March 29, 2024 / by 

 

Durham’s Previous Run-In with Tribalism

There are two more themes emerging on the coverage of John Durham, the guy Mukasey picked to investigate the torture tape destruction. First, there’s this piece from the WaPo that describes how Durham managed to take down the governor of CT.

Pickerstein said Durham relied on a "good versus evil" vision of the world while overseeing the probe of former governor John G. Rowland.

Rowland was sentenced to a year and a day in federal prison and four months of home confinement for accepting $107,000 in gifts from people doing business with the state and for not paying taxes on them. "It wasn’t an easy case, but John was single-minded in his pursuit of the truth," Pickerstein said.

Gotta say I appreciate the emphasis on his willingness to go after Republicans. But folks? Let’s stop with the "Second coming of Fitz" claims, particularly ones that suggest Fitz doesn’t have a sense of humor.

He’s Fitzgerald with a sense of humor

I just think the whole "second-coming" thing is unnecessary. Perhaps, shocker, there is more than one model for honest prosecutor.

My favorite new detail to come out about Durham today is this one:

Durham’s role in the Boston investigation has been judged a success, but before it concluded, he found himself at the center of brutal warfare between Boston’s competing and almost tribal political and law enforcement interests — interests that had become increasingly mistrustful over the years because of what later was proven to have been leaks of law enforcement secrets to murderous gangsters.

Friends said Durham, who until then had been largely trustful of law enforcement colleagues, quickly concluded that no one could be trusted. And in the murky world of Boston law enforcement, friends said the publicity-averse Durham became almost maniacal about leaks.

In Connecticut, Durham’s distaste for the press has become something of a standing joke among law enforcement agents. He appears in public only when forced by superiors and, then, usually issues terse "no comments." 

That detail I particularly like. If my admittedly WAGGY reading of the factionalism behind the torture tape destruction is even close, Durham will need to wander Washington trusting no one, negotiating some really Byzantine rules of tribalism.

Now if we can only get him special counsel status. 


Mukasey’s Statement

Here’s Mukasey’s statement on the criminal probe into the torture tape destruction.

Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation as outlined below.

This preliminary inquiry was conducted jointly by the Department’s National Security Division and the CIA’s Office of Inspector General. It was opened on December 8, 2007, following disclosure by CIA Director Michael Hayden on December 6, 2007, that the tapes had been destroyed. A preliminary inquiry is a procedure the Department of Justice uses regularly to gather the initial facts needed to determine whether there is sufficient predication to warrant a criminal investigation of a potential felony or misdemeanor violation. The opening of an investigation does not mean that criminal charges will necessarily follow.

An investigation of this kind, relating to the CIA, would ordinarily be conducted under the supervision of the United States Attorney for the Eastern District of Virginia, the District in which the CIA headquarters are located. However, in an abundance of caution and on the request of the United States Attorney for the Eastern District of Virginia, in accordance with Department of Justice policy, his office has been recused from the investigation of this matter, in order to avoid any possible appearance of a conflict with other matters handled by that office.

As a result, I have asked John Durham, the First Assistant United States Attorney in the United States Attorney’s Office for the District of Connecticut, to serve as Acting United States Attorney for the Eastern District of Virginia for purposes of this matter. Mr. Durham is a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past, and I am grateful to him for his willingness to serve in this capacity. As the Acting United States Attorney for purposes of this investigation, Mr. Durham will report to the Deputy Attorney General, as do all United States Attorneys in the ordinary course. I have also directed the FBI to conduct the investigation under Mr. Durham’s supervision.

Earlier today, the Department provided notice of these developments to Director Hayden and the leadership of the Judiciary and Intelligence Committees of the Congress. [my emphasis]

Some interesting points: First, note that ED VA, Chuck Rosenberg, asked to be recused from the investigation. That’s almost certainly because of the Moussaoui investigation, in which the tapes should have been turned over to Leonie Brinkema. But Mukasey has not recused himself for his involvement in Padilla (though he may well know that the tapes were taken after he approved Padilla’s arrest); Durham will report to the Deputy AG. I forget, do we have a DAG?

Also note who got an official notice of this: the Intelligence Committees (no doubt because they’re going to have to ask Durham before they offer Rodriguez or anyone else immunity, but also because Mukasey is trying to make up for his stonewalling in December), and CIA. No apparent official notice to the White House.

For the moment, this looks like an investigation primarily of CIA (otherwise, having DC USA Jeff Taylor oversee it might have worked), and not, specially, David Addington.

Update: From the WaPo, Michael Hayden and John Helgerson have recused themselves as well:

Hayden said in a statement today that he was recusing himself from any involvement in the new Justice investigation because of his past role in reviewing the tape destruction. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation," Hayden said.

CIA Inspector General John L. Helgerson announced that he also would recuse himself from the criminal inquiry to avoid a conflict of interest. Helgerson said he and his staff had "reviewed the tapes at issue some years ago," during the time when agency officials were debating whether to destroy them.

"During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said in a statement. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation." [my emphasis]

If Helgerson’s conflict was so obvious (and it was), I wonder why he didn’t already recuse himself. Though given how long he has been fighting this battle with the CIA, I’m sure he wanted to nail them.

