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.

Now, Hellerstein denied the ACLU’s request that he hold the CIA in contempt. But he did give them something worthwhile: the power of the court to get to the bottom of why the CIA didn’t turn over the torture tapes.

While Judge Hellerstein denied the A.C.L.U’s request to hold the C.I.A. in contempt of court for not producing information about the tapes, he said he was considering ways, including potentially subpoenas, to get to the bottom of why the C.I.A. has not turned the documents over to the A.C.L.U.

This is, IMO, very very important. With all the complaining coming from the leadership of HPSCI, they seem singularly uninterested in the relationship between the IG report and the torture tapes. If Hellerstein allows the ACLU to pursue why the CIA withheld information about the tapes (and the tapes themselves), it will ensure that the IG report becomes a central focus of the inquiry into the torture tapes. Which, in turn, may ensure that the inquiry itself goes further than Jose Rodriguez.

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.

“Nobody, to our knowledge, ever instructed him not to destroy the tapes,” Mr. Bennett said. “Had the director or deputy director or general counsel told him not to destroy the tapes, they would not have been destroyed.”

Though, as the NYT points out, Rodriguez didn’t seek their permission specifically.

Mr. Bennett acknowledged that Mr. Rodriguez did not seek permission from Mr. Rizzo, Porter J. Goss, then the C.I.A. director, or from any other C.I.A. official before giving the destruction order.

I suspect this is where we get back into questions of timing–including Pincus’ love letter to Bennett, which neglected to date the request from the Thai Station Chief to destroy the tapes. That’s because, for some reason, Porter Goss was discussing the torture tapes with John Negroponte in summer 2005, and Negroponte told Goss, in apparently clear terms, that he should not destroy those tapes. Was that conversation related to the Thai Station Chief’s request? Rodriguez and Goss appear to be banking that they’ll be able to prove an interrupted chain of command between them, yet then why was Goss discussing the torture tapes with Negroponte in the first place?

It sure seems like we ought to be hearing about Porter Goss being asked to testify to Congress. But strangely, for all Crazy Pete’s blabbing, he doesn’t seem to be talking about getting Goss to testify.

One more point about timing. I noted yesterday that Warrick and Pincus’ sources, at least, appear to be obscuring a meeting involving Harriet Miers regarding the tapes, a meeting that almost certainly took place in 2005 when she was White House Counsel. Which is why this comment is so curious.

One of the two sources present said that White House officials did not seem as involved "as they might have or should have been" in 2005 decision making about the tapes.

How is it that folks are determining the involvement of the White House in 2005? Because there seems to be some fudging of facts about it, and I have a suspicion that there is White House involvement in 2005 that we’re not hearing about.

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?

Interestingly, the article suggests another possible reason why the taping ended in December 2002: the departure of Cofer Black from the CIA.

… after the Sept. 11, 2001, terrorist attacks, [Jose Rodriguez] was promoted to deputy director of the fast-expanding counterterrorism center. He served under the center’s director then, J. Cofer Black, who had been his subordinate in the Latin America division.

When Black — who played a key role in setting up the secret prisons and instituting the interrogation policy — left the CIA in December 2002, Rodriguez took his place. Colleagues recall that even in the deputy’s slot, Rodriguez was aware of the videotaping of Zubaida, and that he later told several it was necessary so that experts, such as psychologists not present during interrogations, could view Zubaida’s physical reactions to questions.

Note that the taping started when Black was director of CTC, but ended when Rodriguez–the same guy who would eventually order their destruction–took over as director. And, at least according to Bennett’s statement for Rodriguez (which of course Rodriguez refused to give under oath), "the CIA" wanted to destroy the tapes as early as 2002, conveniently less than a month before the CIA IG investigation began.

But Rodriguez’ 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.

Though I’m not sure I buy it, particularly given the squirrelly way they refer to the CIA IG investigation, which we know started before the CIA informed Congress that they were going to destroy the tapes.

