You’ve probably already read DDay’s and Atrios’s pieces on what some Treasury officials admitted about HAMP the other day. But partly because I want to link to this really comprehensive account of the entire meeting and partly because I want to elaborate on a point made in it, I thought I’d join in.

Basically, at some blogger chats last week, some folks at Treasury judged that, in spite of the catastrophic failure of HAMP to achieve its stated purpose–to help homeowners stay in homes either bought during a bubble or refinanced at a time when lending standards had been all but eliminated–it was still a good thing because it gave the banksters some time to recover from their catastrophic investment in the shitpile.

On HAMP, officials were surprisingly candid. The program has gotten a lot of bad press in terms of its Kafka-esque qualification process and its limited success in generating mortgage modifications under which families become able and willing to pay their debt. Officials pointed out that what may have been an agonizing process for individuals was a useful palliative for the system as a whole. Even if most HAMP applicants ultimately default, the program prevented an outbreak of foreclosures exactly when the system could have handled it least. There were murmurs among the bloggers of “extend and pretend”, but I don’t think that’s quite right. This was extend-and-don’t-even-bother-to-pretend. The program was successful in the sense that it kept the patient alive until it had begun to heal. And the patient of this metaphor was not a struggling homeowner, but the financial system, a.k.a. the banks. Policymakers openly judged HAMP to be a qualified success because it helped banks muddle through what might have been a fatal shock. I believe these policymakers conflate, in full sincerity, incumbent financial institutions with “the system”, “the economy”, and “ordinary Americans”. Treasury officials are not cruel people. I’m sure they would have preferred if the program had worked out better for homeowners as well. But they have larger concerns, and from their perspective, HAMP has helped to address those.

As these revelations about Treasury’s self-congratulation on HAMP have come out, I keep thinking of the word “parasite.” The folks we pay to keep our financial system running for the good of the citizens of the United States are unabashedly celebrating that they’ve made individual families’ lives more miserable because the banks–who while SCOTUS may treat them as people are not actually part of the “We the people” originally envisioned by the Constitution–will have time to recover from their own damn mistakes.

Our government is happy–not from the pain of the families, per se–but because a bunch of artificial entities that seem to have replaced “we the people” as those who will receive  “general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” from our government will be better off.

The guys in charge of our economy actually seem incapable of understanding who they work for–not to mention the additional problems their “qualified success” will cause. (What happens in a decade when large numbers of middle class kids can’t go to college because the government decided it was okay to subject their families to more misery during a foreclosure?)

Or, they don’t give a shit that this program asks homeowners to pay over and over for their mistakes, all to make sure the banksters never have to pay for their own.

Which is the other problem with this attitude. The alternative to HAMP, of course, is cram-down, in which the banksters have to cut the principle owed to them to what was probably more realistic value in the first place. Every time cram-down gets dismissed, the person dismissing it as an option mobilizes the language of morality, the need to make homeowners pay for buying more home than they could afford (assuming, always, they haven’t been laid off because the banksters ruined the economy or run into medical debt). But there seems to be no language of morality to describe the price banksters should have to pay by failing to do any real due diligence on loans or for accepting transparently bogus assessments of value. Heck, even the banksters get the equivalent of cram-down without a big morality play.

Treasury’s attitude about HAMP is not just evidence they’ve lost all track of who they work for and where the benefits of the economy are supposed to be delivered, but it also suggests that these Treasury folks have lost the most basic notion of capitalism, that if businessmen never pay for bad decisions, they’ll continue to make bad decisions.

And meanwhile, a whole bunch of “we the people” will be worse off because of the really twisted sense of purpose held by the folks working for “we the people.”

Here’s what the military judge in the Omar Khadr trial, Colonel Patrick Parrish, said to justify admitting Khadr’s own confessions as evidence. (h/t Carol Rosenberg, whose story on this ruling is here)

There is no credible evidence the accused was ever tortured as that term is defined under M.C.R.E.304(b)(3), even using a liberal interpretation considering the accused’s age. While Interrogator #1 [Joshua Claus] told the accused a story about the rape of an Afghan youth in an American prison, there is no evidence that story caused the accused to make any incriminating statements then or in the future. In fact, the credible evidence is that the accused started to make incriminating statements only after he learned the Americans found the videotape at the compound where the firefight took place which shows the accused and others making improvised explosives and placing them along the roadside at night. No statement offered against the accused was derived from, the product of, or connect to any story Interrogator #1 told to the accused.

