The CIA’s Cherry-Pick

Update, July 20: As this post explains, the CIA claims that the gaps in production come from the presence of "derivative" cables that were permissibly withheld from the Vaughn Index.

In footnote 2 of his declaration, Leon Panetta explains that eight of the documents included in the Vaughn Index (Part One, Part Two) he turned over to Judge Hellerstein represent deliberative process, so can’t be turned over.

 As described in the attached Vaughn index, documents 28, 54, 56, 57, and 59-62 contain deliberative process privileged information; and documents 59 and 60 contain attorney-client communications and attorney work product.

Given the report that interrogators were cabling HQ on a daily basis for approvals for interrogation techniques, I was interested in which of the cables included in the index of all torture tape related documents the CIA previously identified would be labeled "deliberative process"–it’s a way to identify which of the cables included actual discussion about techniques. I was particularly interested in whether any of the more remarkable cables–the 28-page cable from Field to HQ written on May 6, 2002, or the 4-page cable from HQ to Field sent on May 28, 2002–were included among these deliberative documents.

Those two cables–which, I have speculated, might be key cables in the early decision-making on torture–were not included among the selection of all the documents that CIA identified "for review for potential release." In fact, the only deliberative cable included among those that Judge Hellerstein will now review is one dated August 20, 2002, long after the CIA got formal approval to use torture techniques. (In addition, the first of the two interrogation logs–the one dated April 13, 2002–is considered to include deliberative records, though the second one–dated August 4, 2002–does not.)

But I don’t think that was an accident.

The CIA was, as I understand it, ordered to give over a selection of these. Sometimes, agencies are ordered to give over every tenth document out of a total collection, but I don’t believe they were here. Sometimes, agencies will simply pull every 10th document, and explain if they deviate from that pattern. But the CIA appears to have submitted a more random selection (though, they supplied a greater percentage of the later documents talking about the torture tape destruction). By comparing the total index with the Vaughn index, though, we can get a sense of what the CIA did include. For most of the series of cables reporting to and from the field, the CIA submitted fairly regular cables–every 10, 11, or 12 cables. From June 22, 2002 through August 20, 2002, they appear to have submitted every 10 document, like clockwork (in addition to the handwritten log dated August 4). (It’s impossible to exactly identify a pattern from after that because so many of the cables are the same length, though it is possible that it sticks pretty close to the every tenth cable pattern.)

But things in April–when the FBI and CIA were fighting over control of the interrogation and Abu Zubaydah was reportedly cooperating with the FBI–and May–when the small box was introduced at least two months before OLC approved its use–things are a bit more irregular. In April, for example, the CIA submitted documents 1, 12, 1922, 32, 42 or 43, and 53 (plus the handwritten log, which was document 3); that gives you gaps of 11, 7, 13, 10, 10, 10, 10, and 10 documents (not including the log in the series). In May, CIA submitted documents 64, 65, or 66, 77 or 78, 89 or 90, document 99, 110, 123, 134, 146, document 155 or 156, ad 165; while it’s harder to pin down the gaps, there is necessarily one 13-document gap early in the month, a 9-document gap between May 8 and 11,  another 13-document gap between May 14 and 17, a 12-document gap between May 20 and 24, and one 9-document gap between May 24 and 30. 

In other words, whereas later in the series the CIA just provided every tenth document, for this early period, they cherry-picked what they submitted. And magically avoided any of the documents that didn’t fit the pattern of length or sender and recipient of the rest of the documents. And also happened to avoid sending any cable that could be considered deliberative.

We have reports that some of these cables include detailed descriptions of interrogation methods to request approval. But none of those were turned over to Judge Hellerstein.

I said last night that these documents–the full set of all 580 documents–would show that the techniques used in practices exceeded the guidelines included in the Bybee Two memo.  But there’s a very good chance the most damning documents are not among the 65 the CIA selected for Hellerstein’s review.

Update: To be fair to Panetta, he says the selection intentionally included some of the most sensitive documents. (Thanks to rincewind for reminding me.)

The documents at issue, however, were purposefully selected for review based on the sensitive operational information they contain. Where non-operational documents are at issue, as is the case with a portion of the documents within the scope of the recent remand order, the CIA will consider such documents for release.

Of course, we’ve got to trust the CIA on this point, at least for now. And from what I’ve seen so far, I’m not sure I do trust them. 

Update: William Ockham corrected an important error in my calculations–pointing out that document 22, not 19, was included (meaning the documents pulled from April are regular). He suggests the other irregularities may come from an algorithm that does not pull from HQ to Field or Field to Field cables, and some bugs that otherwise introduce the irregularities. The gap that still doesn’t adequately explain, it seems, is the 110 to 123 to 134 gap in May, which is precisely the period I’m most interested in. But bear in mind that this might be a computer issue, and not any intentional cherry-picking from the CIA. 