An internal probe of the interrogations by the CIA’s inspector general began in early 2003 for reasons that have not been disclosed. In February of that year, then-CIA General Counsel Scott W. Muller told lawmakers that the agency planned to destroy the tapes after the completion of the investigation. That year, all waterboarding was halted; and at an undisclosed time, several of the inspector general’s deputies traveled to Bangkok to view the tapes, officials said. [my emphasis]

Pincus, don’t you think you could have pushed Bennett to ask Rodriguez why that IG investigation got started if you were going to do him the favor of helping to obstruct the investigation into the torture tape destruction? At least according to the IG, their investigation began in January, perhaps just weeks or even days after the claimed "December" intention to destroy the torture tapes. And not like it matters, but OIG says they saw the torture tapes in May.

The vagueness surrounding dates regarding the OIG investigation that are already (albeit just recently) in the public domain suggests that Pincus and Warrick didn’t talk to anyone in IG–presumably part of the anti-torture CIA faction–for their story. Which might be why this story makes absolutely no mention that the report concluded that the interrogations might be illegal.

Note to journalists covering this story: the one thing that can discredit you almost as much as printing up a witness’s statement that he refuses to give under oath in perfect timing to align testimony with another witness, it’s to ignore the CIA IG report and its conclusion that seems to be at the center of the decision to destroy the tapes. Just as an example, when you discuss the events surrounding the May 2004 discussion over whether to destroy the tapes or not, you might mention that the CIA IG had just concluded that the interrogation program might violate the law.

In May 2004, CIA operatives became concerned when a Washington Post article disclosed that the CIA had conducted its interrogations under a new, looser Bush administration definition of what legally constituted torture, several former CIA officials said. The disclosure sparked an internal Justice Department review of that definition and led to a suspension of the CIA’s harsh interrogation program.

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

And while I’m not certain, I think that that May 2004 is actually the June 8, 2004 WaPo article revealing the contents of the Bybee memo–which wouldn’t have factored into the reported May briefing at the White House, but which would have alerted the CIA that people–probably within the CIA–were leaking the justifications for torture, presumably in an attempt to get the CIA out of the torture business.

Also, that claim that the White House was involved in discussions about destroying the tapes just twice? That’s impossible, given other details in the story. Given the description above, the discussions with the White House would have included the May 2004 briefing, and another one that happened before Scott Muller left in July 2004 (it was probably in February 2003, since I doubt CIA would tell Congress it was destroying tapes without first alerting the White House). But if that’s true, and those were the only two briefings the White House participated in, then this statement cannot also be true.

Those known to have counseled against the tapes’ destruction include John B. Bellinger III, while serving as the National Security Council’s top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA’s general counsel; and John D. Negroponte, while serving as director of national intelligence. [my emphasis]

Harriet did not become White House Counsel until late 2004, after Muller had already left the CIA. So if she participated in discussions about the torture tapes as White House Counsel, then there was at least one more discussion involving the White House before the tapes were destroyed.

One final detail about the timeline presented in the WaPo story. Note how vague it is regarding precisely when the Thai station chief asked to destroy the videotapes.

In late 2005, the retiring CIA station chief in Bangkok sent a classified cable to his superiors in Langley asking if he could destroy videotapes recorded at a secret CIA prison in Thailand that in part portrayed intelligence officers using simulated drowning to extract information from suspected al-Qaeda members.

I find that particularly curious, since the next precipitating factor for the destruction of the tapes is the appointment of Porter Goss and the assumption, by John Rizzo, of the acting Counsel role, both events that happened in 2004.

The CIA had a new director and an acting general counsel, neither of whom sought to block the destruction of the tapes, according to agency officials. The station chief was insistent because he was retiring and wanted to resolve the matter before he left, the officials said. And in November 2005, a published report that detailed a secret CIA prison system provoked an international outcry.

