Found: The OGC Review. Still Missing: Legal Plausibility.

The other day, I pointed to an OGC review of the torture tapes conducted in December 2002.

CIA’s OGC watched the video tapes in November and December 2002, before Pavitt asked OIG to investigate the abuse of al-Nashiri (one wonders if that’s when 11-plus tapes mysteriously became blank and broken).

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters. He reported that there was no deviation from the DoJ guidance or the written record.

It appears there was a formal report from this review–because Jello Jay requested it, twice, before they destroyed the torture tapes in 2005.

In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005.

So where is this report and why didn’t CIA get that in a Vaughn Index?

Ask and you shall receive! (Well, sort of.) In a declaration introduced earlier this week, CIA’s Wendy Hilton explains that Document 60 from the June 8 Vaughn Index is that review. (h/t MadDog) Here’s how she describes that document.

The CIA OGC also conducted a legal review of the interrogation of Abu Zubaydah to ensure compliance with the relevant legal and policy guidance. This review was implemented not only to ensure that the interrogation of  Abu Zubadaydah was consistent with the law and United States policy, but also to improve the CIA’s program going forward. Document 60 contains the analysis and impressions of a CIA Attorney shortly after the Attorney’s review of subsequently destroyed videotapes, as well as the relevant cable traffic. The document reflects the CIA attorney’s view on what facts were relevant to determine whether the interrogation of Abu Zubaydah was compliant with law and policy, as well as what information would be informative to CIA management in improving the program going forward.

I bet Khalid Sheikh Mohammed is glad they "improved" their torture program in the interim 3 months, such that they upped the number of times you should waterboard in one month from 83 to 183…

Seriously, though. Note how the description of this document has subtly changed.  The IG Report described the report this way.

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters.

Whereas Wendy Hilton, trying hard to make sure that this didn’t amount to an investigation–which would mean both this document and the videotapes would have been required to be revealed to ACLU in this FOIA litigation–describes it this way.

The CIA OGC also conducted a legal review of the interrogation of Abu Zubaydah to ensure compliance with the relevant legal and policy guidance.

I guess Hilton is hoping we read "ensuring compliance" narrowly. And note–it’s pretty clear that the OIG disagreed with the OGC conclusion, since they said the waterboarding did deviate from the waterboarding as described in Bybee Two memo.

And then there’s Hilton’s claim that,

This analysis was done in anticipation of both criminal and civil litigation.

Criminal and civil litigation?!?!?! But that would be an investigation!?!?!?

And here’s her out for that conclusion:

Throughout the CIA’s terrorist interrogation program the CIA was concerned that its officers could face civil and criminal liability for their actions. The CIA directed its attorneys to review the record of the first interrogations to ensure that they were conducted consistent with the Department of Justice’s guidance, which could arguably provide a defense to possible domestic and international criminal and civil liability. Therefore, while the CIA attorneys may have performed their analysis to determine legal and policy compliance, that analysis was in the context of evaluating possible defenses for anticipated civil and criminal litigation.

Wow. Where to start??

I’ll leave it to the lawyers to consider the legal wisdom of having someone like John Rizzo review these videos so as to write a report that would serve as a defense in case the torturers ever got charged (yeah–Mary, I’m looking at you).

But remember: some of these videos were broken or blank!!! A CIA lawyer reviewed tapes that were inoperative but which had, originally, included several instances of torture. And that CIA lawyer wrote up a report saying, "Nope! Nothing to see here!!!"

And those same tapes have since been destroyed. By the CIA itself.

Yeah, the CIA sure doesn’t want us (or Jay Rockefeller) to see that document, alright.

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92 replies
      • MadDog says:

        I jump back to AG Holder’s latest kabuki incarnation on a new State Secrets Privilege policy (4 page PDF):

        C. Limitations. The Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law

        C. Referral to Agency or Department Inspector General. If the Attorney General concludes that it would be proper to defend invocation of the privilege in a case, and that invocation of the privilege would preclude adjudication of particular claims, but that the case raises credible allegations of government wrongdoing, the Department will refer those allegations to the Inspector General of the appropriate department or agency for further investigation, and will provide prompt notice of the referral to the head of the appropriate department or agency.

        I realize that this case is a FOIA case and that the Government isn’t asserting State Secrets Privilege, but merely asserting that the information is classified and exempt from FOIA, but that seems like a distinction without a difference.

        And with AG Holder’s new policy, the DOJ would ping-pong “credible allegations” back to the CIA’s OIG; the very same place that couldn’t “see no evil, hear no evil and fookin’ A, ain’t gonna speak no evil!”.

  1. bmaz says:

    Where are the false staement/perjury charges (I can’t remember if all were under oath) on this from Durham. I know I am beating a dead horse, but I have been saying from the first second we heard of the torture tape destruction that the government was lying. Their own declarations prove it up. And false statements/perjury charges are not attackable by all the myriad of defenses, MCA and otherwise, that Mary and I have talked about regularly. This is exactly why I question Durham so much.

    • MadDog says:

      …This is exactly why I question Durham so much.

      Yea, that Durham. The one who after 2+ years on the CIA torture tape destruction, still hasn’t brought forth an indictment much less a conviction.

      The one who is working so hard on that CIA torture tape destruction case that he’s got plenty of time to take on AG Holder’s “preliminary” investigation into the CIA’s torture acts.

      I have the very same questions of Durham. *g*

  2. emptywheel says:

    I sort of get the feeling that Preet Bahrara, having been dealt this piece of shit, has given up on defending against contempt.

    Just a guess. But that’s what I’d do.

    • MadDog says:

      I think that as Senator Chuckles Schumer’s golden boy, Preet Bharara is hoping that a SODDI (Some Other Dude Did It) approach while whistling past the graveyard will fool Judge Hellerstein.

  3. emptywheel says:

    And here’s how they dismiss the conflicting information in their two different Vaughn Indices:

    The CIA OGC also conducted a legal review of the interrogation of Abu Zubaydah to ensure compliance with the relevant legal and policy guidance.