30 replies
  1. alabama says:

    These documents would show that the CIA wasn’t just practicing torture, it was exploring torture, experimenting with it as scientists experiment in laboratories, but without the controls. Mengele is near.

    If indeed the CIA is currently engaged in a turf war with the DIA, then bad publicity at this moment could only be the most damaging of all.

    Let the CIA be damaged.

    • Mary says:

      Anything a court lets it mean.

      Basically, the theory is that in order for the Executive branch to make good decisions, people advising it (generally from within) should be able to be completely candid without fear that their candid statements will come out in a courtroom later, so the courts will insulate a bit like they do atty/client communications, Exec branch communications that are candidly weighing options to reach a decision.

      It’s so amorphous it may as well be an empty page to be re-written at will and whim.

  2. Mary says:

    And the cables involving live burial of Zubaydah might well have also referenced their knowledge of the reported live burial in Egypt of al-Libi and how that “worked” to get the “info” Dick wanted.

  3. Jkat says:

    well of course they’re holding back the most damning material .. they don’t want to release anything which .. if viewed by the court would directly signify unlawful activity .. eh ??

    why aren’t all these sad-sacks being charged with misprision of a felony ??

    also .. isn’t a judge required to act if he/she is presented directly with evidence which constitutes felonious activiy ..??

  4. BoxTurtle says:

    They’ll get away with this. I’m certain Marcy is right about carefully avoiding the key memos, but it looks to me as though they complied with the judges order.

    A minor tactical blunder on the CIA’s part: we now know for sure which memos they fear the most. So does the judge, and the judge knows there’s been some cherrypicking going on as well. This will make him grumpy…perhaps grumpy enough to ask about the statistical deviations in court, since I also note the government did not include anything that described why they deviated from the pattern.

    Boxturtle (Eventually, one of these judges is going to get IRATE about these government filings)

  5. rincewind says:

    Panetta states in the last two sentences of #14 (pg 8 of the pdf):

    The documents at issue, however, were purposefully selected for review based on the sensitive operational information they contain. Where non-operational documents are at issue, as is the case with a portion of the documents within the scope of the recent remand order, the CIA will consider such documents for release.

    [my bold]

    Their selection of these 65 out of the 580 was not random. (Is that final sentence saying, “Well, ask us again and maybe we’ll ‘review’ a different sample that has a few things we’ll maybe think about giving you”?)

    • emptywheel says:

      Thanks–I meant to put that in. Yes, he says they were selected bc they were the most sensitive stuff. So maybe I’m being really suspicious when I see the choices…

      • BoxTurtle says:

        You’d be a fool not to suspect something. Even if the judge isn’t offically aware of it, he knows the CIA is covering up criminal activities.

        The question is how far does the judge want to push it?

        Boxturtle (The governments best bet is to plead no contest and hope they can settle damages without any more discovery)

        • emptywheel says:

          Hellerstein is the guy who sent the CIA back to consider whether, after the OLC memo release, holding onto this stuff isn’t a little silly. So he’s definitely skeptical.

          And remember, this is all taking place against the background of ACLU’s demand to hold the CIA in contempt.

  6. Mary says:

    What the court needs to do is make Panetta give an under penalty certification that nothing in what he is holding back would be a) embarassing to the US or b) evidentiary of criminal acts.

    That resolves in large part the intent issue – bc if you know that it is reasonably foreseeable that withholding the info will cover up embarassing US info and evidence of Exec branch crimes, then you “intend” as a matter of law that outcome. In any event, once they assert “lack of intent” as a grounds for withholding, imo they are conceding to the court that it is up to the court to detemine the issue (maybe jury if Panetta really wants one) since intent is almost always a fact question for trial. Merely having the intent to ALSO cover up for foreign governments is not the same as having no intent to cover up for self.

  7. eagleye says:

    The excuse Panetta and Obama make is that releasing photos and information about our torture practices would endanger national security by letting the terrorists know too much about our techniques and procedures, and would only serve to further inflame Muslim sentiment. This is amazing on a couple of levels– First, it is a tacit admission that we do indeed engage in these reprehensible practices. Second, the great lengths to which our government is going to conceal its actions makes it perfectly clear to the terrorists and everyone else just how bad our behavior has been. Last week Obama announced that he would not be releasing the second batch of photos, leading any sensible person to conclude that they must be worse than what we’ve already seen. This is a sorry episode in American history, and I’m really struggling to remain optimistic about Obama.

    • BoxTurtle says:

      He can…but that would result in another round of appeals as his decision runs all the way to the supremes. I don’t know what argument the government would make, but they’ve already shown they’re willing to run “the dog ate my homework” to the supremes just to kill time.

      Mary’s idea @10 is best. Leon KNOWS what’s in those docs and he wouldn’t dare sign such a thing. That would put him in personal legal jeopardy.

      He’s lying. The judge knows he’s lying. He knows the judge knows he’s lying.

