March 28, 2024 / by 

 

Did Mitchell and Jessen Have the Three OTHER Torture Tapes? Or the Egyptians?

Update: Aeon makes an important point: the tapes may have been in foreign custody.

I thought it might be useful to go back and see what DOJ said to Brinkema about the ones that didn’t get destroyed.

The position of the CIA is that only AZ and al-Nashiri were videotaped. (grain of salt time — It is also their position that they recorded over all tapes every two days — thus explaining why only 92 tapes were destroyed.)

A Feb 2008 Mazzetti article about the subject of your post here adds some detail:

But federal prosecutors told a judge in October that the C.I.A. possessed two videotapes and one audiotape documenting the interrogations of detainees suspected of having been Qaeda operatives. In recent weeks, some government officials have indicated that the C.I.A. may have obtained those tapes or others from foreign intelligence services.

So another detainee could very well have been shown on these three tapes especially if obtained from a liaison service. But also the interrogation in question may have been then conducted by the same foreign intel service.

Moussaoui also asked for material from Ibn Sheikh al-Libi. Who, of course, was in Egyptian custody. That might explain why the transcripts were suspect, and it might explain why one part of CIA had contact with the people who had the tapes.  Thanks Aeon!


Since we’re back on torture tapes, I wanted to return to the letter DOJ sent to Leonie Brinkema to tell her they had found three torture tapes they had neglected to mention when she asked about tapes in November 2005. There’s much that remains obscure about this letter, but the whole thing makes a lot more sense if Mitchell and Jessen had been in possession of the three "discovered" tapes.

DOJ writes:

Recently, we learned that the CIA obtained three recordings (two video tapes and one short audio tape) of interviews of [four lines redacted]. We are unaware of recordings involving the other enemy combatant witnesses at issue in this case [half line redacted, must be the names of those Moussaoui asked to testify]. Further, the CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a video tape of the interrogation of [one and a half lines redacted]. On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution [footnote to a comment, "the recording from (redacted)"]. The existence of the video tape is at odds with statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in a possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted, with unredacted footnote saying, "The transcript of the audio tape previously existed and was contained within an intelligence cable."] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings. [Footnote saying, "Although we have provided defense counsel with a copy of this letter, we have not provided them with a copy of the transcripts for two reasons. First, the interviews address other national security matters for which defense counsel lack a need to know. (Three and a half lines redacted.)]

At our request, CIA also provided us with intelligence cables pertaining to the interviews recorded on the two video tapes. Because we reviewed these cables during our discovery review, we wanted to ensure that the cables accurately captured the substance of the interrogations. Based on our comparison of the cables to the [redacted] videotapes, and keeping in mind that the cables were prepared for the purposes of disseminating intelligence, we found that the intelligence cables accurately summarized the substance of the interrogations in question.

[two paragraphs on how this conflicts with declarations they made in the Moussaoui case]

Unbeknownst to the authors of the declarations, the CIA possessed the three recordings at the time that the Declarations were submitted. We asked the CIA to ascertain the reason for such an error. [one and a half lines redacted] As best as can be determined, it appears that the authors of the Declarations relied on assurances of the component of the CIA that [one line redacted] unknowing that a different component of the CIA had contact with [one line redacted].

First, it appears most likely that the first tape "discovered" here was from Ramzi bin al-Shibh; Moussaoui had asked for bin al-Shibh, Mustafa al-Hawsawi, and Khalid Sheikh Mohammed by the time of DOJ’s May 9, 2003 Delcaration to the the Appeals Court, but only the request for testimony from bin al-Shibh had made it to the Appeals Court. From Moussaoui’s docket on April 18, 2003:

Emergency Strike to Force the Compulsive Liar Ashcroft to Hand Over Exculpatory Statement from Brothers Ramzi, Mustafa and Mastermind 9/11 Mohammed So They Will Be Assess by Leonie Brinkema and the Court of Appeal in the Issue Relating to Access to Ramzi for Zacarias Moussaoui Circus Trial

Bin al-Shibh is also most likely given that CIA purportedly stopped taping interrogations in December 2002; bin al-Shibh was captured on September 11, 2002, while KSM and Hawsawi were captured on March 1, 2003.

Note how they claim the videotape does not pertain to Moussaoui: it does not mention him, it does not give details of 9/11. Even setting aside the fact that–by the time the Appeals Court heard this request in 2003–the government had changed its theory of Moussaui’s role (possibly as a direct result of KSM’s interrogations), so the 9/11 attack, itself, is not the issue, it appears that bin al-Shibh (if that’s who this is) did discuss 9/11; just not in detail.

