The Timing of the Ramzi bin al-Shibh Tapes

I wanted to point out two details of timing on the Ramzi bin al-Shibh tapes:

  • The tapes were made after CIA started getting worried about making interrogation tapes
  • The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

The tapes were made after CIA already started getting worried about making interrogation tapes

The AP says the tapes were made while al-Shibh was in Morocco for the first time–sometime between September 17, 2002 and March 7, 2003.

When FBI agents finally had a chance to interview Binalshibh, they found him lethargic but physically unharmed. He projected an attitude suggesting he was unconcerned he had been caught.

Before the FBI made any real headway, the CIA flew Binalshibh on Sept. 17, 2002, to Morocco on a Gulfstream jet, according to flight records and interviews.

Current and former officials said this was the period when Binalshibh was taped. His revelations remain classified but the recordings, the officials said, made no mention of the 9/11 plot. It’s unclear who made the tapes or how they got to the agency’s Langley, Va., headquarters.

In March 2003, Binalshibh was moved to a Polish facility code-named Quartz soon after his mentor, Mohammed, was nabbed in Pakistan.

This would mean al-Shibh arrived in Morocco (and therefore the tapes were made) sometime after some people met at Langley and decided they should destroy the Zubaydah tapes.

On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.


Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]

The CIA appears to have already been manipulating briefing records, possibly to give the appearance of Congressional support for either the program or the destruction of the tapes.

Note, too, that there are only two video tapes (plus the “audio” tape I’ve raised questions about here). If the audio tape were, in fact, just an audio tape, that would leave two video tapes. Which is how many tapes existed of Rahim al-Nashiri’s interrogations, at least by the time they did the inventory. That’s presumably because al-Nashiri was taken into CIA custody after the point when–on October 25, 2002–HQ told the Thai black site to record over tapes every day.

It is now HQS policy that [redacted] record one day’s worth of sessions on one videotape for operational considerations, utilize the tape within that same day for purposes of review and note taking, and record the next day’s sessions on the same tape. Thus, in effect, the single tape in use [redacted] will contain only one day’s worth of interrogation sessions.

Now we know they kept two (or maybe three) tapes for al-Nashiri (presumably taking notes off one day’s tape while the other was being used to record new interrogations) because the tape inventory shows the following:

Detainee #2

[Tape] 91 [Redacted]tape and rewind #2

[Tape] 92 3 [Redacted] use and rewind #3 [redacted] final

While obviously we have no such inventory showing the al-Shibh tapes, it is possible that they were used in the same manner as the al-Nashiri tapes were–to collect just one day’s worth of interrogation to assist in transcription or note-taking. (And remember, ultimately there were transcriptions made of the al-Shibh tapes, though we don’t know when that happened). It’s possible then–though this is just a wildarsed guess–that the existence of just three tapes suggests they were started after HQ decided to tape over tapes (so after October 25), or that they first implemented the policy for al-Shibh sometime before October 25.

Also note the content of the last three–presumably chronologically–tapes of Abu Zubaydah. Tapes 89 and 90 are “use and rewind” #1 and #2. But the tape just before that–tape 88–has “no video but there is sound.” Thus, the last three tapes from Abu Zubaydah consist of two video tapes and one “audio” tape, just like the three tapes from al-Shibh.

If in fact the 2-3 al-Shibh tapes only include the last days of his interrogation on which taping was used, then the AP source’s claim that they simply show him sitting in a room being interrogated doesn’t mean that the tapes contained no forensic evidence of something else–more abusive interrogations that happened on earlier days. After all, the tapes would no longer “show” what had happened during earlier interrogation sessions.

One more note about this early period. One question the AP raises is when and how the tapes were moved from Morocco to Langley.

It’s worth remembering that the Zubaydah and al-Nashiri tapes were also moved at one point. In a cable from HQ to the field (we know this from Vaughn Indices that described this cable before it was released) written on December 3, 2002, just days after John McPherson reviewed the torture tapes and presumably discovered they had been tampered with, someone says:

It was a mistake to move [redacted] tapes [redacted] in light of Ref C guidance.

Notably, given that this refers to tapes being moved in the past tense on December 3, this may suggest the tapes were moved from the black site before it was finally closed. Mind you, the detail may be completely irrelevant to al-Shibh’s tapes, but they do suggest people in the field were moving tapes without clear approval from HQ.

The tapes were disclosed after the CIA started trying to figure out what happened to the Abu Zubaydah tapes

As I noted here, the story the AP’s sources told (that a person stumbled across a box under a desk with all three al-Shibh tapes in it) and the story DOJ told Leonie Brinkema (that they learned first of one tape, and then, after asking CIA to make sure there were no more) differ in key ways.

