This is going to be one of my really weedy posts, but if it’s any consolation, I went crazy while weeding (in the garden) yesterday and accidentally pulled up a huge tomatillo plant that was just about to bear tons of tomatillos. So I’m suffering from having gotten myself lost in the weeds right now.

Back in June, I did a close review of which documents from its index the CIA had described for ACLU in its Vaughn Index (Part One, Part Two) of documents pertaining to events described in the torture tapes. It appeared that the CIA had included fewer documents from May–the period when CIA was fighting with FBI over control of Abu Zubaydah’s interrogation–than it did from later in its document series.

By comparing the total index with the Vaughn index, though, we can get a sense of what the CIA did include. For most of the series of cables reporting to and from the field, the CIA submitted fairly regular cables–every 10, 11, or 12 cables. From June 22, 2002 through August 20, 2002, they appear to have submitted every 10 document, like clockwork (in addition to the handwritten log dated August 4). (It’s impossible to exactly identify a pattern from after that because so many of the cables are the same length, though it is possible that it sticks pretty close to the every tenth cable pattern.)

But things in April–when the FBI and CIA were fighting over control of the interrogation and Abu Zubaydah was reportedly cooperating with the FBI–and May–when the small box was introduced at least two months before OLC approved its use–things are a bit more irregular. In April, for example, the CIA submitted documents 1, 12, 1922, 32, 42 or 43, and 53 (plus the handwritten log, which was document 3); that gives you gaps of 11, 7, 13, 10, 10, 10, 10, and 10 documents (not including the log in the series). In May, CIA submitted documents 64, 65, or 66, 77 or 78, 89 or 90, document 99, 110, 123, 134, 146, document 155 or 156, ad 165; while it’s harder to pin down the gaps, there is necessarily one 13-document gap early in the month, a 9-document gap between May 8 and 11,  another 13-document gap between May 14 and 17, a 12-document gap between May 20 and 24, and one 9-document gap between May 24 and 30. 

In other words, whereas later in the series the CIA just provided every tenth document, for this early period, they cherry-picked what they submitted. [my emphasis]

I asked the ACLU why the gaps were irregular, they asked the CIA, and the CIA has finally answered that question. Here’s their response, with my comments about each response.

First, the apparent deviation from the "every tenth contemporaneous cable" portion of the sample is because (1) three of the entries from the mostly-cable section of the May 18, 2009 list were not cables, so they were skipped over (i.e., not counted) for the one-in-ten sampling; and (2) twenty cables were non-contemporaneous cables, so they were also skipped over for the one-in-ten sample. Second, as you surmised, the non-cable records identified on the May 19 [sic], 2009 list that were excluded from the Vaughn were excluded because they are non-contemporaneous (i.e., derivative).

Third, Vaughn item number 64 corresponds to document 568 on the May 18, 2009 list. Although the May 18, 2009 list refers to the document as an "outline," and the Vaughn index refers to the document as a "memo," both entries refer to the same document.

This explanation does provide a plausible explanation for the known gaps, though it identifies some interesting new communication patterns for key periods of Abu Zubaydah’s torture.

Let me start from the back: with Vaughn document 64. It was pretty clear that this document had to be document 568, as it was the only undated outline of 3 pages in length. But note, for the moment, the description of it:

Waterboard Summary

This document is a three-page memo which summarizes details of waterboard exposures from the destroyted videotapes. [my emphasis]

Next, this document made something clear that wasn’t clear to me before (but should have been)–the CIA succeeded in exempting documents it considered derivative. This goes back to their April 9 letter, in which they said:

The Government will not create Vaughn-like entries for the following categories of documents: documents that do not describe the interrogations but contain the raw intelligence that was collected from the interrogations, and derivative documents that merely summarize information contained within interrogation records.

So long as derivative records can be claimed not to relate to the reasons behind the destruction of the videotapes, nothing in Judge Hellerstein’s April 20 order requires CIA to hand over derivative documents. 

Which explains why CIA excluded all the timelines and outlines described in the index. I guess the CIA is making a (fair) distinction between notes made while actually viewing the videotapes, the waterboard summary above, and summaries of interrogation records themselves.

Bummer. Being deprived of timelines for me is almost as sad an event as ripping out my almost-bearing tomatillo plant.

Which brings us to the last (actually first) explanation the CIA gave ACLU–meant to explain why there are 13 and 11 document gaps in May, unlike the other months. They say, 

(1) three of the entries from the mostly-cable section of the May 18, 2009 list were not cables, so they were skipped over (i.e., not counted) for the one-in-ten sampling; and (2) twenty cables were non-contemporaneous cables, so they were also skipped over for the one-in-ten sample

By "mostly-cable section" of the index, I assume they mean documents 1 through 549 of the index. And, yes, there are three documents that are not cables: documents 3 and 255, which are handwritten interrogation logs included in the Vaughn Index as documents 57 and 58; and document 540, which was a memo sent from HQ to the Field at about the time that people started dying from torture in Afghanistan and close to the time the CIA stopped videotaping interrogations. That leaves 546 cables, of which they claim 20 are derivative, leaving 526 non-derivative cables. Altogether, they have included 53 cables in their Vaughn index, so they have sampled one tenth of those cables.

This appears to be a plausible (or at least convenient) explanation. As the second set of columns in this spreadsheet shows, if you take every tenth cable from the index as ordered, you always have at least a 10-cable break, with a number of 11, 12, and 13-cable breaks.

What that reveals, then, are certain periods during which the field was sending summaries of the torture sessions back to HQ in addition to original interrogation reports:

April 25 to April 28: One "derivative" cable

April 28 to May 1: One to three "derivative" cables

May 1 to May 5: One to three derivative cables (four total derivative cables from April 28 to May 5)

May 5 to May 8: Two derivative cables

May 11 to May 14: One derivative cable

May 14 to May 17: Three derivative cables

May 17 to May 20: One derivative cable

May 20 to May 24: One derivative cable

[break]

May 30 to June 4: Three derivative cables

[break]

June 8 to June 13: One derivative cable

June 13 to June 22: One derivative cable

[long break]

August 24 to August 31: One derivative cable

[long break]

September 22 to September 24: One derivative cable

The CIA was not cherry-picking. Rather, they had defined one set of communication as derivative and thereby shielded it according to the terms of Judge Hellerstein’s order. (Note, my math shows 19 of these derivative cables, though this method is error-prone). 