Now look at how they describe the second videotape and the audiotape: "a second video tape, as well as a short audio tape, both of which pertained to interrogations [readacted]." Not–as they referred to the first videotape–"a video tape of the interrogation," but tapes "pertaining" to the interrogations. This suggests they tapes may have been a secondary use of primary video, the kind of thing you might find in a (say) training tape.

Now look at how the letter describes when and whether CIA possessed these tapes. The last paragraph I quoted here reveals that "the CIA possessed the three recordings at the time that the Declarations were submitted." But the first paragraph explains that "the CIA obtained three recordings … CIA came into possession of the three recordings" and the third paragraph suggests the CIA "uncovered the existence of" the second and third tape. While the "uncovered the existence of" is ambiguous (probably deliberately so), the first reference, "CIA obtained … came into possession of," suggests the CIA just got these tapes in 2007. That is, it appears (though I admit this is not certain) that the CIA had the tapes in 2003 and 2005, when the declarations were made, but newly obtained them in 2007, before CIA told DOJ about them.  If I’m right about this, it says CIA had the tapes, got rid of them, then got new copies from … someone who didn’t destroy the earlier copies.

But then the letter reveals–as a way of explaining why the tapes weren’t discovered in 2003 and 2005–that they hadn’t found the tapes when they asked the component of the CIA that most logically would have such things (probably Counterterrorism Center), but later learned that a different component of the CIA "had contact with" (presumably) the entity that had the tapes. Is it possible that the second component of CIA got training from a certain torture contractor and in the process got two videos from real live torture sessions? Just a wildarsed guess.

Now consider DOJ’s discussion of whether or not their earlier representations of this material was fair. First off, there’s a redaction associated with the discussion of transcripts twice: "we viewed the video tape and a transcript [redacted] of the interview," "while reviewing transcipts [redacted, with the footnote about the citation of it in an intelligence cable]." One possible replacement for this redaction is the name of the entity that made the transcripts.

And DOJ felt the need to double check the content of these transcripts. They got the intelligence cables they had previously reviewed on this material, and compared the content in those cables to the videotapes (and note, there’s a redaction before videotape that parallels the redactions before transcripts, as if describing the entity that made or owned the videotapes). DOJ gives a hedged verdict on whether or not the cables were a fair representation of what was portrayed in the videotapes.

 …keeping in mind that the cables were prepared for the purposes of disseminating intelligence, we found that the intelligence cables accurately summarized the substance of the interrogations in question.

That is, the cables were peachy keen if all you wanted to do was disseminate what the detainees said during the interrogation, but if you wanted to do something else (such as assess whether the testimony of these detainees was coerced or not, just as one possible example), the transcripts and cables might not be considered complete. Note two more details on this point: footnote 5 describes two reasons Moussaoui’s lawyers don’t get transcripts of these interviews. The first is that the attorneys don’t have a need to know (so it remains classified to them). And the second is … redacted. Keep in mind, too, that CIA did not give Brinkema the tapes, just the transcripts. So as far as we know, she’s expected to trust the DOJ’s assertions that the intelligence cables are accurate, even while DOJ doesn’t explain why they modify their determination that the cables "accurately summarized the substance of the interrogations" by appealing to the intelligence (note–not law enforcement) function of the cables.

Finally, there’s the matter of the national security issue that led the CIA to rediscover these tapes:

CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.

[snip]

First, the interviews address other national security matters for which defense counsel lack a need to know.

The second reference to national security matters might really be no more than a question about need to know–the classification of sources and methods (of torture). But the first one seems recent, particularly with its description of "unique." While most people have assumed the timing of this release pertains to Jose Rodriguez’ retirement in July 2007, we also know that DOD issued a preservation order pertaining to James Mitchell and Bruce Jessen in May 2007.  (Of course, given that Rodriguez was in charge of CTC during the period of the worst torture (2002-2004), during a time when Mitchell and Jessen had desks at CTC, there’s absolutely no reason why the two events couldn’t themselves be linked.)

There’s a lot that remains utterly obscure about this letter. But some of the redactions and seemingly inconsistent information regarding "possession" of the tapes by the CIA could easily be explained if an investigation into Mitchell and Jessen revealed they had the three tapes. It might explain the redacted adjective before the words transcript and video tape in the letter. It might explain why one component of the CIA had "contact" with the people who made the tapes (particularly if they were doing interrogation training for different groups in the CIA). And it might explain DOJ’s skepticism about the accuracy of the transcripts that were then made into interrogation reports. 

Speaking of which. Where is that Ramzi bin al-Shibh video, and why hasn’t ACLU received it yet as part of their torture FOIA?


Torture Tapes and Briefings

Isikoff has an article that basically catches everyone up on torture investigation. The big piece of news is that John Durham is flying spooks back from overseas stations to appear before the grand jury.