Now, here’s what MCRE304(b)(3) says (PDF 206ff):

(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:

The first definition of treatment that could cause prolonged mental harm is:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

So Parrish is saying that the implied threat of rape does not constitute the “threatened infliction of severe physical pain or suffering.” And that’s even ignoring the part of Joshua Claus’ story–as told by Spencer–where the fictional youth raped in an American prison died as a result.

“I told him a fictitious story we had invented when we were there,” Interrogator #1 said. It was something “three or four” interrogators at Bagram came up with after learning that Afghans were “terrified of getting raped and general homosexuality, things of that nature.” The story went like this:

Interrogator #1 would tell the detainee, “I know you’re lying about something.” And so, for an instruction about the consequences of lying, Khadr learned that lying “not so seriously” wouldn’t land him in a place like “Cuba” — meaning, presumably, Guantanamo Bay — but in an American prison instead. And this one time, a “poor little 20-year-old kid” sent from Afghanistan ended up in an American prison for lying to an American. “A bunch of big black guys and big Nazis noticed the little Afghan didn’t speak their language, and prayed five times a day — he’s Muslim,” Interrogator #1 said. Although the fictitious inmates were criminals, “they’re still patriotic,” and the guards “can’t be everywhere at once.”

“So this one unfortunate time, he’s in the shower by himself, and these four big black guys show up — and it’s terrible something would happen — but they caught him in the shower and raped him. And it’s terrible that these things happen, the kid got hurt and ended up dying,” Interrogator #1 said. [my emphasis]

So the guy running the Kangaroo Court for this child soldier has decided that rape threats do not constitute a threat of severe pain or suffering.

Mind you, as I alluded to here and made explicit by Parrish’s ruling, Gitmo rules say specifically you can use information so long as the information itself was not collected using torture. Which is why Parrish is so careful to argue that Khadr’s confessions have nothing to do with that threat of severe pain or suffering that Parrish seems to think is no big deal, because then everything’s admissible!

In other words, the logic of Parrish’s ruling is that the use of rape threats as an interrogation tactic is no big deal, provided that it was an ineffective interrogation tactic.

When James Clapper testified before the Senate Intelligence Committee, he rejected one of the central criticisms in the WaPo’s Top Secret America series–that the redundancy in the Intelligence Community contributed to waste and intelligence failures.

Clapper disputed criticism of redundancy in intelligence programs, saying that duplication is sometimes a conscious decision. “One man’s duplication is another man’s competitive analysis,” he said.

Perhaps it should come as no surprise, then, that his first act as DNI is to add to the redundancy.

After my second week on the job, I wanted to let you know what an honor it is to be leading this Community of such skilled and dedicated professionals.

When President Obama asked me to lead the Intelligence Community he said he wanted someone who would continue to build our enterprise into an integrated team.  I have begun to embark on that process and wanted to share with you a few of my initial thoughts and plans.

I have asked DIA Deputy Director Robert Cardillo to join ODNI in the newly-created role of Deputy Director for Intelligence Integration.  While the specifics of this position are still being developed, it unites the roles of Analysis and Collection to elevate information sharing and collaboration between these two essential functions.

Admittedly, Clapper doesn’t explain what he just hired a top DOD intell guy to do, but it sure seems like it overlaps with the mandate of the National Counterterrorism Center.

NCTC serves as the primary organization in the United States Government for integrating and analyzing all intelligence pertaining to terrorism possessed or acquired by the United States Government (except purely domestic terrorism); serves as the central and shared knowledge bank on terrorism information; provides all-source intelligence support to government-wide counterterrorism activities; establishes the information technology (IT) systems and architectures within the NCTC and between the NCTC and other agencies that enable access to, as well as integration, dissemination, and use of, terrorism information.

NCTC serves as the principal advisor to the DNI on intelligence operations and analysis relating to counterterrorism, advising the DNI on how well US intelligence activities, programs, and budget proposals for counterterrorism conform to priorities established by the President.

