A Catalog of the Destroyed Torture Evidence

I just re-read Philippe Sands’ Torture Team and, given the news of disappearing emails and documents, this passage struck me anew:

[Mike Dunlavey, who was in charge of Gitmo as they put together the torture plan for Mohammed al-Qahtani] would have liked to have gone back to the daily diaries and schedules that were kept on the computer system, together with reports that were sent out on a daily basis, and details of the videoconferences that had taken place with the Pentagon. “I need to see that stuff,” he mused, “how am I going to get it?” It seemed doubtful that he would. “They were backed up at SOUTHCOM,” he explained, but “a couple of months after I left there was a SNAFU and all was lost.”

Sands goes onto wonder whether there might be a connection to the destruction of the torture tapes. Dunlavey left Gitmo in November 2002, so those materials would have been lost in late 2002 or early 2003, when we now know people were panicking about what to do about the torture tapes. That was also between the time when–at the end of November 2002–a lawyer from CIA’s Office of General Counsel reviewed the tapes and claimed they matched the torture logs exactly, and the time when–in May 2003–CIA’s Inspector General discovered they weren’t an exact match. More importantly, CIA IG discovered there were 11 blank tapes, 2 broken ones, and 2 more mostly blank ones, suggesting that a first round of efforts to hide evidence on the torture tapes took place before CIA’s IG reviewed them.

In other words, this “SNAFU” happened around the same time as the first round of destruction of the torture tapes took place.

Since there are so many incidences of destroyed or disappearing torture evidence, I thought it time to start cataloging them, to keep them all straight.

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Dunlavey’s paper trail “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

(I put in the Cheney fire because it happened right after DOJ started investigating the torture tape destruction.)

There are two more evidence-related issues pertaining to the torture program.

First, recall that the government has refused to turn over all of Abu Zubaydah’s diaries to him [update: here’s a more updated description of the diaries status from Jason Leopold]. The status of both the diaries and the legal argument over them remains largely sealed, so we can’t know for sure whether all the diaries remain intact. I believe they are just being withheld and haven’t been destroyed, but we don’t know for sure.

Also, remember that Alberto Gonzales was wandering around DC with a briefcase full of CYA documents just after he became Attorney General. Among those documents were draft and final versions of OLC opinions relating to torture, and possibly memos describing some operational aspects of the program.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program; correspondence from congressional leaders to the Director of Central Intelligence; and other memoranda describing legal and operational aspects of the two classified programs.

Since this briefcase appears to have been about CYA, it is unlikely Gonzales would have destroyed any of them. But we know only that they were not in secure custody for about two years.

In other words, at least five pieces of evidence on torture has disappeared or been destroyed. But it could well be more than that.

John Durham? For a guy investigating disappearing evidence, you’ve been awfully quiet…

107 replies
  1. tjbs says:

    Durham is working on his brand of whitewash to be applied at the proper moment.

    How about framing words;
    A catalog of treason in the obstruction of Justice

    Water torture instead of waterboarding

    Murder in Gitmo

    Treason in the white house


    TREASON in the corruption of our voting process.


  2. bmaz says:

    Durham has blown through the statute of limitations on the first three items on your list and is perilously close on the next two. All during the two plus years he has been sitting on his hands with his thumbs up his ass. Undoubtedly exactly what he was tasked with doing; I am sure David Margolis approves.

    • emptywheel says:

      Not to mention knocking up against statutes on the actual torture done to Abu Zubaydah.

      They missed the statutes on the torture done to Ibn Sheikh al-Libi, but given his “suicide” there will always be the possibility of murder charges for him.

    • bobschacht says:

      There oughta be a part of the Obstruction of Justice law that includes sitting on evidence until the SOL runs out. And maybe a conspiracy clause to include cases where the prosecutor sits on the evidence because his boss told him to.

      But why can’t they just file an indictment, and then seal it? For SOL purposes, what is the critical date? The date the indictment is filed? Or what?

      Bob in AZ

      • bmaz says:

        Yes, the formal charging is the critical date for statute purposes; but once an indictment is filed; if the identity and location of the defendant are known and he is capable of being brought before the court, speedy trial/prosecutorial timeliness types of issues start to come into play. It would be unconscionable to criminal defendant’s due process rights, and antithetical to the concept of statutes of limitation, to permit the prosecution to just sit on charges like that. But none of this is the problem in the least; instead, the problem is that the government is absolutely determined NOT to investigate and prosecute these matters.

        • bobschacht says:

          …the problem is that the government is absolutely determined NOT to investigate and prosecute these matters.

          I think I agree with you on the second matter, but I’m not so sure about the first. I think Durham has done plenty of investigating, and if he were free to prosecute all violations of the law for which he has credible evidence, he would have plenty of material for many prosecutions. However, his mandate is tightly defined, and he needs a green light from Holder to prosecute.

          I imagine Durham has had conversations with Holder that go something like this:

          H: Well, whatcha got?
          D: I’ve got a, b & c on Mr. X,
          d & e on Y, and f on Z and half a dozen others.
          H: Indictable? with probable convictions?
          D: Yup.
          H: But a, b, d & f don’t fall within your mandate.
          D: Yeah, but the evidence just kinda fell into our laps while we were investigating c & e.
          H: I think you need to do more work on c & e. We’ll see about the others later.

