CIA And Bushco Have A Rather Large Criminal Obstruction Problem: The Torture Tapes Come Home To Roost

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By now, the story of the CIA’s destruction of the "torture tapes" is well known. Although the problems with the CIA, and every other portion of the Bush Administration, maintaining custody and control of evidentiary video and audio tapes is literally almost a running bad joke, the capstone revelation came with a December 6, 2007 New York Times article by Mark Mazzetti. Mazzetti’s article detailed the willful destruction by the CIA of videotapes directly exhibiting the use by US Agents of "extreme interrogation techniques" on detainees Abu Zubaydah and Abd al-Rahim al-Nashiri.

To refresh your recollection of the entire sequence of events on the Torture Tapes, here is a remarkably complete timeline. For the instant consideration, the critical event is the evidence supplied to date by the Bush Administration, and most significantly the CIA, on their rationale for the destruction of the Zubaydah and al-Nashiri tapes. The initial statement of the position and defense of the CIA is contained in CIA Director Michael Hayden’s message to the body of his agency, which indicates:

…CIA videotaped interrogations, and destroyed the tapes in 2005. I understand that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries–including the trial of Zacarias Moussaoui.

The official position has been further refined by testimony of CIA Acting General Counsel John Rizzo and the pseudo-proffer of Jose Rodriquez via his attorney Bob Bennett. We also know that, at a minimum, four White House lawyers were involved in discussion of the proposed destruction of the tapes. The most recent evidence of the government’s position is contained in sworn statements by CIA officials made in mid-April in the Rashid Abdullah case, again positing nothing but good faith and lack of knowledge of any compelling reason to preserve the tapes.

However, yesterday, an insufficiently noticed page A-16 story by Dan Eggen in the Washington Post, appears to put the lie to the defenses the Administration has posited to date and raise serious issues in relation to intentional, malicious destruction of evidence and obstruction of justice. The Post article relates information gleaned from recent CIA/Administration filings in a Freedom of Information Act lawsuit filed last June. From the Post:

The CIA concluded that criminal, administrative or civil investigations stemming from harsh interrogation tactics were "virtually inevitable," leading the agency to seek legal support from the Justice Department, according to a CIA official’s statement in court documents filed yesterday.

The CIA said it had identified more than 7,000 pages of classified Read more →

How Did They Find Mr. Kadish?

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Since Hillary apparently needs a reminder that Israel has nukes–some of the technology for which they stole from us–yesterday’s charging of Ben-Ami Kadish for spying
ought to provide her a useful reminder.

An 84-year-old former Army engineer in New Jersey was charged on Tuesday with leaking dozens of secret documents about nuclear arms, missiles and fighter jets to the Israeli government during the early 1980s, federal prosecutors said.

While I’d be interested in Israel’s nukes attracting more attention in discussions of Middle East policy, at the moment I’m more curious how the government suddenly discovered Kadish’s alleged spying … more than 20 years after the events in question?

The NYT admits it doesn’t know the answer to that question.

Federal officials said authorities became aware of what they called Mr. Kadish’s spying activities only in recent months but would not say how they learned of his efforts more than 20 years later.

Mr. Kadish admitted to an F.B.I. agent last month that he had shown 50 to 100 classified documents to the Israeli official, according to prosecutors’ court filings on Tuesday.

It also reminds readers that Israel had assured us that they had revealed all of the spying Yosef Yagur–the science attache who appears to have solicited Kadish’s spying and who also was the Israeli agent handling Jonathan Pollard–had engaged in.

Though Mr. Kadish is suspected of having operated at the same time as Mr. Pollard, and not afterward, another conviction would be embarrassing for Israel because its officials were supposed to have disclosed to the United States all relevant information about Israeli intelligence gathering at the time of Mr. Pollard’s arrest.

So how did the US uncover Kadish’s spying?

One possibility is that Larry Franklin disclosed Kadish’s spying to the government. While the AIPAC trial is increasingly likely to be dismissed rather than have Condi reveal her A1 Cut-Out methods under oath, Larry Franklin’s plea deal did require his ongoing cooperation with the government–so presumably, if he knew of other Israeli spying, he revealed it to them. But Kadish was charged in relation to a grand jury investigation out of SDNY, not EDVA (Kadish committed the alleged acts in New Jersey).

