Bull Durham Update: Torture Tape Investigation Winding Down Again

Take this with a grain of salt, because we have heard it before, but there is a new story out that John Durham is winding down his torture tape investigation. Carrie Johnson and Julie Tate at the Washington Post are out this afternoon with an article intimating the investigation appears to be “nearing a close” and, as predicted here, there appears to be little, if anything, useful going to come from it. A false statements charge against a single secondary CIA official appears to be all that is potentially in the offing, and even that is shaky:

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, the sources said. That could signal that the case is reaching its final stages. Durham has been spotted at the Justice Department headquarters in the District over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke anonymously because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about the handling of the tapes and whether they should have been included when agency records were turned over in other court cases. McPherson is not believed to be under criminal jeopardy but he had previously hesitated to testify, the sources said.
Investigators now are turning their attention to the grand jury testimony last year by another agency official, the sources said. Lawyers point out that prosecutors routinely search for discrepancies in grand jury testimony as part of any broad investigation.

Jose A. Rodriguez, the former chief of the CIA’s directorate of operations, triggered the destruction of the 92 tapes in November 2005. But he has not offered any testimony to prosecutors. But an official who worked alongside him did appear before the grand jury for more than a day and that testimony is being scrutinized closely by prosecutors, the sources said. The Washington Post was asked not to publish the name of the official, who is undercover. The official’s attorney declined comment Wednesday.

If the reporting is accurate, there are several things of interest here. First off, there is little, if any, accountability in the offing. False statements against a secondary official giving closed door testimony is not going to take us rule of law adherents where we want to go. And if this official is indeed covert, the odds of charges really being pursued are not very good; not to mention that any prosecution, even if it were pursued, would be fastidiously kept narrow and constrained by CIPA procedures. I find very little hope for anything useful here.

The other thing of note is that there appears to be no consideration of action against Jose Rodriquez. Almost makes you wonder if his camp is not one of the sources for the Post article. Also, it had not previously been known that CIA lawyer John McPherson had been given immunity in return for his cooperation. Which makes this line from the article “McPherson is not believed to be under criminal jeopardy but he had previously hesitated to testify” pretty funny. McPherson and his attorney clearly sure thought he had criminal exposure. McPherson was one of the people smack in the middle of the review of the tapes for accuracy of the written records. Yeah, a guy involved in the veritable Catalog of Destroyed Torture Evidence couldn’t have any criminal exposure and ought to be immunized. Un huh.

The other thing of note is that, again if the reporting is indeed accurate, Big Bull Durham has bit off lock, stock and silencer barrel on the patently laughable proposition that the CIA bleating on “the motive for getting rid of the tapes was innocent” makes prosecution for obstruction and perjury too difficult. This is so ridiculous it is absurd. As I have said many times before, the immutable fact is the tapes were direct evidence in the cases of the detainees being tortured interrogated in them, abu-Zubaydah and al-Nashiri. The tapes were also directly responsive to the 9/11 Investigation proceeding, an official US government investigation, and the CIA and Bush Administration were more than aware of that fact. There is absolutely no way around either of those facts, and thus no way to paint the destruction as being in “good faith”. It is complete and irreducible bullshit, and that is only the start of the absurdity of this claim.

So, while John Durham does run a tight ship and any “leak” from it does need to be considered carefully, much of this article seems about right, and is just the kind of greasing of the skids you would expect to be laid if the investigation was about to be wrapped up into a big bow of nothing. It is a safe bet that is exactly what is going on.

34 replies
    • bmaz says:

      No, I have been predicting this for over two years now. Still, it is sad to see the actual duplicity in action. It is a sham.

  1. skdadl says:

    Last thread a MacDonald; this thread a McPherson. Och, laddies. We didna fight at Culloden for this. Pay heed to Bob McSchacht on the thread previous: one day, the piper must be paid.

    Actually, I’m furious, so that’s why I’m joking. My thoughts about the Graham-Emanuel pact are beyond being publishable.

  2. canadianbeaver says:

    And the other so-called insurgents remain in limbo. Closed down Gitmo. Uh huh. Yet another lying sack. Good to know they are FINALLY transferring these people thought:

    The U.S. has sent two Chinese Muslims to Switzerland, ending their eight years of detention at the naval base at Guantanamo Bay, Cuba.

