Judge Hellerstein Calls the CIA on its BS

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Wow. Judge Hellerstein is not amused with the CIA’s assertion that the torture tapes–which IG staffers flew to Thailand to view as part of their investigation into CIA interrogation methods–were not part of their investigation. Nor does he buy the assertion that the "special review" is not an investigation. He basically called Bull on the CIA’s assertions in about six different ways.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

In fact, Judge Hellerstein even suggested what I did: that the CIA intentionally did not put any mention of the torture tapes in their IG report as a way to shield them from FOIA.

Judge Hellerstein raised the possibility that C.I.A. officials had intentionally not placed the tapes in the investigative files so as to avoid a freedom of information request.

“It seems to me that you were gulled,” he told Mr. Skinner, “and that the court was gulled.”

Gotta love a good skeptical judge. Read more →

“It Smells Like a Cover-Up”

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So sayeth one of Pincus and Warrick’s two sources describing the content of John Rizzo’s testimony. Mind you, that source remains anonymous, because "those in attendance were pledged to secrecy about the session." Of course, that didn’t prevent Crazy Pete Hoekstra from blabbing to the NYT and others about it, but he’s never believed that laws on secrecy should apply to him as well as staffers. Though, since I beat up Pincus yesterday for helping Bennett tamper with this investigation, let me just say that he offers, by far, the most interesting tidbit about Rizzo’s testimony.

Two of those at the hearing said that Rizzo said that after the tapes were made in 2002, lawyers at the CIA discussed the possibility that the FBI and the 9/11 Commission might want to see them.

If Rizzo has testified that lawyers at the CIA knew the 9/11 Commission might want to see the terror tapes, it strongly reinforces Tom Kean and Lee Hamilton’s claim that,

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

In fact, lawyers at the CIA knew that the 9/11 Commission would want to see these specific tapes. Which I guess is why George Tenet has lawyered up.

Meanwhile, the battle between Rodriguez, Rizzo, and Goss seems to be heating up. Bob Bennett specifically named Rizzo and Goss to the NYT as those who should have told Rodriguez to retain the tapes.

Read more →

Shorter Rizzo to Rodriguez: Well, If You’re Not Going to Testify, I Will Screw You

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Remember how I suggested that this passage from Pincus’ love letter to Bob Bennett and his client Jose Rodriguez might be targeted to (among others) Porter Goss and John Rizzo?

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover."

Well, here’s what Rizzo had to say to that.

 "I told the truth," Rizzo said in a brief appearance before reporters.

Which doesn’t sound like it was all too helpful for Rodriguez’ little story. Read more →

Stephen Cambone Collects on His Handiwork with CIFA

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I’ve long suspected that the GOP has used the Counter-Intelligence Field Activity (CIFA) as a way to spy on domestic enemies even while making their friends rich. CIFA is the organization that collected information on both Jesus’ General and Quakers, then stuck it into a database without following requisite privacy protections. And then, when Congress and the Carol Lam started focusing on CIFA, its database on private citizens got quickly disappeared.

70% of its staff are contractors. And one of the early CIFA contractors was the company of Mitch Wade–Duke Cunningham’s briber–MZM.

Which is why I noted, back in May 2006, that CIFA seemed like a huge improvement (from a Republican perspective) on Nixon-era domestic spying.

Back when Nixon was spying on his enemies, he used the agencies of the US government. He was using civil servants subject to congressional oversight to do his dirty work. But the newfangled Republican party learned in Iran-Contra that, if you outsource the dirty work far enough, you’re more likely to avoid the oversight that will lead to discovery.

[snip]

So let me connect the dots here. Republican legislators have set up this nifty scheme, whereby their buddies ply them with golf trips, swank real estate deals, and prostitutes. In exchange for that booty, they give their buddies contracts at Defense or Homeland Security or CIA. Spying contracts. Under those spying contracts, the buddies spy on American citizens, even funny bloggers and peaceniks. And although it is known that these buddies are a little sloppy with the way they spy on American citizens, they continue to get more work.