In recent weeks, prosecutor John Durham has summoned CIA operatives back from overseas to testify before a federal grand jury, according to three legal sources familiar with the case who asked not to be identified discussing sensitive matters. The sources said Durham is also seeking testimony from agency lawyers who gave advice relating to the November 2005 decision by Jose Rodriguez, then chief of the CIA’s operations directorate, to destroy the tapes.

There are lawyers probably named Robert Bennett quoted as saying, "maybe he’s just tying up loose ends," but that news, coupled with the news that Durham interviewed  Dusty Foggo, who had recently been hung out to dry by Porter Goss, suggests Durham has been able to break the omerta at the CIA and make some headway on this case.

But I’m sort of interested in this claim:

Durham was appointed by former attorney general Michael Mukasey shortly after the December 2007 revelation about Rodriguez’s decision. At the time, then-CIA director Michael Hayden insisted the tapes were destroyed only after "it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries—including the trial of Zacarias Moussaoui." But since then, declassified filings in the Moussaoui case show that around the time the tapes were destroyed, Moussaoui’s lawyers were seeking CIA records about the interrogation of Abu Zubaydah—who, according to recent disclosures, was waterboarded 83 times. On Nov. 3, 2005, Judge Leonie Brinkema even ordered government lawyers "to confirm or deny that it has video- or audiotapes" of interro-gations of potential witnesses.

Now, this is assuredly not news. The Moussaoui request has been on my torture tape timeline for well over a year, based on this and other reporting. And it is just one case where a party had made a legally binding request for any torture tapes–the other two being the ACLU FOIA and the 9/11 Commission request for any such materials.

(On the 9/11 Commission request, keep in mind that Philip Zelikow, Commission Executive Director, has been saying "let the prosecutor work" in his recent public critiques of torture; he may well have been interviewed in this case, so he may have reason to be confident in the quality of the invsetigation.)

Okay, back to Moussaoui. Not new news. But apparently news that Isikoff is focusing on at the moment. I’m interested in that not just because it says Durham would probably pin any indictments on an obstruction of justice charge. I’m interested because of the dates. There’s the November 3, 2005 Brinkema order, sure, which almost perfectly coincides with the destruction of the tapes. But the trial discussion about Zubaydah testimony went back much earlier.

Moussaoui requested on September 10, 2002, to "Free Abu Zubaydah from CIA Torture Chamber and Bring Him in My Open Court," and on October 16, 2002, Moussaoui made a motion "to Force Leonie Brinkema and her Government to Stop Hidding Abu Zubayda and Ramzi Binalshib Testimony in my Favor." Since the CIA has now admitted it had tapes through December, both these requests were made at a time when the CIA was still making Abu Zubaydah tapes. Perhaps more interesting still is the timing of 2003 requests. In January 2003, Brinkema ruled that Moussaoui could get testimony from bin al-Shibh, though the government subsequently refused to make him available. And on February 3, 2003, Moussaoui attempted "to Get Inform About the Decision Relating to Ramzi and Abu Zubaydah and Al Liby."

On February 5, 2003, the CIA told Porter Goss–who was Director of Central Intelligence when the tapes were destroyed–and Jane Harman they were going to destroy the Zubaydah tapes.

In other words, the apparent focus on the November 3, 2005 order to turn over videotapes came only after three years of requests on Moussaoui’s part to get testimony from Abu Zubaydah, and the decision to destroy the tapes was at least relayed to Congress (to Porter Goss, one of the key figures in the case) just after Brinkema first ruled that Moussaoui ought to get evidence from al Qaeda detainees. 


What Does Dusty Foggo Know about the Torture Tapes?

The AP caught something rather curious.

Dusty Foggo, heading off to prison for his role in schemes involving Brent Wilkes, has a date to talk with John Durham, who is investigating the torture tape destruction, and because of that date, he’ll get to put off reporting to prison for a week.

Mr. Foggo seeks this brief continuance because he has agreed to be interviewed by Special Prosecutor John H. Durham concerning the destruction of videotaped evidence by the Central Intelligence Agency. The interview is scheduled to be held in Washington, D.C. on April 8, 2009. However, Mr. Foggo is currently scheduled to report to USP McCreary in Pine Knot, Kentucky on April 7, 2009.

[snip]

Special Prosecutor Durham has consulted with the government and has informed counsel for Mr. Foggo that the prosecution team has no objection to the proposed continuance.

I find this curious for a few reasons. 

First, Durham was reportedly almost done with his inquiry, having determined that he could not bring charges. Yet here he is just now interviewing the third-ranking CIA guy during the period the tapes were destroyed.

More interestingly, Foggo would likely badly like to get revenge on some of the people who allowed him to face criminal charges, whether in the Bush Administration or CIA or former CIA witnesses. 

