It appears the fluid and constantly evolving rationalization of the Bush Administration for their destruction of the torture tapes may be starting to congeal in an operative theory relying, at least in significant part, on a provision of the Federal Records Act allowing destruction of certain records located outside of the United States during wartime. As EW pointed out in the last post, this defense was revealed in Isikoff’s December 21, 2007 Newsweek article:

But agency officials could be relying on another provision of the records law that permits an agency, during wartime, to destroy records outside the continental United States that are judged to be "prejudicial to the interests of the United States." The CIA has argued that one reason for destroying the tapes was that agency officials feared that if the videotapes were leaked they might compromise the identity of the CIA interrogators.

It is certainly a relief that we don’t have some sort of rogue Administration running around destroying evidence material to a whole plethora of cases and forums, and that their decision was fully in compliance with United States law. That law would be the Federal Records Act, and the pertinent provision, as codified in 36 CFR Part 1228, reads:

a) Destruction of records outside the territorial limits of the continental United States is authorized whenever, during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent, the head of the agency that has custody of the records determines that their retention would be prejudicial to the interest of the United States, or that they occupy space urgently needed for military purposes and are without sufficient administrative, legal, research, or other value to warrant their continued preservation (44 U.S.C. 3311).

(b) Within 6 months after the destruction of any records under this authorization, a written statement describing the character of the records and showing when and where the disposal was accomplished shall be submitted to NARA (NWML) by the agency official who directed the disposal. (ed. note: see also 44 U.S.C. 3311).

Well, hold on a minute here. Is that their final answer? Of course it’s not their final answer; there is never a final answer, on anything, with the Bush Administration; just a continuing series of intentionally disingenuous obfuscations. It takes no more than a cursory inspection of the foreign war records exception to expect that the Administration will very soon be on the move again, morphing away from this version of their rationalization to the next cock and bull story.

Initially, the provision applies "during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent". To the best I can discern, there has not been a formal declaration of war against another nation by the United States Congress, the branch with the sole power of doing so under Article 1, Section 8 of the Constitution. The AUMF will be trotted out, along with the ubiquitous Article II Commander in Chief tripe, but the simple fact is the AUMF is not a formal declaration of war and Bush’s Article II powers do not allow him to magically transform the AUMF into a formal declaration of war. It is also hard to fathom any basis for the Administration to claim "action by a foreign power appears imminent" at the time the tapes were destroyed.

Secondly, the only person with the statutory authority to exercise the power to order emergency destruction of foreign locus records during a state of war is "the head of the agency that has custody of the records". In this instance, there are only two people that could plausibly be considered to fall into this definition, Porter Goss, the head of the CIA at the time, and John Negroponte, the Director of National Intelligence (DNI) at the time and who is theoretically over all the intelligence agencies, including the CIA. Negroponte not only firmly advised against destruction or the torture tapes, he felt so strongly about it that he memorialized it in writing to insure there was a record. Multiple reports indicate that Porter Goss also advised against the destruction of the torture tapes and that he is dismayed and angry they were destroyed.

Next, assuming there was a proper state of war (there was not) and the right authority ordered the destruction of the evidence tapes (they did not), were the right circumstances present permitting destruction under the provision? It is hard to imagine how a few videotapes could credibly be considered to "occupy space urgently needed for military purposes", nor can it, even remotely, be said that the tapes "are without sufficient administrative, legal, research, or other value to warrant their continued preservation". The only authorized situation remaining is where the records are "prejudicial to the interest of the United States". I will grant the contents of the torture tapes are prejudicial to the interests of the United States; but, personally, I am not very plussed with conflation of concealment of blatant and intentional commission of national and international war crimes by elected politicians, and the general interest of the country. Furthermore, these provisions are designed to apply only to emergency situations. What emergency was there necessitating the destruction of evidence that no one knew about, kept in a safe in a third party country no one is aware of, that is under no known threat or attack by anything, some four years after the tapes were made? The only threat was that the tapes would be discovered and the heinous war crimes of this Administration become exposed and proved beyond any reasonable doubt. Not particularly compelling.

You can almost detect a pattern here eh? The next consideration is, if all the requisite elements permitting the emergency destruction of the torture tapes were met (they were not), were the proper protocols and procedures followed in effecting the destruction? That would require that:

Within 6 months after the destruction of any records under this authorization, a written statement describing the character of the records and showing when and where the disposal was accomplished shall be submitted to NARA (NWML) by the agency official who directed the disposal.