          Bob in AZ

          • bmaz says:

            I am not so sure that Durham has done all that much investigating. Keep in mind that the grant of authority to Durham in relation to the torture tapes, which is the only part of his assignment where he has investigatory jurisdiction, is limited to only two or three specific tapes and to CIA actors directly involved in the actual destruction of those two or three tapes only; not into all the other tapes and destroyed evidence and not into any other officials such as those in the Executive Branch and Principals Committee or anything/anyone else. His later added authority was not investigatory by nature and was limited to doing a “preliminary review” of a specific handful of isolated excessive physical treatment cases that were previously declined for prosecution.

            For the life of me, I cannot understand why anybody puts any credence or hope into Bullshit Durham; his jurisdiction was hand tailored to be a ruse whitewash from the get go, and he has adhered to that nothingness meticulously for over two years of nothing ever since.

            • bobschacht says:

              …His later added authority was not investigatory by nature and was limited to doing a “preliminary review” of a specific handful of isolated excessive physical treatment cases that were previously declined for prosecution….

              What does a “preliminary review” consist of, and how does it differ from an “investigation”?

              And if what you say is true, what does Durham do for 8 hours every day to earn his salary?

              Bob in AZ

              • JasonLeopold says:

                Yeah Holder made it very clear that it was a “preliminary review” and NOT a criminal investigation. From his press release last August (my emphasis):

                I have reviewed the OPR report in depth. Moreover, I have closely examined the full, still-classified version of the 2004 CIA Inspector General’s report, as well as other relevant information available to the Department. As a result of my analysis of all of this material, I have concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. The Department regularly uses preliminary reviews to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter. I want to emphasize that neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.

              • bmaz says:

                A Preliminary Review is a formal process in the Justice Department where a prosecutor reviews the status and evidence and information previously gathered on a matter in order to decide if there is a sufficient chance of obtaining a conviction if a formal investigation is conducted and a case is opened. A preliminary review is generally a 30 day process with extensions possible up to a total of 90 days after which you have to either open it as full investigation or close the matter out. At the end of 30 days, you have to write report in order to justify the extension, and if your extension is for less than 60 days, maybe another interim report. Up to a total of 90 days and then it is fish or cut bait.

                The IG report on torture and torture tapes was a FAR more thorough process and investigation than a preliminary review by Durham would be designed to be. The preliminary review process itself makes makes little sense here under the circumstances for anything but a sideshow coverup; for whatever reason, Holder is using this artifice to string things out without initiating a formal investigation. So, to be clear, this is not yet even a formal investigation, much less a charging situation. It is a scam to make it look like something is being done when, in fact, nothing is being done. Furthermore, under the preliminary review process as it is commonly understood within the DOJ, the time limits for Durham long ago expired for his preliminary review; it very well may have already met its inglorious and uneventful termination and you just don’t realize it.

                  • bmaz says:

                    Well, that is my historical understanding of the process as commonly used by the DOJ and USA criminal divisions. It is not, however, a statutory creature so clearly the ambit and terms could be modified and may well have been here. Who knows. Holder was pretty vague, other than being crystal clear there would be no formal investigation or charging authority, and they have fastidiously taken pains to avoid discussing what, if anything, is going on since then.

                    I will say this though, I find it absolutely impossible to believe that the DOJ is either inclined or capable of filing any charges whatsoever on any of this conduct if it cannot even allow itself to permit the findings of the OPR as to misconduct by Yoo and Bybee to go unmolested by David Margolis. Anything, and I mean anything, they do to move forward, in any manner on anything, would put the DOJ’s own conduct and misconduct in play and they simply are too craven, dishonest and influenced by political considerations to do it.

                    • JasonLeopold says:

                      on your latter point, I totally agree. Considering that Holder is under fire from Rahm and Republicans for the few instances in which he appears to have tried to do the right thing or thought about doing the right thing I can’t imagine that it would ever get to the point of a full blown criminal probe let alone criminal charges. I would imagine Holder would be forced to resign if that were to happen.

                    • BillE says:

                      One could only hope that Holder or one of the deputies would push it and resign in a big splash if conditions failed to be met. Archibald Cox anyone. But, the AG job is not going to anyone independent. The history books will say that of all people Janet Reno was that last independent AG.

                • bobschacht says:

                  Thanks for your explanation. So, basically, a preliminary review is done with information already on hand, whereas an investigation involves collecting new information.

                  At the end of 30 days, you have to write report in order to justify the extension, and if your extension is for less than 60 days, maybe another interim report.

                  If the time for the review has expired, can the ACLU or EFF or another appropriate group ask for Durham’s report, or at least FOIA it? (I’m assuming that Durham’s report has not (yet) been released.) Or at least, shouldn’t Holder be asked what the results of Durham’s preliminary review were?

                  Bob in AZ

                  • bmaz says:

                    I don’t think you would get an honest answer; probably some mumbling about it still being ongoing or something. But it is a valid question to ask in light of what the process commonly entails.

                    • Mary says:


                      Kind of brings to mind that suffix, “ive.”

                      Latin: a suffix; tending to; of the quality of, inclined to

                      I’m beginning to believe we need to add a new definition for active when used to modify DOJ investigations, i.e., having the qualityf of being an act.