  4. bmaz says:

    Right. But that still kills them on their early stated position that they searched high and low and could come up with no possibility whatsoever that the destroyed tapes were material to any possible investigation or potential litigation of any nature.

    • bmaz says:

      And, now, to get back to my hobby horse. I think that Rizzo, Hayden and Rasdan (I think Rasdan, am sure of the other two) have either a false statements or perjury problem for their testimony to Congress. There are affidavits in various courts as well of course. This case could be tried by a common city prosecutor, much less the all powerful, tenacious and superb John Durham.

  5. MadDog says:

    …This analysis was done in anticipation of both criminal and civil litigation…

    I don’t remember whether it came from bmaz, Mary, cinnamonape, or one of our other fine Legal Eagles here, but I seem to remember that someone opined that the above statement is a typical strategic mechanism commonly used by lawyers to shelter material under “attorney-client” communications privilege.

    Once you wave that “anticipation” magic wand, you’ve rendered the material invisible.

    And it seems to work. I’m particularly struck by this from page 8 of Wendy Hilton’s declaration:

    II. Attorney-Client Communications

    16. The CIA also asserted FOIA exemption b5 over documents 59 and 60 on the basis of the attorney-client communications privilege. The information contained within those documents reflects the legal opinions and advice of a CIA attorney, provided to and at the request of the CIA, the client, regarding the legality of certain activities…

    A couple of thoughts come to mind:

    1. Why is the client the CIA and not the American public? How skewed is our system of government when government lawyers believe they are Defense Attorneys and their client is only the government rather than the people of this country?

    2. I evidently was under the mistaken impression that government lawyers had a legal obligation to report crimes to the DOJ for prosecution. In the case of documents 56, 59, 61 and 62, how is it that the CIA OIG lawyers failed to see torture, as defined world-wide, in the interrogations they were reviewing?

    3. Finally, how can the work done by Helgerson’s OIG crew not be considered an investigation if one of the primary purposes was examining:

    …the legality of certain activities…

    Under what legal code of conduct can this not be called an investigation?

    • bmaz says:

      First off, I am not sure that atty/client will hold up here. Secondly, even if it does, the government is held to a higher standard ethically and it would not mean they could spoil or lose the material. But most importantly, the keys are still the underlying conduct and the willful destruction of direct material evidence of acts that even these goons were panicked constituted criminal acts. they are dancing as fast and hard as they can on the pin of truth and justice here, and it is not even close to compelling. This is total BS. You have to be willing to lie to yourself and deny common legal sense to even contemplate any other conclusion.

    • cinnamonape says:

      IANAL, MadDog…but I did raise an issue about the phrasing that they were using in justifying the FOIA exemptions, and I think it was Mary or EW that pointed out the law in this case.

      My brushes with the law have been few, fortunately…but my nicest was writing up a amicus brief in an FCC radio indecency docket a few generations ago, and getting a tiny l’il footnote in Judge Ginsberg’s decision. Made my day!

  6. emptywheel says:

    Shit, that’s not what I mean to copy. This was:

    Plaintiffs also raise the issue of discrepancies between the May 1, 2009, index of documents, and the index (of only the sample documents) submitted on June 8, 2009, with Director Panetta’s unclassified declaration. See Pls. Opp. 8 n.6. The exemptions found in the June 8, 2009 index control with respect to the exemptions invoked by the CIA to withhold all sixty-five documents in the sample. With respect to the descriptions of the documents, the descriptions contained in the May 1, 2009, supplement the descriptions found in the June 8, 2009 index.

  7. emptywheel says:

    More from their filing:

    Thus, absent evidence of bad faith, where the Court has enough information to
    understand why an agency classified information, it should not second-guess the agency’s
    facially reasonable classification decisions.

    • bmaz says:

      Well, that is not the standard; to the best of my understanding it is effectively reasonableness, of which good/bad faith would simply be one element of consideration among many. Secondly they ain’t got any fucking good faith. End. Of. Story.

      • bmaz says:

        I will amend that to say that there is no question that the government will inherently get the benefit of the doubt on a consideration, the presumption of regularity if you will; but the consideration is not just good/bad faith. Even under their wrong statement of the standard though, they lose miserably.

  8. earlofhuntingdon says:

    Has the obstruction statute gone the way of the CAT and Common Article 3? Would it require burning the tapes on the hibachi in the Oval Office to constitute obstruction? Just asking.

      • bobschacht says:

        I wonder if we need a special timeline, centered on the date of the fire in Cheney’s safe:

        (a) Documents known to exist and were in use before the fire;

        (b) Documents that could not be found after the fire.

        Is there sufficient data for such a tabulation?

        Bob in AZ

  9. emptywheel says:

    Yeah, if I were ACLU, I’d focus on this Document 60–particularly if bmaz could argue that the Atty-Client privilege would fall down. Here’s their half-assed argument for why the OGC review was pre-deliberational.

    Finally, with respect to document 60, Ms. Hilton explains that it
    contains the “analysis and impressions of a CIA attorney shortly after the [a]ttorney’s review of
    the interrogations of subsequently destroyed videotapes, as well as the relevant cable traffic” and
    it “reflects the CIA Attorney’s view on what facts were relevant to determine whether the
    interrogation of Abu Zubaydah was compliant with law and policy, as well as what information
    would be informative to CIA management in improving the program going forward.”

    Of course, that’s not how the IG describes the document. It says it was a legal review, and not a consideration of how to do a legal review.

    • bmaz says:

      I might grant that atty/client would protect it from FOIA attachment, I don’t know enough to truly say on that; but it would not allow them to, you know, “lose” the document. Just because you believe evidence might be privileged is not a license to spoil it.

    • MadDog says:

      …Of course, that’s not how the IG describes the document. It says it was a legal review, and not a consideration of how to do a legal review.

      Wendy fook’d up then because look at the section title and the very first sentence that she herself used in her declaration (page 6):

      …D. Comments on the Office of General Counsel (OGC) Legal Review of Certain Interrogations.

      12. The CIA OGC also conducted a legal review of the interrogation of Abu Zubaydah to ensure compliance with the relevant legal and policy guidance…

      (My Bold)

      After she, herself, called it a legal review, I don’t think she can get away with then saying it was not.