Also, when Helgerson says he "reviewed the tapes at issue," do you think he means he reviewed the copies of the tapes that were cabled back to CIA, he reviewed the actual tapes in the country where they purportedly remained, or just reviewed the general idea of the tapes?

Update: Conyers, who has served on HJC most of my life, notes what many of us have noted–this is an investigation that looks independent, but really isn’t.

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. Because of this action, the Congress and the American people will be denied – as they were in the Valerie Plame matter – any final report on the investigation.

Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations.

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the Administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.  


9/11 Commission Decries Obstruction

Thomas Kean and Lee Hamilton must have been waiting all holiday long to launch this grenade against the Administration just as Congress returns and the torture tape inquiry heats up.

MORE than five years ago, Congress and President Bush created the 9/11 commission.

[snip]

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

The op-ed goes on to lay out the key details included in Zelikow’s memo, the chronology of dates when the 9/11 Commission asked for interrogation records that would have included the torture tapes the CIA later went on to destroy. Of note, Kean and Hamilton clearly include the White House among those who obstructed the Commission’s work.

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.

I’ll be curious to see whether and how Kean and Hamilton can ratchet up attention on this issue. Unlike the several judges who were ignored in their requests regarding the tapes, Kean and Hamilton are in a position to really hammer this issue. And unlike Congress (who appears to have been lied to about matters depicted in the tapes), Kean and Hamilton seem willing to call obstruction obstruction. They do acknowledge that they aren’t the ones who will get to investigate the torture tape destruction.

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

But it’s probably worth noting that they’re launching this grenade from Mukasey’s home town.


Mary McCarthy and the Terror Tapes

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.

First some background. McCarthy was Deputy Warning Office in 1991, and took over as Warning Officer in 1994. In 1996, she joined the Clinton White House to help review presidentially-approved clandestine operations. In that role, she got into some public squabbles with the Directorate of Operations, including with James Pavitt (who was head of Operations until 2004). After Bush became President, she moved around, first in a WH position, then in the Technology and Science Division. In Summer, 2004, CIA’s IG John Helgorsen recruited McCarthy to oversee an investigation into wrong-doing in Iraq. Note, this article (from which I’ve gotten this chronology) suggests McCarthy was aware of the April 2004 IG investigation finding that the CIA’s interrogation methods amount to cruel and inhuman treatment, but the timing suggests she didn’t start as Deputy IG until after the report was done.

But that’s significant nonetheless. Mary McCarthy, as the Deputy IG under Helgorsen, was at least knowledgeable about the report that finds the CIA has tortured detainees (though it doesn’t use the term). That would suggest she learned of the torture (and the locations of the black sites) in the IG’s office.

The CIA said in a statement last week that omitted McCarthy’s name that the officer was fired for discussing operational intelligence matters with journalists. Officials have said the journalists included Washington Post correspondent Dana Priest, who last week was awarded a Pulitzer Prize for national security reporting that included the revelation of secret, CIA-run prisons for suspected terrorists in Eastern Europe and elsewhere.

Indeed, the suggestion that she leaked something she learned as Deputy IG was perceived as all the more galling at the CIA.

Several former intelligence officials said they were particularly alarmed about McCarthy’s alleged involvement in any leaks because of where she worked at the CIA. L. Britt Snyder III, who was CIA inspector general from 1997 to 2000, said if McCarthy leaked information while working in the IG office, "we would have considered that a fairly egregious sin." The IG, he said, "gets into everything, including personal things. That makes it a little different than other places."

Now, McCarthy denies leaking to Priest.

But McCarthy, in e-mails to friends, has denied leaking anything classified. She has not denied speaking to Priest but has said she was unaware that the CIA had secret prisons in Eastern Europe, the most attention-getting detail in Priest’s articles last year. Her lawyer has said the same thing publicly.

And indeed, reports say that McCarthy failed a lie detector test; most reports admit that she never admitted to leaking information to Dana Priest. Though that didn’t stop Jennifer Millerwise Dyck–then spokesperson for the CIA and a former press flack for Dick Cheney–from claiming McCarthy had admitted to leaking to Priest.

CIA spokeswoman Jennifer Millerwise Dyck, without naming McCarthy, denied that the firing was meant to suppress dissent. She said it was provoked solely by the officer’s admission to CIA investigators to having provided classified information to the media. "You can’t ignore an officer ignoring their secrecy agreement," Dyck said.

All of which raises the possibility (discussed publicly at the time) that McCarthy was fired as a scapegoat and political attack on a known Kerry supporter. Which makes it all the more interesting that Porter Goss personally oversaw the investigation, rather than having DOJ conduct the investigation.

Since Bush appointed a Republican ally and former lawmaker, Porter J. Goss, to replace George J. Tenet as the agency’s chief in September 2005, Goss has repeatedly criticized the media for writing about sensitive intelligence matters and called for reporters to be forced to reveal their sources to grand juries. He personally oversaw the leak investigation that led to McCarthy’s dismissal, rather than asking the Justice Department to do it — as previous directors had requested in similar probes.

Curiously, Goss’ resignation (May 5) came just weeks after McCarthy’s own April 20, 2006 firing.