Perhaps there is such documentation and it simply has not been disclosed yet. You would think that this document, at least in a minimally redacted form, would have been trotted out to exhibit the propriety of conduct by the Administration; but we have not seen that. Time will tell, but it is a safe bet that if there was such a legitimate and fully compliant certification made to the NARA within six months of the destruction of the torture tapes, we would have heard about it.

It is almost impossible to know where the convoluted, disingenuous dog and pony show being run by the Bush Administration on the destruction of the torture tapes will end up, but if the line of argument discussed herein is what they are standing on, they are going to need railroad cars of pixie dust to coat the pill for anyone of common sense to swallow.

I agree with Jeff. Given the news that the torture tapes never entered the US, given Porter Goss’ apparent command not to destroy the torture tapes "in Washington," and given the terms of the Federal Records Act…

Mansfield did not explain why the CIA didn’t find the destroyed videotapes to be "records" as defined under the law. But agency officials could be relying on another provision of the records law that permits an agency, during wartime, to destroy records outside the continental United States that are judged to be "prejudicial to the interests of the United States."

I think the CIA and the Administration stretched logic with each and every request for the torture tapes so as to claim they never were required to hand over the tapes.

We’ve already seen such tortured logic in the Administration response to Judge Kennedy’s alarm that they had destroyed tapes that may have been responsive to an order he gave them.

Kennedy ordered the administration in June 2005 to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

And whoever pointed Isikoff to the loophole in the Records Act that tapes overseas can be destroyed would presumably believe that negated the ACLU FOIA request for records on detainees held in US custody overseas.

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a lawsuit in June 2004 in the U.S. District Court for the Southern District of New York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the CIA and other government departments to "produce or identify" all responsive documents by October 15, 2004.

[snip]

The Court’s Order required the CIA to "produce or identify all responsive documents." Those not produced had to be identified. Classified documents were to be "identified in camera [that is, only to the court] on a log produced to the court." Recall, too, that the FOIA request sought information on the handling of all but a few detainees, who were within the United States.

It is well- and long-established law that a court order of this nature requires that the party preserve all information possessed that is responsive to the request. Thus, the CIA was obligated to preserve the tapes even if they were hell-bent on fighting in court to deny them to the ACLU. And as this litigation proceeded, Judge Hellerstein’s later orders only served to reinforce that obligation, as a string of precedents makes clear.

On its face, it appears to be really ridiculous logic, but perhaps they’re arguing that these weren’t records under the Records Act, and therefore they can ignore Judge Hellerstein’s order to keep them.

Which leaves Leonie Brinkema’s two inquiries about records of the interrogations of those Moussaoui wished to interview. It does seem possible that, using this tortured logic, the CIA believed they had to destroy the tapes so they could say on November 14, 2005, that they didn’t "have" any such tapes.

This was a story I was expecting to see: a report that, in recent years of lax oversight, a large number of people have been defrauding mortgage companies.

The number of mortgage fraud cases has grown so fast that government agencies that investigate and prosecute them cannot keep up, lenders and law enforcement officials have said.

Reports of suspected mortgage fraud have doubled since 2005 and increased eightfold since 2002. Banks filed 47,717 reports this year, up from 21,994 two years ago, according to statistics from the Federal Bureau of Investigation and the Financial Crimes Enforcement Network of the Treasury Department. In 2002, banks filed 5,623 reports.

“I don’t think any law enforcement agency can keep up with mortgage fraud, because it’s such a growth industry,” said Chuck Cross, vice president of mortgage regulatory policy for the conference of state bank supervisors, an organization of regulators and bankers. “There’s too many cases, not enough agents.”

Mortgage fraud covers crimes like false statements on mortgage applications and elaborate “flipping” schemes that involve multiple properties and corrupt appraisers, title companies and straw buyers.

What I’m waiting for, now, is news of what these people used their fraudulent money for. Are these tens of thousands of cases of mortgage fraud just con men getting rich in the easiest way possible? Or were they funneling their ill-gotten money to something or another. In the case of Tommy K, he used his fraudulently gained money bribing Republican Congressmen. Was he the only one capitalizing on the corporatists’ refusal to regulate industry to funnel more money to corporatists?