Just as one hypothetical, Porter Goss claimed to know nothing about Foggo’s problematic past (including his counter-intelligence problems). Yet, as Laura Rozen has reported, that was a lie.

A former US intelligence source thought that Brent "nine fingers" Bassett was the Goss staffer who recommended the hire of Foggo as ExDir.

He said that Goss lied in his testimony, that he was not aware about the problems with Foggo when he hired him for executive director. He said that a major fight had broken out between Goss staffer Patrick Murray and then associate deputy director of operations Michael Sulick about the Foggo hiring. "Murray told ADDO/Counterintelligence Mary Margaret that if Dusty’s background got out to the press, they would know who to come looking for. Mary Margaret tried to warn them that Dusty Foggo had a problematic counterintelligence file. Sulick defended Mary Margaret. Goss told [deputy director of operations Steve] Kappes he had to fire Sulick." After that, Kappes and Sulick quit. "Goss bears major responsibility here," the former intelligence official says. It was finally the "White House that demanded that Goss fire Dusty and he refused." So they both got fired.

Now, Goss’ apparently false claims did not contribute directly to Foggo’s decline; he was sunk long before Goss issued his statement on January 23 of this year.

Still, I can’t help but remember how carefully Goss has covered his tracks on the torture tapes, from the warning John Negroponte gave him against destroying the tapes, and from the role he should have had warning Rodriguez not to destroy the tapes.

I think CIA managed to create plausible deniability among its lawyers. But that may not be true of Goss.

And if, for some reason, the close or not so close former Goss associate (remember, there were questions of whether Goss attended Dusty’s poker games) Dusty Foggo wanted to cause some trouble–and maybe ease his own transition into prison–I can imagine that that might be of interest to John Durham. 

Now, Foggo’s testimony may have nothing to do with Porter Goss’ role in the torture tape destruction. But he was in a position that might mean he knows things about the torture tape destruction, and the CIA surely didn’t do any favors for Foggo as he headed to jail. 


Who Watched the Torture Tapes?

As a number of you have pointed out, DOJ just informed the ACLU and Judge Alvin Hellerstein that CIA destroyed 92 tapes showing torture.

In the meantime, the CIA can now identify the number of videotapes that were destroyed, which is information implicated by [Hellerstein’s order that ACLU gets information responsive to its FOIA request]. Ninety-two videotapes were destroyed. 

Once McCaffrey the MilleniaLab and I go for a walk, I’m going to follow-up to see whether those 92 tapes all came from Abu Zubaydah and al-Nashiri’s torture (remember–original reports said there had been thousands of hours of videotape) or whether the torture tapes of different detainees were included.

Just as interesting (particularly in light of the goings on in the al-Haramain case), is the list of information that the ACLU will shortly be getting (the CIA wants this week to put together a schedule for turning over the information). That includes:

  • A copy of the CIA Office of Inspector General’s Special Review Report–a redacted copy of which had previously been supplied to the ACLU–with the details regarding the torture tapes un-redacted.
  • A list identifying and describing each of the destroyed records.
  • A list of any summaries or transcripts describing the destroyed records’ content.
  • Identification of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Note, they are warning that they will protect CIA identities wrt that last bullet. But we may get the names of other people (I’m curious whether Cheney, David Addington, or John Yoo might be among them) who had viewed the torture tapes.

And this is perhaps the most interesting bit:

The CIA intends to produce all of the information requested to the Court and to produce as much information as possible on the public record to the plaintiffs.

Watch out below, because I think this dam may well break.


Jane Mayer, the CIA Inspector General’s Report, and the Torture Tapes

Though Mayer doesn’t connect the eventual destruction of the torture tapes in November 2005 with the Doug Jehl story published on November 9, 2005, revealing the conclusion of the CIA Inspector General’s report on torture, she reinforces a point I’ve made in the past–the decision to destroy the torture tapes was closely tied to the release of the IG report and the analysis made in the report.

The book is even more detailed than published excerpts have been about starkly the IG report changed the views on torture among some Administration officials, particularly Jack Goldsmith.

The 2004 Inspector General’s report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, ome of whom seemed to have become frighteningly dehumanized. The source said, "You couldn’t read the documents without wondering, "Why didn’t someone say, ‘Stop!’"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith decline to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was "horrible." (288)

As Mayer points out, just as Goldsmith was trying to deal with this question, the confrontation on the illegal wiretap program hit (in March 2004), as did the Abu Ghraib scandal (in April). (I’d add that, in the same March to June time period, Fitzgerald’s questions for Libby and Cheney and his moves to subpoena journalists would have made those two, at least, worried that their efforts to cover up the Plame outing might collapse.)

That’s the background for the White House briefing on the torture tapes.