And the move is all the more bizarre given that Clapper only has this job because the Administration chose to fire Dennis Blair rather than hold Michael Leiter, the Director of the NCTC, responsible for failing to connect the dots on the UndieBomber attack, even though it appears that Leiter deserves more of the blame. So if I’m right that this new position is duplicative of the NCTC position, then the Administration has chosen not to fire the guy most responsible for missing the UndieBomber clues, and instead fire the DNI and replace him with a guy that–rather than firing the guy most responsible for missing the UndieBomber clues–will instead just create a second version of that guy’s position.

Now in an ideal world, the next time someone misses an attack, we’ll be justified in firing Clapper, since he’s the guy who opted for redundancy rather than holding one person responsible. But I’m guessing by then Clapper will be capitalizing on his inevitably short tenure as DNI, getting rich heading six or eight intelligence contractors.

Remember that Jeremy Scahill report that listed Colombia among the 75 places where JSOC has deployed?

The Nation has learned from well-placed special operations sources that among the countries where elite special forces teams working for the Joint Special Operations Command have been deployed under the Obama administration are: Iran, Georgia, Ukraine, Bolivia, Paraguay, Ecuador, Peru, Yemen, Pakistan (including in Balochistan) and the Philippines. These teams have also at times deployed in Turkey, Belgium, France and Spain. JSOC has also supported US Drug Enforcement Agency operations in Colombia and Mexico. The frontline for these forces at the moment, sources say, are Yemen and Somalia. “In both those places, there are ongoing unilateral actions,” said a special operations source. “JSOC does a lot in Pakistan too.”

In my post on it, I noted that we’re engaging in belligerent activities without apparent legal approval to do so. But that was because this program seemed to use the legal approval to fight al Qaeda to fight other entities, like Latin American leftist terrorist or drug cartels.

Wednesday, the Colombian aspect of our paramilitary activities became even more illegal, because a Colombian court struck down that country’s cooperation agreement with the US because it lacked Congressional approval. (h/t Max Fisher who has a bunch of interesting links on this development)

A high court in Colombia has voided an accord with the United States that would allow an increased U.S. presence on seven Colombian military bases. The ruling on Tuesday by the Constitutional Court declared the agreement signed by outgoing President Alvaro Uribe unconstitutional because it bypassed approval of the Congress.

The agreement was signed in October and faced intense criticism from Colombia’s more left-leaning neighbors, including Venezuela and Bolivia. President Juan Manuel Santos (pictured above right), who was inaugurated on Aug. 7, enjoys a wide political majority in Colombia’s Congress and told reporters Wednesday that the ruling would have no effect on cooperation between the U.S. and its closest ally in Latin America.

It may well be that Uribe’s successor, Santos, simply gets Congressional approval for this. But until that happens, this decision serves to heighten questions about US involvement in Latin American, not least with regards to incursions into populist Venezuela and Ecuador.

As Adam Isacson explains, this won’t prevent US paramilitaries from doing what they have already been doing.

U.S. military and contractor personnel were still acting under the authorities laid out in a series of old accords (1952, 1962, 1974, 2004, 2007), whose validity the Colombian court did not challenge.Under these old accords, U.S. personnel have already been frequently present at the seven bases listed in the DCA, as well as several others. The difference is that today, there is no “free entry”: each U.S. deployment is subject to a series of Colombian government approvals that would be unnecessary under the DCA. It also means that construction of new facilities at the Palanquero airbase in Puerto Salgar, Cundinamarca – for which Congress appropriated $46 million in 2010 – cannot yet begin.

But it may result in more scrutiny–in Latin America, at least–at what our troops and contractors are doing. (It also may increase pressure on the Administration to pass the free trade accord with Colombia.)

This is a rather interesting public statement from the guy who–at least before Elena Kagan and her obscure views on executive power got sworn in–was the swing vote on SCOTUS. (h/t fatster)

“Article III courts are quite capable of trying these terrorist cases,” [Justice Anthony] Kennedy said, agreeing with [an earlier panel that endorsed civilian, rather than military, trials].