                    • Jeff Kaye says:

                      I swear, waiting on all these legal “investigations” or “preliminary investigations,” I am sorely reminded of Kafka’s short story, “Before the Law” (also a part of Kafka’s novel, The Trial).

                      BEFORE THE LAW stands a doorkeeper…. During these many years the man fixes his attention almost continuously on the doorkeeper. He forgets the other doorkeepers, and this first one seems to him the sole obstacle preventing access to the Law. He curses his bad luck, in his early years boldly and loudly, later, as he grows old, he only grumbles to himself. He becomes childish, and since in his years long contemplation of the doorkeeper he has come to know even the fleas in his fur collar, he begs the fleas as well to help him and to change the doorkeeper’s mind. At length his eyesight begins to fail, and he does not know whether the world is really darker or whether his eyes are only deceiving him…. “What do you want to know now?” asks the doorkeeper; “you are insatiable.” “Everyone strives to reach the Law,” says the man, “so how does it happen that for all these many years no one but myself has ever begged for admittance?” The doorkeeper recognizes that the man has reached his end, and to let his failing senses catch the words roars in his ear: “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”

                    • gvandergrift says:

                      In a recent thread here, you quoted a scene from The Count of Monte Cristo, I believe, about interrogation/torture. Would you repeat it or point me to it? I searched for it in these threads once to no avail. I promise to pay closer attention this time. Thanks.

                    • Jeff Kaye says:

                      The quote was from The Three Musketeers, but damn if I can’t find it now. If anyone else can, let me know. I should have saved it, but I didn’t.

                    • bmaz says:

                      Is this it?

                      “Tell him further that I hold Montague in my power; that Montague is in the Bastille; that no letters were found upon him, it is true, but that torture may make him tell much of what he knows, and even what he does not know.”



      • PJEvans says:

        Oh yeah.
        Sitting on stuff until SOL runs out is most definitely obstruction of justice, and should be dealt with firmly – not by another damned strongly-worded letter or an ‘Oh, we’re looking forward, not backward’.

  3. Arbusto says:

    Missing logs, audio, video, documents, emails and fucked up backup tapes from DoJ, DoD and CIA under Bushco, just can’t be found under Rahm Obama regime. This ties in wonderfully with our fearless leader looking forward, not backward approach to “patriots” errors in judgment, misinterpretation of our laws and treaties, i.e. forgive and forget— because they’d never intentionally break the law. What a wonderful standard to govern by.

  4. JasonLeopold says:

    Just fyi, some of the volumes of the diaries have been turned over to Zubaydah’s attorney as well as drawings Zubaydah made. late last year, a judge granted in part and denied in part a defense motion to obtain the diaries. But the govt is appealing that. I wrote a report about at the time http://www.truthout.org/1021091

    • emptywheel says:

      Thanks. Added a link to it in the post.

      But aren’t there still some diaries that Mickum doesn’t have? And isn’t there still the debate over whether all exculpatory information and “various writings” have been turned over?

      • bmaz says:

        It has sure been my understanding that the key AZ diaries are either “missing” or the government refused to produce them.

        • tjbs says:

          Gee I thought the Obama Administration was going to be morally righteous ! NOT !!!

          Another War criminal, involved in the pretty face garbage of torture.

        • JasonLeopold says:

          If they are missing then the government is lying in their court filings. Their position is that they won’t turn it over because it’s not relevant because they have since moved away from every claim they every previously claim made about AZ, particularly ones in which he was said to have been a “member” of al-qaeda.

          • bmaz says:

            Yeah, that sounds like an argument FOR producing them, not refusing to do so. As far as “missing”, I may well be mistaken as to whether I actually heard that term used as to AZ’s key diaries or not, so take that with a huge grain of salt; however, that said, it is curious as to the sheer gross number of things the government and DOJ supposedly have that turn out to be deleted, lost or missing when crunch time comes. I’m sure they are safe in a DOJ SCIF or Gonzo’s briefcase or Cheney’s mansafe or Libby’s orgasmic bear cage- or something.

            • JasonLeopold says:

              Exactly. That’s what his attorneys are consistently trying to argue: that it’s the reason it SHOULD be turned over and I imagine they are bald from ripping their hair out trying to make their case. They have made numerous filings objecting to “overclassification” and abuse of the classification process but the judge in the case, Richard Roberts, has been slow to act or issue a ruling.

            • emptywheel says:

              I think in early (CSRT) stages they said they couldn’t produce them. Which may well mean, “couldn’t bc Dick Cheney refused to allow them to.”

              • chetnolian says:

                Just to remind us all of the truly Kafkaesque nature of this issue, they are Zubadaya’s own diaries, right? And they are no longer evidence, right? So he can’t have them back. Weird!

                  • chetnolian says:

                    Oh I do understand that. I’m commenting on the lame excuse being given for not returning them. Of course they are being held onto becuase they might be evidence of torture.As a mere furriner I’m still trying to puzzle out why the current administration is doing this.

                  • JasonLeopold says:

                    That’s not true from what I have gathered. The diaries, specifically the first six volumes, make up the government’s entire factual return in the case against him. Everything they have alleged came from the diaries. For example:

                    In a July 14 motion opposing the government’s attempt to “protect” volumes one through six, AZ’s attorney Bren Mickum said he is not permitted to inform Zubaydah “which passages the government relied upon” in the charges it prepared against him as outlined in the “factual return.”