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The Pentagon’s Media Analyst Domestic Psy-Ops Program: Is It Legal?

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By now you have probably heard that the New York Times has an in-depth piece by David Barstow out for Sunday’s edition on the use by the Pentagon of media "military experts" as propaganda conduits.

It would be nice to be able to say that the revelations in Barstow’s article are shocking, but they are not. Spin and propaganda have, from the outset, been more important to the Bush Administration than efficient and effective performance and truth. This already looks to be a big deal around the blogosphere, everybody will be discussing the general parameters of the story. Dave Neiwert serves up a dissection at FDL (and do click through his links here and here to his earlier pieces at Orcinus in 2004 on Bush Administration psy-op propaganda, they are excellent).

Beyond the face value of the NYT article, however, lurk some more interesting issues. Marcy has, as usual, immediately found one in relation to the spotty history of the NYT on Bushco propaganda, most notably in regard to Judith Miller and the case for the Iraq War (can you say "Sweet Judy Blew Lies"? I can). Here is mine; we know this Pentagon propaganda scheme is crass and loathsome, but is it legal?

Arguably, the answer is no, it is not legal; of course, as we have seen time and again, that is never an impediment to the Bush Administration. And, as with so many other Bushco ills, we have a template for analysis because they have made a pattern and practice of crossing the line of propriety in Read more →

Okay, Lamont Didn’t Crash the Servers. But What Did Lieberman Do with His $387,000 Slush Fund?

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In thoroughly unsurprising news today, the Ned Lamont campaign was cleared of any wrong-doing in the crash of Lieberman’s server leading up to primary day in 2006. The Stamford Advocate reports that the FBI determined–way back on October 25, 2006–that Lieberman’s campaign bears all responsibility for the server crash.

Case closed, right?

No. Not on the outstanding legal issues arising from the campaign, anyway.

As you might recall, the Lamont campaign filed an FEC complaint, coincidentally just two days before the whole server crash case was closed in October 2006, noting that Joe Lieberman had a campaign finance entry for "petty cash" expenditures that were way beyond the legal limits: $387,000 of "petty cash."

The Friends of Joe Lieberman committee, and Joseph I. Lieberman, individually have violated the clear and unambiguous terms of 11 C.F.R. §102.11 in at least the following three ways.

First, according to the FEC October Quarterly report filed on October 13, 2006, the Lieberman campaign has petty cash disbursements amounting to $387,561.00, which is roughly 8 percent of its total disbursements, or one out of every twelve dollars spent. On several occasions, petty cash disbursements greater than $100 were reported, as supposed payment for “volunteers.” As summary of these disbursements from the Friends of Joe Lieberman report are attached hereto. These disbursements reflect patent violations of 11 C.F.R. §102.11.

Second, the report does not include the name and address of every person to whom any disbursement is made, as well as the date, amount, and purpose of such disbursement. Again, Friends of Joe Lieberman stands in clear violation of 11 C.F.R. §102.11.

Third, and perhaps most troubling, the Associated Press reported earlier today that Lieberman spokeswoman Tammy Sun claims the cash was supposedly used pay to field coordinators who then distributed money to workers who were canvassing (Andrew Miga, Lamont Questions Lieberman’s Spending, October 23, 2006). There is no evidence that the Lieberman committee kept and maintained a written journal of any kind regarding these disbursements as required by 11 C.F.R. §102.11. As I am sure you are aware, the rationale for this regulation is to, among other things, prevent the creation and utilization of slush funds for illicit purposes. The $387,561.00 involved here is a sum of supposed petty cash expenditures unprecedented in any race in our state’s history. Read more →

Dog N Pony Too

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I suspect because of the dynamics of the Committee, the Senate Foreign Relations Committee actually seems to be making progress. So far this hearing, we have established:

  1. Everyone has had it with this war–Republican and Democrat.
  2. The biggest threat to the United States from Al Qaeda is in Pakistan and Afghanistan, not in Iraq (as Biden got Crocker, the former Ambassador to Pakistan, to admit).
  3. Petraeus and Crocker agree with Barbara Boxer and a bunch of other Republican and Democratic Senators–and presumably will go tell Bush as much–that Iraq has got to start paying for its own militias.
  4. We will never remove the threats of AQI and Iranian influence in Iraq, so the best end point we should strive for is to achieve some kind of stability in Iraq.