[snip]

It was clear, he said, that an “attack on the rule of law has failed,” referring to the use of military tribunals to try terrorist suspects, often before panels in Guantanamo Bay, Cuba.

Mind you, this is not exactly a surprise. Aside from Kennedy’s votes in past terrorism-related cases, his opinion in Boumediene was as much a defense of Article III prerogative as it was a defense of habeas per se. Which is why I’m interested in the context of his “attack on the rule of law” quote–because it sure sounds like he’s fed up with efforts on the part of both the Bush and Obama Administrations to usurp the powers of the courts.

And if he feels that way, I hope he nagged those judges in the 9th he was partying with to hurry up and finish their Jeppesen opinion so he can vote to uphold some limits on state secrets…

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

Detainee #2

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

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

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

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

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

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

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

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

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

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

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

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

August 27, 2007: Alberto Gonzales resigns

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

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

September 17, 2007: Bush nominates Michael Mukasey Attorney General

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

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

September 25, 2007: A CIA email reports:

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

DIRECTOR [redacted]

Document Date: 08 NOV 2005

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

Subject: EYES ONLY FOR [REDACTED] — DDO APPROVAL TO DESTROY [REDACTED]VIDEO TAPES

September 30, 2007: Rodriguez’ last day at CIA

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

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

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

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

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

November 8, 2007: Mukasey confirmed as Attorney General

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

July 27: Chris Dodd says of Elizabeth Warren, “She’s qualified, no question about that”

August 9: Katrina vanden Heuvel tweets that several sources have told her Elizabeth Warren would be nominated “next week”

August 12: Warren meets with Financial Services Roundtable President Steve Bartlett and then meets with David Axelrod at the White House to discuss the CFPB position

August 13: Robert Gibbs acknowledges that Warren had been meeting about the CFPB position, but says no announcement would be made in the next week

August 17: Chris Dodd raises questions about whether Warren can manage anything to suggest she may not be confirmable even while he admits she has “a great campaign”

“My simple question about Elizabeth is: Is she confirmable?” Dodd said during a visit Tuesday with The Courant’s Editorial Board. “It isn’t just a question of being a consumer advocate. I want to see that she can manage something, too.”

But when pressed about where he stands, Dodd said: “If the president wants to name her and it goes through the hearing process, then fine, he’ll have my support. But she has to tell me more than just she’s a good consumer advocate or that’s she’s got a great campaign.”

I guess the only question this chronology leaves is whether or not Dodd is acting at the behest of his future employers, the banks, the White House, or both.

All you Californians ought to be getting awfully nervous about Senate-Select Carly Fiorina about now. Because the lesson I take from the Rod Blagojevich verdict–he was found guilty of just one charge of lying to the FBI, while the jury remained deadlocked on 23 other charges–is that it’s okay to sell a Senate seat, so long as you don’t lie about it.

A federal jury today convicted former Gov. Rod Blagojevich of only one count against him: lying to the FBI. Jurors said they were deadlocked on the other 23 counts against the former governor, and all four counts against his brother Robert.

Mind you, prosecutors immediately told the judge they’d be back to retry the remaining counts.

But in spite of the fact that Blago appears to be headed for jail, this is not a big victory against corruption.

Given that the AP has filled in some details about the Ramzi bin al-Shibh tapes someone had hidden under a desk at CIA, I wanted to look back at the letter DOJ wrote to Leonie Brinkema in 2007, when the government first admitted it had been sitting on those tapes.

AP says the tapes were found all at once while DOJ only learned about them over a month’s time

As you recall, DOJ sent this letter on October 25, 2007, to tell Judge Leonie Brinkema (who had presided over the Zacarias Moussaoui trial) and a judge who had presided over appeals in that case that two CIA declarations DOJ had submitted–on May 9, 2003 and on November 14, 2005–“had factual errors.”

Here’s how the AP describes the tapes and their discovery:

The CIA has tapes of 9/11 plotter Ramzi Binalshibh being interrogated in a secret overseas prison. Discovered under a desk, the recordings could provide an unparalleled look at how foreign governments aided the U.S. in holding and questioning suspected terrorists.The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.