Then, on April 28, the Abu Ghraib story broke. Panic spread through the administration, from the top of the Pentagon through the CIA and on through the White House. One obvious lesson was that pictures–the actual incontrovertible proof of abuse–had a power that no written or oral description could match. At the CIA, where hundreds of hours of videotapes of two U.S.-held Muslim detainees being strapped down and waterboarded were sitting in a safe, the immediate reaction, one administration source involved at the time said, was "Uh-oh. A lightbulb went on."

On May 24, Muller met at the White House with Addington, Gonzales, and Bellinger to discuss the fallout from both the Inspector General’s report and Abu Ghraib. He mentioned the CIA’s videotapes and said the Agency wanted to destroy them. According to CIA notes taken at the time, the consensus of the group was that the CIA should not destroy the tapes. Addington’s attitude, a participant said, was along the lines of "Don’t bring this into the White House!" The explosiveness of even talking about destroying potential evidence was clear to all. (292)

It was against that background, Mayer describes, which Goldsmith rescinded the OLC memo supporting CIA’s interrogation methods, quit, followed by Daniel Levin’s attempts to write an OLC memo based in law. Then, in 2005, the Administration had Steven Bradbury "audition" to be head of OLC by writing memos again authorizing torture, particularly the combination of interrogation methods. And, in that environment, Congress was considering a ban on torture. Which is when the CIA IG report came into play again.

Further rattling the CIA was a request in May 2005 from Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General’s report on detention inside the black prison sites–the one that had so upset Goldsmith. Among the items Rockefeller specifically sought was a legal analysis of the CIA’s interrogation videotapes. Rockefeller wanted to know if the intelligence agency’s top lawyer believed that the waterboarding of Zubayda and Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller. But the Democratic senator’s mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request the made for these documents to Goss in September 2005. (313)

Note, the terror tapes we know of depict Abu Zubaydah and al-Nashiri being waterboarded, not Khalid Sheikh Mohammed. Something to ask Mayer about when she does a book salon at FDL later this month, I guess.

That CIA IG report apparently provides enough detail to make conservative lawyer Jack Goldsmith balk. And, it includes detailed analysis of the now-destroyed torture tapes ( I wonder if Jello Jay has ever gotten to see that analysis?).

Also, I wonder: did Goldsmith ever resolve the dispute between Muller and Helgerson whether or not those tapes depicted illegal torture?


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

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

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

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

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

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

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

The CIA said it had identified more than 7,000 pages of classified memos, e-mails and other records relating to its secret prison and interrogation program, but maintained that the materials cannot be released because they relate to, in part, communications between CIA and Justice Department attorneys or discussions with the White House.

Well, that’s interesting. It turns out that the CIA and the Bush Justice Department, the vaunted OLC no less, knew full well that the tapes were directly and specifically material and germane to "inevitable criminal, administrative or civil investigations". Oops, now that is a little different than the initial stories pitched by the Administration isn’t it? And exactly how specific and deep was the knowledge of the critical materiality of the Torture Tapes? Again, from Eggen:

The documents indicate that lawyers at the CIA and elsewhere were aware that CIA personnel might be subject to criminal prosecution or other legal sanctions.

The records submitted to the court list and briefly describe dozens of communications between the CIA and the Justice Department’s Office of Legal Counsel, or OLC. At least 10 were in 2004, five were in 2005, and seven were in 2006; virtually all were classified "top secret" or even more restricted.

"The CIA’s purpose in requesting advice from OLC was the very likely prospect of criminal, civil, or administrative litigation against the CIA and CIA personnel who participate in the Program," said a declaration from Ralph S. DiMaio, information review officer for the CIA’s clandestine service. He added that the CIA considered such proceedings "to be virtually inevitable." (Emphasis added).

It appears as if the new declarations in the FOIA lawsuit pretty much obliterate any Bush Administration pretensions of good faith belief that there was no reasonable materiality, nor potential evidentiary value, in the Torture Tapes. Correspondingly, the new declarations almost completely solidify allegations of a plethora of substantial crimes including obstruction of justice, obstruction of Congressional process, false statements to Congress, false material statements to multiple Federal courts, destruction of evidence of a governmental crime, conspiracy and, of course, torture/war crimes. I suspect we will be discussing the specific circumstances and elements of the individual crimes quite soon.

And to think, CIA Director General Michael Hayden, he of all the exculpatory lip service from the outset about no evidentiary value of the tapes, has just announced his formal retirement from the Air Force for "practical considerations related to military retirement." I’ll bet. The move appears to almost double his salary because now he can collect both his retirement pension, which will now be locked in (in case, you know, anything bad happens), and a civilian salary for his position. Will more sudden "personal employment considerations" be taken by additional Administration officials?