    The Justice Department announced the transfer Wednesday. It did not identify the detainees, but the Obama administration had previously said the Swiss agreed to resettle two brothers, Arkin Mahmud and Bahtiyar Mahnut.

    Switzerland has said it offered to resettle the brothers for humanitarian reasons.

    Beijing has objected to the move, calling the brothers terrorist suspects who should face justice in China.

    Read more: http://www.cbc.ca/world/story/2010/03/24/chinese-muslim-guantanamo.html#ixzz0j9OVWljG

    • skdadl says:

      I’m glad the Uighurs are ending up in nice places (so far?). I don’t know Uighur cookery, but they come from an autonomous region right next to Mongolia, so they can probably teach the Swiss a few things about fondue.

      The shame of this story. It overwhelms.

      • canadianbeaver says:


        here are now 183 detainees at Guantanamo, including five Chinese Muslims, or Uighurs. Mahmud and Mahnut were among a group of Uighurs seized by the U.S. army in Afghanistan in 2001. The U.S. government later determined that the Uighurs weren’t enemy combatants and should be released.

        How many years later though? Talk about those ol’ wheels of US style justice moving slower than a dead tree. But it can’t be true though. Obama said he closed Gitmo in his first week in the Whitehouse!!

  3. JohnLopresti says:

    Is that the Durham who sat in a saddle protected from the wind by a wide pine, and adroitly composed the inexpensive makins. The story is too incremental to believe, so far; nor is it imaginable that in this somnolent interlude Panetta would be preparing to provide credibility for the sunsetting of the investigation. Perhaps closeGitmoNowGraham is encouraging dissemination of the predictions as statute of limitations based. The unletterhead smorgasbord document OLC kept getting back, *you probably approved of this, right*; or, *we talked about this, right* might be something the grand jury would like to reassess if there remains time before the putative sunset. How many tapes is Panetta willing to say were involved. I see liability projections as the principal element to the forward looking effort to launch some informational armistice; that, and preserving as inviolate the empty vessel ew wrote about recently. The impetus toward sunsetting the fact gathering could be a function of the fidelity of the vote tallying in the autumn by-elections, gear up the callbank jamming blaster computers.

    • fatster says:

      I need your help. When in the past, has this nation been asked forced to pay a price as exorbitant as the current one to protect a few who failed to protect the country and then did further damage trying to protect themselves?

      • tjbs says:

        JFK 1963 when they announced the records would be sealed for 90 years to protect the family.

        I’ve got an winning bet. I’m betting there are multiple copies, physical or electronic, out there. Of course the torture photos are stills of the tapes, that may reveal the identity of these treasonous vile sadist bastards.

        What unsettles me the most is the lack of outing and purging of these war criminals connected to torture that will likely return policeing or the prison industrial complex where the will exercise their skills.

        We are sowing the seeds of our destruction.

        • Palli says:

          In fact they live among us now. Rumsfeld’s chums, James Elmer Mitchell, Bruce Jessen, Randall W. Spivey and Roger L. Aldrich. are accepted in Spokane Washington polite society. Mitchell Jessen and Associates corporate headquarters are in the American Legion Building, 108 N. Washington, in downtown Spokane. “Interrogation” and its pseudo science is a booming business.

          The worker bees for these companies make many times more than the average American worker and come home to hug their children and coach little league.

  4. bobschacht says:

    I think we need to know more about who leaked this, and why.

    I don’t think this is an issue of whether Durham has the evidence he needs to prosecute. I think it is more an issue of whether Durham will be given sufficient leeway to prosecute, or whether he will be so constrained, by narrow definition of his mandate, that the lines will be drawn so as to minimize the outcome. For example, if Margolis is given any sway in reviewing his evidence, I think we know where that will wind up.

    I don’t think this is over yet. bmaz’ skepticism (cynicism?) is well established. He may be right, but the fullness of time has a few ticks left in the clock.

    Bob in AZ

    • bmaz says:

      What in the world, out of any of this, gives you the notion that there will be some kind of joy out of it? That is a puzzling pie in the sky pony you are riding there Bob. Originally, the mandate was believed to be restricted to CIA personnel, which was a crock of shit to begin with as it should have been much, much broader. All kinds of people have presumed it to have been bigger than that or to have been magically expanded with little to no evidence that such is the case. Well, if the WaPo report is accurate, still a big if, it certainly does not augur in favor of all that expansion talk.