Merry Christmas, Happy Holidays, and every other relevant greeting out there, to one and all. Best wishes to you and your families. Thank you for all your contributions and efforts over the past year; and please thank your families and significant others for allowing the time and effort devoted to our endeavors. It is tough sledding through the mess that has been created; but because of you, progress is being made. A holiday toast to one and all. Cheers!

Jeff points to an LAT article that tries to portray the clandestine services officer at CIA as no longer bound by Porter Goss when the torture tapes were destroyed. The insinuation is that Jose Rodriguez destroyed the tapes, in contravention of Goss’ wishes, to protect the clandestine officers who tortured Abu Zubaydah.

Goss had been sharply critical of the clandestine service while in Congress and came to the agency promising sweeping changes. But within months of his arrival, a series of CIA veterans — including three top officers in the clandestine service — resigned in protest of Goss’ leadership.

By the time the tapes were destroyed, "they weren’t in the business of listening to him," said a former senior U.S. intelligence official who observed the friction first-hand.

Rodriguez had been Goss’ pick to lead the clandestine service. Pushing him aside after the tapes were destroyed would have meant another embarrassing departure from the agency’s senior spy ranks. [my emphasis]

But then read these passages and tell me what the logical implication of them is:

Shortly after he arrived as CIA director in 2004, Porter J. Goss met with the agency’s top spies and general counsel to discuss a range of issues, including what to do with videotapes showing harsh interrogations of Al Qaeda detainees, according to current and former officials familiar with the matter.

"Getting rid of tapes in Washington," Goss said, according to an official involved in the discussions, "is an extremely bad idea."

[snip]

Officials who worked with Rodriguez said that he was never ordered by Goss or any other official to keep the tapes, and that he had obtained advice from agency lawyers saying there was no legal requirement to preserve them.

Former officials said Goss and other CIA leaders were stunned when Rodriguez informed them in November 2005 that the tapes had been destroyed. But Goss did not reprimand or fire Rodriguez, the former officials said, largely because the director, who had previously been bruised by battles with the clandestine service, did not feel he could afford another fight. [my emphasis]

This article provides what purports to be a near-exact quote from Goss saying, "getting rid of the tapes in Washington is an extremely bad idea." It goes on to note that Goss never ordered Rodriguez to keep the tapes.

Of course, the tapes weren’t in Washington. As the NYT noted in an important article,

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas. [my emphasis]

A detail this LAT article repeats in significant form.

The tapes, which were made in 2002, were kept for three years in overseas vaults where secret CIA detention facilities were located.

Given the fact that the tapes never came into this country (except in digital form), this advice to Rodriguez against destroying the tapes, then, seems targeted more toward where Rodriguez should have them destroyed than whether he ought to destroy them. Indeed, I rather take the exact quote as a direction to clean up the matter without letting the evidence enter the US.

This whole story reports on the reputed "tribalism" of the clandestine services, talking about clandestine officers sticking together at all costs. But in the entire article, it never once reports that Goss was a CIA clandestine officer for roughly eleven years. You think maybe that ought to invite reconsideration of whether and how Greg Miller was being spun by Goss’ folks?

I’m all in favor of holding the several people in the White House who intervened to destroy evidence responsible for their actions: I expect Steven Cambone, Rummy, David Addington, Alberto Gonzales, and probably Cheney deserve the heat for destroying the torture tapes.

But as we begin to hear about Jose Rodriguez considering immunity…

THE CIA chief who ordered the destruction of secret videotapes recording the harsh interrogation of two top Al-Qaeda suspects has indicated he may seek immunity from prosecution in exchange for testifying before the House intelligence committee.

Jose Rodriguez, former head of the CIA’s clandestine service, is determined not to become the fall guy in the controversy over the CIA’s use of torture, according to intelligence sources.

[snip]

The House intelligence committee has subpoenaed Rodriguez to appear for a hearing on January 16. Last week the CIA began opening its files to congressional investigators. Silvestre Reyes, a Democrat who is chairing the committee, has said he was “not looking for scapegoats” – a hint to Rodriguez that he would like him to talk.

… it might be well to remember what I pointed out when Rodriguez was first floating the idea of immunity.

The article also includes a clear signal from the masterful press manipulator, Bob Bennett, that he intends to advise his client John Jose Rodriguez to plead the Fifth.

Bennett told NEWSWEEK that his client had been "a dedicated and loy­al public servant for 31 years" and "has done nothing wrong." But he warned that Rodriguez may refuse to cooperate with investigators if he concludes that the probes are a "witch hunt." "I don’t want him to become a scapegoat."