There was one moment, when George Voinovich was flogging the fact that we’re broke and therefore will be forced to leave in the near term…

Do you realize that that is where we are today? We are bankrupt and the gravy train to Iraq is coming to an end. Is anyone over there telling the Iraqis this? [thanks to maryo2 for transcribing]

…where both Crocker and Petraeus seemed to realize that they have failed to meet Bush’s goals–to not only sustain Republican support for the escalation, but also to paint the image that we’re winning. As much as anyone, Voiny summed up how bleak things look for us in Iraq.

Now let’s hope we can take today’s accomplishments (and whatever the House can wring out of Bush’s witnesses) and bring this thing to a close.

Dog N Pony

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The nice thing about having two full days of Dog N Pony show is that you can keep it on in the background, like Muzak, and still feel like you participated. I’ve seen some–but not all–of today’s testimony.

The weird thing about the Dog N Pony is the way the upcoming elections really challenge the message discipline of the Republicans. Susan Collins sounded almost sane. John Cornyn sounded like he’s gonna get beat by Rick Noriega. And Joe Lieberman–safe from any upcoming challenge–sounded like the biggest Republican. John McCain even sounded stern and concerned and managed to avoid mentioning his 100 year plan. Republicans and Democrats alike rightly asked why, with $105/barrel oil, we’re still funding Iraq’s redevlopment–a question Petraeus and Crocker were unable to answer satisfactorily.

Kudos to Hillary for promoting herself to honorary co-Chair in order to give (as Thomas Ricks dubs it) the third opening statement of the hearing; presumably Obama will do the same this afternoon.

The other thing about these hearings (and the Iraq war generally) is you never know who will really shine. I liked Claire McCaskill’s line of questioning (she was incredulous when Petraeus declared Maliki the victor in his recent debacle in Basra), but I would have liked to see her press Petraeus some more. My prize for the best questioner–at least for the morning–is a tie going to Evan Bayh (whom I saw) and Jim Webb (whom I missed, but whose questioning Spencer Ackerman captured nicely). Both pointed out that Petraeus’ take on the overall value of staying in Iraq really didn’t account for our commitments elsewhere, most importantly on the border of Paksitan, where the guys who hit us on 9/11 still run free. Here’s Spencer’s description of Webb’s question:

Webb’s concerned about overstretch and the strain of the war’s required deployments on military readiness. He was incredulous: there’ll be 10,000 more troops in Iraq after the surge than there were there before? Quickly he moved to the wages of decreased readiness, noting that Al Qaeda continues to rebuild itself in Pakistan, implying that we won’t be able to meet needed challenges there. "The concern I have with keeping that level force in iraq, looking at these other situations, particularly Afghanistan… I’m curious at the level of agreement in [your] plan [comes from] the chairman of the Joint Chiefs of Staff?"

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Haynes, Armed Services, Perjury?

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Scott Horton has more on the news that Jim Haynes has lawyered up–borrowing Dick’s trusty lawyer–in the face of scrutiny from Armed Services. Scott seems to imply that Armed Services is closing in on Haynes on perjury charges.

I’ve been looking into this trying to get a sense of what, exactly, the Armed Services Committee is so eager to discuss with Haynes. Two possibilities emerge.

First is the subject that Isikoff identifies: committee staffers have been carefully assembling secondary accounts concerning Haynes’s role in the process of authorizing highly coercive interrogation techniques, in preparing memoranda, and in soliciting memoranda to cover his advice from the Justice Department’s Office of Legal Counsel. Haynes’s relationship and dealings with OLC are drawing particular attention. Similarly, staffers are looking very carefully at Haynes’s prior appearances before the Committee, as well as his appearance before the Senate Judiciary Committee in connection with his nomination to the Fourth Circuit Court of Appeals.

My hunch is that the facts and circumstances surrounding the preparation of the two “torture memoranda,” which I have dubbed Yoo Prime (August 2002) and Yoo Two (March 2003) will be right in the center of questioning. Something that Haynes said, it seems, doesn’t sit right with the investigators.