      Boxturtle (But until the judge is offically aware, he’s safe. Both know that)

  8. fatster says:

    Justice Dept.: 1st Gitmo detainee arrives in US

    Justice Dept. says 1st Gitmo detainee has arrived in US; suspect faces trial in NYC

AP News
    Jun 09, 2009 06:58 EST

    “U.S. authorities have brought the first Guantanamo Bay detainee to the United States, flying him into New York to face trial for bombing U.S. embassies, the Justice Department said Tuesday.

    “The department said Ahmed Ghailani arrived in the early morning hours Tuesday.”


  9. Mary says:

    The really horrible part of all this IMO is that Obama is happy to put the judges through this kind of wringer. He’s giving them Sophies Choice with a big ol smile, while he takes the stage at Cairo as the good guy, truth teller.

    They either go along with putting his office above the rule of law, or they can reap personally the direct responsiblity (with their names and home addresses etc. known) for rulings that might cause upheavals and casualties through the world.

    While Obama and Holder just freakin adbicate their duties on prosecution, they stand up the judges with an apple for everyone’s target practice, but they manage to put the apple in their mouth and not on their heads for added assurance in the outcome. Nasty, small, petty and pretty evil men, to do that for their own polical ends.

  10. fatster says:

    TUESDAY JUNE 9, 2009 05:10 EDT

    Defeat of Graham-Lieberman and the ongoing war on transparency
    (updated below – Update II)

    Glenn Greenwald

    “Yesterday, there was a potentially temporary though still quite significant victory for those who believe in open government and transparency:  as Jane Hamsher first reported, House leaders and the White House were forced to remove the Graham-Lieberman photo suppression amendment from the war supplemental spending bill, because widespread opposition to that amendment among progressive House Democrats was jeopardizing passage of the spending bill. 

    . . .

    “A much more critical issue here is whether the President should have the power to conceal evidence about the Government’s actions on the ground that what the Government did was so bad, so wrong, so inflammatory, so lawless, that to allow disclosure and transparency would reflect poorly on our country, thereby increase anti-American sentiment, and thus jeopardize The Troops.  Once you accept that rationale — the more extreme the Government’s abuses are, the more compelling is the need for suppression — then open government, one of the central planks of the Obama campaign and the linchpin of a healthy democracy, becomes an illusion. “…..nsparency/

    • fatster says:

      Shoot! You beat me to it. Isn’t that sumpthin’? He’s someone they can trust, all right. Just superb credentials for whatever the job will really be.

      • JimWhite says:

        With that on top of the dreck I heard in the Feingold hearing, I’ve got to take a break. Gonna put the disk on my four-wheeler and go plow up some weeds. Might as well put my destructive mood to good use…

        How long until OnStar has a direct connection to NSA?

        • BoxTurtle says:

          How long until OnStar has a direct connection to NSA?

          You may rest assured that if the NSA desires to do it, they are already doing it. They wouldn’t need GMs cooperation. Those signals go out over the air and if there’s any encryption, it’s weak.

          Boxturtle (Bet they could lock your car doors remotely and keep ‘em locked)

  11. Leen says:

    ot may throw you for a loop
    Peled proposes Israeli sanctions on US

    “In what may be his most controversial suggestion, Peled recommends intervening in American congressional races to weaken Obama and asking American Jewish donors not to contribute to Democratic congressional candidates. He predicted that this would result in Democratic candidates pressuring Obama to become more pro-Israel.

    Peled called for the formation of a new body intended to influence American public opinion. The groups he suggests courting include Hispanic Americans and Labor unions in industries that benefit from Israeli military acquisitions.”…..2FShowFull

    • BoxTurtle says:

      Unh, I’m not even sure the CIA maintains diplomatic relations with the Wheelhouse.

      Boxturtle (And when they talk of snatching Marcy, I don’t think it’s with the intent of hiring her)

  12. Loo Hoo. says:

    Thanks, BoxTurtle.

    In a speech before the Senate, Judiciary Committee Chairman Patrick Leahy announced that the opening of the Sotomayor hearings would begin on July 13, putting her confirmation timeline on par with that of Chief Justice John Roberts.

  13. freepatriot says:

    Of course, we’ve got to trust the CIA on this point, at least for now. And from what I’ve seen so far, I’m not sure I do trust them.

    like that could ever happen

    I don’t trust the CIA now. I didn’t trust the CIA in the past. And I got no plans of trusting the CIA in the future

    I know what they do, and I know why they do it

    but I never trust them

    it might be paranoia, it might be common sense. I don’t know

    the CIA is in the business of deceiving people, so it’s kinda like the ultimate “no-brainer”

    I don’t care about “protecting sources”, or enraging Muslims

    I got a duty to defend my nation from it’s government, and I see this as a blight on my Nation

    release ALL OF IT

    fire up the special prosecutor, and seat the grand jury …

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