In case you missed it, Bennett uses the same phrase Monica Goodling’s lawyer, John Dowd, used, "witch hunts," just before he snookered Congress into offering her immunity for a bunch of stuff that Congress already had evidence she was doing. As a reminder, Monica said almost nothing that incriminated Rove or Harriet and only sort of incriminated AGAG. But she managed to get herself immunity for "crossing the line" and politicizing DOJ’s hiring practices. Bennett’s use of precisely same language as Monica’s lawyer may be no accident.

[snip]

Which is, frankly, about the only reason Michael Mukasey is correct in asking the House Intelligence Committee to back off. Crazy Pete Hoekstra is pretty close to Porter Goss, who appears to know more about the destruction of the torture tapes than he is letting on. And I could see Hoekstra doing the same favors–of impeding an investigation by manipulating the less than crafty chair of the House Intelligence Committee–that Dick Cheney did when he was in the same position during Iran-Contra. In other words, I’m not sure we can trust Crazy Pete to want to get to the bottom of this, and if HPSCI starts offering immunity as incautiously as they did with Monica, then I worry their investigation will stall any real investigation by DOJ–if it exists.

That is, in the hands of a less than shrewd majority and a politically reliable minority leader, immunity can be counter-productive. In the case of Monica Goodling, the Dems basically gave Monica a get out of jail card for nothing in exchange. Until I see that Crazy Pete Hoekstra’s heart is in the right place on this issue (which would, frankly, astound me), then I’d suggest we want to be very careful before we give Rodriguez something for nothing.

Given the discussions about the NIE we’ve had recently, I wanted to point out Marc Lynch’s observation that the Saudis and the Iranians have been flirting lately–under the radar of the US press.

Very few media outlets in the US seem to have noticed, but Iranian President Mahmoud Ahmednejad and Saudi Arabia’s King Abdullah were back together again the other day on the occasion of the Hajj.  Ahmednejad’s surprising appearance at the Gulf Cooperation Council summit in early December had set off something of a frenzy of media discussion about whether it meant a possible reconciliation between Iran and its Arab Gulf neighbors.   A range of commentators (both officials and pundits) had rushed to pour cold water on those hopes/fears, emphasizing lack of agreement on issues over the sheer fact of the public engagement.  Shortly after the Iranian President’s visit to Doha, Secretary of Defense Robert Gates led a significant American delegation to an Arab security meeting in Bahrain to rally the Gulf Arabs against the Iranian threat and to re-energize a collective strategy of containment.  This second public meeting – reportedly at the Saudi King’s initiative –  suggests that the Gulf Arab approach to Iran really is shifting despite these American efforts.  Whatever the private fears of Iran by Gulf leaders and elites (which by all accounts, including my own conversations, are quite real), this very recent Gulf Arab trend from containment towards engagement of Iran seems real.

What is Dick Cheney going to say when he discovers his BFF King Abdullah is schmoozing the Iranians behind his back–during the Hajj no less? Particularly as the Israelis (and a number of Republican Congressmen) insist they can disprove the NIE simply by attacking it often enough. What does it mean that the men controlling a huge chunk of the world’s oil are getting rather cozy?

A number of people have pointed to Charlie Savage’s great article on the responses of Presidential candidates to a bunch of questions about executive power. I’m really glad Savage asked these questions, as I’ve presented forms of these questions (specifically as it related to the underpinnings of Bush’s illegal wiretap program, which was put into place under Bill Clinton) to Hillary’s campaign and gotten no response.

That said, most of the questions either explicitly or implicitly ask candidates whether they repudiate certain of Bush’s acts, so I’m not sure they help Democratic voters distinguish between primary candidates. The exception is the question on Executive Privilege. Here are the Democrats’ answers on the the question addressing executive privilege.

Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?

Obama

With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.

Hillary

I fundamentally believe that our constitutional system depends upon each branch striving to accommodate the interests of the other, and the President should seek to accommodate legitimate congressional requests for information. I also believe in an open transparent government that fulfills its obligation to share as much information as possible with the public. But it is settled law that certain limited "communications made by presidential advisors in the course of preparing advice for the President, come under the presidential communications privilege, even when these communications are not made directly to the President."

Edwards

I support the constitutional separation of powers and the doctrine of executive privilege, as guided by judicial review. Unlike the current president, however, I will not invoke executive privilege merely to advance partisan ends.