The second matter is Haynes’s role in restructuring the Military Commissions at Guantánamo and tasking prosecutors and the legal advisor to the convening authority. This is the point on which the president of the New York City Bar, apparently now joined by other bar associations, is pressing for Haynes’s examination under oath. Accusations come from the former chief prosecutor, Colonel Morris Davis, among others. Davis has recently stated that he is prepared to submit to a lie-detector test about the matter. Haynes has refused to make public comment, offering only a bland statement that he “disputes” Davis’s charges through a Pentagon public affairs spokesman. [my emphasis]

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Haul Karl’s Ass into Congress

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Karl says he’ll testify.

As Governor Siegelman states, bring him in, let him swear on a bible and either testify or lie under oath.

Rove has, of course, reportedly lied under oath on two other occasions, once in Texas and once in the CIA leak case. He’s probably thinking "three’s a charm."

But let’s do it, this time, in front of the teevee cameras. I’m sure Artur Davis–of Alabama–would welcome Karl’s testimony. And while he’s there, you might ask him all the questions about the USA purge he has refused to answer.

The DNC Email Ruling

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The folks that read and participate at Emptywheel are, in my humble opinion, without any question the best anywhere at deconstructing email issues and cases, and it sure looks to me like some of the people litigating these various matters are picking up on that too. That being the case, who could possibly deny you more fodder?

The Democratic National Committee has been suing the DOJ in DC District Court to obtain some 68 pages of emails relaing to the US Attorney purge. The main reporting to date has been from Politico:

A federal judge has handed the White House a legal victory in a battle with the Democratic National Committee over e-mails related to U.S. attorney firings.

District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ruled Thursday that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.
…
In dismissing the DNC lawsuit, Huvelle ruled that it was "based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications."

Additionally, Huvelle decided that just because an RNC server was used to send the messages — 68 pages out of more than 5,000 which have been denied to the DNC — it is not enough to automatically disqualify the Justice Department from claiming a FOIA exemption in refusing to release them.

"It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications," Huvelle wrote in her opinion.

I think there are two issues to be contemplated here. The first is the relative propriety of Huvelle’s decision, and foundation therefor, in the DNC case, and the second is what implications it may have for the greater mass of contentious email issues that are percolating in our midst. Here is the full opinion rendered by Judge Huvelle in Democratic National Committee v. United States Department of Justice, CV 20070-712 (ESH-DDC).

There were originally 5,337 pages of emails responsive to the DNC’s FOIA request, but agreement was reached as to all but 68 pages. All of the Read more →

Questions

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Shew! I did it! I survived for a full week without WiFi or wireless.

And it was nice.

A million thanks to bmaz for watching the blog this week–looks like you guys had a lot of fun without me. And a million thanks for the birthday wishes.

I’ll post more substantively once I wade through the accumulated emails and posts and news. But for now I’ve got the following questions as I read through what you’ve guys have been reading through.

  • If the White House destroys hard drives of people who move on, and the people from whom we wanted email in January 2006 included three people who had already left OVP (Cathie Martin, Jenny Mayfield, and Scooter Libby), then does that mean we still don’t have emails from the relevant period for these three people (particularly the last two)?
  • If Brent Wilkes’ complaints about improper leaks of his impending indictment win him a get out of jail free card, does that mean Eliot Spitzer is out of all legal danger (even while the DA is making it known that he suspects Spitzer perjured himself)?
  • What does Eric Lichtblau mean when he refers to Dick Cheney’s tense relations with the NYT in December 2005?

As New York Times Editor Bill Keller, Washington Bureau Chief Phil Taubman, and I awaited our meeting, we still weren’t sure who would make the pitch for the president. Dick Cheney had thought about coming to the meeting but figured his own tense relations with the newspaper might actually hinder the White House’s efforts to stop publication. (He was probably right.)

After all, this meeting took place just a month after Cheney’s Cheney had been indicted for lying to cover up Cheney’s apparent order to leak Valerie Wilson’s identity to Judy Miller. That indictment came after the NYT made an ill-advised attempt to protect Libby–even after they knew Judy’s testimony was proof that Libby lied under oath. After having been served so well by his selective A1 cutout leaks to the NYT, why was he so cranky right after Libby was indicted?

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