      But I too, ANAL. *g*

      And yes, that is a funny way of writing “am not a lawyer”. LOL!

    • MadDog says:

      Excellent catch!

      And based on what CIA IG Helgerson says in this recent Der Speigel interview, the OGC attorney of Document 60 had to know the CIA was in big fookin’ trouble:

      SPIEGEL: Can you say anything about the 92 videotapes that the CIA made of interrogations in the secret prison sites — including the practice known as waterboarding — and that were later destroyed by the agency?

      Helgerson: Members of our staff watched every minute of any existing videotape and we reported about it in the report, as you have seen in the declassified version. Our principal findings related to the manner in which the waterboarding had been carried out, as compared with the understanding that had been reached between the CIA and the Department of Justice. Basically, there was the matter of the frequency of the applications. We also observed that the way waterboarding was conducted was not consistent with what has been described concerning the amount of water.

      SPIEGEL: Were you shocked by what you saw on the tapes?

      Helgerson: You know CIA agents do not like to speak about their feelings too much. We knew before pretty much what we would see. So it was a rather clinical view of the tapes. I won’t try to characterize the emotions of those who saw them, except to say that different individuals react differently to those things. And that we concluded that the agency was clearly abusing this technique.

      SPIEGEL: Reading the report, one gets the impression that the first years after 9/11 were especially uncontrolled and wild.

      Helgerson: Immediately after 9/11, the agency scrambled to meet the challenge. Expertise on al-Qaida was limited, and we had had no recent experience with interrogations. As a result, there was considerable improvisation. The agency is proud of its can-do attitude to accomplish any new, priority mission. In this case, however, improvisation led to several problems, as the report describes. For example, management controls and training of employees were both unsatisfactory in the early months. The agency went over bounds and outside the rules, that is for sure

      (My Bold)

      And also noteworthy:

      SPIEGEL: Abu Zubaydah, a man the CIA considered to be a key player in al-Qaida, was captured in March 2002 in Pakistan and quickly transferred to a black site prison in Thailand. Apparently, he was the first detainee subjected to “enhanced interrogation techniques,” as the practices such as waterboarding were known. That was well before Aug. 1, 2002, the date of the first Justice Department memorandum legalizing these techniques. Did the lawyer who signed the memorandum simply authorize a technique months after this technique had already been applied?

      Helgerson: My problem is I cannot go beyond the published report. But you are basically right. There was some legal advice given orally to the CIA that had then been followed up by memorandums months later

      (My Bold)

      • bmaz says:

        Back to my hobby horse – how do you square this with the testimony of Rizzo, Hayden and Rasdan regarding the consensus that there was no possible investigative/litigative basis for preserving the tapes? You simply cannot. And if there was no possible grounds to preserve the tapes, on what basis did Jose Rodriquez assert the 5th or request immunity? Immunity from what exactly if there was a good faith belief there was no basis for preservation of the tapes?

        Coming up on two years and Durham can’t find a criminal offense – any criminal offense – (hint hint; false statements) in relation to this case?? It simply belies credulity.

        • MadDog says:

          Back to my hobby horse – how do you square this with the testimony of Rizzo, Hayden and Rasdan regarding the consensus that there was no possible investigative/litigative basis for preserving the tapes?

          …Coming up on two years and Durham can’t find a criminal offense – any criminal offense – (hint hint; false statements) in relation to this case?? It simply belies credulity.

          You are right on the money with this observation bro bmaz!

          If grand jury prosecutors can indict a ham sandwich, then Durham can’t be trying.

          I would love for him to be playing some of Obama’s 11 dimensional chess, but I’m not holding my breath.

          And btw, that NBC Law & Order program you mentioned was a fookin’ masterpiece. They had all the relevant facts on the Bush/Cheney torture regime down cold. I hope John Yoo watched it and had nightmares about his future.

          • TheOrA says:

            And btw, that NBC Law & Order program you mentioned was a fookin’ masterpiece. They had all the relevant facts on the Bush/Cheney torture regime down cold. I hope John Yoo watched it and had nightmares about his future.

            Unfortunately, I only caught part of this last night. What I did see seemed very promising. Does anyone know how NBC works their re-runs? Hulu, or the like?

            Would like to know if the ending worked legally. Can that happen?

            • RHIL says:

              And btw, that NBC Law & Order program you mentioned was a fookin’ masterpiece. They had all the relevant facts on the Bush/Cheney torture regime down cold. I hope John Yoo watched it and had nightmares about his future.

              Unfortunately, I only caught part of this last night. What I did see seemed very promising. Does anyone know how NBC works their re-runs? Hulu, or the like?

              Per NBC LaO website – The Memo from the Dark Side episode repeats Sat 9/26 at 8:00pm ET. The first seven comments posted last night on the forum blub were ALL highly negative. http://tinyurl.com/LAO20090925

          • bobschacht says:

            If grand jury prosecutors can indict a ham sandwich, then Durham can’t be trying.

            I would love for him to be playing some of Obama’s 11 dimensional chess, but I’m not holding my breath.

            I think they might be thinking long-range. I’ll bet Durham has already had several conversations with Holder, to the effect that “We could indict X, Y, and Z– but when, and with what charges? Shall we do some plea bargaining with them to obtain evidence against those who orchestrated and ordered the torture?”

            I think there will be indictments. But the timing will be important.

            And public opinion will be important, too. We need to make him do it.

            Bob in AZ

            • bmaz says:

              And every day statutes of limitations may be expiring on potential underlying backup crimes that could be charged as leverage or that may be overt acts in alleged conspiracies. Always keep in mind 5 years and 8 years and then look at the conduct behind what you are considering – did anything pertinent to this equation happen more than five years ago? More than 8 years ago? It is always a good idea to think like this.

              • TheOrA says:

                Do statutes of limitations really apply in cases like this? Cases where crimes are known to have been committed, but no one will move forward to bring criminal charges? Surely there are situations where these types of statutes are waved, say when there is an obvious efforts to forestall or obstruct prosecutions? What about RICO type prosecutions?