For anybody paying attention, the "Snowball" of Bush Administration culpability has been gathering both mass and momentum in it’s downhill run for quite some time now. In any rational and legitimate period of American democracy, the snowball would have overwhelmed Nancy Pelosi’s barren, empty table; but not in this day and age of derelict Democratic House Leadership. No, the current House Leadersheep have the mistaken notion that their oath to office demands that they protect the most corrupt and criminal Presidential Administration in history, instead of the Constitution of the United States of America. They are wrong; the sole demand of their oath of office is to "support and defend the Constitution of the United States".


Remember the Torture Tapes?

Just about everyone is talking about ABC’s confirmation of what we already knew: the torture was approved–in excruciating detail–by the most senior members of the Bush Administration.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Now, the article is actually incredibly vague about which of the high-value detainees the Principals discussed interrogating. For example, it suggests that Abu Zubaydah’s torture was planned by the Principals. But then–where elsewhere it asserts that all of the Principals approved the torture–it backs off that claim specifically with regards to Zubaydah.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand, he was uncooperative.

[snip]

The CIA wanted to use more aggressive — and physical — methods to get information.

The agency briefed high-level officials in the National Security Council’s Principals Committee, led by then-National Security Advisor Rice and including then-Attorney General Ashcroft, which then signed off on the plan, sources said. It is unclear whether anyone on the committee objected to the CIA’s plans for Zubaydah.

"The agency" briefed the Principals Committee (note the briefers remain unnamed), which, as a group signed off on the plan. But rather than asserting (as the article does elsewhere) that "sources said that at each discussion, all the Principals present approved," the specific discussion of Zubaydah notes that, "it is unclear whether anyone on the committee objected to the CIA’s plans for Zubaydah."

Immediately after the discussion of Zubaydah, the article goes on to discuss Khalid Sheikh Mohammed’s waterboarding without stating one way or another whether the Principals approved the details of his torture, either.

Now I don’t mean to suggest that the Principals did not approve the water-boarding of Zubaydah and KSM–or of any other torture subject. I’m perfectly willing to believe that all of the Principals approved such things, even Powell.

I’m raising the alternating specificity and vagueness of this story to suggest certain things about its probable purpose. Ask yourself, where did this story come from? Who are the "highly-placed sources" behind this story?

Those who actually received the briefings would be limited to the Principals–who would have no incentive to admit they approved of torture–and their deputies (so, Libby, Stephen Hadley, Paul Wolfowitz, Richard Armitage, John McLaughlin, and Larry Thompson, then Comey–though given the Administration’s habit of excluding Thompson from sensitive details, I wouldn’t assume that he was included). I could see Armitage revealing embarrassing details about Cheney, but not ones that implicated Powell; and McLaughlin I’ll put aside for the moment. As for the others, at least one of them has been willing to get convicted of a felony rather than rat on his boss, so I doubt they’re sources for this story.

Then there are the people who did the briefing: "CIA directors Tenet and later Porter Goss along with agency lawyers." Now we’re getting someplace.

Porter Goss, though he hasn’t AFAIK gone on the record once during the discussions of the torture tapes, has been feeding regular leaks to the press throughout. And Scott Muller–General Counsel of the CIA until 2004–has told journalists working on the torture tape story that he opposed the destruction of the tapes. John Rizzo–acting General Counsel after Muller left–has been less adept at working the press than Goss and Muller, though he has made it clear that junior lawyers at the CIA, not him, gave Jose Rodriguez the green light to destroy the torture tapes. All three men would be closely questioned in the DOJ investigation of the destruction of the torture tapes.

Add in the fact that the single named source in this story is John Kiriakou–the same guy who appeared on ABC to admit that the CIA had water-boarded just as the whole torture tape story was breaking (Kiriakou also worked for Robert Grenier in 2003, though I don’t know if he was still working for him when Grenier was reportedly fired for opposing enhanced torture).

In other words, the most likely people behind this story are the same people who were working diligently, in December and January, to make sure the CIA alone did not pay for the destruction of the torture tapes.

This story does not–as earlier stories have–list the lawyers at the White House who were briefed on the torture tapes: Condi’s NSA lawyer John Bellinger, Cheney’s lawyer Addington, and Bush’s lawyer Alberto Gonzales.

Rather, it strongly suggests (without, finally, asserting it directly) that the President’s top aides–the Principals those three lawyers were expected to protect–approved every method used with Abu Zubaydah. That is, the President’s top aides approved of everything that would have been revealed on the torture tapes, had they not been destroyed. Additionally–with the placement of John Ashcroft in the meetings–it puts DOJ at the center of discussions approving all the methods used (though of course Alberto Gonzales, and not Ashcroft, was in charge of DOJ during the destruction of the tapes).