Now, as I said, back in 2006, as the whole Cunningham scandal was erupting, all of a sudden people decided it might be good to start exercising some oversight over CIFA. The Cunningham investigation extended to Wade’s contracting on CIFA. Congress held some hearings. More interestingly, Stephen Cambone claimed to lead an inquiry.

Undersecretary of Defense Stephen A. Cambone has ordered an internal study of how funding earmarked in a bill by then-Rep. Randy "Duke" Cunningham (R-Calif.) led to contracts for MZM Inc. to do work for the Pentagon’s newest intelligence agency, the Counterintelligence Field Activity, a Defense Department spokesman said. Read more →

The Dubious Timeline from Pincus’ Love Letter to Bob Bennett

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I’ve already ranted about how irresponsible it was for Walter Pincus and Joby Warrick to publish Bob Bennett’s statement on behalf of Jose Rodriguez–a statement that Rodriguez refused to give under oath without immunity–on the same day that John Rizzo testifies before Congress. Nothing like assisting the obstruction of an ongoing investigation. But now that I’ve done my ranting (and enjoyed the sun), here is another rant about the dubious timeline offered in Pincus and Warrick’s article.

The article alternates between vague and specific in curious fashion. For example, the article specifies that the taping started in August and ended in December 2002.

According to interviews with more than two dozen current and former U.S. officials familiar with the debate, the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.

That detail directly contradicts the date offered in the CIA’s previous attempt to straighten out its story on the terror tapes, which claimed the taping started in spring 2002.

If Abu Zubaydah, a senior operative of Al Qaeda, died in American hands, Central Intelligence Agency officers pursuing the terrorist group knew that much of the world would believe they had killed him.

So in the spring of 2002, … they set up video cameras to record his every moment: asleep in his cell, having his bandages changed, being interrogated.

Now, there are two big reasons why the CIA might want to change that date. First, the CIA wasn’t authorized to torture until August 2002–so the later date magically makes any torture that happened legal, at least according to OLC. In addition, we know that Abu Zubaydah identified Padilla in the first several weeks of his captivity. By claiming no tapes were taken before August, the CIA pretends that any claim from Padilla regarding the tapes is irrelevant, since (if they really weren’t taken until August), the tapes would have no evidence relevant to Padilla’s case.

But here’s the problem with the new dates, beyond just the contradiction with the CIA’s earlier story: the CIA still wants you to believe they took the tapes to prove they weren’t killing Abu Zubaydah. But by August, he had already been under medical treatment for four months, presumably well beyond the time they needed to prove they weren’t killing Zubaydah.

And the changing date is all the more suspicious since Zubaydah’s health remains one of the chief reasons the WaPo’s sources give for stopping the taping.

By December 2002, the taping was no longer needed, according to three former intelligence officials. "Zubaida’s health was better, and he was providing information that we could check out," one said.

If the tapes were precipitated on Zubaydah’s health, then why didn’t they start until August, according to this latest iteration of the CIA story? Read more →

A Cheap Ploy to Avoid Giving Testimony, Jose Rodriguez

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Today’s article from Joby Warrick and Walter Pincus answers a lot of questions we’ve been asking about the torture tapes–the biggest being that the tapes were stored and destroyed in Thailand. And it has a lot of interesting details I’ll return to in a follow-up post, after I enjoy some rare MI sun with my dog. But the most important detail readers should take away is its function, as suggested by the following two passages. First, the recognition that John Rizzo will testify before HPSCI today.

John A. Rizzo, the CIA’s acting general counsel, is scheduled to discuss the matter in a closed House intelligence committee hearing scheduled for today.

And second, the incorporation of long excerpts from a written statement from Bob Bennett to present Jose Rodriguez’ justifications for his actions.

Those three circumstances pushed the CIA’s then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved. Rodriguez consulted CIA lawyers and officials, who told him that he had the legal right to order the destruction. In his view, he received their implicit support to do so, according to his attorney, Robert S. Bennett.

[snip]

Rodriguez, whom the CIA honored with a medal in August for "Extraordinary Fidelity and Essential Service," declined requests for an interview. But his attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover." [my emphasis] Read more →

No Immunity, Yet, for Rodriguez

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Well, Crazy Pete Hoekstra hasn’t managed to slip a little immunity deal to Jose Rodriguez–at least not yet.