                Color me naive, but to wait for statutes of limitations to expire in order to avoid pressing charges seems like a blatant abuse of power.

                And thanks to RHIL, rosalind for the info on the L&O re-broadcast and download.

                • BoxTurtle says:

                  Yes, the statute applies. There are circumstances where it can be extended or rest, but these are rare. Clearly, ObamaCo is aware that crimes have occurred by now so the clock is ticking.

                  The only way I can think of to reset the clock would be for the next administration to file charges and point out that they couldn’t do it until they were elected. Obama could have tried this had he wanted to go after BushCo crimes that had expired before he took office. But this would be groundbreaking law and who knows how the courts would rule?

                  And it ain’t like Holder is breaking the law by refusing to prosecute. Ultimately, it’s his decision.

                  I think it very likely that the SOL will hold for all the criminal acts. Civil suits MAY be able to get a favorable SOL start time if they file based on new information and more is leaking out all the time.

                  Boxturtle (Mr. Obama, I’d really like to listen in when you explain yourself to your daughters)

                    • BoxTurtle says:

                      The only thing the SOL does not apply to is murder.

                      Boxturtle (Reminder: The US will not likely cooperate with a war crimes investigation)

                    • bobschacht says:

                      The only thing the SOL does not apply to is murder.

                      Well, its clear from what has been discussed here that murder– or at least negligent homicide– was committed by the CIA and its contractors.

                      Bob in AZ

                  • cinnamonape says:

                    “Clearly, ObamaCo is aware that crimes have occurred by now so the clock is ticking.”

                    But aren’t they asserting the opposite? That no crimes were committed? Since the OLC guidelines immunized those that committed them? If true, then the clock hasn’t started ticking.

                    Or, are they saying “crimes were committed, but we won’t prosecute”? In that case there’s been obstruction.

                    The only way for Obama to legitimately stop prosecution of an acknowledged crime would be to issue a pardon. I’ve yet to see THAT.

  10. Jeff Kaye says:

    The CIA directed its attorneys to review the record of the first interrogations to ensure that they were conducted consistent with the Department of Justice’s guidance, which could arguably provide a defense to possible domestic and international criminal and civil liability.

    I’m no good on the legal issues, and bow to bmaz, marcy, mad dog and others on the question of what we can nail these bastards for. But I do know BS when I see it.

    The Department of Justice’s guidance was, per the IG report, “substantially based” on assertions made by OGC and OTS. The f’in CIA might as well have written the Bybee memo. So what purpose is the review? Quality control of torture?

    Durham was chosen because he could be trusted to cover up the torture program. I think a lot of this makes sense, if you’ll permit me my hobby horse, if you understand they were trying to hide not just a torture program, but an experimental torture program, which involved experiments upon human beings.

    Marcy’s great discovery re the 183 waterboardings of KSM made no sense… I mean the number of waterboardings made no sense. They could not have been for information, OR only for getting false confessions. Even breaking a person down takes less, much less than 183 waterboardings. They just wanted to see what would happen to a human being if subjected to such extreme stress. In their sadism and vengefulness, they made KSM and AZ and who knows how many others guinea pigs.

    What was on those tapes? The torture, yes, but it’s what was NOT on the tapes. You wouldn’t have seen questioning through most of it, because it was a goddamn experiment. Just as OTS (known once as TSS) used to give acid to strangers in bars, just to see what would happen, or submit them to electric shock therapy for days on end, to see if their minds could really be cleansed.

    Look once more at the “interrogation” log of Al Khatani. What Steven Miles noticed is that it really wasn’t the log of an interrogation. It was a log of submitting someone to various torture techniques and seeing how he reacted.

    Why did OGC want a review of the interrogation? Consider:

    This review was implemented not only to ensure that the interrogation of Abu Zubadaydah was consistent with the law and United States policy, but also to improve the CIA’s program going forward.

    Improve? They were constructing experiments in order to fine tune a new torture protocol, experiments that were conducted in Thailand, at Guantanamo, and likely other sites. The military was never allowed to simply run their own separate program. The presence of Fredman at the Guantanamo meeting on torture, basically running the show, as I think Marcy pointed out not long ago, shows that.

    It all makes no sense until you realize that, for instance the 8/1/02 memo to John Rizzo on the AZ interrogation is the protocol for approval of an experimental program. The attorney wanted to see if the experiment stayed within whatever legal guidelines they thought appropriate for the experiment, and I think that’s why they’ve buried memo 60, because the real purpose of the interrogations would have been too difficult to hide from those reading it.

    To conclude, my articles emphasizing the work of CIA psychiatrist Charles Morgan — $100,000s research on SERE school and its physical/psych effects on students — is because of quotes like this, from the 2nd Bybee memo:

    You have also reviewed the relevant literature and found no empirical data on the effect of these techniques, with the exception of sleep deprivation.

    That is a total lie. The question is whether the lie originated in the CIA or OLC. I believe it was both who collaborated. And if the OTS memo to OLC is ever declassified, we will then know exactly what CIA told Yoo. (See my article on FDL today.)

    • Jeff Kaye says:

      Helgerson: “We knew before pretty much what we would see. So it was a rather clinical view of the tapes.”

      Yet he then concluded the interrogators were abusing the technique. I’d say they concluded the experimenters were allowed to run a little too wild for their taste (probably on Nashiri, as Marcy has noted), or there were deaths we don’t know about.

      I’d say that was an interesting slip by Helgerson: “a rather clinical view”. By itself, it means nothing, but in the context of growing evidence of experimentation, it seems telling.

    • MadDog says:

      …Marcy’s great discovery re the 183 waterboardings of KSM made no sense… I mean the number of waterboardings made no sense. They could not have been for information, OR only for getting false confessions. Even breaking a person down takes less, much less than 183 waterboardings. They just wanted to see what would happen to a human being if subjected to such extreme stress. In their sadism and vengefulness, they made KSM and AZ and who knows how many others guinea pigs…

      This is the first time that I’ve seen such a conclusion (other than your very fine post yesterday).