Now, I suspect these details come from Jose Rodriguez (have I mentioned that he wouldn’t testify to these details under oath?) so who knows how reliable they are. The detail about Goss and Rizzo might be an attempt to throw blame their way, as this statement from appears to do as well.

"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."

And the three factors Bennett lists for Rodriguez’ decision to finally order the tapes be destroyed obscure the congressional debate on torture, the multiple court orders and 9/11 Commission inquiries regarding torture tapes, and the ongoing leaks from the CIA anti-torture faction. All of which suggests the timeline–the entire timeline, with all its contradictions and vagueness–is suspect.

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]

Much as I love Walter Pincus and usually respect Joby Warrick’s work, this article is no better than the Steno Sue and Pool Boy article that appeared on the day Judy Miller testified, outlining in detail how Scooter Libby would like her testify. Pincus and Warrick allowed themselves to be used by Bennett (who, incidentally, was apparently leaking strategic bullshit to Pincus back in the Iran-Contra days, too–see Firewall, p. 422) to present his client’s perspective after that client refused to go before Congress and present that perspective under oath. The article basically allowed John Rizzo and Jose Rodriguez to coordinate the stories they’ll tell to Congress and John Durham, which may well have hurt the chances that either Congress or John Durham will be able to get to the truth about the terror tapes.

Jeebus, Pincus. Congress, thus far, appears to have learned the lesson of Iran-Contra, not to taint criminal investigations by offering immunity willy-nilly. But here you are, more than fifteen years later, doing Bob Bennett’s dirty work once again.

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. And, as luck would have it, at least one or two of those senior intelligence officers are going to be called before Congress and questioned by DOJ in the inquiry into the terror tape destruction in the next several weeks (Steven Kappes comes to mind).

Particularly given the centrality of David Addington in discussions of whether or not to destroy the terror tapes, I wonder whether it’s really a good idea for the war-mongers to piss off the intelligence community, just as this thing begins to escalate.

But then, I guess I would cry no tears if the CIA happened to implicate David Addington in the destruction of evidence of torture.

A number of you sent me the AP article reporting that the White House will have to ‘fess up to whether or not the millions of missing emails are on the back-up tapes.

A federal magistrate ordered the White House on Tuesday to reveal whether copies of possibly millions of missing e-mails are stored on computer backup tapes.

[snip]

Facciola gave the White House five business days to report whether computer backup tapes contain e-mails written between 2003 and 2005.

But the actual order is more interesting than that. Here’s what Facciola ordered:

With that understanding, the court will order the defendants to provide answers to the following questions:

1. Are the back-ups catalogued, labeled or otherwise identified to indicate the period of time they cover?

2. Are the back-ups catalogued, labeled or otherwise identified to indicate the data contained therein?

3. Do the back-ups contain emails written and received between 2003-2005?

4. Do the back-ups contain the emails said to be missing that are the subject of this lawsuit?

See, I’m guessing the answer to the more general question–whether the missing emails are on the backup tapes–will be "no." But consider what it would mean if the four questions are answered as follows:

1. Yes, the back-ups are labeled to indicate the period of time they cover.

2. Yes, the back-ups are labeled to identify the data contained there-in.

3. Yes, the back-ups contain e-mail written between 2003 and 2005.

4. No, the back-ups do not contain the emails that are the subject of this lawsuit.

I’m really not sure of number 2 [see the update below for smarter speculation]–or, for that matter, any of my suggested answers. But I think it quite likely the White House will respond (or not respond) in the next 5 days to say that, yes, they know what are on the tapes, but no, most of the missing emails are not on there.

I say that for two reasons. First, review this speculative piece I wrote about when Fitzgerald got particular emails (you know, incriminating ones from Rove to Hadley) during his Plame investigation. I speculated then that Fitzgerald was suspicious about the dearth of emails at least as early as March 2004 (he asked Libby about it), didn’t get the Rove-Hadley email until October 2004 (when Rove explained why he forgot but then remembered talking to Cooper), but didn’t start pursuing the missing emails aggressively until October 2005 (which is precisely when the Office of Administration "discovered" there were a bunch of emails missing). Then, in January 20006, Fitzgerald told Libby’s lawyers that,

In an abundance of caution, we advise you that we have learned that not all email of the Office of Vice President and Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.