But that difference gets all the more interesting given indications that CIA was trying to figure out what had happened to the Zubaydah tapes in precisely the same time period. Here’s how the chronology works (with some potentially-related personnel moves included):

August 27, 2007: Alberto Gonzales resigns

September 13, 2007: A CIA attorney notifies DOJ of the existence of one of the al-Shibh tapes

September 14, 2007: CIA reports Michael Sulick will replace Jose Rodriguez

September 17, 2007: Bush nominates Michael Mukasey Attorney General

September 19, 2007: DOJ reviews the al-Shibh tape and compares it to the transcript; DOJ subsequently asks CIA to check to see if there were more tapes and to provide the cables they had reviewed as part of the discovery review

September 25, 2007: White House withdraws John Rizzo’s nomination to be CIA General Counsel in response to pressure from Democrats about the legality of torture methods

September 25, 2007: A CIA email reports:

Below is the information for the cable granting approval to destroy the [redacted] tapes

DIRECTOR [redacted]

Document Date: 08 NOV 2005

File Number [redacted] — No clue about thisfile number, searched in [redacted] with zero returns.


September 30, 2007: Rodriguez’ last day at CIA

October 5, 2007: Someone forwards, with no comment or explanation, the September 25 email searching for the destruction approval cable

October 15, 2007 (roughly): A group of conservatives test Michael Mukasey on whether or not torture is illegal

October 18, 2007: DOJ reviews the second and third al-Shibh tape

October 18, 2007: In confirmation hearings, Michael Mukasey refuses to say waterboarding is torture

October 25, 2007: DOJ informs Leonie Brinkema of factual errors in two declarations submitted in Moussaoui case

November 8, 2007: Mukasey confirmed as Attorney General

Mind you, we don’t know how long after CIA discovered the first al-Shibh tape they told DOJ about it. But the known dates show that CIA told DOJ about just one of three tapes the day before CIA announced publicly that Rodriguez would be leaving (I think one possible explanation for the discovery of the tapes is just that they were discovered in boxing up Rodriguez’ worldly belongings). The fact that a CIA lawyer revealed the singular tape to DOJ is all the more intriguing given that it occurred at about the same time as Rizzo–then Acting General Counsel–had to withdraw his nomination because of his role in approving torture (and potentially, in covering it up); was he the lawyer who told DOJ about the al-Shibh tapes? And again, though we don’t know the actual date when CIA told DOJ there were two more tapes, in what appears to be the interim period, someone at CIA started looking for the cable approving the destruction of the Zubaydah tapes, without much immediate luck (though presumably they would have at least hints of Rodriguez’ central role in destroying the tapes).

Given how all this coincides with Alberto Gonzales’ resignation and his replacement by Michael Mukasey, it is possible that the September 25 and October 5 searches for the torture tape destruction approval were a response to a DOJ request–either in conjunction with their preparation to reveal the al-Shibh tapes to Brinkema, or possibly in conjunction with another inquiry. (Note, OPR first got copies of the Combine and CAT OLC memos on August 29, so for some reason new torture information was being shared at DOJ at precisely this time). But it certainly seems possible that DOJ first learned of the destruction of the Zubaydah tapes as they learned about the al-Shibh tapes, such that when DOJ told Brinkema that CIA’s review  was complete, they included within that the Zubaydah tapes.

Aside from suggesting that the al-Shibh videos may have been tied to a more general early inquiry into the destruction of the torture tapes (one presumably stymied by Michael Mukasey, who had had to promise to do no torture investigation in order to be appointed AG), it raises questions about the declaration to Brinkema. It’s worth looking at the hedged language DOJ used in their October 25 letter:

The Government respectfully submits this letter to inform the Court that two ex parte declarations previously submitted by the Central Intelligence Agency (“CIA”) in this case contain factual errors concerning whether interrogations of certain enemy combatants were audio or video recorded.


We are unaware of recordings involving the other enemy combatant witnesses at issue in this case [half line redacted].


After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determined whether it was in possession of any other such recordings for any of the enemy combatant witnesses at issue in this case.


1 [redacted] was one of the enemy combatant witnesses whom Moussaui wanted to call to testify on his behalf; [two lines redacted]


The fact that audio/video recording of enemy combatant interrogations occurred, and that the United States was in possession of three of those recordings is, as noted, inconsistent with factual assertions in CIA declarations [dated May 9, 2003 and November 14, 2005]

Start with the final passage: “audio/video recording … occurred” and the US was “in possession of three of those recordings.” This language would be consistent with knowledge of the Zubaydah tapes, provided that the person making the statement knew they had been destroyed. As to the rest of it, look how carefully DOJ seems to emphasize Moussaoui’s focus on al-Shibh’s interrogations. The redactions noted here may include a reference to Zubaydah or al-Nashiri. Or it may be that DOJ was simply very careful to always caveat those statements to refer to the enemy combatants that Moussaoui had asked about by name by the May 2003 declaration.