      I’m not sure I’m ready yet to buy this conclusion (mad Lab rats in white coats going postal on their subjects) as the only or at least the primary rationale, but let me do 2 things:

      1. Give it some more serious thought.

      2. And congratulate you on at least raising a most significant observation. 83 or 183 instances of waterboarding torture are indeed way, way past the redline of breaking someone, getting information or even false confessions as you say. Ergo WTF?

      • Jeff Kaye says:

        “When the going gets weird, the weird turn pro.”

        I can’t take credit for being the first to recognize that the torture represented an experiment upon human subjects. That would be Steven Miles. And I’m not talking about the experiment of trying out one torture technique versus the others to see which worked better at obtaining information or false confessions, although that may have the goal of some aboard.

        The aim of science is to understand, predict and control. The same is true for unethical science as well. If you study the kinds of projects that DARPA, Mitre Corp and others are doing, looking for greater and greater ways to control individuals, or to maximize individual output in a battle situation, etc., then you have a sense of what I mean. I can’t pretend I know why they wanted to study human beings under such extreme stress. Perhaps it was with a twisted sense of learning the limits of human endurance, so better treatments could be made for stress, PTSD, etc. The Nazis used hypothermia experiments to assist their understanding of human reaction to cold for their pilots, frogmen, etc.

        What appears incredible in the KSM, AZ, and other cases is the extent of the torture, as I’ve said, beyond that needed for the false confessions (and, wrongly, operational information) that they appear also to have wished to garner. I think we will see this experiment aspect grow ever larger in the next month or two of revelations.

        • klynn says:

          It’s been a while since I posted the links and information, but I still think induced hypothermia experiments occurred in order to “hide” torture from the Red Cross due to the effects of reducing head and abdominal injury indications through induced hypothermia.

        • bobschacht says:

          The aim of science is to understand, predict and control. The same is true for unethical science as well. If you study the kinds of projects that DARPA, Mitre Corp and others are doing, looking for greater and greater ways to control individuals, or to maximize individual output in a battle situation, etc., then you have a sense of what I mean.

          The torture program was not really about science. Those idiots did not really understand science. If it really were about science, they would know that you need to have double blind experiments with a control population, and clearly defined protocols. They could have set up an experiment to test the FBI interrogation protocol against the Jack Bauer protocol, with half the subjects assigned to one, and half to the other. There is no evidence that they did. These guys were no different from the Nazi’s Dr. Mengele.

          Their defense would probably be that at first, they didn’t have “populations” of high value detainees to work with. But even so, what they actually did was not very scientific. Those guys were pretend scientists, and the guys who did the actual torturing were not trained in scientific protocols. Just in science terms, the whole enterprise was a mess, ethical questions aside.

          Bob in AZ

          • cinnamonape says:

            Scientific work is also data heavy. I’ve seen no evidence that there is data on the health status, stress hormonal levels, response rates, etc. of the detainees.

            But I do recall (am I imagining this??) one (Al-Zubaydeh) talking about some device being placed on his hand or finger after one of the water-boardings. I suspect this was done to measure CO blood saturation/acid levels…but this seems to have mainly been done to see if he was approaching lethal levels.But unlike the SERE program they weren’t ASFAIK taking serum cholesterol or other blood samples, urine, running EEG’s, etc. that would constitute any valid research.

            It reminds me of guys who claim “I’ve done this procedure a hundred times…it’s all in my head”. It allows them to claim superior knowledge, makes them indispensable because they are the only “expert”, and makes their theories irrefutable (since no one can actually test them).

            But it’s not Science. It seems more like sadism to me.

            • Jeff Kaye says:

              Scientific work is also data heavy. I’ve seen no evidence that there is data on the health status, stress hormonal levels, response rates, etc. of the detainees.

              Of course you haven’t! Do you think that is going to be so easily declassified, or unredacted? However, such data IS available from studies on SERE students, studies conducted by the military and CIA leading up to and overlapping the introduction of the EIT program. The OLC had that data, or should have, since the CIA had that data, but most likely withheld it. That’s been the point of a spate of recent articles of mine.

          • Jeff Kaye says:

            Bob, agreed.

            Unethical science is by definition bad science. But it can still have the same aims, only expressed in bizarro form. The dual nature of science has been recognized since Mary Shelley.

            The “scientists” were not the people in the interrogations torture chambers, measuring blood oxygen, body temperature, and probably various neurohoromone and enzyme levels… they were back in Washington, gathering the data, constructing the next experimental step in the program.

            Oh, and as an aside, a scientific experiment doesn’t have to be a controlled experiment. That is only one kind, and only appropriate when you can truly control the conditions. Other kinds of naturalistic observations, and manipulation of data therefrom, or partially controlled experimental interventions, are quite common in the biological sciences, psychology, and medicine.

            To this day, we need to understand that various kinds of unethical experiments were used to construct knowledge that is today mainstream. We can say this about the unethical Milgram behavioral experiments, the wildly illegal and evil hypothermia experiments at Dachau (the data of which was brought to the U.S. and used by the Air Force and NASA), etc. This is not to alibi such evil and unethical experiments, but to plead the crooked course science has taken, and to note how often it has gone off the rails.

            That said, it seems the “science” conducted over these torture experiments had nothing of benefit to offer, and, as pointed out by others, are more akin to Mengele’s sick experiments on twins, pregnant mothers, etc.

            • bobschacht says:

              Oh, and as an aside, a scientific experiment doesn’t have to be a controlled experiment. That is only one kind, and only appropriate when you can truly control the conditions. Other kinds of naturalistic observations, and manipulation of data therefrom, or partially controlled experimental interventions, are quite common in the biological sciences, psychology, and medicine.

              But controlled experiments are still the gold standard. And are you alleging that the experimenters in this case did not have control? Naturalistic observations? Are you kidding me? These conditions were about as unnatural as I can imagine.

              I am quite aware of attempts to conduct research under naturalistic conditions in the social sciences. That’s what I’ve been trying to do for the past 20 years or so.

              What the torturers and their supervisors was doing was not scientific. I agree with cinnamonape @ 78.