But he didn’t have the emails yet, not until February 6. So in spite of the fact that (via whatever means) Office of Administration "discovered" in October 2005 that they hadn’t been archiving email properly, they hadn’t gotten Fitzgerald the missing email until January to February 2006, three months later.

So they certainly weren’t able to waltz down to the basement and find the backup tape to reconstruct Rove’s (and Libby’s) missing emails–at least not very easily.

But then there’s this bit, from Gold Bars Luskin (the CNN link on which this was based is dead, but here’s a similar Luskin statement).

The prosecutor probing the Valerie Plame spy case saw and copied all of Rove’s e-mails from his various accounts after searching Rove’s laptop, his home computer, and the handheld computer devices he used for both the White House and Republican National Committee, Luskin said.

The prosecutor, Patrick Fitzgerald, subpoenaed the e-mails from the White House, the RNC and Bush’s re-election campaign, he added.

[snip]

Rove voluntarily allowed investigators in the Plame case to review his laptop and copy the entire hard drive, from which investigators could have recovered even deleted e-mails, Luskin said.

As the investigation was winding down, Luskin said, prosecutors came to his office and reviewed all the documents — including e-mails — he had collected to be sure both sides a complete set.

Now what’s unclear is whether Fitzgerald found any additional emails doing all those hard drive scans, or whether the Office of Administration was able to reconstruct them all themselves (though Jeffress said that Office of Administration is the entity which discovered the OVP emails, at least–does that mean they used a backup tape??). But it seems clear that it was no easy task in October 2005 to just go find emails missing from Rove’s and OVP’s document production.

Which suggests that 1) Office of Administration knows what they’ve got, and 2) at least in 2005, the missing emails weren’t immediately accessible.

Again, the stuff related to Fitzgerald’s investigation is all speculative. But it might suggest that OA is going to have to come back, just in time for the hearing on the destroyed torture tape on January 16, and explain that they do have backup tapes, but that the missing emails are remarkably missing from the backup tapes, too.

In any case, we should know a good deal more in just five days, unless BushCo tells yet another Federal Judge to go fuck himself.

Update: MadDog, who knows a thing or two about computers, says the backup tapes would most likely not be labeled (that is 1 and 2 would be "no").

Based upon my techie experiences, no, the backups are not “catalogued, labeled or otherwise identified to indicate the data contained therein.”

Backups are typically only identified by the date and the system backed up. Content would be unknown other than something as generic as “WH system emails” or “OVP My Document folders”.

The only way that content would be identified would be if someone personally examined each backed-up record or constructed a software program to scan for certain keywords (kinda like how one would imagine the NSA would scan for stuff on all the databases that were warrantlessly eavesdropped upon).

Which brings one to the real hot fact: If someone in the WH is claiming that specific stuff is missing (i.e. Rove’s Abramoff involvement, various parties including Rove’s involvement in Valerie Plame Wilson’s betrayal, etc.), then be sure that they have done that scanning to arrive at that position.

You can’t have that kind of specificity without having done the dirty work to find out just what is on the backups.

And here’s William Ockham, who also knows a thing or two about computers:

The answers to 1 and 2 should be straightforward. The answer to 3 will be interesting. I would expect by this time the answer to 4 would be some of them.

Btw, the WH has spent some money this year on consultants who should have been able to help them.

Thanks to both MD and WO.

The Chief Judge in Boston just sent Michael Mukasey a letter suggesting DOJ’s process for investigating and responding to misconduct from government prosecutors isn’t working.

The chief federal judge in Boston has urged the new US attorney general to crack down on prosecutors who commit misconduct and to force Justice Department lawyers to be truthful in court.