                    “The Government has redacted every reference to the unclassified volumes of [Zubaydah’s] diary from the unclassified factual return,” Mickum’s motion states. “By removing every reference to the diary, the Government leaves very few of the relevant allegations against [Zubaydah] to be seen by the eyes of the public. Moreover, what is left is an incredibly misleading picture. For example, for several pages of the factual return, virtually the only words that are left unredacted are the names: Abu Hafs al-Masri, [al-Qaeda-in-Iraq leader] Abu Mas’ab al-Zarqawi, [self-professed 9/11 mastermind] and Khalid Sheik Mohammed, known al-Qaeda operative. What the public does not see if that the only reason these people are mentioned in [the government’s] factual return is that they are alleged to have been in the same city as [Zubaydah]. The Government does not even allege [Zubaydah] had direct, or even indirect, contact with them.

                    “What possible explanation can the Government offer to justify that the diaries are unclassified but the quotations from the diaries upon which the government relies in the factual return are classified? There is none. By doing so, the Government simply demonstrates its disregard for the fact that the authority to designate unclassified information as protected properly belongs to the court.

                    “It is understandable that the Government would want to avoid the public criticism that may follow from an honest discussion of who [Zubaydah] was and how the Government mistreated him, but this is not a legitimate basis for sealing information [in his] case. [This is about] the Government’s simple desire to keep information about [Zubaydah] and the case against him secret, primarily to cover up evidence contradicting its own public misstatements about [Zubaydah] as well as potential evidence of further as-yet-undisclosed government wrongdoing.”

  5. JasonLeopold says:

    Yes and I should have clarified that in my comment. Basically it’s volumes 7, 8, and 9 that Mickum doesn’t have unredacted copies of, which the judge said should be turned over. They have volumes 1 – 6 and 11 and 12. He has since received Zubaydah’s drawings, which Mickum says is pretty explosive, and that’s what is deemed other “specified writings.”

  6. JasonLeopold says:

    one more thing, just for clarification on my part because I haven’t felt the full effect of the coffee yet, volumes 1 through 6 of the diaries are key because that’s what the government has relied upon in their case against AZ and what is contained in the factual return. Volumes 7,8,9 recount the torture AZ was subjected to while in CIA custody but the govt is saying in their court filings in the case that because they no longer rely upon any of the evidence in their case against him during the time in which he wrote those three volumes the diaries are not relevant and should therefore not be turned over. That’s the argument that’s being made.

  7. klynn says:

    All this, plus bypassing OLC in July 2004?

    I would consider adding into the timeline mix, Cheney’s efforts to exempt his office from the EO protecting Classified Information since 2003.

    RE fire:

    The Executive Office Building houses the Office of Management and Budget and staff of the National Security Council and other agencies. The building was built for the State, War and Navy Departments between 1871 and 1888, and designed by Supervising Architect of the Treasury Alfred Mullett. The granite, slate and cast iron exterior makes the building one of America’s best examples of the French Second Empire style of architecture. Stay with News4 and NBC4.com as this story develops. For more information on the history of the EEOB, see one of the following Web sites.

    If I recall, the DC Fire Inspector stated the fire inspection report would be withheld due to national security.

    • emptywheel says:

      Yeah, I thought about Cheney’s fight with ISOO.

      Thing is, they WERE complying in 2002, when a lot of the most damning stuff would have been written and classified. And while ISOO has reported on violations at NSC, they didn’t on OVP.

      So I’m not sure that’s all that relevant (whereas it is absolutely relevant to the Plame thing).

      • qweryous says:

        “Thing is, they WERE complying in 2002”

        Is anything additional known about :

        ” Bill Leonard, head of the government’s Information Security Oversight Office (ISOO), told Waxman’s staff that Cheney’s office has refused to provide his staff with details regarding classified documents or submit to a routine inspection as required by presidential order, according to Waxman.”
        excerpt from LINK:

        Reports were required concerning the numbers of documents which had been classified and unclassified. Leonard’s reports of non compliance were based on the refusal to submit the required reports and allow inspection of the barnacle branch. Is there any evidence that in previous years there was compliance with ISOO?

        Previous compliance with ISOO would have been out of character IMHO.

        • emptywheel says:

          They may not have been complying accurately (though there’s no reason to doubt them), but they were complying. What ISOO gets is just raw numbers and whatnot, not any big details as in “declassified, one, CIA identity, blond and attractive.”

          • qweryous says:

            That was poorly worded.

            I intended to question the accuracy and the completeness of the compliance
            by Cheney and crew.

            I did not intend to imply that there was any reason to question Mr. Leonard’s
            actions or motives.

            It was he who apparently was responsible for revealing yet another instance of blatant disregard for the law (and perhaps the use of pixie dust).

  8. tjbs says:

    Who would want an adversarial judicial proceeding when the Treasonous, Traitorous republicans already massaged the truth.


    HOLDER is a TREASONOUS constitutional impostor.

  9. klynn says:

    The Associated Press reports that the fire raged mainly in the office of Mr. Cheney’s political director, Amy Whitelaw, but that the ceremonial office was affected:

    Let me correct myself. The Secret Service conducted the fire inspection with the assistance of the DC fire department. Evidently, SS not only protects national and visiting foreign leaders but also conducts criminal investigations.

