Is John Durham Finally Done?

While we’re waiting to get the documents discussed in these NYT and WaPo and WSJ stories, in which (among other things) Dusty Foggo’s Deputy records that Porter Goss “laughed and said that actually, it would be he, PG, who would take the heat” about the destruction of the torture tapes, I wanted to look at this passage from the NYT:

One American official familiar with the matter cautioned that the e-mail messages were merely the account of one unnamed C.I.A. official, not the results of a formal investigation.

“It’s a little risky to draw cosmic conclusions from something like that,” he said.

And this similar passage, from the WaPo:

“There may have been some people who thought precise procedure wasn’t followed, but I haven’t heard of anyone who believed at the time that any law had been broken,” said a U.S. official familiar with the matter, speaking on the condition of anonymity to discuss the subject of an ongoing investigation. “That’s quite a different thing.”

I raise these quotes–dismissing the damning nature of the emails while suggesting they don’t amount to criminal activity–because these emails look like they could be some of the 13 documents John Durham withheld in the ACLU’s FOIA. For example, the documents described appear to be some of these documents.

Document 5, November 8, 2005, Request for approval to proceed w/authorization of tape destruction

This document is a one-page cable from the field to CIA Headquarters requesting permission to destroy 92 videotapes.

Document 2, November 9, 2005, Request approval to destroy field videotapes

This document is a fourteen-page email chain with six embedded cables. Three of the cables relate to the decision to destroy the 92 videotapes. The remaining cables discuss an unrelated counter-terrorism operation.

Document 4, November 9, 2005, Videotape destruction confirmation

This document is a one page cable from the field to CIA Headquarters, confirming the destruction of the videotapes.

Document 23, November 25, 2005, Short backgrounder of tape destruction

This is a three-page email chain that provides background information on the tape destruction.

I’m interested in whether these documents are the 13 documents, because Durham was withholding those until his investigation was finished. Which would sure suggest that Durham may be finished.

Now, Robert Bennett appears in all these stories talking about how Rodriguez should be treated as a hero for destroying these tapes. The quotes make Bennett sound almost desperate to defend his client. So maybe … just maybe … we’ll get an indictment over this.

Or the two officials quoted (perhaps they’re the same guy) are simply trying to tamp down expectations before John Durham announces all this was hunky dory.

One more thing. The WSJ version of the story notes that the CTC drafted the request to destroy the tapes on November 4.

More than a year later, on Nov. 4, 2005, the CIA’s Counterterrorism Center was asked to draft language requesting approval from Jose A. Rodriguez Jr., then chief of the agency’s National Clandestine Service, to destroy the tapes, the memorandum says. Mr. Rodriguez authorized the tapes’ destruction four days later, it says.

November 4 was the day after Leonie Brinkema asked the government whether it had any tapes of interrogations of various detainees, and the same day that a member of Congress wrote a letter to CIA’s IG (I suspect this was one of Jay Rockefeller’s requests to see the IG report on the tapes). It was just days after the Dana Priest article on the black sites. But I’m sure the timing is all a coinkydink.

41 replies
  1. Jim White says:

    Even though that final paragraph about the timeline removes any doubt for me on whether crimes were committed in destroying the tapes, I’ll still take explanation number two from above for $50, please:

    Or the two officials quoted (perhaps they’re the same guy) are simply trying to tamp down expectations before John Durham announces all this was hunky dory.

    At any rate, do you expect the announcement that Durham is finished to be today’s news dump?

    On a related note, I wonder how many tapes there are from JSOC black sites (this case is only about CIA black sites, isn’t it?) and what their condition is…

    • emptywheel says:

      This case is only about Abu ZUbaydah’s tapes. While there have been requests for tapes from other locations, I’m not sure what all they asked for.

  2. klynn says:


    Has ACLU received the docs? Did they receive them before the media did? If not, why the —- not?

    ACLU is usually right on this, posting as soon as they get them. Something seems a bit off here.

    • emptywheel says:

      I suspect ACLU gave the big journalists an exclusive. The big papers are more likely to give the news real attention if they know they don’t have to compete on it.

      • klynn says:

        Oh well, EW will still scoop all the others after the docs are posted. They miss so much.

        This post case in point.

        Until ACLU posts the docs…we will wait for the real document dissection by our one and only Master Accountability Blogger, EW.

        Guess the MSM needs a bit of a head start on Marcy to have any story worth publishing.

          • 1boringoldman says:

            It is a fine piece of emptywheel seermanship.

            But like with Durham’s endless investigation, I’m ready for the dump last night [or last month]. It’s like Christmas with alcoholic parents – either they went overboard or they forgot altogether. If it’s another dislocation of expectations intervention moment, I want it over…

            • skdadl says:

              If it’s another dislocation of expectations intervention moment, I want it over…

              That’s very good. I hope you won’t mind if I steal it sometime. I give credit (if I can remember).