[snip]

When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

[snip]

The CIA first publicly hinted at the existence of the Binalshibh tapes in 2007 in a letter to U.S. District Judge Leonie M. Brinkema in Virginia. The government twice denied having such tapes, and recanted once they were discovered. But the government blacked out Binalshibh’s name from a public copy of the letter. [my emphasis]

The DOJ letter describes a slightly different (though not necessarily inconsistent) chronology. It claims the CIA informed DOJ first of one videotape, and then roughly a month later, of the second videotape and audiotape.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a video tape of the interrogation of [1.5 lines redacted] On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution. The evidence of the video tape, however, is at odds with the statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings.

At our request, CIA also provided us with intelligence cables pertaining to the interviews recorded on the two video tapes. Because we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations. Based on our comparison of the cables to the [redacted] videotapes, and keeping in mind that the cables were prepared for the purposes of disseminating intelligence, we found that the intelligence cables accurately summarized the substance of the interrogations in question. [my emphasis]

So the AP’s sources suggested that a staffer simply pulled out a box [Christmas in September!] and found all three tapes–presumably at the same time–whereas DOJ only found out about one tape at first, then sent CIA back to see if there were more. If, as the AP suggests, the CIA found the tapes all at once, then it suggests that the CIA withheld two of the tapes from DOJ until DOJ asked for them specifically. Given that DOJ reviewed the first tape on September 19 and the second and third on October 18, there seems to have been a delay in getting those second two tapes, which might either suggest the tapes weren’t found at the same time, or CIA was very slow in turning over tapes they already knew existed.

The DOJ’s explanation of why CIA didn’t mention the tapes assumes CIA didn’t check with CTC before writing the Declarations

Now, the AP reports that John Durham has expanded his investigation to cover the Ramzi bin al-Shibh tapes as well.

A Justice Department prosecutor who is already investigating whether destroying the Zubaydah and al-Nashiri tapes was illegal is now also probing why the Binalshibh tapes were never disclosed.

The Brinkema letter provides this explanation why the people who wrote the Declarations in 2003 and 2005 didn’t mention the tapes.

Unbeknownst to the authors of the declarations, the CIA possessed the three recordings at the time that the Declarations were submitted. We asked the CIA to ascertain the reason for such an error. [1.5 lines redacted] As best as can be determined, it appears that the authors of the Declarations relied on assurances of the component of the CIA that [one line redacted] unknowing that a different component of the CIA had contact with [one line redacted]

While this passage is heavily redacted, it seems to suggest DOJ claims the authors of the Declarations didn’t know which components of the CIA had had contact with Ramzi bin al-Shibh (and, potentially, Abu Zubaydah). But the AP reports the tapes were found lying around the Counterterrorism office. That seems to suggest (though we can’t be sure with all the redactions) that the people who wrote the Declarations had no clue that CTC was running the torture program.

Which is really only plausible if you ensure the people who wrote the Declarations were completely compartmented out of the most basic information about the interrogation program.

But I guess ensuring unbelievable levels of ignorance on the part of the CIA Declarants would be a good way to ensure none of the tapes were released pursuant to discovery in the Moussaoui trial.

The reviews DOJ did of the tapes recall the earlier CIA whitewash of the tape content

What I’m particularly interested in–particularly given the news that John Durham has expanded his investigation to cover the obstruction involved with these tapes–is the description of the review that DOJ conducted of the tapes.

On September 13, 2007, DOJ learned of the first tape. On September 19, they viewed the videotape and a transcript–the provenance of which they redact (so we don’t know if it was contemporaneous or whether it were done for the benefit of DOJ, and we don’t know who did it or whether it also involves translation). Then on October 18, CIA admitted it had another “video tape” and an “audio tape.” Once again, DOJ reviewed the tapes and read the transcript. Then, DOJ reviewed the intelligence cables based on just the “video tapes,” but not, apparently, the “audio tape,” “to ensure that the cables accurately captured the substance of the interrogations.” After assuring themselves that the version of the tapes they had reviewed the first time–the cables–was close enough “keeping in mind that the cables were prepared for the purposes of disseminating intelligence,” they then gave Brinkema the transcripts for all three tapes, but not the tapes themselves, to review.