    Not to go OT, who is Amy Whitelaw?

    EW, fair enough on the ISOO concern. Good points.

  10. Jeff Kaye says:

    There is lots of missing evidence, and among it thousands of hours of video and audio tapes of interrogations. The were at least 24,000 taped interrogations at Guantanamo from 2002-2008 — every interrogation at Guantanamo was taped! See this excellent Seton Hall report, Captured on Tape: Interrogation and Videotaping of Detainees at Guantanamo (PDF). But as Don Black from DIA told the New York Times, videotaped interrogations were routinely destroyed.

    Then, there was the missing DVD of the last videotaped interrogations of Jose Padilla. Altogether, Padilla’s defense team figured there were 72 hours of unrecorded or missing tapes of Padilla’s interrogations.

    While the missing tapes EW documents are of high importance, given the prominence of the destroyed CIA videotapes scandal and investigation, and the links to the OLC torture memos, a wide-scale destruction of evidence has taken place throughout the government (really the executive branch and its agencies) and practically nothing seems to be done about it. The Durham investigation is, as bmaz has pointed out, a farce. What do you do when faced with a lawless government? You tell me.

  11. chetnolian says:

    Totally OT but it’s Sunday and trash is permitted so – lousy boring first Grand Prix of the season, and it looks as if the whole season might be the same, fine for stats addicts but boring for those who like to see cars actually racing.

  12. qweryous says:

    EDIT: ADD In response to emptywheel @31:

    A competent trustworthy government employee as described by bmaz @ 24
    would never suspect pixie dust.

    Mr. Leonard probably wasn’t cleared to know there was pixie dust- not to mention if and where it had been used.

  13. JohnLopresti says:

    @38, Rep. L.Sanchez asked Fitzgerald a rambling question somewhat resembling your suggestion, @p11/14 584KB. Predictably, the inhouse special counsel*s answer was terse, allaying concern.

  14. orionATL says:

    this is a nice weaving of facts which helps move the nation’s discussion of its torture up from the level of lots of important fact to the level of weaving a tapestry showi g who, when, and how.

    i’d bet good money that a year from now we’ll have virtually a complete picture of the origins, principals, and activities of america’s decade of torture.

    the other side of the torture coin involves info from individuals who obstructed or outright opposed torture.

    zelikow is mentioned above. comey and goldsmith from doj figure in in my impefect understanding. there almost certainly were some obstuctionist among dod civilian, upper-level military, and cia.

    then there is the universr of facts about american torturing gathered by

    the intern’l red cross,

    journalists from several nations, and

    civilian and military bureaucrats who observed american torture activity as citizens of the nations forming the coalition of the conscripted.

    the american torturers may have suceeded in hiding or destroying documents which would have sent them to jail, but the internet, and a modest openess to foia requests by the obama administration, make it impossible for the torturers to hide the general outline of what they did during our torture decade.

  15. tjbs says:

    Legal Presidential assassinations

    Presidential drone attacks

    Presidential managing of torture sessions

    Presidential deciding who is an enemy combatant and assassinating those chosen

    Presidential Executive Order hiding an assassination of Pat Tillman

    Am I missing something here?

    • Stephen says:

      Presidential “go ahead” to kill and destroy all living things and level any structures containing same with extreme prejudice if any resistance whatsoever is encountered, no matter how weak. This strategy will be called “a surge”. Allow no press to witness this policy and procedure.

  16. JasonLeopold says:

    Just some fodder for the destroyed evidence theme today. Via GWU’s National Security Archive as released Friday:

    The Rosemary Award for worst open government performance, named after President Nixon’s secretary who erased 18 ½ minutes of a crucial Watergate tape, this year goes to the Federal Chief Information Officers Council, the senior federal officials (responsible for $71 billion a year of IT purchases) who have never addressed the failure of the government to save its e-mail electronically, according to the citation Friday by the National Security Archive.

    Formed by Executive Order in 1996 and codified in law by Congress in the 2002 E-Government Act, the CIO Council describes itself as the “principle interagency forum for improving practices in the design, modernization, use, operation, sharing, and performance of Federal Government information resources.” Yet neither the Council’s founding documents, its 2007-2009 strategic plan, its transition memo for the Obama administration, nor its current Web site even mention the challenge of electronic records management for e-mail.

    • Jeff Kaye says:

      But your didn’t report their acceptance speech!

      Thank you all. There are so many people to thank. My thanks to GWU and to the voters. I want to thank the major media, for failing to report on this story. And of course, there’s Congress, who doesn’t bother to follow-up on how their reforms are actually implemented. And, oh, there’s the new Administration. How could I forget them, for making a pledge of non-accountability for the past? And — oh! oh! — I’m out of time. And you… you know who you are. I couldn’t have done it without you.

    • bobschacht says:

      Every member of the Council ought to be required to carry the symbol of the Rosemary Award on their Vitae and Resume for the rest of their lives, including a footnote on the same page explaining what the award is for. Either that, or the Mark of Cain on their foreheads.

      Bob in AZ

  17. tjbs says:

    Speaking of tap dancing

    I bet those two or three tapes have ballet recitals or water tortured SUSPECTS,DAMN IT thanking the WATER TORTURERS

  18. JasonLeopold says:


    Mr. Durham… will recommend to me whether there is sufficient predication for a full investigation into whether the law was violated in connection with the interrogation of certain detainees.