So McCarthy was fired, allegedly for leaking details of the IG report finding the CIA used cruel and inhuman methods in its interrogation.

But here’s what I find so interesting. McCarthy’s own explanation for her dispute with CIA brass points to her discomfort with lies the CIA was telling Congress–in 2005, earlier in the year before the torture tapes were destroyed.

A senior CIA official, meeting with Senate staff in a secure room of the Capitol last June, promised repeatedly that the agency did not violate or seek to violate an international treaty that bars cruel, inhumane or degrading treatment of detainees, during interrogations it conducted in the Middle East and elsewhere.

But another CIA officer — the agency’s deputy inspector general, who for the previous year had been probing allegations of criminal mistreatment by the CIA and its contractors in Iraq and Afghanistan — was startled to hear what she considered an outright falsehood, according to people familiar with her account. It came during the discussion of legislation that would constrain the CIA’s interrogations.

That CIA officer was Mary O. McCarthy, 61, who was fired on April 20 for allegedly sharing classified information with journalists, including Washington Post journalist Dana Priest. A CIA employee of two decades, McCarthy became convinced that "CIA people had lied" in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading.

[snip]

In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA’s detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (Calif.), the senior Democrat.

McCarthy also told others she was offended that the CIA’s general counsel had worked to secure a secret Justice Department opinion in 2004 authorizing the agency’s creation of "ghost detainees" — prisoners removed from Iraq for secret interrogations without notice to the International Committee of the Red Cross — because the Geneva Conventions prohibit such practices. [my emphasis]

So whether or not McCarthy was one of Priest’s sources (recall that Priest had about a million sources), she was also witness to the fact that someone had gone before both houses of Congress and lied about what kind of practices the CIA had engaged in. There are just a few candidates for who that official (or officials) might be. They include, at least, acting General Counsel John Rizzo, DCI Porter Goss, Director of Operations Jose Rodriguez, Director of Counter-Terrorism Robert Grenier (though he’s unlikely, since he is rumored to have been opposed to torture).

In any case–you see where I’m going with this. Mary McCarthy says that someone came before two committees of Congress, right in the middle of debates on whether to outlaw torture for the CIA, and lied about what the CIA was and had been doing. And that person is likely to be one of the people closely involved in discussions about destroying the torture tapes that would have proved that he lied.

Gosh. It sure seems like before Congress decides why the torture tapes were destroyed, they ought to figure out whether they were evidence that someone lied to them in 2005, huh?


The CIA Solidifies its Terror Tapes Story–or Tries To

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.

Why Tape Abu Zubaydah and Abd al-Rahim al-Nashiri, but not Ramzi bin al-Shibh or any others?

For example, the story gets really vague as it moves away from events related exclusively to Abu Zubaydah and to events covering other top Al Qaeda detainees. It suggests the taping was closely connected to Zubaydah’s gunshot wounds when he was taken into custody, a way of documenting that, if he died, the interrogation wasn’t responsible.

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.

But that doesn’t explain their decision to tape interrogations–or not–with other Al Qaeda detainees. The story admits that the CIA also taped interrogations with a-Nashiri.

the decision to begin taping Abu Zubaydah and another detainee suspected of being a Qaeda operative, Abd al-Rahim al-Nashiri, was made in the field

But it doesn’t explain why they would tape interrogations of al-Nashiri. Was he, too, injured in his capture? Contemporary reports don’t say he was. And if al-Nashiri’s interrogations were taped, then why weren’t Ramzi bin al-Shibh’s interrogations (and note, bin al-Shibh was also taken in a gunfight)?

Why tape al-Nashiri after the tapes became risky?

The question of why and whom they taped becomes more curious when you consider the timing. The story provides a vague description of when taping started and when it ended, at first suggesting it started shortly after Zubaydah’s capture and lasted just months.

… in the spring of 2002, … they set up video cameras to record [Abu Zubaydah’s] every moment:

[snip]

… worry drove the decision to begin taping interrogations — and to stop taping just months later, after the treatment of prisoners began to include waterboarding.

Stories elsewhere have reported that waterboarding started after the August 1 Bybee Memo authorized it. If so, that would suggest they started to reconsider keeping the tapes in August, because they were waterboarding.

But then the story connects the stop of taping with the deaths of some detainees in November and December 2002.

Heightening the worries about the tapes was word of the first deaths of prisoners in American custody. In November 2002, an Afghan man froze to death overnight while chained in a cell at a C.I.A. site in Afghanistan, north of Kabul, the capital. Two more prisoners died in December 2002 in American military custody at Bagram Air Base in Afghanistan.

And it suggests that, by this point, the CIA had already stopped keeping tapes.

By late 2002, interrogators were recycling videotapes, preserving only two days of tapes before recording over them, one C.I.A. officer said. Finally, senior agency officials decided that written summaries of prisoners’ answers would suffice.

But this is precisely the timeframe when al-Nashiri was captured and turned over to the US, which is reported (even to the 9/11 Commission) as occurring in early November (the "two weeks ago") would be November 9.

Abd al-Rahim al-Nashiri, a Saudi in his mid-thirties who is suspected of being the mastermind behind the USS Cole bombing in Oct. 2000, was captured nearly two weeks ago, Fox News has learned, by an unidentified foreign government which turned him over to the United States.