So the CIA was not–assuming these are derivative cables–withholding these cables improperly. But the communication pattern is interesting on its own right. It suggests that in the early period–particularly during the period when the FBI remained onsite–the Field was sending their normal records, and sending a second set of summary records. Perhaps they were sending updates to Tenet’s office in addition to Counterterrorism. Perhaps they were sending–say–the White House updates (though they do specify HQ). Perhaps the second set of cables were cables intended to be shared with the FBI (I can see why CIA would want to withhold those). Perhaps James Mitchell was sending updates to Bruce Jessen so they could plan more torture.

Whatever the explanation, these derivative cables seem to indicate a parallel set of communications during the early period of Abu Zubaydah’s interrogation.

Two months ago, when the torture apologists looked like they were succeeding in preventing a torture investigation, they claimed to a credulous Jeffrey Smith that the CIA IG Report "did not provoke a specific CIA "referral" to the department suggesting an investigation of potential criminal liability, and no such investigation was undertaken at the time." Of course, that claim conflicted with the CIA IG’s own admission that documents show a total of five criminal referrals made over the course of the investigation.

Well, now that it looks more likely that Eric Holder will launch an investigation, the CIA claims that DOJ investigated 20 criminal referrals. 

"This has all been reviewed and dealt with before," says Paul Gimigliano, a CIA spokesman.

After the IG report reached Justice, a task force was set up in the U.S. Attorney’s Office in Alexandria, Va., that reviewed about 20 criminal referrals of detainee abuse sent over by the CIA and military criminal investigators. Officials familiar with the referrals have said they were horrific: one involves allegations that a naked prisoner in CIA custody in Afghanistan froze to death after being left in a prison known as the "salt pit."

But task-force prosecutors say they ran into a host of problems, including a lack of witnesses and forensic evidence, and declined to prosecute in all but one case. "We wanted to make these cases, but they just weren’t there," says Rob Spencer, the former career Justice prosecutor who headed the task force until 2006. Ken Melson, who oversaw Spencer’s work and was appointed by Holder as acting Alcohol, Tobacco, Firearms and Explosives director, says the cases were "looked at aggressively" and without political pressure. "I think we made the right decision on these cases," he says.

Of course, all three claims are likely true: CIA made no "specific referrals" … "when the report was finished," but did make five referrals over the course of the investigation. And, once it took a look at the report (and probably once it looked at a bunch of military referrals), DOJ reviewed 20 cases. It’s funny, though, how zero can become five can become twenty as the need for different spin arises.

Nevertheless, Newsweek’s sources hint, a fresh investigation may be able to make progress even without looking at the architects of the torture program.

(The aide hints that there may be new information that has influenced Holder’s view on the subject.) Still, Justice officials say any review will not involve investigating senior Bush officials who ordered enhanced interrogation techniques.

One potential source of that new information is John Durham’s investigation into the torture tape destruction, which seemed to take on new life in February, after Bush and Cheney left office.

Ultimately, though, Holder may be facing circumstances in which there is more evidence against the torture architects than against the torturers themselves. Yet, it seems, he’d still rather prosecute the "few bad apples."

Like Atrios, I view this partly with the awe of watching a massive slow-moving trainwreck.

About a year and a half ago, well before Mendota started making headlines, things had gotten bad enough that Riofrio stopped selling fresh milk at his store. Too few could afford it anymore. In the last few months, the downward spiral has greatly accelerated. Farmers in Westlands, who’ve yanked about 100,000 acres out of production since 2000, say they may now be forced to idle as many as 150,000 more for lack of water.

The issues at play are complicated. They’re also fraught with bad blood. Farmers are set to receive only 3.7 million acre-feet of water this year from federal and state plumbing systems–about 2 million acre-feet less than in a normal year. Some environmentalists, however, have been quick to accuse the growers of overstating the problem. They say farmers have extra water stored both above and below ground and have gotten supplies transferred from other locations.

[snip]

What’s critical for policymakers to keep in mind is that, in the end, none of this squabbling matters. It’s simply a distraction from the one thing they should be focused on: The people of Mendota are suffering terribly — and steps need to be taken right away to bring them relief.

First, U.S. officials have to resist pressure from environmental groups and others and allow, at least temporarily, for the partial lifting of the fish protections. It won’t completely solve things, but it will help. It will also send a crucial signal of support to Riofrio and his customers, who are fast becoming a more endangered species than Chinook salmon or delta smelt.

Second, and most important, federal, state and local officials need to coordinate on a long-term economic development strategy — and put some serious dollars behind it. This must go way beyond the $260 million in federal stimulus money that’s been promised by Interior Secretary Ken Salazar to patch up ailing irrigation infrastructure across the state.

The real question is what emerges after the almonds, tomatoes and cantaloupes disappear. What happens as ever more Central Valley farmland is retired, as is inevitable? What does the future look like for the northwest corner of Fresno County? Will the usual solution — building a new prison — be all that’s conceived? Or can the sun-baked San Joaquin Valley become a hub of solar power and alternative energy, as some have suggested? If so, who will prepare workers for this new field? [my emphasis]

But I also view it with the irony of someone who spent months hearing about how stupid my state was, and then, more recently, hearing the very same people talk about how, three years into a drought, maybe they’ll be allowed to use rain barrels to collect water for landscaping needs in the near future and won’t that be all progressive.

Our town (admittedly a hippie outpost) instituted discounts for water customers who had rain barrels last year. But I need to water so infrequently–every time I plant something and maybe 4 other times over the summer–that I haven’t gotten around to getting a rain barrel yet. It probably helps, of course, that I put in native species about 6 years ago, so I would only ever need the water for my food garden. My friends in CA are talking prospectively about losing their lawn, too, though they’re not ready to do that yet, either.

And sometimes when I get really cranky of the lectures, I note that MI is likely to pick up the Ag that CA loses–we already have the second most diverse Ag after CA–as it becomes more and more unsustainable to grow food where water is limited. Meanwhile, as CA experiences the kind of budget crisis we’ve been having for years, it’s looking like we’ll be housing some of CA’s prisoners–so much for the hope of a new prison in San Joaquin Valley.