        • joanneleon says:

          Guess the MSM needs a bit of a head start on Marcy to have any story worth publishing.

          Yeah, plus they wait until they know she’s asleep before they give MSM the scoop :)

          It would be interesting to see the weblogs this morning (and after docs are released) to see who is visiting.

    • MadDog says:

      Tis my understanding that the ACLU quite regularly sends out “heads-up” emails to MSM outlets (and other select BFFs) with stuff like this before they actually get around to posting the material on the ACLU website.

      And based on commentary from the ACLU itself in a number of the articles, they have indeed already got their hands on this latest document dump.

      • Jeff Kaye says:

        You’d be amazed how much can be discovered in docs even years after they are released. As with much else in life, what we see is what we are prepared to see.

        Great work, Marcy (on this and further posts, as I’ve already read your later posting/deconstruction of the doc dump, and am time traveling back to compliment you for the AZ sleep deprivation article, for instance)!

        OT: Interested readers can take a look at my article today at FDL on the right-wing assault on Spanish Judge Garzón, who’s been after Bush administration officials on torture (bmaz, you might be interested)… though the attacks are for his investigations into Franco-era atrocities, not the Bush torture.

        Right-Wing Pursues Spanish Judge Who Investigated Pinochet, Bush Torture, Franco-Era Killings

  3. MadDog says:

    …The quotes make Bennett sound almost desperate to defend his client…

    I can see wistful Bennett forlornly standing by his mailbox all day, every day awaiting that pretty special declination letter that hasn’t arrived.


    On a purely technical note EW, that WSJ link you provided only gets one to a short paragraph “subscribe now” preview of the article.

    However, if one accesses that very same article (and it’s exactly the same link) from a Google News search, the entire article is available for one’s reading pleasure.

    I guess Rupert Murdoch and the WSJ don’t like blog links because we aren’t paying his tithe.

  4. turftoe says:

    At what point will the ACLU tie these very damning documents to the Passaro case where these documents would almost force a mistrial or dismissal to be rendered. The DOJ and the CIA committed crimes of hiding documents and not delivery them to the defense in order to gain a conviction that would definately not have happened had all of this information been made available to a jury.

  5. joanneleon says:

    I read the WSJ article in the wee hours this morning and also found the CTC request very interesting.

    Glad to hear your take on Bennett’s attitude and that you feel this just might indicate that indictment(s) could follow. But I also have mixed feelings on it for reasons I’m sure are common among the people who have been following this mess. I’ll try to explain…

    After reading this stuff last night a few impressions stuck with me and in fact I couldn’t shake them.

    First, IMHO, there’s no damned way that Rodriguez just decided to destroy these tapes on his own with no order from or knowledge of his superiors (and by superiors I mean all the way to the White House.) I’ll just lay that out. I realize I’m stating the obvious.

    Do they really think we’re that stupid? No, I don’t think they do think we’re that stupid. IMHO, they’re just that arrogant. Which leads to the second thing that I can’t shake… It just seems that the people involved in all of this are a little too calm and deliberate. It seems that they are all pretty confident that nobody is ever going to be held accountable. It’s like it’s all a show, for the most part. Going through the motions, being careful not to screw up in those motions but ultimately knowing the outcome already and knowing that the amount of truth released will be controlled.

    Perhaps I’m completely off base here, but with something as serious and potentially devastating to very powerful people and very powerful special interests (these torture tapes) — if anyone was in real danger legally or politically as a result of the tapes or the destruction of the tapes, don’t you think there would have been some “collateral damage”? Would they not have gone to the length of “disappearing” people who knew too much or were thought to be a leak risk?

    But if we do have even a shred of a free press left, like this blog, history teaches us that even the most powerful and meticulous people can be foiled by complexity and hubris. And what’s left of my faith in mankind tells me that there are still some honorable people out there, perhaps even in our government. So I suppose that a Watergate Butterfield moment is still possible in today’s United States. And IMHO, that’s the only way we’re ever going to see any accountability.

    • BayStateLibrul says:

      My hope also, although my mother used to remind me “Live in hope, die in

    • skdadl says:

      if anyone was in real danger legally or politically as a result of the tapes or the destruction of the tapes, don’t you think there would have been some “collateral damage”? Would they not have gone to the length of “disappearing” people who knew too much or were thought to be a leak risk?

      I have sometimes wondered about that. We do know of a number of abbreviated careers, and a few serious demonizations maybe. Comey has implied that there was a time when he and a few others were getting genuinely scared … of something. But all that seems to have dissipated. I wonder how that was done.

