Mary McCarthy and the Terror Tapes

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In this post, I speculated that the torture tapes were destroyed to protect the European country on whose soil we conducted waterboarding. I say that for several reasons. First, in its description of how Bush was compartmented out of details of the program, it specifies that Bush didn’t know the location of secret prisons.

The tapes documented a program so closely guarded that President Bush himself had agreed with the advice of intelligence officials that he not be told the locations of the secret C.I.A. prisons. [my emphasis]

Second, it suggests that after Dana Priest’s story on the black sites, the detainees were moved to a new location.

Yet in November 2005, Congress already was moving to outlaw “cruel, inhuman and degrading” treatment of prisoners, and The Washington Post reported that some C.I.A. prisoners were being held in Eastern Europe. As the agency scrambled to move the prisoners to new locations, Mr. Rodriguez and his aides decided to use their own authority to destroy the tapes, officials said.

Couple that with the news that the tapes were always stored in the country where the interrogations took place, and it seems highly likely that one source of urgency behind the destruction of the tapes was to hide evidence of torture occurring within Europe.

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

This revelation made me think of Mary McCarthy, who was fired for allegedly serving as a source for Priest’s story. At the very least, the way in which McCarthy was investigated and fired challenges some of the stories on the torture tapes. More importantly, it suggests she may have been fired because she’s a witness to the fact that the CIA lied to Congress in the period leading up to the tapes’ destruction. Read more →

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The CIA Solidifies its Terror Tapes Story–or Tries To

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Mark Mazzetti and Scott Shane have done good reporting on the terror tape story. But their latest installment reads like an attempt on the part of the CIA to get its story straight. That attempt might work–so long as you don’t read it too closely. (Update: Scott Horton thinks this is a transparent cover story too.)

The story as a whole is full of no-nonsense logical explanations for the CIA’s actions with regards to the terror tapes. For example, Buzzy Krongard provides a very logical explanation for why the CIA took the tapes:

“You couldn’t have more than one or two analysts in the room,” said A. B. Krongard, the C.I.A.’s No. 3 official at the time the interrogations were taped. “You want people with spectacular language skills to watch the tapes. You want your top Al Qaeda experts to watch the tapes. You want psychologists to watch the tapes. You want interrogators in training to watch the tapes.”

In addition, the NYT’s sources claim the CIA took the tapes to document that they weren’t killing Abu Zubaydah specifically, and because they had so rarely interrogated such high level detainees. But then, the risks of keeping the tapes increased, partly because the CIA was using torture and partly because detainees were dying in custody. So the CIA stopped taking tapes and started trying to get rid of those they already had.

This set off a big debate internally in the CIA. CIA General Counsel Scott Muller advised against the tapes destruction. Then CIA’s IG John Helgorsen started investigating the CIA’s interrogation program; an April 2004 report concluded some of the CIA’s methods amounted to cruel, inhuman, and degrading treatment. After Muller and Tenet left and Porter Goss and John Rizzo and Jose Rodriguez came in, those trying to protect the interrogators attempted to get approval for destroying the tapes again. Goss objected (the story says). But a year later, as Congress was passing the McCain Amendment banning torture, Rodriguez made the decision to destroy the tapes. And remarkably, Goss did not discipline Rodriguez, even though he claims to have opposed the tapes’ destruction.

It’s all a neat, logical story, isn’t it? It all explains the whole chronology such that American taxpayers won’t fault the CIA for trying to do the right thing, right?

Except it remains a vague story full of holes. Read more →

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The “Other” Provision Of The Records Act

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

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

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

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

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

Well, hold on a minute here. Is that their final answer? Of course it’s not their final answer; there is never a final answer, on anything, with the Bush Administration; just a continuing series of intentionally disingenuous obfuscations. It takes no more than a cursory inspection of the foreign war records exception to expect Read more →

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Torturous Logic

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

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

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

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

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

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

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

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

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But the Tapes Weren’t IN Washington

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

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

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

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

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

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

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

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Immunity

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

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

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

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

[snip]

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

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

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

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

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

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Recycling Torture Timelines

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

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

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

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

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

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

October 1, 2003: Hamdi petition filed with SCOTUS

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

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

Fall 2003: General Sanchez visits Abu Ghraib regularly

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

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

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

January 9, 2004: SCOTUS agrees to hear Hamdi

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

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

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

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

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

January 2004: General Myers learns of abuse

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

January 31, 2004: Taguba appointed to conduct investigation

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

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

March 9, 2004: Taguba submits his report

Late March, 2004: 60 Minutes II starts on story

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

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

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

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

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Timing, Again

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

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

[snip]

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

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

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The Wheels Of Justice

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Top of the morning to one and all. As Marcy and family hit the road on their much delayed Christmas expedition, it occurs to me that it is time to grease the wheels of justice and get them rolling down the road of accountability. EW and Mad Dog are right about the implications of the new AP article. The collective insight and wisdom of the community are doing a wonderful job of dissecting the situation. I would like to highlight a couple of the angles that have been raised, and ask that you consider them, and the torture tape situation as a whole, in a broader context.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?
….
No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

These are not mere "administration officials"; with the exception of Cheney and Bush, they are as high as you go. Negroponte is DNI and Addington, despite his putative position as Cheney’s counsel/chief of staff, is the legal heart and soul of the Bush Administration. Toss in Gonzales, Miers and Bellinger, and there is simply no viable way to argue that "the White House", did not know about, and was not involved in, the intentional spoiling and destruction of material evidence; which, of course, means direct obstruction of justice.

“CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be “cautious” about destroying the tapes, according to sources familiar with his classified testimony.”

To me, that sounds like they were briefed and urged the agency to be careful about destroying the tapes. In other words, destroy them, but be really careful how you do it. JMHO

LS’s take here is just about right I should think. Ralphbon’s response is dead on the money too.

For those who didn’t see it, ther (almost) consensus from the panel was:
1) that there was no way Mukasey could avoid conflict of interest because he had signed the material witness warrant for Jose Padilla that Read more →

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Dates

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MadDog is right. This AP article provides a slew of interesting details on the torture tapes, including a list of Administration lawyers who objected to the destruction of the tapes. The article adds Alberto Gonzales and John Bellinger to the list of White House lawyers who–along with Harriet Miers–objected to the destruction of the tapes.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?

But there are a few more details I’d like to focus on. First, the AP offers a list of who Reyes plans to invite to testify to HPSCI, and it includes the CIA lawyers who wrote the opinion used–however fraudulently–to justify the destruction of the tapes.

Reyes also wants the CIA to make available CIA attorneys Steve Hermes, Robert Eatinger, Elizabeth Vogt and John McPherson to testify before the committee. Former CIA directors Porter Goss and George Tenet, former deputy director of operations James L. Pavitt and former general counsel Scott Muller are also on the list.

No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

For now, though, I’d like to return to the issue of timing, because it looks like somebody is fudging the true nature of the discussion by playing with the dates of discussions on the destruction of the tapes. John Bellinger is out there saying that in 2003, at least, the White House "consensus" objected to the tapes’ destruction. Read more →

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