Durham Going after the First Destruction of Torture Tapes?

Bmaz had a post up this yesterday, based on this WaPo story, concluding that we’re not going to have real accountability for the destruction of the torture tapes. (Thanks to bmaz for minding the shop while I feted mr. ew’s birthday.)

While I agree with bmaz generally that we’re not going to get real accountability out of this investigation, I’m not sure I agree with bmaz’s other conclusions. Here’s why.

As bmaz noted, the big piece of news in this story is that Durham just did or is about to give immunity to John McPherson, who appears to be the CIA Office of General Counsel lawyer who reviewed the torture tapes in November to December 2002, purportedly to make sure the tapes matched the descriptions of allowable torture in the Bybee Two memo.

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, two sources familiar with the case said. That could signal that the case is reaching its final stages. Durham has been spotted at Justice Department headquarters in Washington 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 on the condition of anonymity because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about handling the tapes, and whether they should have been included when agency records were turned over in other court cases. McPherson is not thought to be under criminal jeopardy but had previously hesitated to testify, the sources said.

As you recall, the CIA IG Report gave us two critical pieces of information about this review:

The CIA OGC lawyer (presumably, McPherson) reported that the tapes did match the descriptions of allowable torture in the Bybee Two memos.

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 Do] guidance or the written record.

But the CIA OGC’s own review of the torture tapes revealed that the waterboarding shown on the tapes did not match the descriptions of allowable waterboarding.

OIG’s review of the videotapes revealed that the waterboard technique employed at was different from the technique as described in the DoJ opinion and used in the SERE training.

The implication, then, is that McPherson was not entirely truthful when he claimed the torturers had not exceeded the allowable limits when he did his review.

Which explains why his lawyer worked to get him immunity before he testified, and explained why Durham hasn’t given it before now: this McPherson appears to have lied in his review of the torture tapes.

And there’s one more detail of importance. As you recall, when the CIA IG reviewed the torture tapes in May 2003 (that is, five months after McPherson’s review), there were 15 tapes in some state of damage or erasure.

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

You see, John Durham is investigating two incidents of torture tape destruction: the first, when in 2002 or 2003 someone removed evidence of two sessions of waterboarding (and potentially, the use of mock burial that would be declared torture by John Yoo) from the videotapes. And the second one, on November 8, 2005, when someone destroyed all the tapes, which not only destroyed evidence of waterboarding that violated the terms of the Bybee Two memo, but also destroyed evidence of the first round of destruction.

And John McPherson is likely the only person who can pinpoint when the first round of destruction occurred, before or after November-December 2002.

Now, all that doesn’t tell us precisely what Durham is after or whom, though I’d suggest he’s at least as interested in the people in the loop of the first round of destruction as the second.

Which means it is almost certainly premature to suggest that Jose Rodriguez is in the clear here. The WaPo focuses on Rodriguez’ role, as head of the Directorate of Operations in 2005, in ordering the 92 tapes to be entirely destroyed. But my analysis here suggests his role in 2002-3, when he was head of CIA Counterterrorism Center, is just as important. And if, as WaPo suggests, someone working closely with Rodriguez lied to the grand jury, then chances are good that Rodriguez was involved in the activities involved in the subject of lying. (Remember that Rodriguez’ lawyer, Robert Bennett, has consistently refused to let Rodriguez testify under oath, preferring instead to produce fictions about Rodriguez’ role for the WaPo to obligingly print.)

I agree with bmaz in concluding that this inquiry is likely not to charge anything beyond obstruction or false statements. But if the target is Rodriguez, which I’d bet money to be the case, he’s not directly responsible for the torture in any case.

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43 replies
  1. BoxTurtle says:

    I doubt that anyone will be accused of any crime that is not precluded by Statute of Limitations.

    What would be the point? I think Obama will pardon someone rather than stop looking forward. “He was a good and decent man, in a troubled, confused time, acting in what he thought were the best interests of the fight against terrorism under what he felt was sound legal advice. Justice would not be served by putting this man and his family under legal threat and possibly exposing them to terrorist revenge”.

    Boxturtle (“Besides, I’m the president and I can do as I please”)

  2. emptywheel says:

    Well, the big reason to pardon Rodriguez would be to avoid him burning someone else, like Addington.

    But heck, if Rodriguez did it, you couldn’t well blame Obama.

    (You’re probably right, in any case.)