So the CIA would have you believe that they reconsidered taping interrogations as soon as the waterboarding started in August 2002. So why did they tape al-Nashiri’s interrogations, which didn’t start until at least three months after they started reconsidering the taping, at a time when the CIA seemed to be moving toward over-writing the tapes?

Note, the NYT’s handy graphic timeline hides this issue, by suggesting that al-Nashiri was captured at the same time as Zubaydah. I guess the story wouldn’t look so logical and innocent if you saw that al-Nashiri’s interrogations started in the same month a detainee died in CIA custody, huh?

What connection is there between the detainee deaths and the decision to stop taping?

Which raises another question. We know the CIA was still taping–at least some detainees–in November 2002 because the CIA taped al-Nashiri, who wasn’t captured until November. So did they tape the CIA detainee who died in custody in November? And if so, did they destroy that tape?

The story suggests a vague relationship between the start of torture and the deaths in custody.

More significant, interrogations of Abu Zubaydah had gotten rougher, with each new tactic approved by cable from headquarters. American officials have said that Abu Zubaydah was the first Qaeda prisoner to be waterboarded, a procedure during which water is poured over the prisoner’s mouth and nose to create a feeling of drowning. Officials said they felt they could not risk a public leak of a videotape showing Americans giving such harsh treatment to bound prisoners.

Heightening the worries about the tapes was word of the first deaths of prisoners in American custody. In November 2002, an Afghan man froze to death overnight while chained in a cell at a C.I.A. site in Afghanistan, north of Kabul, the capital.

Using their original stated logic for taping the interrogations (that is, you tape the interrogations to prove the interrogations didn’t kill a detainee), it seems that this coincidence of events would raise the importance of taping interrogations. You’d want to tape all interrogations, to prove that any deaths occurred for some other reason.

Though, the exposure to extreme cold is one of the interrogation methods that has been approved by the CIA. So that November death may well have been caused by what was considered a legal interrogation method.

Which might explain things: the CIA stopped taping interrogations because those tapes included proof that approved interrogation methods were killing people.

What did Scott Muller advise when and did he include the White House in these discussions?

The timing of the story is also vague as it pertains to then CIA General Counsel Scott Muller’s role. It explains that Scott Muller advised against destroying the torture tapes; the implication is that that happened in late 2002 or early 2003.

Clandestine service officers who had overseen the interrogations began pushing hard to destroy the tapes. But George J. Tenet, then the director of central intelligence, was wary, in part because the agency’s top lawyer, Scott W. Muller, advised against it, current and former officials said.

But the story also describes how, in a bid to get political cover for destroying the tapes, Muller briefed "members of the House and Senate oversight committees" on the tapes in February 2003.

Yet agency officials decided to float the idea of eliminating the tapes on Capitol Hill, hoping for political cover. In February 2003, Mr. Muller told members of the House and Senate oversight committees about the C.I.A’s interest in destroying the tapes for security reasons.

Now, first of all, that part of the story still conflicts with Jello Jay Rockefeller’s story–and presumably SSCI as a whole.

Last night, the CIA informed me that it believes that the leadership of the Senate Intelligence Committee was told of the decision to destroy the tapes in February 2003 but was not told of their actual destruction until a closed committee hearing held in November 2006.

The committee has located no record of either being informed of the 2003 CIA decision or being notified late last year of the tapes having being destroyed. [my emphasis]

That is, Jello Jay claims that the CIA claims that SSCI was informed of the torture tape decision, not that the CIA "floated the idea" of destroying the tapes. But SSCI has no record such a briefing occurred.

Now, let’s even presume that Jello Jay forgot (or that the Vice Chair of SSCI somehow wasn’t among those "members of the House and Senate oversight committees" who were briefed). It still raises interesting timing questions. The story seems to suggest the Muller opposed the destruction for legal reasons, but that in spite of his opposition to the destruction, he was still recruited to go tell Congress they were destroying the tapes, that then Congress opposed the idea, and only then did CIA agree with Muller’s advice not to destroy them.

Also what do you think the chances are that Muller was off briefing Congress but had not yet already discussed the issue with the White House? Did White House involvement lead to the CIA’s decision–over Muller’s claimed opposition–that they were going to inform Congress they were destroying the tapes? And what happened to Nancy Pelosi’s briefing, the one that occurred in 2002 when she was still part of the Gang of Four? The description of when Muller’s advice and the briefing of Congress occurred seems designed to account for a known piece of paperwork–Jane Harman’s letter objecting to the tapes’ destruction–but it ignores a whole lot of other discussions that certainly took place.

In addition to these big questions, the story has some of the familiar questions we’ve been looking at for years: How is it that officers came to Porter Goss and asked for "a firm decision" about the tapes, but walked away believing they could still destroy them? Why is it that, after the CIA decided in 2004 they needed to destroy the tapes, they waited until 2005 to do so.

But there are three more details worth noting in the story.

First, the story backs off earlier claims that Abu Gonzales opposed the destruction of the tapes in the May 2004 briefing that appears to be documented.

The positions Mr. Gonzales and Mr. Addington took are unknown.