The thing is, as stupid as MI has been and as stupid as CA has been, they are inextricably linked. You can’t make the desert feed the country without a trucking network that follows the combustion engine culture. We’ve got to stop the approach that pits states against each other for funds and–just as importantly–industries and use the twin ostrich-sized canaries of MI and CA as a wakeup call to start making our entire lifestyle more sustainable.

Go read JimWhite’s diary about the military’s complaints that the Taliban are using a video of a captured American soldier as propaganda.

They’re exploiting the soldier for their own propaganda.

[snip]

The Taliban are using it as a propaganda tool.

Then read this passage from George Tenet’s book, co-written with Bill Harlow:

By the next morning, Sunday, March 2, US media outlets were carrying news of the [KSM] capture as well. Some of the stories described the worldly KSM as an al-Qa’ida James Bond. To illustrate the point, they showed photos of him with a full beard wearing what were supposedly his traditional robes. It didn’t take long for Marty to phone me and relay his disgust at some of the coverage.

[snip]

“Boss,” he said, “this ain’t right. The media are making this bum look like a hero. That ain’t right. You should see the way this bird looked when we took him down. I want to show the world what terrorists look like!”

Turns out, our officers on the scene in Rawalpindi had snapped and sent back some digital photos of KSM just after his capture, so I suggested that Marty call the Agency spokesman, Bill Harlow, and work something out. Within an hour, Harlow was in CTC looking over a selection of photos that made KSM look nothing like James Bond. Together they picked out the most evocative photo. Then Harlow, armed with a digital copy, called up a reporter at the Associated Press and told him, “I’m about to make your day.” Asking only that the AP not reveal where they got the picture, he released the image of a stunned, disheveled, scroungy KSM wearing a ratty T-shirt. The photo became one of the iconic images of the war on terrorism. If we could have copyrighted it, we might have funded CTC for a year on the profits. Foreign intelligence services later told us that the single best thing we ever did was release that photo. It sent a message more eloquently than ten thousand words ever could that the life of a terrorist on the run is anything but glamorous.

I hope to hell that soldier comes home safely and I’m sorry the Taliban used his image for propaganda purposes.

But until we stop doing the same–and appropriately deal with those, like Tenet and Harlow, who have bragged of using detainee photos as propaganda (yes, I know they’ll claim he was not entitled to Geneva Convention treatment but there was a written policy allowing use of photos at the time), we don’t have the moral standing to complain.

This is why we can’t just look forward but must fully investigate the past.

Bill Leonard makes an important point about the HPSCI investigation into whether or not the CIA is adequately informing Congress.

No matter the seriousness of the challenge, some politicians, members of the media, pundits, et. al. insist on reducing issues of grave importance to a "left vs. right" or "tough vs. soft on terrorism" didacticism. This week’s announcement by the House Permanent Select Committee on Intelligence (HPSCI) that it has opened an investigation into whether the Bush administration violated the law by not notifying Congress of certain classified intelligence programs, to include an alleged program to assassinate key al-Qaeda leaders, is the latest example.

In many regards, the substance of the program is irrelevant. However, if the latest fuss is, in fact, about an alleged covert program to assassinate key al-Qaeda leaders in the aftermath of the attacks of September 11, 2001, once again you do have to wonder from whom the "covert" nature of the program was intended to keep its existence secret. Clearly not the al-Qaeda leaders who knew they would be hunted down, as Bush himself said, "dead or alive." That’s why so many of them have chosen to live the rest of their lives holed up in a cave somewhere.

What is relevant is that much of the controversy is of Congress’ own doing. In an interview with the Washington Post, Director of National Intelligence Dennis Blair said agency officials may not have been required to notify Congress about the program, though he believes they should have done so."It was a judgment call," Blair said in the Post interview. "We believe in erring on the side of working with the Hill as a partner."

Blair is absolutely right, it is a "judgment call" but only because Congress made it one by giving the executive a loophole through which anyone could drive a Mack truck, even one loaded with numerous CIA assassination teams. As I wrote about earlier, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” Imagine a law setting the speed limit on highways which requires drivers to travel 55 MPH "to the extent consistent with due regard" to other issues drivers regarded more important in their sole, unilateral judgment. While that my sound a lot like the Capital Beltway, it is also a law without meaning.

Now, I actually think the inclusion of the shootdown of an American missionary’s plane in Peru in the investigation will go some way to blunt any claims of partisanship here, because it should get Crazy Pete Hoekstra aboard as a willing participant. When Crazy Pete puts aside his partisan hat, he’s actually a much fiercer champion of Congress’ need to be informed than Democrats have traditionally been. 

That said, given Obama’s veto threat of the requirement that the Administration brief the full committee, it would take real bipartisan effort to amend the National Security Act to take out the Mack truck sized loophole Leonard describes.

In my post on the scope of any torture investigation, I noted that if you went after the guy–whom I called Mr. Poignant–who clearly exceeded even John Yoo’s guidelines on torture, he would quickly get you to the architects of the torture program.

In other words, if you go after Mr. Poignant, he will quickly be faced with the opportunity to burn the torture architects to protect himself. (And hell, even if he’s a Scooter Libby type, this stuff is all out there anyway.)

And in many posts–including this recent one on Chuck Todd’s inanity–I pointed to three things that would be used to implicate those architects.

• The psychologist/interrogator/contractor quoted in the OLC opinion admitting he exceeded John Yoo’s guidelines
• The OLC memo’s description of CIA HQ ordering up another round of waterboarding for Abu Zubayah when that violated the OLC memo’s clear prohibition on waterboarding when the detainee was compliant
• The near-daily White House authorization of torture before John Yoo crafted a memo saying it was legal

The WaPo has a story today that proves my point. It is basically a summary of information already out there, supplemented by one "former US official" involved in the torture discussions who seems prepared to do just what I said–implicate the architects of the torture program.

The former official describes how, when interrogators in Thailand determined Abu Zubaydah was fully compliant, those in DC harangued them into further torture.