    • BoxTurtle says:

      Well, the big reason to pardon Rodriguez would be to avoid him burning someone else, like Addington

      Well, yeah. But you can’t come right out and say THAT when you pardon him, now, can you?

      Boxturtle (“I’m pardoning Libby to avoid him exposing the entire affair, especially my part in it”)

    • earlofhuntingdon says:

      Except that Mr. Obama seems to see no legal difference between his and past administrations. Like the synoptic gospels, though they may tell different stories, both administrations have mysteriously morphed into a single, if contradictory tale.

  3. bmaz says:

    Yeah Box Turtle has hit on one of the reasons why I discounted this yesterday. The earlier conduct is well outside of the statute, and there are no actionable “statements” by Rodriquez within the statute I am aware of. I don’t think Big Bull Durham is focusing on acts and actors for which charges would be time barred. I am much more inclined to believe they truly are focusing solely on the one described secondary official (if that is anything more than BS to make it look like they tried) and, in the end, will not prosecute even that for fear of the spook howlers.

    • emptywheel says:

      Fair enough. I guess the question is precisely what the first guy lied about and whether proving it to be a lie would open up obstruction for Rodriguez for the 2005 acts. That’s five years, right?

      • bmaz says:

        Yes, we are within it for the 2005 acts. But they have had Rodriquez dead to rights for obstruction from the get go on the 2005 acts. Unless Jose can make out a case that he did not know abu-Zubaydah and al-Nashiri were still detainees or that the 9/11 Commission existed, the destruction was obstruction per se. There is clearly no interest in pursuing obstruction for those acts and never has been. And, really, it is hard to see how they could do that without going up the line; which they are obviously reticent to do. It is like everything else, you pull the string and it starts to unwind; therefore the string cannot be pulled.

  4. earlofhuntingdon says:

    McPherson stretched the truth beyond recognition, he lied – or he viewed different tapes. I’m not sure that viewing them on treble fast forward would count as a “review” adequate for him to give a valid legal opinion about their contents.

      • JohnLopresti says:

        Right; and the first, and principal, date of interest in the article, and the post, would be Tenet*s segment of the timeline.

  5. tjbs says:

    It’s water torture, thank you.

    If every Torture interrogation was taped then there were a reported numbers of outright murders that must have been taped. There also should be a film of a tracheotomy kits showing up in sequence after a failed resuscitation of a suspect questioned to death.

    It amazes me we talk about these crimes, not here certainly, but the public as if they were some reality game show, where there are no lasting consequences.

    Obama can say he has stopped torturing people but until the traitorous torturers have been IDed and purged this activity will expand under better cover. I hope the cover-up is the undoing but 40 years ago no one would have been able to convince me this country would one day embrace torture and keep paying the torturers and they’re probably racking up a nice pension on top of that.

  6. AlexS says:

    I guess “moving forward” means doling out immunity like candy on Halloween and offering executive department inspectors general veto power over prosecuting attorneys. At least in John Brennan-ese, a tongue in which “getting the family involved” is the proper terminology for rape and child torture.

  7. bmaz says:

    I have been thinking about this. I still don’t buy that Durham is hot on the trail of time dead crimes or that those are what MacPherson and counsel were overly concerned about (although defense lawyers worry about everything). I am thinking that perhaps MacPherson briefed the sole agency official still reportedly targeted before their allegedly offending testimony? Again, all this presupposes the accuracy of Johnson’s reporting….

  8. earlofhuntingdon says:

    OT: Jeremy Scahill, on being interviewed after the announcement of his winning the second Izzy Award, on the importance and meaning of independent journalists:

    I remember how proud I was when I saw the New York Times forced to credit Marcy Wheeler, who was an online blogger, for picking up details on the Bush administration’s torture program. They had to credit Marcy Wheeler, and put a quote from her, and cite her in their newspaper. That to me was a great moment in the recent history of independent media, because what it did was shame the corporate media. It said that a blogger with very little resources can out-scoop the New York Times on a very important story that was catching headlines at that time.

    Part of what we’re doing is trying to fill the void that is left from corporate media. We either shame them, or force them to cover it, because we make it a major issue.

    A comment on Jane Hamsher (and, impliedly, EW) and how the Dems and the tadmed mischaracterize the health care bill:

    But let’s be clear here: This is a complete and total sellout to the interests of the insurance lobby by the Obama administration. This is, as Michael Moore has said, a complete victory for the ultra-capitalists. Yet, if you look on the liberal blogosphere, people like Jane Hamsher are attacked mercilessly for having the audacity to stand up and say “this is a Democratic sellout.”