Of course, no one has every claimed that Addington opposed the destruction of the tapes.

Second, the article describes Bush as having compartmented himself off from the program.

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.

The story makes it sounds as if Bush was not told of the locations of the secret prisons because the program was so secret that even the President could not be told. Whaaaa??!?!?! I mean, I know the White House (and particularly the Fourth Branch section of it) leaks like a sieve, but this information was not going to be leaked out of the White House. If they didn’t tell Bush about the secret prisons, it was to insulate him from legal responsibility for them. But therein lies the problem: there’s a long history of acceptance of the CIA’s excesses, if the President signs off on it. But in this matter, they specifically prevented Bush from signing off on one aspect of it–no doubt because it was so politically and legally fraught with risk, they didn’t want to expose the President.

Now couple that claim with what I consider–by far–the most revealing part of this story:

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.

I’ve never understood the claim that Dana Priest’s story on the black sites somehow precipitated the destruction of the torture tapes. But this story seems to inadvertantly explain the connection. When her story came out, they moved the detainees.

Now, the NYT has already reported that the tapes were always stored in the same country where the interrogations took place.

The NYT’s article has one more detail of note–again, reporting something that is intuitive, but not something that had been confirmed before, AFAIK. The torture tapes were stored in the country–singular–where the interrogations of Abu Zubaydah and al-Nashiri took place.

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.

If the CIA scrambled after Priest’s story to 1) move detainees out of Poland or Romania the Eastern European country in question and 2) to hide any evidence that the US had been torturing detainees on European soil, it would make sense that they would destroy the tapes at the same time (particularly if they were stored at the prison in question). Particularly if the CIA was trying to compartment details about this prison so as to protect the President.

In other words, this strongly suggests they destroyed the tapes–among other reasons–to hide the fact that a European ally was complicit in the torture.


Why the Sudden Veto of Military Pay Raises?

Digby and Steve Benen are right. Bush’s impending veto of the military spending bill is just weird. Here’s how Pelosi and Reid describe the veto:

Despite the Administration’s earlier support for the Department of Defense authorization bill, it appears that President Bush plans to veto this legislation, which is crucial to our armed forces and their families.

The Defense bill passed both houses of Congress by overwhelming bipartisan margins and addresses urgent national security priorities, including a 3.5 percent pay raise for our troops and Wounded Warriors legislation to remedy our veterans’ health care system. It is unfortunate that the President will not sign this critical legislation.

Instead, we understand that the President is bowing to the demands of the Iraqi government, which is threatening to withdraw billions of dollars invested in U.S. banks if this bill is signed.

The Administration should have raised its objections earlier, when this issue could have been addressed without a veto. The American people will have every right to be disappointed if the President vetoes this legislation, needlessly delaying implementation of the troops’ pay raise, the Wounded Warriors Act and other critical measures.

It’s weird in that Bush has had months to push a very compliant Congress to write the bill precisely as he wants. And it’s weird because the stated reason for the impending veto doesn’t make any sense. Steve points to this Yahoo article explaining why. Bush says he’s going to veto the bill because the Iraqis are worried about getting sued, but the Iraqis are already protected by law.

Sovereign nations are normally immune from lawsuits in U.S. courts. An exception is made for state sponsors of terrorism and Iraq was designated such a nation in 1990. After the 2003 invasion of Iraq, however, Congress passed a law and Bush issued a decree stating that Iraq was exempt from such lawsuits.

After that exemption was passed, the administration challenged and successfully overturned a $959 million court ruling for members of the U.S. military who said they were tortured as prisoners of war during the first Persian Gulf War.

The Justice Department also sought to defeat a lawsuit brought by U.S. citizens held hostage during Iraq’s 1990 invasion of Kuwait. That case has been taken over by lawyers for the new Iraqi government and is ongoing in a Washington federal court.

The provision that is causing problems would have allowed the victims of the executed Iraqi dictator Saddam to seek compensation in court, Democrats said. The Iraqi government has warned that former U.S. prisoners of war from the first Gulf War might cite this legislation in an attempt to get money from the Iraqi government’s reported $25 billion in assets now held in U.S. banks, they say.

Unless Bush vetoes the legislation, the Iraqis have threatened to withdraw all of their money from the U.S. financial system to protect it from the lawsuits, Democrats said. The White House contends the legislation subject to the Bush veto would imperil Iraqi assets held in the United States, including reconstruction and central bank funds.

And here’s the provision in question.

`Sec. 1605A. Terrorism exception to the jurisdictional immunity of a foreign state

`(a) In General-

`(1) NO IMMUNITY- A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

`(2) CLAIM HEARD- The court shall hear a claim under this section if–

`(A)(i)(I) the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to subclause (II), either remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section; or

`(II) in the case of an action that is refiled under this section by reason of section 1083(c)(2)(A) of the National Defense Authorization Act for Fiscal Year 2008 or is filed under this section by reason of section 1083(c)(3) of that Act, the foreign state was designated as a state sponsor of terrorism when the original action or the related action under section 1605(a)(7) (as in effect before the enactment of this section) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) was filed;

`(ii) the claimant or the victim was, at the time the act described in paragraph (1) occurred–

`(I) a national of the United States;

`(II) a member of the armed forces; or

`(III) otherwise an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee’s employment; and

`(iii) in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration; or

`(B) the act described in paragraph (1) is related to Case Number 1:00CV03110 (EGS) in the United States District Court for the District of Columbia.