In August 2002, as the first anniversary of the Sept. 11, 2001, attacks approached, officials at CIA headquarters became increasingly concerned that they were not learning enough from their detainee in Thailand. When the interrogators concluded that Abu Zubaida had no more to tell, Langley scolded them: "You’ve lost your spine." If Mitchell and his team eased up and then al-Qaeda attacked the United States again, agency managers warned, "it would be on the team’s back," recalled the former U.S. official, who spoke on the condition of anonymity to discuss classified information. 

[snip]

"Headquarters was sending daily harangues, cables, e-mails insisting that waterboarding continue for 30 days because another attack was believed to be imminent," the former official said. "Headquarters said it would be on the team’s back if an attack happened. They said to the interrogation team, ‘You’ve lost your spine.’ "

Mitchell and Jessen now found themselves in the same position as Soufan, Shumate and others.

"It was hard on them, too," the former U.S. official said. "They are psychologists. They didn’t enjoy this at all.

The two men threatened to quit if the waterboarding continued and insisted that officials from Langley come to Thailand to watch the procedure, the former official said. 

The former official repeats stories about meticulous approval for the torture from Langley–and (though this is probably from other sources) through Langley from DC.

"The program was fully put together, vetted and run by the counterterrorism folks at the agency," the former U.S. official said. "CIA headquarters was involved directly in every detail of interrogation. Permission had to be obtained before every technique was used, and the dialogue was very heavy. There were cables and also an IM system. All Mitchell’s communications were with the Counterterrorist Center."

In Bangkok, word circulated among those at the secret site that the tactics had been approved "downtown" — agency jargon for the White House.

(Note the use of the IM system–I wonder if those got archived at all?)

Mind you, this former official is still trying to cover his own ass–and justify the torture. Witness his claim that Abu Zubaydah exposed Padilla after sleep deprivation.

"In two different bits, after sleep deprivation, is when Abu Zubaida gave clues about who Padilla might be," the former U.S. official said. "When that was put together with other CIA sources, they were able to identify who he was. . . . The cables will not show that the FBI just asked friendly questions and got information about Padilla." 

And he repeats the verifiably false claim that torturing Abu Zubaydah led to Ramzi bin al-Shibh’s capture.

The former U.S. official said that waterboarding forced Abu Zubaida to reveal information that led to the Sept. 11, 2002, capture of Ramzi Binalshibh, the key liaison between the Hamburg cell led by Sept. 11 hijacker Mohammed Atta and al-Qaeda’s leadership in Afghanistan.

But others contend that Binalshibh’s arrest was the result of several pieces of intelligence, including the successful interrogation by the FBI of a suspect held at Bagram air base in Afghanistan who had been in contact via satellite phone with Binalshibh, as well as information gleaned from an interview Binalshibh gave to the television network al-Jazeera.

But this is precisely the kind of person who–as I suggested–will make it all but impossible to limit the torture investigation to James Mitchell. Because as soon as you start going after the guys who implemented the torture, they will begin to implicate those higher up who also clearly violated the terms of John Yoo’s memo (remember–the entire memo is premised on certainty that the detainee has further information that can only be gained through torture, making the order for the final waterboard totally illegal according to the memo). 

Ostensibly, DOJ is trying to withhold Dick Cheney’s interview materials for the following three reasons (in order of their centrality to the argument):

1. Law enforcement privilege: If DOJ turns over Cheney’s interview, it will make future Vice Presidents unwilling to cooperate in investigations. This argument fails given the evidence that it has long been routine to release interview materials from high ranking White House figures, going back to the era of Cheney’s first White House job under Nixon, continuing through the investigation conducted parallel to the one Cheney participated in on Iran-Contra, and up through Bush’s predecessor, Clinton. Thus, Cheney’s cooperation itself proves the lie of DOJ’s argument.
2. Deliberative and presidential privilege: Much of the contents of Cheney’s interview comprise his description of deliberations within the White House regarding how to respond to Joe Wilson. This argument fails, in significant part, because much of this was already released during the trial. Furthermore, with the knowledge of at least two other White House officials, Dick Cheney’s lawyer leaked key portions of this to Michael Isikoff in April 2006.
3. National security classification: Finally, DOJ argues that it can’t turn over material already made public, such as the names of Cheney’s and Libby’s briefers, David Terry and Craig Schmall. DOJ and CIA may actually even be protecting the name of that secret CIA officer, Valerie Plame Wilson!

For the most part, this argument doesn’t make sense at all. Most importantly, the core argument–that releasing this interview will inhibit future cooperation–is belied by the last half century of history. Nevertheless, for some reason DOJ has decided to fight release of this document. That’s partly because, I think, this fight started last year, while Cheney still had sway to make it happen. It’s partly because of Obama’s fear of doing anything that would look political. Still, something must explain why Obama’s DOJ is making this crappy argument with such intensity. Something–aside from the defense of secrecy in general–must explain DOJ’s almost comical efforts to keep this interview hidden in spite of the long history of releasing similar interviews.

As I suggested in this post, their concern appears to be much more narrow. I suspect they’re not trying to protect the content of Cheney’s interview, in the abstract. Rather, they’re trying to protect the content because of what Cheney said.

In the hearing before Judge Sullivan on June 18, DOJ argued that if Sullivan reviewed Cheney’s FBI interview report, he’d see the degree to which Cheney was frank with Fitzgerald and that might persuade him why, if this particular interview were released, it would inhibit future cooperation.

But for the record, this particular 302 I think would demonstrate the kind of frankness that the Vice-President gave in this interview as he was trying to assist I assume, trying to assist law enforcement. And the kind of frankness that it can be virtually certain to disappear if documents like this routinely become public.

Then, in yesterday’s brief, DOJ noted that some of what Cheney said was dissimilar from any released before, and–more importantly–some of what Cheney said was not exactly like the information introduced into the record already on the same topics. 

Moreover, as a factual matter, the portions of the FBI 302 protected by the deliberative process privilege are not identical to the public domain information submitted by plaintiff, and in several instances, the FBI 302 contains information that is not at all similar to any information found in plaintiff’s submission. DOJ is unable to expand further on these differences in a public filing without disclosing the privileged information. DOJ can submit further analysis in camera if the Court so directs.

 In both cases, DOJ offered to share the information with Sullivan to convince him that this information merited withholding.