  6. 1boringoldman says:

    Is there a specific URL to keep refreshing [something to do with my hands]?
    Update: That will be a “yes.”

  7. eCAHNomics says:

    I had to laugh when I read the headline. Yet another useless investigation, meant to hide not reveal. Who gives a ff whether it’s over or not.

  8. tjbs says:

    Will David Margolis help Durham decide weather to charge.

    Is this a normal time frame for an investigation without any underlings be charged while working his way up the chain of command ?

    • emptywheel says:

      Sorry. Take that back–I think thta may have just been a proposal. We know that was the procedure they used with Nashiri from the start though.

    • Mary says:

      Which this says that? *g*

      I thought the cable to tape over was from Oct 2002 and was followed by one in Dec to note tape over?

  9. BoxTurtle says:

    The only question for me is: Does ObamaLLP pardon NOW, or do they wait and see if they can get an aquittal in court?

    Boxturtle (Or does Obama simply stuff the paperwork into a SCIF and pretend it never happened?)

    • goto100 says:

      Pre-emptive pardon. Kill it stone dead at the earliest opportunity. Let Rahm break the news to the ‘progressive community’ (aka the f’ckin retarded ones) in his inimitable fashion. This would be nicely Corporate and Stoogie, and very, very Bush III all at once. So perfect.

  10. goto100 says:

    Hey. Start looking forward, moving on and getting with the Corporate Stoogie one’s program…..or you’ll be detained without trial yourself….

      • goto100 says:

        Oh Jesus. With the news now breaking that the Goldman Sachs criminal enterprise is being charged with fraud (civil of course, no one’s actually going to go to jail…) this must be a ‘palliative’ prior to some sort of outrageous SHAFTING. What has the CS in C got planned now? Suspension of all civil liberties maybe? This must be very serious. Of course, with the newly acquired personal status of corporations, Bambi will be able to ‘pardon’ the civil judgment and penalty against GS at a later date.

        Things look very, very bleak for you guys.

  11. R.H. Green says:

    I find this use of passive voice interesting: “…the CTC was asked to draft language requesting approval… to destroy the tapes”. Who asked them to ask this? I recall Rodriguez testifying that he had called in a couple of staff lawyers and told them that he had some old training tapes that he didn’t want anymore, and was there any reason that he had to keep them.

  12. orionATL says:

    i wonder if the movement on the tamm and drake cases was a doj orchestrated prelude to a dunham grand jury indictment.

  13. peterabbit says:

    Yoo is getting attention, but the attention needs to be turned in another arena. Mitchell of Michael and Jessen were in Thailand. The “Mormon Mafia” guys. There are a couple of piece on the blog below on the tortures, because Romney is of course, pro torture.

    Tapes were destroyed before by this duo — of tortures in American prisons.

  14. alinaustex says:

    Careful with that dislocation of expectations from the drinking family members – if we complain too much “they ” will try to make us go back to Alanon and you know how much we hate that ….(Lol!!)
    I actually believe that Durham taking this long is a good sign – anyway I still have faith my 200 dollar bet with bmaz is going to pan out

  15. timbo says:

    I wonder if Durham is looking into obstruction and conspiracy in the instance of the 9/11 commission? Anyone know for sure? bmaz, do you think there’s a chance in heck on that one? Hey, man, I’m into magical realism tonight–give me a break!

  16. hatenomor says:

    After reading the article and subsequent posts, I am left wondering if any of you are cognizant of the fact that we are only continuing FDR’s war policy of “fighting fire with fire”? Only difference now is that we do not go as far as the enemy does, in relationship to it’s treatment of the opposition. I have seen very little call for redress, from the left, regarding the actions of the jihadist, and the countries that support them. If FDR were running the war against these madmen, fighting fire with fire would be the norm, as it was in WWII. Hey, I have a suggestion, why not put the gitmo detainee’s on trial at the Hague?

  17. alinaustex says:

    What was FDR’s fighting “fire with fire” -and how does it relate to fighting the Moslem Brotherhood or al Qiada ?
    And putting the Gitmo detainnees on trial at Guantanomo would actually be a good thing so those that are guilty would be punished and more importantly those that were innocent could be released .

  18. hatenomor says:,_Organization,_and_Technology

    Basically, the doctrine is that we will abide by certain rules of engagement, so long as the enemy also abides by these rules. But, if they cross the line, so to speak, we will also cross that line, in regards to our conduct against them. And yes, military tribunals should be held, asap, at Gitmo, in my opinion, though an argument can be made that these people are POW’s, and as such, they have no right to a hearing, etc. Tell me, when has any country “tried” those enemy combatants caught on the battlefield? Under rules of war, they are rounded up and interned until hostilities have ended by treaty, whereas they are then released to there home country.

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