Now, obviously, the law does not name Iraq specially. So there’s got to be something funky going on here–if the Iraqis are exempt, then presumably they’re exempt. Though maybe that’s just for things that happened under Saddam. While Iraq is not now a sponsor of terrorism, they could easily become one, if we got cranky with them. Or perhaps their objection is more indirect. For example, I can see why the Saudis wouldn’t want us to pass this bill (though they haven’t been named a sponsor of terrorism either), but that doesn’t mean the Iraqis would object.

One interesting, probably unrelated (but then who knows) detail is category "B," which allows suits from 1:00CV03110 to go forward. That’s Roeder v. Iran, a suit taken by Iranian hostages (not Iraqi hostages), which the Administration got thrown out in 2003 because (among other things) Iran was not a legal sponsor of terrorists when it took the Americans hostage. Under this provision, it appears, the Americans taken hostage by Iran might get to try again. Just as the Saudis and the Iranians are getting in bed together. Given the close ties between the Shiites running Iraq and the Iranian government, is that why the Iraqis obejcted?

I have no idea, but something doesn’t make sense…

As an added bonus from dakine, here’s a nice little twist, courtesy of Senator Webb, who shows up to work every other day to keep the Senate in session for approximately 9 seconds.

President Bush on Friday headed toward a constitutional confrontation with Congress over his effort to reject a sweeping defense bill.

Bush announced he would scuttle the bill with a "pocket veto" — essentially, letting the bill die without his signature 10 days after he received it, or the end of Dec. 31.

But that can happen only when Congress is not in session; otherwise, the bill becomes law without a formal veto in 10 days. And the Senate maintains it is in session because it has held brief — sometimes only seconds long — meetings every two or three days with only one senator present. The White House’s view is that Congress has adjourned.

Bush obviously doesn’t want to veto pay raises for our men and women (or, presumably, Bush’s party members don’t want him to). But this fight is one the courts might agree with Congress on. Is his desire to prevent whatever the stated threat is stronger than his desire to look like a friend of the military?

Update: The NYT finds someone who knows more about this than I–and who also doubts Bush’s reasoning.

Meanwhile, a Washington lawyer who has represented Americans who were abducted by Iraqi forces after the 1990 invasion of Kuwait said that he doubted the official explanation for President Bush’s rejection of the bill.

The lawyer, Dan Wolf, said he believed some people in the State Department resented him and his clients for suing Iraq in United States District Court and, in the view of diplomats, “stepping on their turf.”

As for the assertion that the suits could threaten the stability of the new Iraqi government, Mr. Wolf said the money that could go to his clients is “a very, very small fraction” of Iraqi assets in the United States.

Also note, but the NYT and the WaPo seem to take the White House at its word that Congress is not in session. Somebody better tell Jim Webb.


The Terror–Or Maybe Something Else–Presidency

I just finished Jack Goldsmith’s The Terror Presidency. As I’ve been reading, I’ve been focusing primarily on the insight it might offer onto the Terror Tape Destruction. I’ll come back to this, but the short version is that, from June 2004 to December 2004, the CIA had no legal cover for the water-boarding they had already done, which explains why they’d want to destroy the evidence they had been doing it; but that still doesn’t explain why they’d wait until November 2005 to destroy the tapes, which seems to be the really pressing question right now.

But I appreciated Goldsmith’s book, too, for the way that reading an intelligent and sincere conservative helps me to see my disagreements with conservatives more clearly.

While I was reading the book, I found myself repeatedly bugged by several of Goldsmith’s blind spots, not least for his explanation that the excesses of the Administration are attributable to the accountability a President has and the fear everyone had of another terrorist attack.

The main explanation is fear. When the original opinion [on torture] was written in the weeks before the first anniversary of 9/11, threat reports were pulsing as they hadn’t since 9/11. … "We were sure there would be bodies in the streets" on September 11, 2002, a high-level Justice Department official later told me. Counterterrorism officials were terrified by a possible follow-up attack on the 9/11 anniversary, and desperate to stop it.

[snip]

I have been critical of my predecessors’ actions in writing the interrogation opinions. But I was not there when they made the hard calls during the frightening summer of 2002. Instead, I surveyed the scene from the politically changed and always-more-lucid after-the-fact perspective. When I made tough calls in crisis situations under pressure and uncertainty, I realized that my decisions too would not be judged from the perspective of threat and danger in which they were taken. … Recognizing this, I often found myself praying that I would predict the future correctly.

Now, much as I respect Goldsmith’s intelligence, I’m convinced he conjures this explanation as a way to understand how someone like David Addington could be shredding the Constitution, but be doing it in good faith. It’s all understandable and desirable, Goldsmith seems to be saying, in that it will keep us safe in the long run. And David Addington means well, really he does.