        • fatster says:

          Do they have a good Senior Discount package? If so, I’m there.

          (If not, I hope you’ll write about the cruise and share with us. That would be grand.)

  9. bmaz says:

    Holy crap. The story at the WaPo link is now materially different than when I read it and excerpted it yesterday. Wow. Gone completely is this section, which WAS there when I first read it:

    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.
    …..
    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.

    And present now is this, which it was NOT there when I saw it:

    The fresh scrutiny based on allegations that do not relate directly to the destruction of videotapes could make it more difficult for Durham to win voluntary cooperation from witnesses in another, related matter he is investigating, lawyers involved in the case said.

    In August, Attorney General Eric H. Holder Jr. directed Durham to expand his focus and investigate whether to launch a criminal probe of a small number of cases in which CIA contractors went outside the boundaries of Justice Department guidance in interrogating terrorism suspects. Among the cases, which date to 2002, is the alleged use of a drill and a firearm in the questioning of Nashiri, according to government documents released last year.

    These are some extremely material changes that appear to just have blithely been done without notice.

      • bmaz says:

        And therein lies yet another problem that militates in favor of doing nothing on that part of Durham’s jurisdiction; now that David Margolis has been allowed to, officially on behalf of the DOJ and with Holder’s complete blessing, undermine the force and effect of the OPR Report and the analysis of the OLC opinions, it really undercuts that as a basis for opening up any prosecutions. Not impossible mind you, as it is somewhat collateral, but still it really gives a basis for howling at any such decision to proceed in any fashion on that “handful” of cases (which last I heard was down to five, six at the very most).

        And after backing down like total cowards on the civilian trials issue, you’re telling me they are going to take on the national security/spook community and prosecute a case that was formerly declined? Not a chance in hell.

    • earlofhuntingdon says:

      Methinks the editors were uncomfortable with too much direct reporting and scaled it back by making it more oblique and by qualifying it. Fox Noise Lite is the best I can say for the WaPoop.

  10. alinaustex says:

    [email protected]
    “These are some extremely material changes that appear to just have been blithely been done without notice”
    Yep I said back in August when Attorney General Holder expanded the Durham investigation focus -this was going to take a good little while longer . One individual to keep an eye would be Addington.
    And for the purposes of our bet bmaz -would Addington be considered a Principal ?
    And what if the CSI video tape teams have resurrected some of the blank tapes to show them for the snuff porno that they are – and what if we work
    our way up the chain of command to who wanted the snuff porno made to begin with-betcha those individuals would be Principals for sure huh ? Its amazing what the CSI / IT experts can resurrect these days .
    Nope this is far from over …

    • bmaz says:

      Oh yeah Addington would count. But there is nothing, and I mean nothing, in this article to indicate that anything other than the one secondary CIA official, much less Addington is in play. And if that person is indeed covert, the chances of even that are remote. This is very much close to over.

  11. JohnLopresti says:

    Somewhat ~OT, something of a correction; re: a routing slip to Tenet the day after he resigned, whereat ew is talking about CRice communication, evidently. Sourcewatch biogs of both McLaughlin and Tenet corroborate the resignation day for GTenet as June 3, 2004, the McLaughlin biog page averring McLaughlin became Acting-DCI that same date, June 3; however, the Tenet profile page loc cit says GTenet actually remained onsite one additional month: (leaving) **July 11, 2004, the seventh anniversary since his swearing in**. Sourcewatch is effusive with glosses, at both the McLaughlin page and the one for Tenet, describing president Bush*s outdoor remarks with GHowardAustralia at his elbow, an end to the garden soiree presser, GWB hoofing away, then pivoting to a different outdoor camera shot whereat GWB provides the ~instant messaging news of Tenet*s precipitous exit declaration. Sourcewatch continues, providing, like bmaz*s timestamped excerpt, above, in the onTopic matter, a copy of an erased biography of GJT formerly posted at the dCi website; loc cit. Fwiw, the textcapture I archived from WaPo re the BullDurham post already was revised to the **…fresh scrutiny** clip [email protected] And, footnoting, the erased biography for GJT describes some interesting background, including his having worked longtime in SCSI employ, and having ~clerked for the democratic party SJC chair. It looks like there were multiple likely personal reasons, as well as the usual internecine intramural pressures, concatenating July 3 for GJT. I probably should read RClarke*s book to frame this elementary stuff.

