stating that requested FOIA documents were subject to exemption. Id. at 828. “A Vaughn Index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption.” Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325, 1326 n.1 (9th Cir. 1995). This detailed affidavit ” ‘permit[s] the court system effectively and efficiently to evaluate the factual nature of disputed information.’ ” John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n.2 (1989) (quoting Vaughn, 484 F.2d at 826).”–leclaw.com

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