Richardson

Privilege may extend to the Senior Staff in rare cases where frank and open discussion happens prior to advising the President. Other than that-no.

Dodd

No.

Biden

No. The Executive Privilege only covers communications between the President and his advisors. Even when the privilege does apply, it is not absolute; it may be outweighed by the public’s interest in the fair administration of justice.

Kudos to Dodd for his brevity.

I find this question really telling because it gets candidates on the record on an issue that speaks not only to Presidential privilege, but to openness more generally. To some degree, Hillary is bound by the positions adopted by her husband while he was President–and I suspect that’s one of the reasons Hillary holds that "it is settled law that … communications made by presidential advisors … come under the presidential communications privilege, even when these communications are not made directly to the President." Compare that to Obama’s statement, which argues that SCOTUS "has not resolved this question." Or the more exact statements of Biden and Richardson, which reflect the pre-Bush reality of a limited executive privilege that was being pushed to include senior advisors.

In any case, I think the answers delineate a clear distinction among the top three candidates. Edwards makes what I believe to be a dangerous argument, that the President
can choose to invoke Executive Privilege for partisan ends; if he were elected, we’d basically be relying on his judgment to determine what constituted a partisan end of executive privilege and what did not. Hillary claims to support openness, but at the same time makes a firm stand in favor of the legal authority to exercise broad privilege. Whereas Obama admits a legal dispute, but chooses to go on the record in favor of a more narrow definition than legal debates might allow.

Per Jeff’s suggestion, I took a closer look at Zelikow’s memo on how the CIA stiffed the 9/11 Commission on evidence relating to interrogations of Abu Zubaydah and al-Nashiri. I’ll come back and comment on it in more detail–but I was struck by how closely the requests coincided with the beginnings of the Abu Ghraib scandal and Tenet’s resignation. So for now, I’m just adding some dates to this timeline (which I’ve integrated my torture tapes timeline). Look closely at the roles of Rummy, Cambone, Tenet, and McLaughlin.

August 1, 2002: Bybee Memo on torture governing interrogations by CIA

March 2003: Second John Yoo opinion on torture, governing interrogations by DOD

June 6, 2003: 9/11 Commission requests "’all TDs and other reports of intelligence information obtained from interrogations’ of forty named individuals from CIA, DOD, and FBI

August 31 to September 9, 2003: Major General Geoffrey Miller ordered to Abu Ghraib from Gitmo

September 22 and September 25, 2003: 9/11 discussions with CIA about interrogation process

October 1, 2003: Hamdi petition filed with SCOTUS

October 14 and 16, 2003: 9/11 Commission sends questions to CIA General Counsel Scott Muller on interrogations

October 31 and November 7, 2003: Response to 9/11 Commission with little new information

Fall 2003: General Sanchez visits Abu Ghraib regularly

December 2003: Jack Goldsmith tells Rummy he will withdraw March 2003 opinion on torture

December 23, 2003: 9/11 Commission requests access from Tenet to seven detainees; Tenet says no; Lee Hamilton asks for any responsive documents

January 5, 2004: 9/11 Commission decides CIA responses inadequate

January 9, 2004: SCOTUS agrees to hear Hamdi

January 13, 2004: Joseph Darby gives CID a CD of images of abuse

January 15, 2004: Memo to Gonzales, Muller, and Steve Cambone asking for more information

January 15, 2004: General Craddick receives email summary of story

January 19, 2004: General Sanchez requests investigation of allegations of abuse

January 20, 2004: Craddick and Admiral Keating receive another notice of abuse

January 2004: General Myers learns of abuse

January 26, 2004: After negotiations with Gonzales, Tenet, Rummy, and Christopher Wray from DOJ, 9/11 Commission accepts asking questions through intermediary

January 31, 2004: Taguba appointed to conduct investigation

February 9, 2004: 9/11 Commission requests “all TDs and reports related to the attack on the USS Cole, including intelligence information obtained from the interrogations of Abd al Rashim al Nashiri” from CIA

February 2 to 29, 2004: Taguba’s team in Iraq, conducting investigation

March 9, 2004: Taguba submits his report

Late March, 2004: 60 Minutes II starts on story

April 2004: General Miller ordered to Abu Ghraib to fix problems

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy)

April 28, 2004: Hamdi v. Rumsfeld argued before SCOTUS; Paul Clement assures SCOTUS that the Administration doesn’t torture

QUESTION: May I ask just one other question, I think it’s just relevant. But do you
think there is anything in the law that curtails the method of interrogation that may be employed?