The former CIA official who destroyed videotapes showing harsh interrogation tactics has been granted a temporary reprieve by the House intelligence committee, officials said last night.

The committee had demanded that Jose Rodriguez Jr. testify before it on Wednesday, but after being told that he would not answer questions without a grant of legal immunity for his testimony, the panel withdrew its demand, according to officials familiar with the arrangement.

[snip]

Officials said that a subpoena for Rodriguez will remain in effect and that talks between lawmakers, Justice Department officials and Rodriguez’s attorney, Robert S. Bennett, will continue.

I’m not sure what to make of the description of on-going talks. Hopefully, HPSCI has agreed not to do anything to impede the criminal investigation. But I’d be a lot more comfortable if HPSCI said it would hold off entirely on Rodriguez testimony until DOJ gave the okay.

John Solomon’s Phone Records

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Matt at TP follows up on Drudge’s report that John Solomon is moving to the Moonie Times as Executive Editor with a summary of Solomon’s greatest hits.

  • Solomon tried to link Sen. Harry Reid (D-NV) to the Jack Abramoff scandal by reporting on Reid contacts with Abramoff-tied lobbyist, but overlooked the fact that Reid voted against lobbyists’ favored bill.
  • Solomon took comments by Ambassador Joe Wilson out of context in effort to claim he “acknowledged his wife was no longer in an undercover job at the time Novak’s column first identified her.”
  • In a non-story, Solomon reported that Reid accepted of boxing tickets from a state government agency, despite and then did the opposite of what the agency wanted.
  • In 2006, Solomon claimed that Reid “collected a $1.1 million windfall on a Las Vegas land sale,” even though Reid actually only made a $700,000 profit on the sale.
  • Solomon wrote a story calling Sen. John McCain (R-AZ) a hypocrite on campaign finance reform, but buried quotes by critics of big money in government exonerating him for “all the things the article criticizes him for doing.”
  • In July, Solomon “devoted nearly 1,300 words to the ‘controversy’ surrounding” John Edwards’ haircut.
  • In a front page story, Solomon baselessly suggested that John Edwards had engaged in a shady land deal, but never provided proper context for the sale. His reporting was criticized by the Post’s ombudsman.

As Matt says, all these stories make Solomon perfectly suited to work for a spooked-up crazy Korean who also happens to head up a cult.

But there’s one incident that makes this move even more interesting. Back in the halcyon pre-9/11 days, Solomon got involved into a fight with DOJ over his phone records. Basically, Solomon discovered that then Senator Robert Toricelli had been picked up on a wiretap of known mobsters, talking about fund-raising. The transcripts of the wiretaps Solomon received were grand jury materials; when Solomon wrote his story on the taps, he alerted the mobsters that they were tapped and publicized Torricelli’s mob ties. So DOJ got his phone records to figure out who his source was and to prevent him from doing further work on the story.

Charles Lewis: There were news accounts that in August 2001 your home phone records were subpoenaed secretly by a federal grand jury. Can you give a little context?

John Solomon: Sure. I was working on a series of stories about what the government knew about Sen. Robert Torricelli’s ethics misdoings and the body of evidence that was available [going] back to the early 1990s. I found that the U.S. Attorney’s Office in New Jersey had evidence that he had taken, basically, a loan guarantee from a donor (and long-time friend), bought some stocks and made a killing on it—a $144,000 profit. He repaid the loan, including less than $1,000 for the guarantee. Torricelli took this donor on a series of government-sponsored trade missions and hooked him up all across the world with the imprimatur of Congress. The U.S. attorney whose office declined prosecution was nominated by Torricelli to become a federal judge. She became a federal judge. The person he nominated to take her job then came into possession of new information. They intercepted Sen. Torricelli on a wiretap talking to some known mob folks just before the 1996 Democratic convention in Chicago, when they were basically talking about fundraising. I obtained excerpts of the wiretap, which would be covered by Grand Jury secrecy, wrote that story, and again the U.S. attorney declined prosecution. Torricelli had recommended that U.S. attorney for his job as well. Read more →

Bush’s Empire: Making His Own Reality, NIE Edition

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I’m interested in Michael Hirsh’s report that Bush trashed the key judgments of the NIE while in Israel for two reasons. First, WTF was the SAO who leaked the story trying to accomplish?