But there are several problems with this conceit. First, never once does Goldsmith acknowledge that the Bush Administration’s intense fear stems not just from a fear of potential future events, but also from a fear heightened by past failure. For all Richard Clarke’s (and Clinton’s) efforts, Bush and his top aides refused to believe in the threat posed by Al Qaeda and instead focused primarily on Iraq. Bush dismissed a threat warning about Al Qaeda’s determination to strike in the US with the insinuation that his briefer was just interested in covering his ass. So while Goldsmith repeatedly claims Presidents will be held accountable for national security failures, he never acknowledges that President Bush managed to dodge responsibility for the attack that he might have prevented, if he had just listened to his advisors and briefers. I’m sure folks like Richard Clarke had a realistic fear of the damage Al Qaeda could do. But the fear of the Bush Administration has a whole different taint to it, that of a crowd that gambled and lost.

Speaking of which, it’s not until page 209 when Goldsmith addresses the real elephant in the room–the Iraq War (though he does discuss Iraq in the context of discussions about interrogation policies). Goldsmith admits that the Iraq War hurt Bush’s credibility in other matters.

The administration lost pubic trust in the fight against terrorists when it premised a major war on a terror-related threat of weapons of mass destruction that turned out to be wrong. And the war in Iraq has spilled over to and infected everything else that this administration does in the broader war on terrorism.

But Goldsmith doesn’t even begin to account for the damage Iraq has done. Look at the construction: "it premised a major war on a terror-related threat of weapons of mass destruction that turned out to be wrong." Goldsmith doesn’t make it clear whether the war itself or the premise was wrong. Yet by suggesting that one or the other "turned out to be wrong," Goldsmith strips the Administration of all agency with regards to the war. It just happened … and happened to be wrong, with no discussion of the accountability for that moment. By ignoring the question of accountability for the war, Goldsmith ignores abundant evidence for why Bush couldn’t win the trust of people. Once you’ve risked your vanity war’s success by putting Heritage Foundation children in mission critical jobs, you lose the claim to good faith. And when your advisors twice lead you to gamble and lose with the nation’s security, its authoritarian impulses should no longer be judged as good faith badly executed, but a fundamental characteristic that will lead repeatedly to choices that make us less safe.

Mostly, though, I was struck by Goldsmith’s blind faith that he, writing as an expert on the Terror Presidency, is writing with the distance and wisdom to improve our nation’s security. Yes, what he says about the necessity for winning public approval for presidential policies is right on. But he makes a critical mistake in his certainty that the terrorist war is the crisis that will dominate our time. Take a look at Goldsmith’s statement about the importance of responding pre-emptively to threats:

For generations the Terror Presidency will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so. The threats have such a firm foundation in possibility, and such a harrowing promise of enormous destruction, that any responsible executive leader aware of the threats … must assume the worst. … National security officials do not have the luxury of hindsight when deciding how to act. But they do understand the potential consequences of not taking threats seriously enough. This is why they obsessively focus on how a genuine threat might look before the fact.

And ask yourself–which is a greater threat to this country right now, climate change or terrorism? Climate change, like terrorism, "has such a firm foundation in possibility, and such a harrowing promise of enormous destruction." Yet no one in this Administration seems to care a whit about the "potential consequences of not taking" the threat of climate change seriously enough. On the contrary, the same guy who dismissed his briefer by insinuating that he was just covering his ass has twisted all the science coming out of his Administration to ensure that the threat of climate change is not discussed seriously.

The point is, Goldsmith takes a very particular approach to the presidency, one rooted in a firm belief that the Administration’s errors will be vindicated as the nature of the terrorist threat becomes clear to all of us ignorant citizens. He never considers what happens to his argument when you assess it against the background of the Administration’s failures to respond to other threats–either the false one of Saddam’s nukes or the real one of climate change (or any number of other threats, including economic crisis). Admittedly, I can’t forsee the future, so it may still transpire that terrorism will cause greater damage to our nation and our globe than terrorism climate change (though I’d say climate change is already wreaking greater havoc). And Goldsmith’s primary lesson still holds: no matter the threat, you need to respond to it by cultivating support for your response. But Goldsmith manages to recuperate the members of the Administration he knows have failed by pitching their mistakes as a good faith response motivated out of the correct assessment of the threats to this country. And that recuperation gives the Administration yet another dodge to avoid looking at the real threats to this country.

Update: Error fixed per MadDog


The “Other” Provision Of The Records Act

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 that the Administration will very soon be on the move again, morphing away from this version of their rationalization to the next cock and bull story.

Initially, the provision applies "during a state of war between the United States and any other nation or when hostile action by a foreign power appears imminent". To the best I can discern, there has not been a formal declaration of war against another nation by the United States Congress, the branch with the sole power of doing so under Article 1, Section 8 of the Constitution. The AUMF will be trotted out, along with the ubiquitous Article II Commander in Chief tripe, but the simple fact is the AUMF is not a formal declaration of war and Bush’s Article II powers do not allow him to magically transform the AUMF into a formal declaration of war. It is also hard to fathom any basis for the Administration to claim "action by a foreign power appears imminent" at the time the tapes were destroyed.