One more thing. As I noted, DOJ is making a completely laughable argument that CREW is demanding "immediate" release of Cheney’s interview materials, even though this investigation concluded over two years ago. While there should be no legal distinction between immediate release or later release, that is a distinction they’re making. Significantly, they argue that releasing this interview in six years may be okay, but releasing it now would be problematic.

The Bush 302 was released six and a half years after his Presidency. It is quite possible, even likely, that, in 2015 or 2019 (six to ten years after Mr. Cheney left office), the release of the documents at issue here can be accomplished without impairment to law enforcement interests. DOJ has concluded, however, that this cannot be accomplished now. 

Six years. Six and a half years. Six years. That’s when it’d be okay to release this, says DOJ. I’m going to suggest that the timing may have more to do with the magical six years than any connection to the end of Cheney’s tenure at VP.

What follows is speculative. It is an attempt to brainstorm out what kind of "frank" revelation Cheney would have made that would still have resulted in the subsequent actions we know Fitzgerald to have taken (notably, the subpoena to Judy Miller and the rest of the journalists), yet that DOJ still thinks should remain hidden.

The Not Identical and Not at All Similar Information

Curiously, DOJ is insisting–for an interview relating to an investigation that ended in a successful perjury and obstruction of justice charge–that Cheney gave Fitzgerald a "full account of relevant events." And they’re dismissing all the related evidence in the public record by claiming that the portions of the interview are either "not identical" or "not at all similar" to the material in the public record. Partly, this is just an attempt to claim that just because records of the actual deliberation have been released, that does not equate to a waiver for what is effectively Cheney’s summary of that deliberation. This is an attempt to say that original source documents–Libby’s direct quotes of Cheney’s statements regarding declassification of the NIE and other material, Cheney’s observation that Tenet’s statement was "unsatisfactory,"  CIA’s characterization of the qusetions that Cheney asked, and Cheney’s meat-grinder note written expressing his argument why Libby should be public exonerated in the same way Rove had been–are somehow less revelatory than Cheney’s description of them.  Provided you buy my argument that DOJ has improperly applied a precedent to try to protect a summary after source documents have been released, then the only way this can be a valid argument (aside from protecting the Condi conversation and Tenet conversation, which have not been described in detail), is if Cheney’s summary does not match Libby’s (and Cathie Martin’s) summary presented at trial.

I suspect that the only way DOJ can honestly simultaneously claim that Cheney gave a "frank," "full account" of events but that his summary description of these deliberations must still be protected is if DOJ believes that Libby’s summary is inaccurate and Cheney’s is accurate. 

I’m suggesting that the reason DOJ is fighting so hard to protect this material is that it differs in some key way from Libby’s testimony, and for some reason DOJ believes Cheney told the truth but Libby lied. And that Cheney was truthful about something more embarrassing than Clinton’s blowjob.

Some possibilities are (remember–this is speculative; also see Mary, ROTL, Garrett on this):

• Cheney admitted that he ordered Libby to out Valerie Wilson–to either Judy Miller or to just Matt Cooper
• Cheney insta-declassified the NIE (and the January 24 document and the trip report) on his own, as opposed to–as Libby claimed–with the involvement of Bush
• Cheney insta-declassified Valerie’s identity on his own
• Cheney learned of Valerie’s identity from some source besides Tenet–such as being shown the documents Valerie wrote in support of Joe’s trip
• Cheney told Hadley and Condi and Tenet and Card that he or Bush had insta-declassified some of these materials

Subsequent Events

But whatever Cheney said must be compatible with Fitzgerald’s and others’ subsequent actions. Some key points are:

May 2004: Just weeks after Cheney’s May 8, 2004 interview, Fitz subpoenas Matt Cooper and Tim Russert to test his then-operative theory that Russert had not told Libby of Plame’s ID, but that Libby had been Cooper’s source for her ID.

August 2004: Fitz submits an affidavit in support of subpoenas for Judy Miller and Walter Pincus stating:

…reporter Miller has been subpoenaed because her testimony is essential to determining whether or not Lewis Libby … has committed crimes including the improper disclosure of national defense information and perjury. Libby has admitted speaking to Miller in July 2003 and discussing the purported employment of former Ambassador Joe Wilson’s wife by the [CIA].

[snip]

Libby testified that he met with reporter Miller on [July 8, 2003] at the general direction of the Vice President to share with Miller portions of the [NIE]. … Libby specifically described he was advised by Vice President Cheney that President Bush had declassified the NIE…

There are redactions on page 8 (pertaining to whether or not Cheney told others in the Administration that he had insta-declassified the NIE), page 11 (footnoting a description of Libby’s admission that Cheney told him of Plame’s identity), page 13-14 (describing whether or not Cheney told Libby to leak Plame’s ID to Cooper), page 18-19 (pertaining to how Novak learned Plame worked in CPD, with a long footnote and further information on Rove’s conversation with Novak), page 19 (describing Libby’s contact with Novak that week), and page 30 (pertaining to whether the President and others have invoked privilege). 

October 2005: Fitz indicts Libby for false statements, perjury, and obstruction of justice, but not IIPA or leaking defense information. Fitz makes no mention of the NIE story. The indictment includes many oblique references to Cheney (plus some explicit ones). 

April 2006: Following up on a point that I first reported that February, Fitz releases a filing specifically implicating Bush and Cheney in the NIE leak and repeating Libby’s testimony that only he, Cheney, and Bush were aware of the NIE insta-declassification.

Defendant’s participation in a critical conversation with Judith Miller on July 8 (discussed further below) occurred only after the Vice President advised defendant that the President specifically had authorized defendant to disclose certain information in the NIE. Defendant testified that the circumstances of his conversation with reporter Miller – getting approval from the President through the Vice President to discuss material that would be classified but for that approval – were unique in his recollection.

[snip]

As to the meeting on July 8, defendant testified that he was specifically authorized in advance of the meeting to disclose the key judgments of the classified NIE to Miller on that occasion because it was thought that the NIE was “pretty definitive” against what Ambassador Wilson had said and that the Vice President thought that it was “very important” for the key judgments of the NIE to come out. Defendant further testified that he at first advised the Vice President that he could not have this conversation with reporter Miller because of the classified nature of the NIE. Defendant testified that the Vice President later advised him that the President had authorized defendant to disclose the relevant portions of the NIE.