  12. orionATL says:

    small wedges can split large rounds of wood.

    i hope that is what is happening in the durham investigtion.

    but yeah or nay, please remember that tbe cloak of darkness the bush
    admin had thrown around its torturing activities has been torn off and stomped on
    by journlist/analysts like ew.

    the dirty secret about the bush admin’s love of torture is out.

    quite a few of the details of that torture are out.

    some of the bureaucratic structure that conducted or expedited torture is out.

    pictures of tortureres are out, cf abu ghrab.

    info on the likely murder of gitmo detainees is out- not to mention detainee deaths in iraq and afghanistan while in u.s, custody.

    note to dick cheney:

    you can run, fucker,

    but you can’t hide

    behind your daughter’s skirts.

  13. bobschacht says:

    Minor typo alert in the second quote block:

    He reported that there was no deviation from the Do] guidance or the written record.

    Do] = DOJ?

    Bob in AZ

  14. bobschacht says:

    Please forgive me if I am only restating what others have pointed out:

    If the OGC report shows that McPherson lied, the next question is why did McPherson lie? One could pass it off as incompetence or some other inconsequential error, or it could be that someone coached him (i.e., encouraged McPherson to obstruct justice.) Someone important enough that McPherson doesn’t want to talk about it. So maybe in order to pry the seal off McPherson’s lips, he has to get immunity. But that in itself is a significant sell, so Durham must really want that information, and must have some pretty good ideas about who it is.

    But I am very much irritated by Obama/Holder’s willingness to let the SOL expire on one crime after another. Obama’s shadow grows bigger by the day, as does the lump under the rug. Or maybe that’s the wrong figure of speech. There’s a giant beast of some kind in the middle of the room, and it seems like no one but a few of us DFH (EW chief among them) cares. And yet the beast does not get smaller by being ignored.

    And Democrats seem to be as guilty of feigning ignorance as the Republicans. For example, they seemed all too eager to let Gates decide to hide the latest batch of incendiary photos (last year). And there are precious few Congressional hearings going on that should be going on, about these matters. HCR or not, this is not change I can believe in.

    Bob in AZ

  15. alinaustex says:

    [email protected]
    This is far,far ,far from over…
    and orational @ 26
    Addington is the key to Cheney being taken down
    and to paraphrase Rummy thefre are known knowns , unknown knowns, and the facts that become known once the media that the neocons was destroyed has been resurrected….

    • bmaz says:

      There is simply not one shred of evidence to support that statement; if you think they are angling for Addington and Cheney, I want some of what you are smoking. This is patently absurd. If there was any desire, any whatsoever, you would not blithely let so any statutes of limitation expire along the way. This is simply comical at this point.

    • bmaz says:

      Heh, that is good thing, it was metaphorical anyway! Believe it or not, I enjoy you and would as soon keep you around, so keep it up. And, as stated before, no not on homicides.

  16. alinaustex says:

    [email protected] 35
    I am wondering about how Cheney, & Addington aided and abetted the migration of the Jeppesen SERE torture techniques from the OGA to the JSOC special programs .Futhermore wondering about consistent rumblings of former bushco types here in Austin of tapes and other media made by JSOC personel at Camp Nama and elsewhere that were sent back to “hdqts’ at the Naval Observatory -and how some of these supposedly destroyed media records sent to the OVP chain of command may have turned at the Durham grand jury . But bmaz just as I have not smoked ‘nothing’- I have no hard evidence of an alleged snuff media that got sent up the chain -and now is in the hands of the Durham outfit …
    Glad you enjoy me being here bmaz –

  17. alinaustex says:

    bmaz @ 35
    and unlike many here my belief is that the longer Special Prosecutor Durham takes the better -because like homicide there is no SOL for treason either is there ?

  18. alinaustex says:

    [email protected]
    My understanding from public reporting and yes the rumour mill here in Austin — is that the expansion of Durham’s mandate in August included any and all destroyed ‘media ” as it relates to torture. And allegedly some of the destroyed media was in the custody of the OVP when the attempt to destroy it occurred. Was there not some reporting that suggessted that there was White House involvement in ‘special programs ” that involved activity by JSOC personel-ie Camp Nama. And the JSOC ‘special program ” was not in the normal chain of command at DOD/Centcom ?
    Addington has always been Cheney’s fixer -they have been togather a very long while -yes ?
    And since I am not a lawyer -nor do I pretend to be one here on the the “internet tubes”….
    I will ask again-bmaz – there is no SOL on treason either -right ?

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