Chief Judge Mark L. Wolf, in an extraordinary letter to Attorney General Michael B. Mukasey, skewered the Justice Department’s mild and secret discipline of Assistant US Attorney Jeffrey Auerhahn in 2006 for misconduct that Wolf said required him to order the "release from prison of a capo and associate of the Patriarca family of La Cosa Nostra."

After a closed disciplinary hearing, US Attorney Michael J. Sullivan gave Auerhahn a letter of reprimand for withholding evidence while handling a racketeering case in the 1990s against members of the New England Mafia.

"The [Justice] Department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors," wrote Wolf, who last July, after expressing frustration with his punishment, took the unusual step of asking the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against Auerhahn.

Wolf also wrote that "the department’s failure to be candid and consistent with the court has become disturbingly common in the District of Massachusetts."

[snip]

Wolf wrote Mukasey that he hoped the Justice Department "will soon again discharge its duties in a manner that commands the trust of federal judges and the people of the United States." [my emphasis]

The rebuke is interesting not for the details surrounding Auerhahn’s misconduct (though I am concerned that Auerhahn has been assigned to the antiterrorism unit, since terrorism prosecutions are already prone to misconduct in Bush’s post-9/11 nightmare), but for the way it relates to several other recent events:

• DOJ Inspector General Glenn Fine has argued to Congress that DOJ’s continued use of the Office of Professional Responsibility to investigate legal wrong-doing subjects lacks transparency and exposes such investigations to political influence
• OPR has a number of important ongoing investigations–including the investigation of whether OLC violated legal ethics in its advice regarding Bush’s illegal wiretap program
• In developments that seem to be associated with the torture tape destruction, DOJ recently got caught lying to Leonie Brinkema in the Moussaoui case

In other words, Judge Wolf is not the only one who believes the government is acting improperly. And the suggestion that OPR is not doing its job to punish legal wrong-doing ought to raise real concerns about OPR’s more high-profile investigations.

And, just to pre-empt Looseheadprop’s mention of this, here are some pertinent words from James Comey’s farewell speech (which, incidentally, DOJ appears to have moved or taken off their website [Update: Thanks to MadDog for finding a copy).

Fifth, and last, I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice. It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room, or a cocktail party – and find that total strangers believe what you say next.

• That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.
• Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it.
• The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them. The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all.

It looks like Judge Wolf believes DOJ has sprung a hole in that dam. And I doubt he’s the only one who thinks so.

Poor John Yoo. Apparently now he’s trapped. Or, as his lawyer said, faced with "nothing more than a political rant disguised as a lawsuit." I know you’re all crying for him.

I’m a little bit late to posting about the law suit, on the behalf of Jose Padilla and his mother, against the guy who rationalized his torture, John Yoo. But that makes my punditry job easier–I can just borrow liberally from all the smart lawyers who have been debating the suit in this thread.

Though I’m not a lawyer, I agree with bmaz’s take that the suit is fairly weak.

First off, as despicable as Yoo is, I am not sure he is a proper party defendant here. Secondly, I think his actions are probably entitled to qualified immunity. Third, I see a real problem establishing direct causation for Padilla’s damage elements. Fourth, despite the allegations in the complaint, I am not sure that NDCA is the proper venue. fifth, it is just not particularly artfully plead.

For example, consider the venue question. The complaint cites, with no explanation, 28 U.S.C. § 1391(b)(2) and (e) as its justification for suing in Northern California. So here’s the language they’re using to justify filing in NoCal:

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in

[snip] (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

(1) a defendant in the action resides,

(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.

But no event described in the complaint happened in Northern California–for the most part, it happened in DC or in the brig in South Carolina, so (b)(2) doesn’t seem to apply. And the complaint specifically states that they’re suing Yoo individually, not in his official capacity (presumably to try to avoid some of the immunity that extends to government officials). Furthermore, while Yoo is currently a resident of California, I suspect he would dispute that he was a resident of California when the events occurred (though he probably maintained his voter registration in CA, so who knows). In short, it seems like this suit should be filed in DC or in SC.