              Bob in AZ

              • Jeff Kaye says:

                Bob… I agree with you… there is no controversy here. My aside was for those who think all science has to be controlled experiments. My mistake was putting it in a comment where it could be confused as a statement about the torturers and what they were doing. — Anyway, Bob… do you really think I would make a case for the science of these people? If you’re not getting my point, I’ll take responsibility and assume I’m not doing a good job of expressing myself.

                I thank rmadelson for the clear explanation re privilege. (Others may have said it just as clear, just that I get it this time.) It lends some credence to those of us that have been arguing that failure to present scientific evidence they had on hand about torture techniques to OLC demonstrates CIA’s bad faith, and their foreknowledge that they knew what these techniques would do, and were using the attorneys as a cover for their crimes. I think it could be proved in court, but here, my naivete may be getting in the way, and I have to bow back towards our many excellent legal analysts.

                • bobschacht says:

                  Anyway, Bob… do you really think I would make a case for the science of these people? If you’re not getting my point, I’ll take responsibility and assume I’m not doing a good job of expressing myself.

                  Naw, we’re OK now. I was just making sure. *g*

                  Best wishes,
                  Bob in AZ

                • Rayne says:

                  Wonder whether we aren’t seeing another layer of the onion, but not yet through it.

                  We can see they weren’t doing real science, but acting as if it was.

                  We can see they weren’t doing real “lawyering”, but acting as if it was.

                  We are caught up in whether it was real or not real, when what they were really doing was none of the above.

                  Why would anyone make a pretense of real science or “lawyering”? Because they only want the appearance of these things — they were really working on something else.

                  First principles — it is what it is, on the face of it. It is torture, it is an attempt to cover torture, and the torture is designed not get information, not to get reliable data.

                  What else is it, on the face of it?

                    • Rayne says:

                      Well, there’s that, too.

                      I think there was some illegitimate testing by illegitimate scientists, because they wanted illegitimate results.

                      These guys knew they were applying techniques designed to break people — not to get legitimate information.

                      Obtaining illegitimate info would be a deliverable. So would an illegitimate message (a la Phoenix Program). And building an illegitimate methodology by which they could continue to do this illegitimate work would be yet another deliverable.

                      In some ways, this is the very content they were seeking with their “tests”; could they get all of this out of their efforts?

  11. GregB says:

    I’ll repeat my standard reply to all of the neo-Inquisition advocates.

    Torture is not in the Constitution.

    -G

  12. klynn says:

    Marcy, MadDog, bmaz and Mary, Thank you.

    Special thank you to Marcy for the weeding.

    This find puts an interesting spin on Bond pulling Republicans off the torture investigation.

    I think the investigation, just based on Marcy’s and Jeff’s posts combined with bmaz’s posts, Mary, MadDog and others’ comments just moved investigation efforts to warp speed. I am sure ACLU is appreciative of the efforts here as well.

    Bond blames the move on Attorney General Eric Holder’s recent decision to launch a separate criminal inquiry into the agency’s abuse of detainees. The move appears to be part of a broader campaign by congressional Republicans and the U.S. intelligence community to pressure Holder to rescind his recent appointment of a special counsel to investigate allegations of torture during the Bush administration.

    So will Bond be an accomplice to torture after this move? With such clear finds by Marcy with”on the record” documents?

    “In good faith” is out the window and should get backsides in jail.

    The Republican efforts to make the committee investigation look politicized, when faced with Marcy’s find(s), actually makes the Republican party look guilty of politicizing the rule of law. They are running from the truth. Not a smart political move.

    • klynn says:

      Does anyone have an update as to how looseheadprop is doing? Just wanted to also thank LHP for all the legal input here as well.

  13. radiofreewill says:

    Document 60 – aka, the OGC Legal Review – and the CIA OIG Report, iirc, are both concerned with ‘What’s on the Torture Tapes?’

    Whomever the OGC Lawyer was that reviewed the Tapes for Legal Compliance, in anticipation of Criminal and Civil Litigation, in November and December of 2002, has some Serious explaining to do:

    “He reported that there was no deviation from the DoJ guidance or the written record.”

    Who is that OGC Lawyer? Because, after the IG came through behind him – concluding that it was Torture on those Tapes, exceeding even the Bybee Two DoJ Guidance – that OGC Lawyer is likely to have been Highly Motivated, imvho, to want the Tapes Destroyed.

    That Lawyer would appear to have acted with the Same Bad Faith that Yoo and Bybee did in ‘Fixing’ the Law – with Ex-Post Facto constructions – to cover the Torture Policy: Yoo doesn’t think crushing testicles is Torture, and Viola! this guy didn’t ’see’ any Torture on the Tapes…

    • emptywheel says:

      Right. I think that’s a key part of this narrative.

      We KNOW there was a huge fight between OGC and OIG when OIG finished its report. And you can be sure the IG made finding that waterboarding did exceed the guidelines was part of the fight, since it said a lot about the OGC lawyer’s work.

      Furthermore, I strongly suspect there’s a passage of the IG Report that deals with this discrepancy–or at least describes the OGC review in more detail–because Jello Jay knew there was a report to ask for, but there is nothing that is unredacted in the IG Report that makes that clear, so that part must be redacted.

      And I keep coming back to this part. We know some of the tapes were broken and blank by the time OIG saw them. Were they broken and blank by the time OGC saw them? Or was there at least reason to believe–at that point–that they were made broken and blank deliberately?

      Presumably the OGC lawyer would have had to at least acknowledge–as the IG Report did–that the broken and blank tapes included some torture.

      So Jello Jay increasingly insistently asks for the OGC report in 2005 (he tells us in 2007 after learning the tapes were destroyed) and then they get destroyed?

      Finally, remember that Jose Rodriguez was the head of CTC in 2002, and Rizzo was acting GC for at least part of that year; Jose Rodriguez was DO head in 2005 when he ordered the tapes destroyed, and Rizzo was again Acting Counsel when it somehow failed to prevent the tapes from being destroyed.