That NIE, made public Dec. 3, embarrassed the administration by concluding that Tehran had halted its weapons program in 2003, which seemed to undermine years of bellicose rhetoric from Bush and other senior officials about Iran’s nuclear ambitions. But in private conversations with Israeli Prime Minister Ehud Olmert last week, the president all but disowned the document, said a senior administration official who accompanied Bush on his six-nation trip to the Mideast. "He told the Israelis that he can’t control what the intelligence community says, but that [the NIE’s] conclusions don’t reflect his own views" about Iran’s nuclear-weapons program, said the official, who would discuss intelligence matters only on the condition of anonymity. [my emphasis]

The same article quotes Stephen Hadley, one of a limited number of Senior Administration Officials accompanying Bush on the trip, as saying that Bush said only that Iran remains a threat, regardless of what the NIE says.

Bush’s national-security adviser, Stephen Hadley, told reporters in Jerusalem that Bush had only said to Olmert privately what he’s already said publicly, which is that he believes Iran remains "a threat" no matter what the NIE says.

Was Hadley’s on the record quote a continuation of the earlier anonymous comment to Hirsh or, more likely, a response to the earlier leak, an alternate view of what the anonymous SAO was spinning to Hirsh? That is, did some SAO spin Bush’s fairly innocuous comment (at least as Hadley interpreted it) as a repudiation of the NIE, contrary to the official stance of the Administration? And if so, to what end? To support Dick Cheney’s campaign for war (Stephen Hadley is often considered a Cheney operative, though he was stuck playing the interlocutor between Cheney and the CIA leading up to the Plame leak)?

But I’m also struck by the timing of this quote. If I were one of the analysts who worked on this NIE–or even, say, one of the senior intelligence officers who threatened to go public with the key judgments of the NIE–I’d be pretty peeved to know that Bush was bad-mouthing my handiwork to allies, particularly after the apparent confrontation to get it declassified in the first place. Read more →

CIA Inspector General: We Never Had Any Torture Tapes!

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The CIA has responded to ACLU’s motion to hold the CIA in contempt for destroying the terror tapes. They argue they shouldn’t be held in contempt for destroying the torture tapes for three reasons:

The videotapes were held in operational files. The Court ruled that the CIA’s obligation to search for records responsive to Plaintiffs’ FOIA requests did not extend to its operational files. Rather, the Court ordered the CIA to search investigative files of the CIA’s Office of Inspector General (“CIA OIG”) for operational records produced to or collected by CIA OIG during the course of CIA OIG’s investigation into allegations of impropriety in Iraq. The tapes were not produced to or collected by CIA OIG. Thus, the CIA’s destruction of the videotapes did not violate the Court’s orders.

Moreover, the videotapes were not responsive to Plaintiffs’ FOIA requests because the activities depicted on the videotapes were not the subject of a CIA OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by CIA OIG. Under the Central Intelligence Agency Information Act (“CIA Information Act”), the CIA’s operational records are exempt from search or review in response to FOIA requests unless an exception to the Act applies. One exception is where the records requested are the specific subject matter of an investigation by CIA OIG into allegations of impropriety or illegality in the conduct of an intelligence activity. 50 U.S.C. § 431(c)(3). Here, CIA OIG did not conduct an investigation into allegations of impropriety or illegality relating to the interrogations on the videotapes prior to their destruction. Therefore, the tapes were exempt from search and review in response to Plaintiffs’ FOIA requests up to the time of their destruction.

Further, the Department of Justice (“DOJ”) has initiated a criminal investigation into the destruction of the tapes. That investigation is considering, inter alia, whether the destruction of the tapes was inconsistent with or violated any legal obligations, including those arising out of civil matters such as this Court’s orders. Accordingly, if the Court does not deny the contempt application outright, it should stay these proceedings pending completion of DOJ’s criminal investigation. [my emphasis]

In other words, their reasoning depends entirely on the technical status of the CIA IG investigation into detainee interrogation. The CIA submitted a declaration describing that investigation; here’s what they said. Read more →

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