Secondly, the only person with the statutory authority to exercise the power to order emergency destruction of foreign locus records during a state of war is "the head of the agency that has custody of the records". In this instance, there are only two people that could plausibly be considered to fall into this definition, Porter Goss, the head of the CIA at the time, and John Negroponte, the Director of National Intelligence (DNI) at the time and who is theoretically over all the intelligence agencies, including the CIA. Negroponte not only firmly advised against destruction or the torture tapes, he felt so strongly about it that he memorialized it in writing to insure there was a record. Multiple reports indicate that Porter Goss also advised against the destruction of the torture tapes and that he is dismayed and angry they were destroyed.

Next, assuming there was a proper state of war (there was not) and the right authority ordered the destruction of the evidence tapes (they did not), were the right circumstances present permitting destruction under the provision? It is hard to imagine how a few videotapes could credibly be considered to "occupy space urgently needed for military purposes", nor can it, even remotely, be said that the tapes "are without sufficient administrative, legal, research, or other value to warrant their continued preservation". The only authorized situation remaining is where the records are "prejudicial to the interest of the United States". I will grant the contents of the torture tapes are prejudicial to the interests of the United States; but, personally, I am not very plussed with conflation of concealment of blatant and intentional commission of national and international war crimes by elected politicians, and the general interest of the country. Furthermore, these provisions are designed to apply only to emergency situations. What emergency was there necessitating the destruction of evidence that no one knew about, kept in a safe in a third party country no one is aware of, that is under no known threat or attack by anything, some four years after the tapes were made? The only threat was that the tapes would be discovered and the heinous war crimes of this Administration become exposed and proved beyond any reasonable doubt. Not particularly compelling.

You can almost detect a pattern here eh? The next consideration is, if all the requisite elements permitting the emergency destruction of the torture tapes were met (they were not), were the proper protocols and procedures followed in effecting the destruction? That would require that:

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.

Perhaps there is such documentation and it simply has not been disclosed yet. You would think that this document, at least in a minimally redacted form, would have been trotted out to exhibit the propriety of conduct by the Administration; but we have not seen that. Time will tell, but it is a safe bet that if there was such a legitimate and fully compliant certification made to the NARA within six months of the destruction of the torture tapes, we would have heard about it.

It is almost impossible to know where the convoluted, disingenuous dog and pony show being run by the Bush Administration on the destruction of the torture tapes will end up, but if the line of argument discussed herein is what they are standing on, they are going to need railroad cars of pixie dust to coat the pill for anyone of common sense to swallow.


Torturous Logic

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.

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a lawsuit in June 2004 in the U.S. District Court for the Southern District of New York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the CIA and other government departments to "produce or identify" all responsive documents by October 15, 2004.

[snip]

The Court’s Order required the CIA to "produce or identify all responsive documents." Those not produced had to be identified. Classified documents were to be "identified in camera [that is, only to the court] on a log produced to the court." Recall, too, that the FOIA request sought information on the handling of all but a few detainees, who were within the United States.

It is well- and long-established law that a court order of this nature requires that the party preserve all information possessed that is responsive to the request. Thus, the CIA was obligated to preserve the tapes even if they were hell-bent on fighting in court to deny them to the ACLU. And as this litigation proceeded, Judge Hellerstein’s later orders only served to reinforce that obligation, as a string of precedents makes clear.

On its face, it appears to be really ridiculous logic, but perhaps they’re arguing that these weren’t records under the Records Act, and therefore they can ignore Judge Hellerstein’s order to keep them.

Which leaves Leonie Brinkema’s two inquiries about records of the interrogations of those Moussaoui wished to interview. It does seem possible that, using this tortured logic, the CIA believed they had to destroy the tapes so they could say on November 14, 2005, that they didn’t "have" any such tapes.


But the Tapes Weren’t IN Washington

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."

[snip]

Officials who worked with Rodriguez said that he was never ordered by Goss or any other official to keep the tapes, and that he had obtained advice from agency lawyers saying there was no legal requirement to preserve them.

Former officials said Goss and other CIA leaders were stunned when Rodriguez informed them in November 2005 that the tapes had been destroyed. But Goss did not reprimand or fire Rodriguez, the former officials said, largely because the director, who had previously been bruised by battles with the clandestine service, did not feel he could afford another fight. [my emphasis]

This article provides what purports to be a near-exact quote from Goss saying, "getting rid of the tapes in Washington is an extremely bad idea." It goes on to note that Goss never ordered Rodriguez to keep the tapes.

Of course, the tapes weren’t in Washington. As the NYT noted in an important article,

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. [my emphasis]

A detail this LAT article repeats in significant form.

The tapes, which were made in 2002, were kept for three years in overseas vaults where secret CIA detention facilities were located.

Given the fact that the tapes never came into this country (except in digital form), this advice to Rodriguez against destroying the tapes, then, seems targeted more toward where Rodriguez should have them destroyed than whether he ought to destroy them. Indeed, I rather take the exact quote as a direction to clean up the matter without letting the evidence enter the US.

This whole story reports on the reputed "tribalism" of the clandestine services, talking about clandestine officers sticking together at all costs. But in the entire article, it never once reports that Goss was a CIA clandestine officer for roughly eleven years. You think maybe that ought to invite reconsideration of whether and how Greg Miller was being spun by Goss’ folks?

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