In any case, it sure seems to reflect a knowledge on the part of DOJ that someone had destroyed the torture tapes. And given the identification of the date that destruction was approved–November 8, 2005–DOJ would have known that the tapes had been destroyed days before DOJ told Leonie Brinkema they didn’t “have” video tapes of the interrogations at question.

Good thing for the Bush Administration they were able to convince someone already implicated in torture (through the Padilla case) to promise not to investigate torture, huh? Because it sure seems like DOJ already knew of this obstruction when Mukasey took over at DOJ.

  1. bobschacht says:

    EW, Thanks for your continuing mastery of this material, and parsing it for our attention.

    Meanwhile, Dept of interesting typos:

    …used in the same manor as the al-Nashiri tapes…

    I think you meant “manner,” unless someone’s manor was a popular site for viewing torture tapes….

    October 5, 2007: Some forwards the September 25 email searching for the destruction approval cable


    ISTM you have enough material on the torture tapes for a book, don’t you?
    (hint, hint!)

    Bob in AZ

  2. alabama says:

    This is a wonderful piece–truly a prize. I only wish that we knew the names, if not the faces, of all the players at DOJ and CIA, because I have the impression that there were more than one Departments of Justice and more than one Central Intelligence Agencies–some factions being absolutely determined to kill the story, and others to keep it alive. This may not be interesting at all, unless the good guys kept the bad guys from performing a lot more torture than we’ll ever know about.

    • emptywheel says:

      Yeah, I sort of think there were two possibilities.

      First, that when AGAG left, those in DOJ who wanted to do the right thing forced CIA to reveal it had destroyed evidence two years earlier. But their efforts only lasted until Mukasey came in and tamped that down again.

      Alternately, I’ve long wondered whether AGAG did the right thing on torture at the end. No, seriously!! Because he was still technically at DOJ when the OLC memos got released to OPR, and we know that it takes an AG to fully squelch an OLC investigation (though of course Margolis can always undercut it at the end). So is it possible that AGAG never got wingnut welfare when he left because he refused to extend the coverup of torture on some or other point? The Bushies had gone months refusing to fire him for the DOJ politicization. Is it possible he had to leave not because of the USA Attorney stuff, but because he had stopped playing the Admin line on torture?

      • Teddy Partridge says:

        Best explanation I’ve seen yet for AGAG’s unemployability.

        I mean, you’d think the guy was toxic. Not a doormat for W for his (both!) entire career.

        • BoxTurtle says:

          Gonzo was very good at his job. His job was to make sure that the bare minimum of BushCo wrongdoing was punished. He’s succeeded admirably.

          Though I must admit that EW’s suggestion of his betraying BushCo at the end has merit. I had always assumed that was because of his last, pitiful congressional appearence.

          Boxturtle (I take some satisifaction that Gonzo is not currently in the legal profession)

              • skdadl says:

                No no no, life begins in spring training. But no again, life begins when the trailer leaves the stadium and heads down to Florida about two weeks before spring training (although I don’t think we go to Florida any more — I forget where we go, but that general direction). Anyway, life begins mid-February at the latest — it has to; it just has to.

                • BayStateLibrul says:

                  I know when life ends, when the Sox don’t make the playoffs? Usually

                  late September.

                  We are 6 out and need some good FDL luck to catch the king (Yanks/Tampa


        • Peterr says:

          I could see a combination of what you and Marcy have put out there.

          I think AGAG got pushed out by the WH which was simply exhausted by the repetition of the video of AGAGs masterful “I don’t recall” testimony, and realized that the DOJ would indeed have other matters before Congress and they couldn’t send AGAG up there ever again. Congress went home in August, and I’m sure a number of well-placed GOP members got hammered by their constituents and donors over his continued role in the Bush administration.

          So AGAG’s got to go. But where?

          Funny, but none of those donors offered the kind of wingnut welfare post that ordinarily comes with the territory. Thus, it fell to the WH to push him out without a net.

          But if AGAG was dissatisfied with being shoved out sans a cushy landing spot, this could have been a bit of “I’ll show you” pique.

          Which would be totally consistent with the 3rd grade mentality with which AGAG approached his work both at the WH and DOJ.

          • bmaz says:

            Yep, I would rate their lawyering skills above Gonzo. Koester may be a little closer call; Miers actually has a far more solid and accomplished history than people give her credit for; granted she is not Gerry Spence or anything, but not bad.

            • Mary says:

              I guess to clear things up a bit, my spec is that it is a combo of AGAG going after so many well connected Republican USAs AND something involving the FISCt application.