MR. CLEMENT: Well, I think there is, Justice Stevens. I mean —

QUESTION: And what is that?

MR. CLEMENT: Well, just to give one example, I think that the United States is signatory
to conventions that prohibit torture and that sort of thing. And the United States is going to honor its treaty obligations. The other thing that’s worth mentioning of course —

QUESTION: But you said something about self-executing. In connection with the Geneva
Convention, you said, well, it’s not self-executing. Would you say the same thing about the torture convention?

MR. CLEMENT: Justice Ginsburg, I actually have the sense that the torture victims — you have the Torture Victim Protection Act, of course, which I think doesn’t actually apply to the United States. So I’m not sure that there would be any other basis for bringing a private cause of action against the United States. But as this Court noted in footnote 14 of the Eisentrager opinion, the idea that a treaty is going to be enforced through means other than a private cause of action doesn’t mean that it’s not a binding treaty, doesn’t mean that it’s not going to constrain the actions of the executive branch. Just to finish up my answer to Justice
Stevens’ question, I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or try to do something along those lines.

April 28, 2004: Abu Ghraib story airs on 60 Minutes II

May 2004: CIA briefing for Addington, Bellinger, and Gonzales on torture tapes

May 6, 2004: Taguba meets with Rummy, Wolfowitz, Cambone, Myers, and others

In the meeting, the officials professed ignorance about Abu Ghraib. "Could you tell us what happened?" Wolfowitz asked.

[snip]

“Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.”

May 7, 2004: Rummy testifies before Congress on Abu Ghraib

May 20, 2004: 9/11 Commission asks about Abu Zubaydah reference to Saudi prince; they get no response

June 3, 2004: Tenet announces his resignation; John McLaughlin resigns as well

June 7, 2004: WSJ refers to March 2003 OLC opinion

June 8, 2004: WaPo refers to Bybee Memo

June 15, 2004: Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns

June 28, 2004: Hamdi decision

June 29, 2004: John McLaughlin confirms that CIA "has taken and completed all reasonable steps necessary to find the documents in its possession, custody, or control responsive" to the 9/11 Commission’s formal requests and "has produced or made available for review" all such documents

July 11, 2004: Tenet’s resignation effective

I’m struck by three things.

First, Rummy and Cambone almost certainly knew of the Abu Ghraib scandal when they were negotiating with the 9/11 Commission about getting testimony from Abu Zubaydah, among others.

Second, one of the last things McLaughlin did before he resigned as DDCI was to assure the 9/11 Commission they had handed over all the documents relating to the interrogations in question.

Third, look at the context of that CIA briefing for Addington, Gonzales, and Bellinger in May 2004. Not only was the Administration dealing with the aftermath of the Abu Ghraib story, but it was also facing Goldsmith’s reconsideration of John Yoo’s torture guidance.

Marty Lederman points out that today’s NYT story clarifies one of the issues I’ve been trying to pinpoint on timing.

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports tomorrow, the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes — which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission sought "documents," "reports" and "information" related to the interrogations from the CIA — but "staff members never specifically asked for interrogation videos."

[snip]

Here’s the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson.

Then, as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain).

This tactic may be familiar to you from your youth. I know when I was four or five, I used to parse parental requests very narrowly so as to rationalize behavior I knew to be wrong. By the time I tried it in Middle School, though, it was no longer considered a valid dodge and I got busted by teachers and school administrators (though it still worked to legalize gum chewing in Algebra class). But I guess those rules are different for the Bush Administration when they’re trying to hide their torturous ways.

If Marty is correct that the CIA held onto the tapes until the 9/11 Commission finished and then found a period to destroy them (apparently in the time period between when Leonie Brinkema asked if there were tapes and they said no), then it may explain why the public reports on when the White House weighed in on matters are so dodgy. The NYT claims that Addington, Gonzales, and Bellinger were involved in 2003. But the memo documenting their involvement (and, at least Gonzales’ and Bellinger’s opposition to the destruction of the tapes) dates to 2004. I’m guessing, from this general dodginess, that we’ll find some members of this White House crowd all of a sudden expressing robust support for destroying the terror tapes at a time when it became legally comfortable to do so.