I’ve got a couple of questions about DOJ’s actions here:

• Why would they review the cables at all?
• Why would they review the cables for the “video tapes” but not the “audio tape”?
• Why would they give Brinkema the transcripts but not the videos?

I’d love to have the lawyer folks–or anyone else–weigh in in comments. But here is one possible explanation. It’s possible that when DOJ reviewed the tapes they saw something on the tapes that they thought might be pertinent, even if it did not constitute a mention of Moussaoui or 9/11. You know–like the physical condition of al-Shibh, or some physical coercion? If so, that might explain why they didn’t review the cables from the “audio tape”–because they “saw” nothing on those tapes. (Alternately, it’s possible that CIA withheld the cables based on the audio taped interrogation when DOJ did its discovery review, which would be damning all by itself.)

They say they wanted to review the cables “[b]ecause we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations.” This sounds, partly, like CYA: they wanted to make sure the representations DOJ had made–as distinct from the CIA Declarations–were accurate and fair. But the fact they even did the review of the cables suggests they had their doubts. Add in the heavily caveated judgment that the cables did reflect the content of the interrogation (they seem to conclude the cables reflect the intelligence gained during the interrogation, but not some other aspects of it), and it sure seems like there’s a discrepancy between the “video tapes” and the cables. Just not one DOJ felt they were responsible for, given the terms of Brinkema’s order on discovery, at least not after Moussaoui had already plead guilty.

Now onto the description of the three tapes: 2 “video” tapes and 1 “audio” tape. Which, in plain language, would seem to suggest that the CIA had means to both record video (as they did with Abu Zubaydah and Rahim al-Nashiri in the same time period) as well as means to record audio. There are no indications the torturers in Thailand made audio tapes. There is, however, proof that by late 2002, the CIA had already altered the Zubaydah tapes such that the video in some of them had been destroyed; they showed nothing but snow.

In other words, I think it distinctly possible–particularly given that the tapes showed up in a box under a desk in the same CTC department that had knowingly tried to cover up the earlier tampering with the Zubaydah tapes–that the one “audio” tape didn’t start out that way, that it got altered in similar fashion to the Zubaydah tape.

That’s all wildarsed speculation, mind you.

But there is some evidence that Durham is not only investigating the 2005 destruction of the torture tapes but also the earlier, 2002, tampering with them. (And his investigation seems to have taken on new energy when he gave John McPherson–who was involved in CIA’s first attempt at covering up this tampering–immunity.) If Durham is collecting evidence that the CIA engaged in a cover-up of torture in its treatment of the Zubaydah tapes, then both the condition of the al-Shibh tapes (if they still exist) and CIA’s earlier treatment of them (including such things as making sure those who wrote Declarations for Brinkema were ignorant of who was running the torture program) would serve to round out his case (and potentially provide the forensic evidence now lacking for the Zubaydah tapes).

All of which probably answers my third question, why DOJ didn’t give Brinkema the tapes themselves. Mind you, I’m sure they accounted for that in the name of protecting sources and methods (you know? methods? fly them to Morocco for the scalpel-on-penis treatment!). But by withholding the tapes themselves, they prevented Brinkema from seeing whatever it is they saw when they decided they needed to review the cables to see if they were accurate.

Note how carefully the AP’s sources claim that the tapes show no “harsh interrogation methods” like waterboarding.

But current and former U.S. officials say no harsh interrogation methods, like the simulated drowning tactic called waterboarding, were used in Morocco. In the CIA’s secret network of undisclosed “black prisons,” Morocco was just way station of sorts, a place to hold detainees for a few months at a time.

“The tapes record a guy sitting in a room just answering questions,” according to a U.S. official familiar with the program.

But if Binyam Mohamed is telling the truth about the scalpel-on-the-penis treatment in Morocco (and thus far, his claims have held up against the documentary evidence), we know the claim that “Morocco was just a way station of sorts” is an out and out lie. But it still may be true that the tapes don’t show–or didn’t, before one of them became an audio tape, if that’s what happened–the approved methods of the CIA program itself. That doesn’t rule out the tapes showing other things–like the outright beatings that Mohamed describes having happened in Morocco.