[snip]

According to defendant, at the time of his conversations with Miller and Cooper, he understood that only three people – the President, the Vice President and defendant – knew that the key judgments of the NIE had been declassified. Defendant testified in the grand jury that he understood that even in the days following his conversation with Ms. Miller, other key officials – including Cabinet level officials – were not made aware of the earlier declassification even as those officials were pressed to carry out a declassification of the NIE, the report about Wilson’s trip and another classified document dated January 24, 2003.

In response–and with the knowledge of at least Dan Bartlett–Cheney’s lawyer explains the NIE leak this way:

A lawyer familiar with the investigation, who asked not to be identified because of the sensitivity of the matter, told NEWSWEEK that the "president declassified the information and authorized and directed the vice president to get it out." But Bush "didn’t get into how it would be done. He was not involved in selecting Scooter Libby or Judy Miller." Bush made the decision to put out the NIE material in late June, when the press was beginning to raise questions about the WMD but before Wilson published his op-ed piece.

May 2006: Fitzgerald and Ted Wells discuss details of Bush and Cheney’s testimony. Wells claims to know that either Bush or Cheney "testified" that the NIE had been declassified and asks to have those interviews turned over. Fitz ends up agreeing only to stipulate that the NIE had been declassified by July 8, but not as to when it was declassified and (as I understand it) never turned over those interview reports. 

WELLS: To the extent that Mr. Fitzgerald is in possession of documents or grand jury material or interviews that establish that, in fact, the vice president and the president were aware that those documents had been declassified, he should turn them over because I do not want to be in a position during this trial that there is some question that Mr. Libby, in disclosing that material to Ms. Miller, did anything wrong.

[snip]

MR. FITZGERALD: I will come back to that. Let me jump ahead. There’s no other discovery we have on it so it’s not like we’re sitting on documents or exhibits that

THE COURT: It is a moot issue. You don’t have anything on it.

[snip]

MR. WELLS: I started out making what I characterized as a Brady request to the extent that either the vice president or the president have testified that they did authorize disclosure.

THE COURT: Testified?

MR. WELLS: I’m making a Brady request. I believe there is testimony. I believe there is testimony or interviews.

THE COURT: I didn’t know they had testified.

MR. WELLS: I don’t know the procedure whether they talked to somebody in somebody’s office. But to the extent he has statements from either the vice president or the president, to the extent that disclosure of the NIE was authorized and I believe that maybe that the testimony does not tie it down to a particular day, only that it did take place, I believe I’m entitled to that.

[snip]

MR. FITZGERALD: Your Honor, I think they already do. Let me see if I can — in other words, if I summarize the information and disclose it as to what we know about this information, I mean there was an authority to declassify it. We don’t know when. So I don’t know what more there is to that in the sense that I’ll scrub it. But it’s not as if we’re sitting on — we have turned over relevant documents and items but that’s the way it is.

[snip]

MR. WELLS: It is, but if he’s going to say as he just suggested that if I were to say that when he talked to Mr. Woodward he did it with the understanding that he had been authorized and he is in possession of material from either the president or the vice president to the effect that it was declassified and that they know they did it but they’re not sure of the particular date but it was in that general area, I think I should have that material.

THE COURT: I do disagree with that because it seems to me that if he, as I said before, decides to go down that road and then once he does that the government brings out something during cross-examination or otherwise that would suggest that he wasn’t, in fact, being honest when he made that representation, then I think he is entitled to know that before he goes down that road.

MR. FITZGERALD: Your Honor, I will stipulate that the declassification happened. I don’t know when. The notion that we’re laying low in the tall grass and weeds I think is unfair.

December 2006: Fitz announces that he will not call Cheney as a witness. Libby’s team responds that they intend to call Cheney (they never do, though they do use his potential appearance during jury selection to weed out those opposed to the Iraq War and/or Cheney personally).

February 2007: Fitz closes the trial by describing the "cloud" that remains over Cheney.

And you know what? [The Defense] said something here that we’re trying to put a cloud on the Vice President. We’ll talk straight. There is a cloud over what the Vice President did that week. He wrote those columns. He had those meetings. He sent Libby off to Judith Miller at the St. Regis Hotel. At that meeting, … the defendant talked about the wife. We didn’t put that cloud there. That cloud remains because the defendant has obstructed justice and lied about what happened.

[snip]

He’s put the doubt into whatever happened that week, whatever is going on between the Vice President and the defendant, that cloud was there. That’s not something we put there. That cloud is something that we just can’t pretend isn’t there.

2007 to 2008: Reports–that may or may not be accurate–describe Cheney pressuring Bush to commute the sentence of and then pardon Libby. Bush does the first but not the second.

My Thoughts

From the subsequent events, we can conclude the following:

• Nothing in Cheney’s interview made Fitz rethink his theory that Libby had leaked Plame’s identity to Cooper, all the while knowing he had learned of her identity from Cheney (indeed, the redactions on pages 13-14 of Fitz’s affadavit suggest he may have asked Cheney about this–and remember, Libby once said he did leak to Judy on July 12).
• Fitz believed it likely he had leaked Plame’s identity to Judy, but he considered either that–or some of Libby’s other leaks (such as the NIE and/or the trip report) still potentially criminal. In fact, after reading Fitz’ affidavits later that year, Judge Tatel stated that after getting Judy’s testimony, "charges under the Intelligence Identities
  Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable." Therefore nothing Cheney and Bush told Fitz convinced him in 2004 that the leak of Plame’s identity was legal.
• Fitz at least claimed that Libby’s lies about when he learned of Plame prevented him from understanding Cheney’s role in the leak.
• Fitz didn’t want to give Libby’s team Bush and Cheney’s interviews, and he never planned to call Cheney.

I’m stumped, for now. Perhaps they’re trying to prevent new details on the fight with CIA–particularly the effort to trick CIA into revealing Plame’s ID (though that is, frankly, somewhat evident from the publicaly available evidence from the week of June 9). Perhaps they’re trying to hide information that Bush ordered Cheney and Libby to respond to Joe Wilson–and gave them carte blanche to do so. But this, again, is at least partly revealed in Libby’s June 9, 2003 notes and in the meat-grinder note.