What this article does–aside from tell us what we already knew–is explain why the top lawyers in the Administration would have a motive to approve of the destruction of the torture tapes. And heck, while we’re at it, it pressures those same top lawyers to try to stop the inquiry, to prevent any more damning details (Bush’s participation?) get leaked to ABC.

You don’t suppose John Durham’s investigation is honing in on the CIA, do you?


CIA Inspector General: We Never Had Any Torture Tapes!

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

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

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

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

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

Although OIG reviewed the videotapes that were destroyed in 2005 in connection with a special review of the CIA terrorist detention and interrogation program, OIG did not initiate an investigation of the activities depicted on the videotapes as a result of the special review. Moreover, OIG never had the videotapes or copies of the videotapes in their files.

OIG is making a distinction here between "investigation" and "special review," going on at some length to distinguish between them. It includes a copy of a document referring to "special assessment report," as if that’s proof that this distinction is meaningful–though the document refers to the treatment of reports, not to the treatment of investigation. In other words–it seems like a stretch to provide this as evidence that an investigation and a special review are different, since it doesn’t reflect OIG’s claims about the distinctions between the two.

General Assertions Standing in for Specifics about this Case

OIG then goes onto make very vague assertions about OIG’s practices regarding record-keeping.

8. Depending on the nature of the audit, inspection, investigation, or special review, OIG often sends a notice to those CIA components that OIG deems likely to have relevant information. Such notices describe the subject of the review and the categories of information sought and provide instructions to make potentially relevant records available to OIG to review. The instructions regarding records vary from case to case, depending on the nature and scope of the review. Depending on the volume and sensitivity of the records and the nature of the OIG inquiry, OIG may instruct the components to produce all records to OIG, produce certain categories of records to OIG, maintain certain categories of records on-site for OIG inspection, maintain all records on-site for OIG inspection, await further instructions, or some combination of the above. In addition, OIG may independently collect records without the assistance of other CIA components.

9. After OIG reviews records, whether on-site or in OIG offices, it determines what records are relevant to its review and what copies of records to retain in OIG offices. OIG does not use “markers” in its case files to designate records maintained in operational files. When OIG chooses to retain a record, it retains that record, or in most cases a copy of the record, in OIG files. If OIG has a reasonable basis to believe a federal crime may have been committed, the IG reports the information to the Attorney General. [my emphasis]

Notice all of this language speaks of general circumstances–it does not describe what happened in this particular case. It provides one motivation for seeking records with a particular entity. It provides two criteria (volume and sensitivity) OIG uses to determine how to use records. And it asserts that OIG decides whether or not to keep records–though, tellingly, it dosen’t describe the criteria by which it decides whether to keep its own records. And finally, it states that OIG will report information to the AG if it believes a federal crime has been committed.

But none of these details address the specifics of this case! Thus, we don’t know whether OIG informed the AG that the practices depicted in the videos that a federal crime had been committed in this case. That’s critically important, because we know the conclusion of the IG report was that, in fact, the CIA may well have been violating international treaties.

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the [Convention Against Torture].

[snip]

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

By making this general statement, the OIG declaration seems to suggest that if the "special review" had found legal violations, it would have reported them to the AG. But it doesn’t admit that the central finding of the report is that the treatment may have been illegal (whether or not it violated "federal" law), nor does it explain what happened with that assertion in this particular case. Given that the CIA and the White House had high level meetings in the same month the report was completed, that seems like pretty important information!

Specific Description that Leaves Key Details Vague

Only after these general assertions does the OIG declaration describe its actual review of the tapes.

In January 2003, OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing.

[snip]

During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS to review the videotapes at the overseas location where they were stored.

OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified DOJ and other relevant oversight authorities of the review’s findings. At no time prior to the destruction of the tapes in 2005 did OIG initiate a separate investigation into the interrogations depicted on the videotapes.

Because OIG did not take custody or make copies of the videotapes, they were not among the materials that OIG provided to the CIA components responsible for processing Plaintiff’s Freedom of Information Act (FOIA) request–the Information Management Staff (IMS), the Office of General Counsel (OGC), and the NCS Information Review Officer.

Note the angst of this passage. First, it assures you that the "special review" was not, itself, a response to allegations of wrong-doing. This is surely an effort to insist on that distinction between "special review" and "investigation" on which CIA’s claims it didn’t need to turn over this tape rely.

Notice, too, the declaration’s reversion into a passive construction–"OIG was notified of the existence of videotapes of the interrogations of detainees." Want to bet some money that that use of the passive deliberately hides the back-story to how and why OIG learned of the tapes? Particularly in light of the earlier "OIG often sends a notice to those CIA components that OIG deems likely to have relevant information," this construction appears to be an attempt to avoid explaining how OIG learned they should contact Clandestine Services to arrange to see those tapes stored in some other country.