  19. fatster says:

    Sorta O/T. In addition to all the documents and videos gone missing, there is also the odious campaign to re-write history. Frank Rich takes on Liz ‘n Dick ‘n Karl and their “Assault on Reality”. He also seems to think Obama won’t be able to ignore this much longer. I wish.

    • bobschacht says:

      It is a sad commentary on the current state of “journalism” that “alternate realities” such as those of Liz ‘n Dick ‘n Karl are reported as if they are legitimate POV, equal in merit to all other POV. Rachel Maddow has complained about this, but to no avail.

      Part of the problem is that TV executives regard “news” as being a kind of “entertainment,” and either don’t know or don’t care about journalism standards.

      Bob in AZ

      • fatster says:

        They don’t seem to know nor to care. Seekers of truth will gravitate here and to other sources that meet their standards, however. In the more “popular” venues, there are a few such as Maddow, Moyers, Olberman, Goodman, etc. And while we disparage about what’s usually referred to as “infotainment” (e.g., Fox Nooze), we do have our own version of that (Jon Stewart and Colbert come to mind) though ours is grounded in integrity as well as comedy. Suppression of the truth has always been a problem (the great Izzy Stone was my first great discovery in terms of getting to the truth), but it seems to be heavier than ever these days.

        • qweryous says:

          Hand in hand with suppression of the truth is active promotion of the stupid.

          Don’t know what the numbers are- but there are many viewers out there who find even Faux Gnuse far too intellectually challenging to watch.

  20. burnt says:

    This is on-topic in an oblique way.

    What happens to me or any of us if we are called to serve on jury for a federal court? I have not participated in voir dire at a federal level but I have several times for county-level stuff. I was asked general sorts of questions about how truthful I believed police officers to be. I was asked coded questions about jury nullification (sorry, can’t remember the precise phrasing but I’m certain the attorneys floating around here will answer). Essentially, the prosecution and the defense attempt to discover who is going to help them out.

    So, let’s say I’m called by the feds for petit jury or grand jury duty and I make it to voir dire. I’m going to answer truthfully. I’m going to be biased with respect to the Assistant US Attorneys who will be presenting a case before me or wanting me to help indict some poor sap (who is likely guilty as sin). First of all, I’m going to want to know if they were hired between the third week of January, 2001, and the third week of January, 2009.

    If they weren’t hired in that time period I’m going to have to have to point out that the assistant US Attorney conducting voir dire has failed to arrest and prosecute for war crimes US citizens using Minneapolis/St. Paul International Airport.

    After all:

    1. The Convention Against Torture is the law of the land.
    2. There are mountains of evidence that US citizens have violated the CAT.
    3. There is no doubt that some of the people involved in the US torture regime have passed through MSP.
    4. Suspected war criminals passing through one’s jurisdiction are subject to arrest (or am I misinterpreting the CAT on this?).

    Yes, we are a provincial backwater but MSP is the 30th busiest airport in the world with respect to passengers (it’s the 7th busiest with respect to cargo). The torturers are flying through here. Therefore, the AUSA in Minneapolis are falling down on the job and allowing war criminals (my term, we need a jury to determine that) to move freely about the country.

    So, when I get my postcard in the mail and I report for duty and I start reciting these and other reasons why I’m not going to believe the federal side of the story. What’s going to happen to me?

    • bmaz says:

      Oh, they will want no part of you; but you are obligated to answer truthfully. In fairness, the locals there were far more on top of all that than the people in charge in DC. The local USA Office had a very good reputation historically, and even the original Bush appointee there, Heffelfinger, was widely respected. Palouse was a disaster and cost the office some key people as I recall.

  21. Rayne says:

    This bit:

    July 2007 (probably): 10 documents from OLC SCIF disappear

    is really disturbing. How in freaking demigods’ names does material “disappear” from a Sensitive Compartmented Information Facility?

    I mean, come on now. Really. We’re supposed to believe that one of the most secure kinds of facilities our government operates, more secure than most nuclear facilities, is supposed have OOPS!!! lost documents? We’re supposed to believe that nobody signed in and out and nobody was otherwise documented accessing these now missing documents?

    And John Durham has no one he can charge for obstruction of justice at a minimum so far?

  22. Mary says:

    @68- I think they’d probably make an investigation, work product, “gotta protect Cheneys who may not want to talk to us in the future” etc. arguments, some valid, some not so much.

    @75 & did they say whether or not he’s being required to consult with Margolis before he quits running the poltical and statutory clocks in the Department of On Sale Prosecutors says it’s all over

    Some other efforts at evidence destruction –
    **The body at the Salt Pit in Nov 2002 (I think you’ve put a name with young adult who was frozen to death – Gul Rahman? ) that got dumped with no notices
    **Dumping Khalid el-Masri in Albania with nothing in 2004
    **Deep sixing Noor al-Deen to Syria and hiding the evidence that they were told Zubaydah wasn’t a high level al-Qaeda operative
    **Disappearing al-Libi to Libya to cover up his torture evidence
    **All the pictures of stripped, assaulted detainees, including genital mutilated Binyam Mohamed that have never been accounted for or produced
    **KSMs disappeared wife and children
    **Evidence of rape and other crimes at GITMO that Obama has de facto destroyed by refusing to EITHER press charges or release
    **Destroyed tape of the Sean Baker GITMO beating
    ** the 80 or so High Value detainees who were part of Torture experiments and who have not been specifically accounted for
    **Missing Padilla interrogation tapes/info
    **Arar evidence that has been de facto disappeared by the Comey affidavit and failure to pursue any charges
    **Missing throats from Suicide victims at GITMO
    **Missing details from Thiessen So Car Brig report on the “other” Geneva convention violations other than isolation
    **Gen Miller refusing to testify and taking the Military version of the 5th

    OK – not all the above deal specifically with the CIA, but still …

  23. MadDog says:

    One comment and then beddy-bye for me.