Which leaves me with one more observation. DOJ is willing to see this released in several years, but not now. I’m wondering if that has as much to do with a 5 year statute of limitations as it has to do with anything else? Perhaps there’s enough evidence of Bush’s involvement in the leak that they want to avoid any questions of whether Bush obstructed justice when he commuted Libby’s sentence?

Goddamn did DOJ bring the stupid in their response to CREW’s brief in its Cheney interview FOIA.

745 days ago, George Bush commuted Scooter Libby’s sentence, thereby ensuring that Scooter Libby would not testify about whether–as all the evidence indicated–Dick Cheney had ordered him to leak Valerie Wilson’s identity to Judy Miller. 745 days ago, for all intents and purposes, the investigation of Dick Cheney’s involvement in outing a CIA officer ended in the dead end of Scooter Libby’s successful criminal obstruction of justice.

Yet DOJ describes CREW’s efforts to get Cheney’s interview report via FOIA to be an attempt to get "a ruling that would make public interview reports of high ranking White House officials immediately upon the conclusion of the relevant investigation." For the whizzes in DOJ, I guess, 745 days equates to "immediate."

But that’s not the only heap of stupid they bring in this filing.

Next, these whizzes argue that if DOJ turns over Cheney’s interview, then senior White House officials will no longer provide criminal investigators a "full account of relevant events."

This argument, however, is ultimately immaterial because, while in some circumstances public pressure could possibly force a White House official to sit down for an interview, it cannot ensure that that official will be willing “to provide law enforcement officials with a full account of relevant events,”

Dudes! Let me tell you a secret about this case!! It ended in a successful perjury and obstruction of justice prosecution that revealed–among other things–that convicted felon Scooter Libby had worked out a cover story with Dick Cheney before Libby first testified to the FBI! Had Cheney given a "full account of relevant events," then Scooter Libby probably wouldn’t have been prosecuted successfully (or, at the least, Judy Miller wouldn’t have had to testify or Cheney would have been charged with obstruction himself).

Next, DOJ claims that a precedent in which the release of a summary of deliberations was found not to constitute a waiver over the source documents of that deliberation applies here, in which key source documents have already been released, but which wouldn’t–DOJ argues–constitute a waiver for the interview report which is fundamentally a summary. For DOJ, a precedent finding that a summary doesn’t equal source is the same as a source not equaling a summary. 

The D.C. Circuit held that the release of the report did not constitute a waiver of privilege and that the White House could retain privilege over all documents that had not specifically been provided to individuals outside the government. Id. at 741. Similarly here, the fact that DOJ has released certain deliberative material into the public domain as part of the prosecution of I. Lewis Libby does not waive privilege over other, unreleased, documents that may contain material relating to the same deliberations.

Which is all the more stupid given that Cheney’s interview report is not the deliberation itself (that is, it’s not like he was discussing potential policies that Fitz ought to introduce into investigating Vice Presidents), and–more importantly–the content of this very interview was already released by Dick Cheney’s lawyer! DOJ is effectively arguing that the precedent finding that a summary does not equal source is the same as summaryA does not equal summaryA.

Then, these instruments of stupid at DOJ dismiss the extensive list that CREW submitted of prior examples where interview reports and related documents have been released by appealing to the "case-specific factors" of this case.

Plaintiff seems to suggest that the existence of this material within the public domain undercuts DOJ’s position that the release of the disputed material would deter or diminish future cooperation by senior White House officials such as the President and Vice President. It does not.

It is not DOJ’s contention that interview reports of White House officials can never be released without impairing law enforcement interests. Rather, the predictive judgment as to whether release could deter future needed cooperation by senior White House officials depends on case-specific factors such as how high-ranking the official was, whether he or she or the President he or she served was in office at the time of the interview, and the period of time that has elapsed since the individual has left office. Cf. Breuer Decl. ¶ 5 (noting the particular deterrent to cooperation that could exist if an official “believe[s] that the information provided could become public while the official is still in office”). The facts in the instant case warrant non-disclosure: the interviewee was the then-sitting Vice President of the United States and disclosure was initially sought while he was in office and is sought now only months after he left office. [my emphasis]

First of all, that reference there, in the middle of the second paragraph, that promises "case-specific factors"? Here’s what it says:

In addition, as a general rule, a prosecutor cannot tell a White House official how long he or she believes an investigation may last, and the official may thus believe that information provided could become public while the official is still in office. Therefore, if law enforcement interviews of the President, Vice President or other senior White House officials become subject to routine public disclosure, even upon the conclusion of an investigation, there is an increased likelihood that such officials could feel reluctant to participate in voluntary interviews or, if they agree to such voluntary interviews, could decline to answer questions on certain topics.

DOJ has not provided case-specific factors. On the contrary, it has presented one big hypothetical with no specific proof in the least, and even the specifics they repeat–sitting Vice President, disclosure only months after leaving office–are met or exceeded by a slew of examples in the CREW list, starting first and foremost with "Bill Clinton, President."

Indeed, DOJ has been presented with a list of prior examples where high level White House officials have been interviewed while in the White House, and the contents of the interview were released while the high level officials were still in office. DOJ has been presented with evidence, in fact, that "public disclosure" already is "routine"–precisely the circumstances that, they claim, will inhibit cooperation.  And their response to that is, "golly, you’ve got to look at the specific facts of the case." But the specific facts in this case–in which Dick Cheney, knowing that, "law enforcement interviews of the President, Vice President or other senior White House officials" already were "subject to routine public disclosure, even upon the conclusion of an investigation," cooperated willingly. 

Dick Cheney’s willing cooperation (but not, perhaps, a "full account of relevant events") in this precise case is proof that DOJ’s claim is full of shit! Dick Cheney knew that release of interview contents was the norm, and yet he willingly cooperated without even trying to get any kind of waiver. Dick Cheney’s cooperation proves that prior release will not dissuade cooperation. (Hell, if Ken Starr’s obsession with Bill Clinton’s blow job wasn’t going to inhibit Dick’s cooperation, I don’t know what would.)