Which appears to be one way the DOJ review of these tapes exactly matches McPherson’s review of the Zubaydah tapes in 2002. Both reviewed the tapes and the cables to see whether the cables were a reasonably accurate version of what appeared on the tapes. But both apparently stopped short of comparing the tapes to the limits on interrogation DOJ laid out in 2002. Because if you’re DOJ, it would sure suck to be looking at evidence of torture, huh?

Update: papau’s comment about the implausibility that CIA found the tapes under a desk reminded me I wanted to note one more difference between the DOJ version and the AP one. DOJ says the “CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.” AP almost suggests the discovery was accidental.

But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

There seems to be a related story here about why they were looking and discovering boxes full of torture evidence in 2007.

Remember how Judy Miller stored the notes showing that the Vice President’s lackey had leaked Valerie Plame’s identity to her under her desk in a shopping bag? Remember how we mocked that kind of record keeping? Well, the AP reports that the CIA uses the same archival system as Judy:

The two videotapes and one audiotape are believed to be the only remaining recordings made within the clandestine prison system.

The tapes depict Binalshibh’s interrogation sessions at a Moroccan-run facility the CIA used near Rabat in 2002, several current and former U.S. officials told The Associated Press. They spoke on the condition of anonymity because the recordings remain a closely guarded secret.

When the CIA destroyed its cache of 92 videos of two other al-Qaida operatives, Abu Zubaydah and Abd al-Nashiri, being waterboarded in 2005, officials believed they had wiped away all of the agency’s interrogation footage. But in 2007, a staffer discovered a box tucked under a desk in the CIA’s Counterterrorism Center and pulled out the Binalshibh tapes.

I look forward to learning whether this particular box of torture tapes once belonged to Jose Rodriguez, who when the tapes were discovered had just retired as head of Clandestine Services but who was head of CTC when the tapes were made, or whether someone else is a Judy Miller-style packrat.

Now, elsewhere in the AP story they make it clear that–as I have suspected–the tapes first revealed to Leonie Brinkema in 2007 were of Ramzi bin al-Shibh. That’s particularly significant because Brinkema had specifically given Zacarias Moussaoui permission to question al-Shibh in January 2003. So when the government told Brinkema they had no tapes (the AP says that since Morocco maintained control of the prison at which al-Shibh was held, CIA claimed it wasn’t “part” of the CIA program), they were denying evidence she had permitted to Moussaoui by name.

And this discovery has implications not just for Moussaoui, and for al-Shibh himself (the AP suggests the tapes may show that al-Shibh’s mental state declined very quickly after he was taken into custody; he had a pending competence assessment order in military commissions that–when al-Shibh was slotted for civilian trial–was thus negated), but also for Binyam Mohamed.

Mohamed, after all, has long claimed that the worst torture he suffered–the scalpels to his genitals–occurred while in that same Morocco prison in roughly the same time frame (though Mohamed was in Morocco longer). Mohamed made it clear the British were feeding questions to the US to ask while in Morocco (in interrogations, remember, they claim they weren’t running). Subsequently, documents showed that a member of MI5 visited Morocco while Mohamed was there. So Mohamed’s evidence refutes US claims that they–and their ally the UK–weren’t in charge of the interrogations. But at the same time, the videos may provide video evidence of the kind of treatment used in Morocco.

Now, the AP’s sources these tapes show “no harsh methods … like waterboarding.”

But current and former U.S. officials say no harsh interrogation methods, like the simulated drowning tactic called waterboarding, were used in Morocco. In the CIA’s secret network of undisclosed “black prisons,” Morocco was just way station of sorts, a place to hold detainees for a few months at a time.

“The tapes record a guy sitting in a room just answering questions,” according to a U.S. official familiar with the program.

But as I noted, al-Shibh would have been in Morocco at the same time that Mohamed was, during which time he was cut and beaten. What are the chances that the Moroccans acting as our proxy treated al-Shibh much differently than they treated Mohamed?

These tapes may well undo at least three of the lies the government told to cover up its torture and its counterterrorism mistakes. If John Durham–who the AP notes has expanded his investigation to include possible obstruction tied to these tapes–does anything with the tapes.

Update: All you timeline aficianados should check out this cool timeline/map of where Ramzi bin al-Shibh was when.