    OT, but I’m sure we’ll discuss it here on the ol’ Emptywheel ranch as it relates to any number of EW’s previous posts – from the NYT and just up:

    Contractors Tied to Effort to Track and Kill Militants

    Under the cover of a benign government information-gathering program, a Defense Department official set up a network of private contractors in Afghanistan and Pakistan to help track and kill suspected militants, according to military officials and businessmen in Afghanistan and the United States…

  24. numbertwopencil says:

    Here is something I would add to a list of destroyed (well, at least missing for years) torture evidence:

    Hundreds of hours of video from the Metropolitan Detention Center in Brooklyn made in late 2001 and 2002 of prisoners/lawyers/guards–theoretically made specifically to show that prisoner abuse did not occur–were not available when prisoners who were detained in post-9/11 sweeps claimed abuse at MDC in court in 2003.

    Section VI-F (see: MDC Videotapes, etc.) of the DoJ OIG Special Report:

    Yes, some of the tapes surfaced in (late?) 2003. The DoJ issued (at least) two related supplemental reports after the tapes were found. IIRC stills from the tapes were shown in various civil suits and/or some video was publicly released in 2005 or so.

    Were all of the MDC tapes were found in 2003? What exactly was on them, and who might have been held accountable for what? Dunno. However, I think it is clear that significant video tape evidence of abuse at MDC was intentionally hidden from investigators and the courts for years.

  25. alinaustex says:

    [email protected]
    So the Durham investigation is going no where ?
    Will there not even be a final report issued by Durham ?
    And did Mr Holder accept the Margolis version of OPR misconduct as the final report on what happened at OPR under Bushcheney- regardng aiding and abetting torture ?
    So is that it – should I send you that $ 200.00 now ?
    I would like to know if Holder stands by the Margolis findings.
    I believe in Attorney General Holder.
    Watch we might even see KSM still tried in civilan court on Governor’s Island . ( That was Col Lang’s idea -and its a good one >)

  26. perris says:

    I just re-read Philippe Sands’ Torture Team and, given the news of disappearing emails and documents, this passage struck me anew:

    I would like to know when that “team” was recruited and by who (whom?)

    I am pretty sure they will be comprised of or by cheney’s “team b”

  27. tjbs says:

    I count Pat Tillman in the destruction of evidence. He would have been a weapon of mass destruction to the 24/7 Bush-Cheney lie machine or as they call it new realities.
    I believe they wire tapped him all the time and overheard his private conversations about his doubts. For those who don’t know Mr. Tillman he was the all american hero story,gives up millions as a pro football player, to defend the country. He had made arrangements to go public in the heat of the re-election campaign therefore boosting the Kerry anti-war ticket. He saw first hand not our defense rather the wanton brutality and destruction we were causing. He had to hear the braggadocio of the brutes who had license do anything to people who didn’t speak their language up to and including wanton murder. I bet he was fired up with righteous indignation at the injustice he was deceived into joining up with.
    So is it any wonder that he died , just like the 3 Gitmo suicides, right before he was due to come home with three bullet holes in a two inch circle in his forehead?
    The final irony in this tragedy will be General Petraeus running as the war hero without having the possibility of having to run against a true war hero, Pat Tillman.

    That to me is evidence of destroyed evidence and the process behind it all.

  28. MadDog says:

    OT – Patrick Fitzgerald in the news again? Have Lizard Cheney & Co. gone undercover to work as “journalists”? From the wingnuts DC mainstay, the Moonie Times:

    Justice, CIA clash over probe of interrogator IDs

    The CIA and Justice Department are fighting over a secret investigation into a controversial program by legal supporters of Islamist terrorists held at Guantanamo Bay that involved photographing CIA interrogators and showing the pictures to prisoners, an effort CIA officials say threatens the officers’ lives.

    The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists…

    …According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates…

  29. canadianbeaver says:

    What do you honestly think would happen, if the US’ first black president, had his DOJ investigate the last president, who is white? What do you honestly think would happen to this black president, once he is no longer in office? When was the last time a federal government investigated the government it replaced? Torture is illegal, and everyone knows what these clowns did was unjustifiable. However, anyone thinking this government will investigate anything the former government did, is kidding themselves.

  30. klynn says:

    I missed reading this post last week at The Torture Report. Thought some might appreciate reading it. It is about the opinion the UK Court of Appeals handed down releasing seven paragraphs corroborating Binyam Mohamed’s account of his treatment in Pakistan. Go read about paragraph 168.

    Thought this quote was one we could relate to while discussing missing evidence.

    Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

    snip to the quote of encouragement for us…

    It has to do with the Court’s insistence on doing its work to the maximum extent possible in the public eye. It has to do with one Judge’s insistence on underscoring the most troublesome aspect of the Binyam Mohamed case for British citizens—that their government’s intelligence services were complicit in his torture and then lied about their involvement. And it has to do with the fundamental belief that underlies this little drama about the drafting of one paragraph: that words matter, and never more than in the quest for truth and accountability.

  31. Margaret says:

    When I was in the Navy, I was ASDO for a while, (Assistant Squadron Duty Officer), which meant that I was at the hanger from midnight to eight five nights a week, posting watches, answering the phone, logging in new arrivals and so forth.
    One night, I got a call from a young sailor who was complaining that his roomate was cutting up drugs in his barracks room. I was left with no choice to call security. Thus began a three or four hour running narrative between myself, security, the barracks’ duty officer and the young sailor. All of which I dutifully logged. Security came, arrested the offender, collected the evidence and turned him over to San Diego police.
    That morning, shortly before I was due to be relived, the C.O. of that squadron came in, along with the SDO and the OOD, took my log book and CUT OUT those pages of the log book and ordered me not to discuss with anyone what had happened. Thinking that they must be safeguarding those pages for an upcoming trial, I let the matter go.
    The very next night, I got a call to pick up somebody from security that SDPD had just dropped off so I sent the duty driver over. It was none other than the sailor who had been caught with just over an ounce of crystal meth in the barrack’s room just the night before. His status was given to me as ready for duty. Charges were dropped and it was all quietly swept under the rug. I asked the SDO the next morning about the situation and he called me into his office and closed the door. Again I was ordered not to discuss anything with anybody and was then informed that the offender was related to some admiral or other, which explains the arrogance of cutting up illegal drugs in a barrack’s room.
    Military destroying evidence? Happens all the time.

  32. DWBartoo says:

    Obama Inc. has been tasked with allowing the statutes to run out.

    Bu$h Co. will NEVER be brought to account in America, for crimes against humanity, the “few rotten apples” to blame for everything, remember, are already charged.

    Addington, Bybee, Yoo, and other “government attorneys” are doing just what Mukasey suggested, they are “protecting” their country. Theirs not ours. And they will be protected in this protecting, with all the deontological wiles the government (the one you pay for) can buy.

    They will be soon building Temples to Rotunda (forgive me fatster, that architectural comparison you made, some time ago, Shirley could not be passed up …)

    What is really neat about ALL of this … is that Obama certainly does not expect ANY flack about ANY of this from the demagogues who will, inevitably, if our nation’s sorry history is to be any guide, replace him.

    Fortunately, one term will allow enough time to cover up everything except doubt.

    And we will just have to live with that.


    Where does it stop?

    Nowhere, if it may be called and treated as patriotism.


  33. Frank33 says:

    So many scandals and war crimes, and not enough Firedogs. It seems there are privatized murder squads. Conspiracy Theorists will jump on this.

    Under the cover of a benign government information-gathering program, a Defense Department official set up a network of private contractors in Afghanistan and Pakistan to help track and kill suspected militants, according to military officials and businessmen in Afghanistan and the United States.

    The official, Michael D. Furlong, hired contractors from private security companies that employed former C.I.A. and Special Forces operatives. The contractors, in turn, gathered intelligence on the whereabouts of suspected militants and the location of insurgent camps, and the information was then sent to military units and intelligence officials for possible lethal action in Afghanistan and Pakistan, the officials said…

    Mr. Furlong has extensive experience in “psychological operations” — the military term for the use of information in warfare — and he plied his trade in a number of places, including Iraq and the Balkans.

    • fatster says:

      I just saw that and was checking to see if it had already been linked here. And isn’t it fascinating, though? And how much we bettin’ Congress and the WH will be right on this, investigating and following-through with appropriate action?

  34. nusayler says:

    Question for those with experience and knowledge of how things REALLY work in certain areas:

    Concerning those “never to be released” detainee abuse photos, and evidence, especially specific items like a few video tapes etc., that has been declared “lost” or “destroyed”, is there likely someone out there who has quietly copied and stashed away some of this stuff? Will it ever see the light of day?

    • crossword says:

      Short answer? Yes. Piggybacking on the story of the lady a few comments up who was in the military and had her log book altered to cover something up…

      When I was in the military, fellow…co-workers would routinely make copies of PowerPoints and briefings. This was immediately after stories of unauthorized raids in Pakistan and our initial support to the Ethiopian military to oust the ICU in Somalia.

      We thought it was shady then, and we still do. We took efforts to protect ourselves and to memorize things we couldn’t write down or copy (unlike the torture elite, I don’t steal from SCIFs, and neither would anyone I ever served with). And we’re not policymakers or senior military officials; imagine what they have stashed away. Chew on that.

  35. tjbs says:


    Why would I say that?

    First all, praise and honor to EW’S un-quenched thirst for TRUTH and JUSTICE.

    Think of this wonderfully talented Woman as the lightning and the commentator’s as thunder.

    Because of the illegal war and using Depleted uranium the death and suffering will go on for centuries. What Hitler did was limited in time. Which is worse burning human beings in ovens or the slow death of cancers hundreds of years into the future. We better learn how to contain our brilliant brains concentrating on death and destruction and turn them to solving today’s and tomorrow’s problems without violent lashing out at innocents.

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