      • radiofreewill says:

        As a hypothetical, imagine that the OGC Lawyer was, in fact, Rizzo, or a Compartmentalized Yoo-like Foil in Rizzo’s OGC for the Addington/Gonzales/Haynes ‘War Cabinet’ (or whatever the group of Top Lawyers in the Bush Administration was called.)

        That would make the OGC’s ‘Legal Review’ – Document 60 – the CIA’s Ex-Post Facto analog to OLC’s Bybee One and Two.

        OLC – “You have asked us to comment on the following scenarios…which we don’t see as Torture.”

        OGC – “We looked at the Tapes for indications of Torture and concluded, “There’s nothing to see here!”

        OIG – “It was Torture outside even the bounds of the OLC Guidance.”

        It seems very possible, imvho, that the combination of Bybee One and Two, plus the OGC Legal Review – in the light of the CIA OIG Report – would be Principal Elements in a Conspiracy to Commit (Bush/Cheney/etc) and Cover-up (the Lawyers) Torture as Political Policy.

        Ianal, but it certainly looks like there is more than enough evidence that Bush and Cheney orchestrated, with the slavish support of their consiglieries, the very ‘Defense Cover Brief’ that Phillipe Sands said they were doing. For crying out loud, Bradbury had to Try Out to even make Addington’s Defense Cover Brief Team!

        In fact, I wouldn’t be surprised one bit if all the players in your “Torture 13″ article fell right into place in the “Who Crossed the Line on Torture Policy?” jigsaw puzzle…

        There seems to be every indication of enough Bad Faith by the Bush Administration vis-a-vis Torture to suspect that the Lawyers colluded to – Lie For and Hide – Serious Criminal Depravity on the part of their Political Masters.

        Won’t that be the 800-lb Gorilla in the OPR Report?

  14. ackack says:

    I know I’m a little late to the game on this post, but I’ll throw my two cents’ worth in.

    Given the broad scope of prosecution, and type of evidence it allows, isn’t it a possibility that a creative and motivated prosecutor could apply the RICO Act to this whole thing?

    • BoxTurtle says:

      A prosecutor wouldn’t need to get that creative. There’s enough evidence already in the public domain to file charges against everyone except maybe Bush himself.

      The problem is that the DOJ and the Whitehouse DO NOT want prosecutions at all for anything related to BushCo. Holder is Obama’s tool, he is supposedly independent but he’s doing exactly what Obama wants. If a US atty were to suddenly assert independence and file charges, you can be assured that person would be bureaucratically crushed.

      The only ways to force the issue with both DOJ and the executive blocking it are either the courts (AH will be devastating, if they don’t find a way to kill it) or impeachment.

      Boxturtle (And I wouldn’t count at all on the latter)

  15. BoxTurtle says:

    I think there will be indictments. But the timing will be important.

    I will bet you a $100 donation to the local foodbank that no BushCo elected or appointed officals are indicted for torture, wiretapping, perjury, or obstruction by any entity of the federal government while Obama is in the Whitehouse.

    It’s a sucker bet, but diapers bought by suckers are just fine with the local food bank.

    Boxturtle (I think they’d accept canned goods from suckers as well)

  16. perris says:

    marcy, i just thought of something that will be a very important addition to a time line;

    remember when bush did a presser almost red in the face saying something like;

    “if we don’t get immunity for these interrogators we are going to stop the program!!!”

    he said that as if that wasn’t the very point, he said it as a threat (as if, “then if there’s an attack it’s all your fault not mine”)

    I am certain that’s when the real cia went telling bush this was illegal, they weren’t going to be a part of it and they were using the excuse of “they didn’t want to face prosecution”

    the date of that presser compared to these memos is a very important comparison

  17. Mary says:

    I dunno,I’m kinda thinking that we have a regulatory standard, an EO.

    EO 13292

    Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:
    (1) conceal violations of law, inefficiency, or administrative error;

    So, that would make it sound like if there were a showing that information was evidence of the possible violation of law, the you have an EO that spells out that the courts MUST find that the info isn’t properly classified, since that’s, like, ya know, prohibited.

    Throughout the CIA’s terrorist interrogation program the CIA was concerned that its officers could face civil and criminal liability for their actions.

    This analysis was done in anticipation of both criminal and civil litigation

    I think if you had something like, oh, on the record admissions that certain things were being reviewed bc the CIA was worried they were evidence of criminal activity; or were being prepared as summaries of evidence of violation of law – well, why look to a CIA declaration on a standard that doesn’t exist as a matter of law when you can look to a standard that was published for public consumption by the Chief of the Exec branch? I know we’ve seen some circular arguments for DOJ, but I especially like the one that goes – we don’t have to follow EOs that might be against the law, so when we give you a record setting forth a prima facie case of violation of the EO, we can claim that we didn’t need to follow it as long as we didn’t act in “bad faith” when we violated it to classify stuff that we’ve just said we looked at bc we thought it was evidence of a crime and it’s never bad faith to … protect Exec Branch crime … uh, so … uh, the President won’t have to be, uh, embarassed by … having to, uh, withdraw and amend he EO that stuff can’t be classified to avoid, uh, embarassment of … Can I start over judge?

    EOH -I don’t think it’s so much the hibachi. I think for it to qualify as obstruction it has to be done by someone other than the DOJ. They can hibachi away, anywhere, anytime.

  18. klynn says:

    Cheney office fire, December 17, 2007.

    Lots of thick black smoke.

    An oil fire tends to burn very black because most of the fuel is converted into elemental carbon. There’s also very little moisture in the oil to make the smoke look lighter. Plastic products, which are made from petroleum products, also release dark-colored smoke.

    And I thought they said “papers” burned in that fire? Plastic products like those used in video tapes?

    I cannot find anything about “the cause” of the fire.

  19. Mary says:

    BTW – on the 11 dimensional chess level, if Dunham is ACTUALLY pursuing indictments against anyone, then DOJ knows, bc he’s in house. If DOJ knows that people are ACTUALLY being criminally pursued for things relating to destruction of the tapes, then they have an additional hurdle with the judge to explain why, when they knew their dept was pursuing criminal indictments in connection with destruction of the tapes, they were in court arguing to Hellerstein that there’s no contempt involved in not producing them; or that there’s no conflict in, on the one hand, pursuing indictments against those who destroyed and on the other hand telling th court there was no contempt when they destroyed rather than indexed.