And as to suing Yoo–as opposed to President Bush, John Ashcroft, Rummy, or any of the other people described as making the decision to declare Padilla an enemy combatant and subsequently to torture him–the suit appears to rely on two pieces of logic. First, they’re arguing that Padilla was improperly declared an enemy combatant. Though they don’t say it, I suspect they would argue that the government’s changing treatment of Padilla (first as a material witness, then as an enemy combatant, then as a indicted defendant, each change coming just before a Court ruling that might rule that status as improper) proves the enemy combatant–and therefore the treatment he received in the Brig–was not legal.

Presuming that’s what they’re intending (and mind you, I am imposing this logic onto the complaint, they don’t say that), then you get into the allegation that Yoo wrote an opinion that deliberately legalized this illegal designation and went on to write the opinions that legalized the illegal treatment of Padilla.

96. Upon information and belief, Defendant Yoo was personally involved in formulating the recommendation to President George W. Bush that Mr. Padilla be detained without charge as an “enemy combatant.” The actions of Defendant Yoo proximately and foreseeably caused Mr. Padilla to be seized from the civilian criminal system and transferred to military detention.

97. Upon information and belief, Defendant Yoo personally participated in and/or approved the decision militarily to detain Mr. Padilla with the intention of subjecting Mr. Padilla to conditions of confinement designed to coerce from him potentially self-incriminating evidence, to shield the illegal detention and interrogation from judicial review, and to deprive Mr. Padilla of due process of law, proximately and foreseeably causing harm to Mr. Padilla and Ms. Lebron.

98. Defendant Yoo authored the legal opinion recommending that Mr. Padilla could be taken into custody as a military combatant. Defendant Yoo himself has publicly asserted that Attorney General Ashcroft relied on this opinion in recommending Mr. Padilla’s seizure out of the civilian justice system and detention without charge in a military prison.

Though, IMO, this logic doesn’t hold up, as the government always maintained that the criminal indictment in civil court did not rescind Padilla’s enemy combatant status.

The threat of re-detention is not a figment of Mr. Padilla’s imagination. On or about November 23, 2005 – shortly after the criminal indictment against Mr. Padilla was made public – Deputy Solicitor General Gregory Garre informed Mr. Padilla’s counsel, Jonathan Freiman, that it was the government’s position that the “enemy combatant” designation had not been rescinded and that the government could therefore militarily redetain Mr. Padilla at any time based on his alleged past acts.

But then, the suit is much vaguer than I’m making out here, and one of the central intents of this suit appears to be to get Padilla’s status as an enemy combatant back before the Courts. There’s no way Padilla could win this suit, after all, unless a court ruled that his designation as an enemy combatant was improper.

Now, all that’s my take before you get to the question of whether or not Yoo is entitled to immunity for his actions (see bmaz, masaccio, and Mary debating that). And, as bmaz points out, we won’t get to discovery if we don’t overcome the jurisdictional issues, including immunity but also venue.

So, on balance, I guess I’m agreeing with bmaz. I don’t see how this suit gets to the fun part of discovery, for the several reasons bmaz mentions. But I’m not sure that’s the point, yet. Most optimistically, it seems designed to re-open the question of whether Padilla was properly designated an enemy combatant. That might actually work if the plaintiffs work this suit in different venues. But even at the most basic level, this is going to push judges to weight their own self-respect against the government’s claims that it can break the law without any legal consequences. As masaccio argues,

It looks like the point of the complaint is the vivid description of the torture. In the decision, first the judge writes out all of that, stating that the facts stated by the plaintiff are entitled to a presumption of correctness, accompanied by dozens of cites. Then the judge has to patch together some kind of argument to get Yoo out. The contortions in that part will be obvious to a casual observer, and the question is the limits of the willingness of the judge to show to the world that the judge possesses the level of intellectual dishonesty that will be required.