(To be fair, DOJ does some impressive back flips to explain why these examples aren’t like this case, including saying that some of them are so old–dating to prior Administrations or investigations in which Cheney personally participated–that the examples are somehow invalid. DOJ would have you believe Cheney slept through Watergate in his office at the White House.)

Jeebus, I hate when people whose salaries my taxes pay produce the stupid at such high volume!!

Hidden under these piles of steaming stupid, however, there is one nugget that explains DOJ’s real worry. In response to the long list of things included in Cheney’s interview that have already been revealed in the public record, apparently, there are some statements that are unlike what has been released in the public record.

Moreover, as a factual matter, the portions of the FBI 302 protected by the deliberative process privilege are not identical to the public domain information submitted by plaintiff, and in several instances, the FBI 302 contains information that is not at all similar to any information found in plaintiff’s submission.

Now, as I’ve explained, there is one claimed item that was never released in the public record (Cheney’s conversation with Condi during leak week) and one item that was referenced but not explained in detail (Cheney’s discussions with Tenet which may have been where he learned of Valerie’s identity). Two items.

So maybe DOJ is trying to protect those two items (I guess I can understand, as the two conversations may reveal that the VP learned of a CIA officer’s identity, then told the National Security Advisor they were going to leak that identity–but that’s the most extreme case imaginable). 

But DOJ is not, just, referring to "information that is not at all similar" to information in the public record. It is also trying to hide information that is "not identical to the public domain information."

In other words, the evidence presented at trial that Dick Cheney learned of Plame’s identity, passed it on to Libby in the context of responses to journalists, apparently ordered Libby to leak it to a journalist, but didn’t tell anyone else at the White House up to and including George Bush about that order–DOJ is stating that Cheney said some things in his interview that are "not identical" to those things revealed at trial.

And that, my friends, is what this heap of steaming stupid is designed to keep hidden. 

Cathie Martin’s testimony of how she strategized a response to Joe Wilson’s July 6, 2003 op-ed was one of the most visibly discomfiting moments of the Scooter Libby trial for those in the media room. After all, Martin was revealing how easily the DC press allowed itself to be manipulated by those in power. Along with describing which reporters they were dealing which kinds of stories to and how reporters tended to be more compliant when you told them they were getting an exclusive, Martin explained that the White House controlled the message when Cheney went on Meet the Press.

Fitzgerald: Focusing on the language in the black where it says options, can you run down the four options and describe what they refer to in these notes and what you discussed with Mr. Libby?

Martin: Sure.  First note M.T.P., which is Meet The Press, dash VP.  So this was my discussion about possibly putting the Vice President on Meet The Press that Sunday to give a fuller discussion of the whole picture.

Fitzgerald: On the right you have another reference to M.T.P.  Can you describe what that is?

Martin: I think I walked, this is me walking through the pros and cons of putting the Vice President on Meet The Press. And I wrote underneath pros, best.  This is our best format, and he’s our best person on Meet The Press.  Two, we control the message a little bit more.  It was good for our — for us to be able to tell our story. [my emphasis]

TPMM has been wading through the latest document dump of Mark Sanford’s office’s emails released by the Charleston Post and Courier.  And they’ve discovered that David Gregory has continued the Meet the Press approach to letting guests control the message. 

But Gregory’s emails, in particular, make clear just what a get Sanford was seen as, and how far the networks were willing to go in promising a safe landing place for the governor.

Gregory’s first email to Sawyer was sent at 12:24 p.m. on Wednesday June 24 — that is, after Sanford had admitted to The State that he had actually been in Argentina, but before the famed stream-of-consciousness press conference where he admitted to an affair. Gregory wrote:

Hey Joel …

Left you a message. Wanted you to hear directly from me that I want to have the Gov on Sunday on Meet The Press. I think it’s exactly the right forum to answer the questions about his trip as well as giving him a platform to discuss the economy/stimulus and the future of the party. You know he will get a fair shake from me and coming on MTP puts all of this to rest.

Let’s talk when you can.

Gregory left two different phone numbers.

After the press conference, Sawyer replied:

David —

Thank you very much for taking the time to personally reach out to us. For the time being, we’re just going to let what the governor said today stand on its own. If we do some interviews in the future, I’ll let you know as soon as possible.

Gregory followed up quickly: "You aren’t doing anything at all this week…no other intvus anywhere?" Sawyer replied that they weren’t.

Gregory gave it one last shot:

Look, you guys have a lot of pitches .. I get it and I know this is a tough situation … Let me just say this is the place to have a wider conversation with some context about not just the personal but also the future for him and the party … This situation only exacerbates the issue of how the GOP recovers when another national leader suffers a setback like this. So coming on Meet The Press allows you to frame the conversation how you really want to…and then move on. You can see (sic) you have done your interview and then move on. Consider it. [my empahsis]

Sawyer did not respond.

Jeebus. At least Russert was allowing the Vice President to walk all over him. Gregory, apparently, allows small state Governors reeling from the exposure of their moral hypocrisy to do the same. 

Reyes announces:

After careful consideration and consultation with the Ranking Minority Member and other members of the Committee, the House Permanent Select Committee on Intelligence will conduct an investigation into possible violations of federal law, including the National Security Act of 1947.

This investigation will focus on the core issue of how the congressional intelligence committees and Congress are kept fully and currently informed. To this end, the investigation will examine several issues, including the program discussed during Director Panetta’s June 24th notification and whether there was any past decision or direction to withhold information from the Committee. 

Three points about this.

First, Reyes says he consulted with Crazy Pete Hoekstra. I look forward to seeing how Crazy Pete spins this.

That’ll be particularly interesting given the scope here. The investigation will include the reported assassination squad. But the core issue is more general–how CIA informs Congress. Which means that, in fact, this should also include whether or not CIA fullly briefed Pelosi and Goss on torture back in 2002.

Finally, the investigation will examine whether there was any "direction" to withhold information from Congress. I do hope they look at the question generally, as well as in the context of the reported assassination squad, because I suspect we’d see a pattern of Cheney instructing the Counterterrorism folks to lie to or withhold information from Congress.

Update: Reyes (and Jan Schakowsky) also announced the appointment of Adam Lurie, formerly an AUSA in NJ’s USA office, as staff director for the Investigations Subcommittee (which Schakowsky Chairs). He’ll be the lead staffer in this investigation.