              But since people like Elston and even Sampson had not problems getting employment with McGuire Woods and Hunton & Williams, respectively (while Sampson needed waivers and Elston was party to the lawsuit brought by Sean Gerlich) and McNulty as well had no problem with a job (Baker and McKenzie) I agree that there’s something more, but I don’t think it is something that involves him selling out Bush directly or making himself more vulnerable, so I don’t think it’s AGAG doing the right thing.

              I do wonder if it might have something to do with a piece of ongoing, maybe sealed, piece of litigation or proceeding that is such that Bush’s lawyers are keeping distance between him and AGAG bc it isn’t completely over with? Maybe it was just keeping the distance until the firings situation was over.

              In any event, I think it’s pretty interesting and might support my spec (or not) that the things he has done have not required the ability to practice before a court. He got the gig to help out Ret Judge Layne Phillips who was acting as Special Master in a settlement negoatiation run by Phillips:


              and even when he got his teaching gig it was teaching poli sci, not law.


              But I do think it is also interesting how, after sitting quiet for so long, with no great job lined up (and speaking engagements probably slacking a bit) Gonzales started talking up his “book” project in June of this year. Nah, he doesn’t have an agent or a publisher or anything, he just wanted to make sure the fact that he’s working on a book got ink.


              My spec is just spec, but I’ve had it since he resigned (that some action was taken by FISCt I thought once the story came out at all, b4 he resigned) and nothing has happened to make me prefer different spec yet. But its only guessing – nothing hard fact based.

      • Mary says:

        I still kinda think the explanation is that AGAG pulled a Fran Townsend with the FISA Court over that “emergency” certification that they couldn’t get McNulty or Clement to sign off on, and the FISA Ct might have pulled their own Fran Townsend back at him. If he’s been barred by a court from appearing, that’s a big deal vis a vis hiring him. He’d have to tell a firm that at some point and it seems that even the things he’s been handed off have not involved anything that would include making filings as a lawyer with the court(s). But that’s just one set of spec for an interesting situation.

        Maybe Bush will explain it all in his memoir. ;) Or not.

        • pdaly says:

          I didn’t realize that Mukasey may have been barred from appearing in the courts.

          This obviously did not prevent him from working in white collar criminal defense or from becoming partner at Debevoise and working with Mary Jo White.

            • pdaly says:

              Thanks, I should have checked Mary’s reply to line instead of assuming it was a continued thought from the post just above. I also missed ‘AGAG’ in Mary’s reply. It is fun speculating why BushCo treat him so poorly now.

          • Mary says:

            Sorry- bmaz sorted it out though. I meant AGAG. All going back to a weird incident that came out in the FISA brouhaha, were you had one set of guys going before Congress and arguing that they had to have the ability to do all kinds of warrantless surveillance bc getting emergency authorizations was just too hard and took too long and using some strangley sewn together story about how, when US soldiers were abducted, they were going to try to use the emergency surveillance provision of FISA (which lets them start immediately, without any court order).

            I’d have to go back and look at everything now which would take forever, but as I recall it, part of the story just didn’t sell – including the fact that they were all having to wait for AGAG to sign off on the application, even though McNulty was not out the door yet and was in DC, and even though Clement was acting AG for AGAG that day while AGAG was on the road. There was some kind of nonsense about Clement being *unavailable* to sign off. Also, IIRC, by that time FISCt had issued some kind of an opinion (bc the plan had been submitted to them in some fashion whereby they took jurisdiction over it and were supposedly by then authorizing parts of the surveillance) that put the brakes on DOJ/NSA doing something – presumably something they had done before.

            My spec at the time was that the “emergency” suveillance they were wanting to do was something that they had already been barred by that prior ruling from doing, so that it wasn’t a matter of how long it took to get the application made (and James Baker IIRC anted up at the time that if it was really an emergency it could have been done in minutes) but rather that no one in upper echelons wanted to be associated with authorizing as “emergency” surveillance something that the FISCt has prohibited.

            All fwiw.

            • emptywheel says:

              Or, it might be far simpler.

              That was the day Comey testified before SJC. There was a reason they wanted to be very careful wiretapping what they knew to cover US persons in Iraq. BC they knew they were going to be under heightened scrutiny for a while.

              • Mary says:

                That could be, but I don’t even think what they were doing was going to be limited to something that picked up US persons in Iraq – I think they picked up domestic info with what they were doing, but that was just spec too. And I really think it involved something that was specifically going to piss a FISCt judge off – not just something that they’d come back during the three day emergency review and say “nah, shouldn’t have gone there, can’t do that” With US soldiers kidnapped, it had to have been something, IMO, to really make the FISCt think they were going beyond the pale, even for an emergency. But again, jmo.