      How could Margolis affect it? He is the lead career official and works in the DAG Office. Durham is a career prosecutor. Margolis was tasked with overseeing Fitz. There is precedent. That said, there is no specific evidence indicating the handling of this case has Margolis’ fingerprints on it. Yet.

      • bobschacht says:

        What in the world, out of any of this, gives you the notion that there will be some kind of joy out of it?

        Where did you see “joy” in anything I wrote? I did not use the word, and cannot see anything that might be interpreted as joy. Please explain.

        Bob in AZ

        • bmaz says:

          Heh heh, fair enough. It came from your assertion that “I don’t think this is over yet”. It was over when it started.

    • fatster says:

      We keep expecting our institutions to work, it seems. As tjbs pointed out @ 13, something seems to have been set in motion in 1963 that was unprecedented and that gradually took hold. And that something is now systemic and is being used to shutter this whole thing. I’m listening for those ticks right along with you, Bob, but I can’t muster much of a positive outlook presently. Time will tell.

      • DWBartoo says:

        The use of nuclear weapons set the executive apart and above its supposedly co-equal branches, in terms of power, and whatever it was that JFK’s murder was about, emboldened the use of “national security” and the hiding, deliberately, of truth and therefore of justice; the closest we came to any change from that pattern was the brief possibility of some “consequence” for Nixon, which polite company refused to countenance …

        Consider, fatster, that when we, who harbor doubts … have shuffled off this mortal coil, there will be none, no Americans certainly, to protest the new and improved, “Official History of the U.S. Government” …


        • skdadl says:

          DWB, reluctant as I am to sound like Richard Nixon, I think we can still always have faith in the history books, many of which are already being written, as we know here, and in the broader record, which includes us. I mean, I am still hoping for a lot more too, for a genuine vindication of democratic principles and justice in real life, but even if we don’t have that for a long time, it matters that we all go on testifying to what we’ve seen and known.

          A question for the historically better informed: we’re told that Robert McNamara had concluded that the Viet Nam war was futile even before he left the Pentagon in 1968, but he never said so publicly until the mid-nineties, when he began some major confessing and regretting. If he had spoken out at the time, would that have changed anything? Might he have helped to stop, eg, the growth of the myth in the U.S. military and on the right of a culture-driven “stab in the back”? And does it make a difference that he spoke later? When someone adds to the record that much later, do his confessions and regrets just get lost in the noise of a present that has moved on?

        • DWBartoo says:

          Aye, them who are witness, owe that truth to the future.

          And doubtless true, or as much as may ever be understood to be “true” of history, histories, written by the like of Zinn, may well remark on our day, “How could the people, of America, have allowed these things to happen, didn’t they know what was going on? Didn’t anybody know or care?”

          Will historians say of America during this time, “It was Bush and Obama’s America” … like they speak of Germany as being Hitler’s … as if only a few “went along”?

          Will the American public sadly lament, “…We didn’t know … nobody told us.”?

          Will the rest of the world be content to forget? Have they any choice?

          Will Americans have to vex themselves to forget torture, murder, a war based on lies, not to mention an ever-greedy corporate class, now emboldened to buy political favor as they wish (after all, corporations are “people” too, as the “Official History” already notes) … the end of the rule of law, with indefinite detention, at the whim of one person, of “unprivileged belligerents” and the consignment of quaint documents to the museum of “Once Upon a Time”?

          One suspects, moving “forward”, that remembering will be far less popular than the continuing appreciation of MONEY and the new hit TV reality show, “Once Upon a Crime”, in which high crimes, even crimes against humanity are regarded as happy high jinx, good, clean adolescent behavior, and proper, good old Wild West American family fare.

          Beyond that, there is the, very real, reality of people not being able to pay serious attention to what their chosen leaders are doing because the people are too busy putting food on their families.

          It is worth noting, in passing, that yesterday, March, twenty-third, was an historic day. It is said that on this day, one Patrick Henry is said to have exclaimed, “Give me Liberty or give me Obamacare.”