One final thing. The neatest thing about this suit is the way it uses good conservatives against the government. If I’m right about the possibility of using the government’s changing claims as to Padilla’s status, then Michael Luttig’s opinion on those little games comes into play. It relies on past testimony from several people who work at the Brig where Padilla was tortured. And, most neatly, it relies centrally on Jack Goldsmith’s claims about the Yoo’s role in the various memos at the heat of the case, as well as Goldsmith’s stated opinions about how crappy they were.

I doubt this suit, as filed, will ever get to Court. But if it does, it would rely on a long parade of very uncomfortable conservatives having to denounce the torture their party leaders endorsed.

Since I’ve been talking so much about Helgerson, and since we now have proof that Helgerson’s investigation was always central to discussions of the torture tape destruction, I would be remiss in ignoring this bit from the LAT (h/t Laura).

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

But the agency will not force Helgerson to revise previously issued reports or acknowledge flaws in the reports, including one report that was sharply critical of top CIA officials for intelligence failures before the Sept. 11 terrorist attacks.

"The broader objective is to make the process fair, or fairer," said a senior U.S. intelligence official familiar with the matter.

In particular, the official said, the changes are designed to give employees a greater ability to defend their actions and present their views in reports issued by the inspector general, whose job is to be an in-house watchdog.

The officials said the changes would probably be announced next month by CIA Director Michael V. Hayden, who ordered the internal probe this year.

Note the timing on the story: December 23. After the whole torture tape thing blew up, and after CIA had agreed to share documents with Congress. That is, after it was clear that the centrality of the Helgerson’s report on interrogation methods to, at least, the Congressional inquiry into the torture tape destruction. 

So sometime around the same time as the torture tapes were blowing up in CIA’s face, Michael Hayden reached an agreement with Helgerson that would change the process of IG reports going forward, but would not change the report at the center of the scandal.

And how convenient that both men, Hayden and Helgerson, have only now recused themselves from the ongoing investigation. 

TPMM has a copy of Jane Harman’s letter to then CIA General Counsel Scott Muller and his reply (h/t BayStateLiberal). As Paul Kiel notes, Muller blows off Harman’s warning not to dispose of the Zubaydah tape.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

Muller simply doesn’t acknowledge her advice in his return letter.

But even without a response, Harman’s advice is instructive. It reveals that–at least in February 2003–CIA premised the destruction of the torture tapes on the completion of Helgerson’s IG inquiry into interrogation methods. That confirms my earlier suspicions that the torture tapes were intimately connected with the IG inquiry–and makes the May 2004 White House discussion of whether or not to destroy the tapes all the more damning. After all, they can’t very well deny that the IG reported that the tapes showed methods that may have been illegal if they claimed the torture tape destruction tied to the inquiry itself? So once the report came out, they would be bound to keep the tapes since they would have verified or refuted the IG report.

Also note, Harman mentions only Zubaydah, not al-Nashiri. Did Muller just neglect to mention the latter AQ detainee? Or are we getting a somewhat fickle depiction of what tapes were kept?

Just as interesting is the partial blow-off that Muller gives Harman on the issue of the policy wisdom of torturing detainees, as distinct from the legal implications. She asks,

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions. I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President? [my emphasis]

A very good question indeed. Particularly pertinent given the approval process described by Harman:

At the briefing you assured us that the [roughly 16 character redaction] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

She names AG Ashcroft, lawyers at the CIA (including, presumably, Muller himself), DOJ (those pesky OLC lawyers) and National Security Council (Bellinger). Absolutely no mention of two people I guarantee you were intimately involved: David Addington and Alberto Gonzales (and probably Tim Flanigan).

In response to Harman’s question about the White House and specifically the President, Muller offers this full blow-off:

As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch. [my emphasis]

It seems to me a perfectly fair question: this may (emphasis on may) be legal, but is the President really saying it’s a good idea? Unfortunately, given the confusion about the sub-fourth branches within the Executive Branch, Muller obscures the issue.