                The thing is, no one with Congress/MSM ever asked (grr) the follow ups at the time about what the FISCt DID with that emergency app after the 3 day review. That’s the question I kept wanting to see asked, but it never was. That answer might have just shut me up for good *g* but it was left hanging.

                • bmaz says:

                  This is a bifurcated issue though, Congresscritters were (and are) pretty much useless and worthless as oversight representative agents, investigators and cross-examiners. No question. And not to say they would necessarily be materially better if they were, but factored in that is also that they were either not briefed, lied to, and/or wantonly and willfully selectively and individually briefed in different and particularized fashion so as to obstruct the ability to understand the facts, deliberate and exercise their Article One prerogatives and duties.

                  As you know, I have always believed the operative wildcard that pretty much nobody, save for here at EW, has ever contemplated, understood and factored in is the pissed off and pricky hammer of the FISC (mostly Lamberth and Kolar-Kotelly, who are no raging liberals you know) swinging in the mix. Comey, Philbin, Mueller, Ashcrioft etc. (and Captain Jack) sure had an elevated interest suddenly there that they did not exhibit in the anonymous cover before and after. Personally I am convinced it was because there was an Article III little hammer exposure that they knew they were not just sidelights in, but the ones with their asses on the chopping block; thus their “heroism”. That may – or may not – partially explain a small moment in time, but there was unquestionably a lot more to the root impingement of FISC in this regard. And my guess is there are at least a couple of old hands, one man one woman, still seething about the horseshit pulled on them, but that aren’t talking about it. If only……

                  • Mary says:

                    Well, I’m on the same page as far as why Ashcroft suddenly got religion on the surveillance program and why so many were supposedly ready to follow Comey out the door if he walked – who wants to be the Bork left to sign off on things when, unlike Bork, they’d have their career and a pissed of FISCt judge who had them directly in their line of fire.

                    Here’s the kos diary I did on that aspect, 3 years ago and just the day before Comey showed up to testify.


                    You or EW might remember, but did Gonzo sign off on that order for the Pres – the one that provoked the showdown and that Comey wouldn’t sign? Bc that might have also been something that got a reaction from Kollar-Kotelly.

                    As we’ve touched on before, if the Judge was pissed and saying the WH was in violatin of FISCt firewall orders and had to stop until it was in compliance – but Gonzo went ahead and signed off and, in essence, was having his client (Bush) violate a court order – that would not make anyone happy. If he then got made AG – they might have been furious.

                    As another option, it could be he might even have already been barred from making the court applications when he ended up as the only one to sign off on the emergency application.

                    In any event, Bush did do Gonzo the favor of making sure the OPR was blocked from investigating Gonzo’s role in the TSP. I’ve never been a believer in OPR investigation over whether or not someone gave bad advice getting any play at all, but as I mentioned in the diary back then, if he not gave “bad advice” but ended up directing a client to violate a court order or assisting in the violation of a court order, OPR would have been in a very different position.

                    Still – he was cruising along pretty well until just after the sign off on the emergency application, so I think there’s a tie there. But maybe not – just spec.

                    • bmaz says:

                      As I recall, AGonzo did sign the patently bogus on the four corners of its face cert, but that was after the fireworks as opposed to a precipitating factor. I guess that still plays into your scenario in a sense, but even FISC would look at AGAG as pathetic. What I am saying is that not that he could not have been a tarnished object, I just don’t get the feel that such is the issue with no one wanting him. Remember even his classmates at Harvard Law (who really didn’t even remember him from their time in law school one of the leaders of the group personally told me) got together at their reunion and signed a letter they paid to place prominently in the A section of the Washington Post hammering the crap out of him. I could use some help with discovery on a couple of cases that have gotten unruly and would rather hire a 2L clerk than Gonzo cause I think they would be more competent. That is what I see as the problem.

                    • Mary says:

                      “but that was after the fireworks as opposed to a precipitating factor”

                      Right – that’s what I was trying to say, that he signed it after, when no one else would.

                      IOW, part of what caused Comey & Goldsmith to get such sudden cold feet was that Judge Kollar-Kotelly was really pissed off (as per the and had called up Ashcroft and read him the riot act bc they were NOT handling the illegal surveillance under her firewall order, which would have kept it out of the FISCt in general and caused anything involving someone being illegally surveilled to have to come only to her and with assurances as to the illegal info being pulled out of the application.

                      But when Comey looked at the program, he realized that, without some changes, the reason there had been firewall breaches was that the way things were organized, there was no good system in place to keep the AG (Ashcroft) aware of when his applicatons involved people caught in the illegal program and related info (might even be the little case that is pending now before Walker that was the case Baker had to tell Kollar-Kotelly about).