          Historic Conflation will be all the rage

          On a further happy note, rumor has it that Bernie Madoff is gaining considerable respect among his current cohorts for the sheer size of the heist …


        • fatster says:

          But, dear skdadl, look what the Texas Board of MisEdjumacation is demonstrating can be done with history. They’ve just tossed Thomas Jefferson of all people out of the state’s text books. We will “all go on testifying to what we’ve seen and known,” because that’s who we are. But as DWBartoo says we can’t count on success. We just have to keep going until we can’t go no mo’.

          As for McNamara, I can still barely manage an intelligible sentence about him since, even after all these years, I am so full of rage at what was done to my generation by him and others who should have known better. He was not alone, but he was key. Here’s a quote that is intelligible by someone who has better self-control (and I do hope you read the entire article):

          “In his many positions — Harvard assistant professor (1941), founding member of the U.S. Air Corps Statistical Control School in 1942, president of Ford Motor Company (for five weeks, during which time he attended to what he calls the U.S. desire for “conspicuous consumption”), Secretary of Defense (1961-1968, during which time he was accused of being an “IBM machine with legs”), and president of the World Bank (1968 to 1981) — McNamara has participated in more than his share of “historic” events and negotiated with many famous figures, from Fidel Castro and General Curtis LeMay (under whom McNamara strategized to firebomb 67 Japanese cities, killing thousands of civilians), to Special Vietnam Advisor to Kennedy and Johnson Maxwell Taylor and North Vietnamese General Vo Nguyen Giap (who revealed to McNamara in 1995 that the Gulf of Tonkin attack that motivated Johnson to enter into the Vietnam War in 1964, did not happen).” LINK.

          He had many opportunities to make the world a better place, but he was unable to see that. He had a very peculiar “moral compass” which, unlike a stopped clock, wasn’t even accurate twice a day.

          McNamara’s mea culpa was published to coincide with the anniversary of the Fall of Saigon, thus adding insult to injury. It was a self-serving work. His “confessions and regrets” got lost simply because they didn’t match up with reality. But I’m sure the Texas Board took care of that, too.

        • skdadl says:

          Memo to self: when starting to feel somewhat kindly towards McNamara, call fatster for intervention.

          Thanks, friend: I needed that.

        • fatster says:

          He wasn’t sadistic or evil, skdadl; he was more an automaton, a computer.

          On the 20th anniversary of the Fall of Saigon, the SF Chronicle ran a series of remembrances by people who had served in Nam (including a couple of nurses!). One fellow, as I recollect, had been head of a platoon and so had seen much horror. He was familiar with McNamara’s recently-published book. Can’t find the article now, so am paraphrasing, but he wished for McNamara 58,000 lifetimes ahead as a grunt.

        • bmaz says:

          Say what you will about McNamara, and it is probably valid, but anybody think Cheney, Rummy or Addy will be expressing regrets and giving apologies? I agree it was too little, too late, and really meaningless in a lot of ways; but it is more than will ever come from the current bunch. Which is a pretty sad comment on their souls.

        • fatster says:

          I agree. McNamara was very strange, the product of “the managerial revolution” and was described as “a computer with legs”. Cheney, Rummy, et al., are in a whole different league, and a very frightening one. I had no intention of equating the former with the latter and I apologize for my lack of clarity about that.

        • bmaz says:

          No no, you didn’t really; was just kind of a thought that struck me.

          You may enjoy the new post I just put up……

        • fatster says:

          I’ve been over there now and can say you are much too modest. Good article, and we thank you for it.

        • bobschacht says:

          The use of nuclear weapons set the executive apart and above its supposedly co-equal branches, in terms of power,…

          This is essentially Garry Wills’ thesis in his new book, Bomb Power.

          Bob in AZ

  5. alinaustex says:

    bobschacht@ 10
    How would Margolis be given sway in the final review of the Durham evidence. ?

    • bobschacht says:

      Why was Margolis given the power to review the findings of the OPR report?

      I’ll concede that the difference is that Durham is investigating people outside of the DOJ, whereas Margolis was reviewing the work of DOJ personnel. Of course, I am hopeful that Margolis won’t be involved at all.

      Durham does not have the reputation of being meek and mild. As bmaz suggested, I’m taking the WaPo article with a grain of salt.

      Bob in AZ

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