    Just how cesspool-y are we talking about? How in the world CAN DOJ in-house investigate for obstruction etc. for destruction of the tapes, when it has a vested interest in its own contempt proceedings in arguing that there was no problem with the destruction.

    I seem to recall something about some other in-house prosecutor pointing out to Congress that these in house appointments only give the perception, not the reality, of independence. DOJ is in an impossible conflict to be arguing that it can defend against contempt on the one hand, and pursue indictments for the same activity on the other.

  20. bmaz says:

    Do statutes of limitations really apply in cases like this?

    Yes, they really do and, no, they are not waived simply because the government is lame and obstructive.

    For the life of me, I have never understood why so many people, including many lawyers, always clamor for RICO. It is silly. First off, criminal prosecutions under RICO are very rare and are these days mostly used to break apart enterprises. The United States government is not amenable to being broken up in this manner. Secondly, a Federal governmental agency is not subject to prosecution by the Federal government and cannot, as far as I can determine, be a RICO defendant. So the whole theory of “enterprise” central to a RICO theory is legally absent (not to say that the conduct of the Bushies is not the functional equivalent, but it doesn’t really fit within the legal application). That leaves the individuals, but to convict an individual on a criminal RICO charge, you need to prove at least two separate criminal offenses that are enumerated under the RICO act (and torture is not one of them to the best of my recollection) within the ambit of the alleged criminal “enterprise”. But sentences for RICO offenses are no higher than for the underlying crimes themselves, what do you gain by charging an individual with a count that requires you to prove two or crimes beyond a reasonable doubt when you can simply charge them individually and prove them individually; it would be a lot easier and if one count founders, you still have the other. Bottom line is there is nothing to be gained from RICO application to the Bush crimes, even to the extremely limited extent it is even technically feasible. Lastly, I am not aware of any Supreme Court decision on the subject, but I find it beyond credulity that they would approve of criminal RICO prosecution of Federal government employees for acts that, even if they are criminal, were committed in the course and scope of their governmental function.

    RICO here is a dead horse, people should quit flogging it.

    • BoxTurtle says:

      RICO here is a dead horse, people should quit flogging it

      Aye. Truer words were never spoken. But IF we had an ethical AG, conspiracy charges would be a slam dunk.

      Boxturtle (And IF frogs had wings, they’d be chickens)

    • PJEvans says:

      I was told by my usually-unreliable-source that it was written so as not to cover political parties, and probably doesn’t cover government either.

  21. freepatriot says:

    those same tapes have since been destroyed. By the CIA itself.

    that’s the important line

    after that, I don’t care what the CIA says about the tapes

    Put Abu Zybada and KSM on the stand, ask them about their treatment

    and refuse the CIA the right to contest any claims KSM and Abu Zybada make

    the CIA had the evidence, and the CIA destroyed the evidence

    as far as I am concerned, the CIA and george bush destroyed their defense

    if they ever had a defense

    in light of the postitive testimony that torture occured, and the CIA destroying any chance of mounting a defense, the guilty verdicts shouldn’t be hard to obtain

    • BoxTurtle says:

      The government has gone to great trouble to keep them off the stand and out of a real court and they’ve largely succeeded. As their fallback plan, they’ve so thoroughly damaged these mens minds that I doubt their testimony would be admissible.

      Boxturtle (The government is right to fear a real courtroom)

  22. timbo says:

    Thank you for pointing out the complete hypocrisy of lawyers who seem to contend that there are no legal constraints on executive branch behavior. The sad thing is the hypocrisy seems to reach deep into the judicial branch and the legislative branches of the American government. Apparently, the class of folks who govern America now only believe in enforcing the law against folks who are not part of the governing class. This is base tyranny and an affront to all the people over the past two and half centuries who have worked hard for justice in a free and liberal state.

  23. rmadelson says:

    In response to MadDog @9:

    I’m sure the ACLU is onto this, and I’ve not analyzed each element (I’m trying to watch Cal-Oregon) but my immediate thought was the crime-fraud exception to the work product doctrine and the attorney-client privilege. Even with a cursory glance at the elements of the exception, I see some potential problems and lack of facts (at least as far as I am personally aware). Anyway, for the non-lawyers, this is what I’m referring to (copied and edited from whmllaw.com/Client_Privilege.shtml):

    “The crime-fraud exception to the attorney-client privilege and work product doctrine provides that if an attorney is retained to further present or intended illegal activity, the privileges will not survive. The purpose of the crime-fraud exception is to assure that the seal of secrecy between an attorney and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime. To invoke the crime-fraud exception, the party proponent must convince the court that there is prima facie evidence that the attorney’s services were used in the furtherance of a crime or fraud.

    The prima facie showing must indicate that (1) the party alleging the privilege was engaged in or was planning criminal or fraudulent conduct when it sought the advice of counsel; and (2) that the advice of counsel was sought for the purpose of furthering the criminal or fraudulent acts.

    The exception may apply regardless of whether the attorney knows his client’s true motivations. However the exception will only apply if the party proponent can demonstrate that the client claiming the privilege knew or should have known that the advice was sought for a wrongful purpose.

    The attorney-client privilege ceases whenever an attorney becomes the accomplice or an unwitting tool in a continuing crime.”

    • bmaz says:

      This is true for general civilian applications. But the privilege is far weaker in governmental situations such as this. It appears to differ slightly from circuit to circuit, but the general rule appears quite clear that if there is any hint of even potential criminal activity or the possibility of an investigation, the privilege is pierced.

  24. Garrett says:

    How does the “investigation” counter exemption work, and where does it come from? (I know it is discussed somewhat at this ew post).

    #55 has 12 pages of notes “concerning” the already destroyed tapes, and is dated a week after the January 2008 announcement of the investigation into the destruction.

    I don’t want to rehash anything that has already been said, but if “investigation” is treated special, I can’t see how this one wouldn’t apply.

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