                      So imo, the tweaking that Comey wanted to do to the program was never tweaking to make the illegal program less unconstituional, but rather tweaking to keep the AG from signing of on a false rep to the court – esp a court that was looking for false reps, had already been subjected to a couple of them, thought the program was unconstitutional anyway – and had just told the AG they were loaded for bear and heading his way.

                      It’s into that scenario that Gonzales stepped when he signed off on the “legality” of the program for Bush. If he in essence, counseled his client to violate the court’s firewall orders by continuing with the program without modifying it – that would have a been something much more concrete for the OPR to take action on than whether or not he gave bad advice about the TSP.

                      So I think that was why Bush had to block the OPR investigation, but I don’t think that is what is causing Gonzo’s problems looking for a job, bc I think it is too obscure and I think he wasn’t, as a lawyer, really ever “before” the FISCt for it to do anything to him over that order sign off. But I do think it might have had them on a short fuse if and when he did something else later- like maybe violate a FISCt ruling that certain kinds of surveillance could not be done by trying to do that surveillance anyway under the emergency exception. But still – it’s all spec.

                      And while I agree with you that he’s not the sharpest tool – keep in mind that Kyle Sampson fergoshsakes got a gig with Hunton. As partner. Kyle.

                      To be fair, Monica did have to go to a RedState founder to be made partner but I think there’s a storm of factors around Gonzales and some, at least, of them are related to his ability to practice. However low on the skill set totem he was, he should have landed something better than teaching poli sci at Texas Tech.

                      If he had a problem with the court based on prof misconduct, that would make it hard to even get the teaching gig, in real law, lined up.

                    • Mary says:

                      and would rather hire a 2L clerk than Gonzo cause I think they would be more competent

                      I probably agree with you there, but the kind of hire he should have been getting, he shouldn’t have been having to research anything. So many big firms have lobbying groups – to me it just doesn’t add up unless there’s something more toxic that we haven’t seen – or EW is right and unless he got W so pissed that W won’t lift a finger. But I just don’t see that and his speaking engagements would have been even rarer at the beginning imo if Bush was pissed. I really wonder if Bush hasn’t been given some kind of advice to lay low and not contact him at all until some statutes of some kind run out.

                      The Bush intervention to prevent OPR from investigating Gonzales (which could conceivably make it to the conspiracy to obstruct category pretty easily if actual violations of court directives were involved or if some of the other items I listed were involved re: production of evidence to courts) was in April of 2006. If he was my client and I had these same suspicions, I wouldn’t be wanting him to have much contact with Gonzales for awhile still, but still- just more droning spec.

            • pdaly says:

              Thanks. The misreading is wholly my fault, but the additional information you, bmaz and others provided in light of it is a happy outcome.

      • alabama says:

        Very fine! Someone–maybe you–will surely clear it up by 2030 at the latest…

        Not to forget the CIA side. I’m absolutely sure that Helgerson was a force for restraint throughout this period of time. Hayden would probably agree, because Hayden was operational, and Helgerson analytical–always a source of friction–and Hayden must have felt or known as well that Helgerson had a hand in the nailing of Libby…

  3. jackie says:

    Sorry to go OT, but there was a blip about a hostage situation at the Turkish Embassy in Israel a couple of days ago and I was wondering what was going on with this story??

  4. allan says:

    You know, EW, this looks suspiciously like actual reporting on your part. Didn’t you get the memo?

    From a NYT book review puff piece on the Washington Post,
    to appear in next Sunday’s Book Review but apparently not yet online:

    … every blogger who is not too stupid or too full of himself to notice what is going on knows there would be next to nothing important for the vast Internet commentariat to aggregate, curate or opine about without professionally edited, remunerative reporting.

    Shockingly, there is no mention of Cheetos, pajamas or parents’ basements.

  5. Mary says:

    I’m going to stick with my spec in the other threads that someone at CIA – maybe Jose, maybe his redheaded friend – was keeping a “don’t tread on me” file and with Rodgriguez leaving (or being pushed out) something may have happened to make someone with authority to feel threatened and send a “staffer” to root through G’s or his gal pal’s office(s) and see what they could find.

    The problem with finding something, though, was that by then it was much more difficult to make it go away. So they used rolling disclosure with Rosenberg.

    I know you have all this at your fingertips, ew, but it helps me to go back to the who knew whats, whens. I don’t know if this was “the first” story out, but it wasn’t until around this story:

    from Dec. 6, 2007 that we were being told that tapes (although at the time, the number given was 2, not 92) were destroyed and I think this may have been about the first that we were being told that Rosenberg had fessed up to Brinkema about the existence of the tapes he had.

    To go back further, we know that in 2005, Comey emailed Rosenberg (who was then Comey’s COS) and among other things stated that he (Comey) had told Gonzales that he (Comey) understood there was video of the early interrogations, so things weren’t going to go away. We also know that McNulty’s crew in the ED VA were reviewing CIA actions on a criminal referral and were aware of the existence of tapes in 2005. And so McNulty almost had to have known while he was overseeing the Moussaoui case that was also being handled, contemporaneously, by his district, about the tapes by 2005 at least.

    In addition, we know that Comey did a specific, detailed, “multi-agency” review of the Padilla case, for the Padilla presser in 2005, that focused heavily on Zubaydah and the info they had about Zubaydah. I’d have a hard time believing that he didn’t get the info about the tape by then, either through people he spoke with for that presser or his contacts in ED VA who were handling the criminal referrals or even from someone like a Chertoff backdoor.

    So by the 2005 declarations filed with Brinkema or shortly thereafter, I think it would be difficult to believe that you didn’t have a whole assortment of lawyers, including lawyers operating out of the same USA office making the declarations, at DOJ who knew about taping or tapes. Ashcroft, maybe Ayers, the ED VA lawyers doing the criminal review, Bradbury, maybe Yoo, COmey, Rosenberg, Gonzales, possibly Chertoff and the other Crim div guy who took the torture field trip and maybe Alice Fisher, etc. That’s not including non-DOJ like Rizzo, CIA lawyers, CIA IG lawyers and investigators and Bellinger.

    In addition, DOJ includes FBI and we know that FBI gave a declaration to Mukasey to get the material witness warrant issued for Padilla. We know that declaration referenced Zubaydah and Binyam Mohamed as sources, but no one has dug into how the FBI agent making the declaration got his personal knowledge for the declaration – who he spoke with, what he saw, what he was aware of regarding interrogation, what kind of due diligence he did to confirm things he was going to relay to the court third hand, including requesting info on the circumstances surrounding the statements and things like the existence of tapes.

    Rosenberg is a unique intersection of all those loose ends. Before working with Comey, he worked with Mueller and Ashcroft. After Comey he was briefly COS for Gonzales as well as becoming the successor USA to McNulty in the ED VA. When he was appointed in 2006, he had all kinds of info sufficient to put him on notice that DOJ had been hiding the ball on torture from several courts, including his office hiding that ball specifically from the court in his district.

    But nothing happened. Not when he was appointed in 2006 and not until someone at CIA pretty much forced him to act by giving him the first tape. I would have a hard time not believing that, when he got that tape, he was very aware that the other tape(s) he had heard about (including from Comey’s email) at a minimum were of Zubaydah and if not, that he might have even contacted Comey to ask him who the detainee was for the tape(s) Comey had mentioned.

    He probably generated non-papered requests about what happened to the Z tapes, and that prompted the searching for the destruction authorization info. So I think you are absolutely right that DOJ was very aware of the destruction (which they don’t mention to Brinkema and which has not been publicized at this point) of other tapes, including Zubaydah tapes.

    Not only Gonzales, but Rosenberg himself pretty much had to have had some very direct and personal knowledge on that front by then, and of course they pretty much had to have known that when Brinkema was being told there were no recording of any interrogations (and if you read the NYT story, Rush Holt also says he was flat out lied to bc he had specifically asked about tapes and was told “what tapes, there are no tapes”) in 2005, not only did DOJ have knowledge to the contrary, but specifically the ED VA office (that was handling the criminal referral) had that knowledge.

    And you have to wonder about the timing of the release of Padilla from torture detention to the Florida court – in Nov 2005. Another court that would have been faced with the objections made to Mukasey and for which he never followed up on or issued any non-destruction or production orders. If that court had subpeonaed, then what?

    Padilla’s is the case (as well as the points bmaz keeps making about the detainees own cases) that was glaringly absent in that recent story where the CIA source spelled out why they thought they were ok destroying the tapes that were destroyed. You’d think the reporter would have asked about it.

    But in the end, yeah – how lucky for everyone that Mukasey, who never required gov retention of info related to the sources for the warrant he issued, despite being put on notice that the defense was claiming coercion, he’s the guy who got the slot. It’s not wonder the Universe choked him right there at his pulpit while he was spreachifying on the great goodness of torturers.

  6. bmaz says:

    For when BSL comes around to note that Roger Clemens has been indicted; I know. But now McNamee and Novitsky are going to be opened up to actual crossexamination and that will be VERY eye opening. They are both dirty and dishonest as can be (not that Clemens may not be as well understand you).

    • Peterr says:

      Maybe Clemens will hire AGAG to be his lawyer.

      When it comes to knowing how to deal with troubling congressional testimony, AGAG’s got a real gift.

    • BayStateLibrul says:

      You owe me a fuckin six-pack…

      I was in a British-style bar having “Bridget’s British Bombshell” when I heard the news.

      Lying sack of shit with his “gun slinging” Texas lawyer (grin).

      MacNamee has remorse, Roger is an arrogant bastard — that’s the difference.

  7. JasonLeopold says:

    On a side note, Moussaoui used to be represented by an attorney named Ed McMahon (!) and early on McMahon said he wanted to gain access to information from AZ and possibly even speak to AZ because there were claims made by the govt that AZ provided intel about Moussaoui.

  8. klynn says:


    A true investigative work. I’ve read three times.

    Because it sure seems like DOJ already knew of this obstruction when Mukasey took over at DOJ.

    Just wondering…Who else in DOJ knew of this obstruction once O was in office?

  9. fatster says:

    Ex-CIA officer: Assassination strategy in Afghanistan ‘may just work’ [but then, again, it may just not]
    WikiLeaks calls out Time columnist by Twitter for mentioning failed assassination but not seven children killed

    “According to former CIA field officer Robert Baer, a policy of targeted assassination against the Taliban could be what’s needed to “turn the tide in Afghanistan” — but he appears to see little chance of it being carried out effectively.”


    • Garrett says:

      The CIA in Afghanistan wakes up in the morning and goes to bed at night thinking about how it can better guide [White House counterterrorism adviser John] Brennan’s scalpel.

      Are they using that language on purpose?

      What they go to bed thinking about, what they wake up thinking about, is assassination, but is also the damn Moroccan scalpel.

      Are we at the point, with the recent revelations, where we say with certainty whose hand guided it? Or does it still need hedged a bit?

      • BayStateLibrul says:

        The key is Pettite’s (sp) testimony…

        The rest is he said, he said…

        We got Reggie Walton as presiding judge so look for a fair trial…

        Bmaz should live-blog…

  10. fatster says:

    Apologies if a dupe.

    ACLU sues over detention in United Arab Emirates

    “American Civil Liberties Union lawyers filed a lawsuit Wednesday against the FBI, CIA and other federal intelligence agencies, accusing them of detaining and torturing an American citizen [Naji Hamdan] later convicted on terrorism charges in the United Arab Emirates.”


  11. fatster says:

    EW, this article is in the “classic emptywheel” category. Very fine analysis, as we’ve long come to expect. Many thanks.

  12. fatster says:

    Kennedy favors civilian courts in terrorism cases

    “Supreme Court Justice Anthony Kennedy said Thursday that most terrorism cases should be tried in civilian courts.

    “Kennedy addressed participants in the 9th Circuit Judicial Conference on Maui, where a panel discussion earlier this week reached a consensus in favor of using civilian courts instead of military commissions in most terrorism cases.”


  13. bobschacht says:

    Geez, Obama. When you go to a wild party, which seems somewhat chaotic and full of unexpected happenings, and you pick up what looks to be the best of the available dates to spend time with, eventually you wake up in the light of dawn and get to consider who you have gone to bed with, and what your next move should be. And then there will be some hard choices to make. Or maybe not so very hard.

    Just when will that moment of sober recognition come?

    Bob in AZ

  14. tjallen says:

    I believe the best explanation for there being two tape caches is that they have 2 different provenances. The group of 92 destroyed and the 2 or 3 recently found under a desk probably never came together in a whole. I seriously doubt all 95 were together and someone removed these 2 or 3. More likely, Rodriguez called for all the tapes, 92 came and he destroyed them, then these latest 2 or 3 arrived, but he was already gone. The courier package sat “under some desk” until it was opened by Rodriguez’s replacement or staffers. That’s just speculation, but my main point, there are two groups of tapes because they had 2 different provenances, 2 different teams, 2 different routes to DC, even 2 different ‘owners’ of the product within the CIA.

  15. leveymg says:

    Did anyone else note that whoever was laying down CIA/CTC interrogation procedures seems to have taken a note out of “All the President’s Men” with regard to how to most effectively destroy data on tape?:

    on October 25, 2002–HQ told the Thai black site to record over tapes every day.

    It is now HQS policy that [redacted] record one day’s worth of sessions on one videotape for operational considerations, utilize the tape within that same day for purposes of review and note taking, and record the next day’s sessions on the same tape. Thus, in effect, the single tape in use [redacted] will contain only one day’s worth of interrogation sessions.

    This would seem to imply that, normally, it’s against Agency rules to destroy recordings of interrogations, but a blanket exception was made in this case to do it on an ongoing, daily basis.

    I guess somewhere in Langley there’s a little plaque on a door, “Rosemary Wood Transcription Room.”