And then, after having made some effort to explain the criteria OIG uses to decide whether to get a copy of evidence for their own records in the more general section, the specific description of what happened in this case says only, "OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files." Once again, the declaration avoids one of the key questions: why didn’t they get a copy of the videotapes for their own records? Did they do so to avoid having custody of the tapes, and therefore exposing them to FOIA? Did DO refuse to give them a copy of the tapes? We don’t know … and I’d wager that’s no accident.

Finally, here’s the real doozy: "OIG notified DOJ and other relevant oversight authorities of the review’s findings." If OIG "notified DOJ," is that the same as reporting the information to the AG, as OIG would do if it had found a criminal violation of the law? If not, whom at DOJ did OIG inform? OLC? "Jack Goldsmith, you had better sit down and rewrite Yoo’s trash opinion, because it’s going to get some CIA officers arrested." It’s relevant that Goldsmith was still in charge of OLC and was in the process of ditching precisely the opinion that legalized this torture.

And what about this description? "OIG notified … other relevant oversight authorities of the review’s findings." Would those "other relevant oversight authorities" include David Addington, (thenWhite House Counsel) Alberto Gonzales, and John Bellinger, in a briefing at the White House at which they discussed destroying the torture tapes? Because if you told the President’s lawyer that the treatment of detainees violated international bans on torture, it sure seems that that treatment rises to the level of specific complaint which would then qualify it as an OIG file.

Who Writes the Declaration

As if all this vagueness wasn’t enough to make you take notice, consider the author of the declaration: Constance Rea.

I am the Deputy Assistant Inspector General for Investigations of the Office of Inspector General (OIG) of the Central Intelligence Agency (CIA). As Deputy Assistant Inspector General for Investigations, I supervise the Investigations Staff. I have served as Deputy Assistant Inspector General for Investigations since March 2004.

A couple of details. First, Rea didn’t start at this position until March 2004, when the report relying on the torture tapes was probably largely written (it was released in May). Add that to her description of who conducted this report,

The special review was led by the Deputy Inspector General and the team comprised personnel from across OIG, including the Assistant Inspector General for Investigations, the Counsel to the Inspector General, a senior Investigations Staff manager, three Investigators, two Inspectors, an Auditor, a Research Assistant, and a Secretary.

Unless Rea was one of those three Investigators she describes as having been involved in this review, she was not involved in the "special review," and she got involved after the decisions regarding whether to obtain a copy of the tapes were already made.

Even more interesting, Rea was not among those who decided how to respond to the ACLU FOIA, whom she describes as,

the Information Management Staff (IMS), the Office of General Counsel (OGC), and the NCS Information Review Officer

So she may not have been involved in the actual review, and she apparently wasn’t involved in the FOIA response. Interesting that the CIA had someone write the review who could be very vague about the key issues.

The Torture Tapes, CIA, and Congress

But this entire declaration appears particularly disingenuous given the chronology of the CIA’s briefings to Congress on the torture tapes. Here’s a mini-timeline:

Fall 2002: Gang of Four briefed on the existence of the terror tapes–but no mention of destroying the tapes is made

January 2003: CIA’s OIG begins "special review" of detainee interrogations

"During the course of the ‘special review’": OIG learns of the torture tapes

February 5, 2003: Scott Muller briefs Jane Harman and Porter Goss on torture tapes, and tells them the

videotape of Abu Zubaydah following his capture … will be destroyed after the Inspector General finishes his inquiry

May 2003: OIG reviewed the torture tapes

First of all, the notion that OIG learned of the torture tapes "during the course of the review" is ridiculous. CIA’s Counsel was briefing Congress on the torture tapes in relation to the OIG investigation within a month of the beginning of the inquiry; OIG learned of those tapes right at the beginning of its inquiry, and those tapes may well have been involved in its decision to conduct such a "special review."

Furthermore, Scott Muller presented those tapes as fundamentally connected to the OIG investigation even before OIG had seen the tapes.

The CIA is desperately trying to claim that those tapes were only incidental to the OIG inquiry. But in February 2003, Scott Muller was telling Congress a different story.

And do you find it even a little suspicious that in Fall, 2002, the CIA apparently had no intention of destroying the terror tapes, but one month into an IG investigation into detainee interrogation, they had decided the tapes would be destroyed?


They Really Don’t Want Us Learning About the Torture Tapes, Do They?

I noted several weeks ago that Bob Bennett sounded an awful lot like he was beginning to float excuses for his client, Jose Rodriguez, to ask for immunity before he testified before Congress.

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

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

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

Well, surprise, surprise! Bennett just told Congress he wants Rodriguez to receive immunity before he’ll testify before Congress (h/t maryo2).

Attorneys for Jose Rodriguez told Congress that the former CIA official won’t testify about the destruction of CIA videotapes without a promise of immunity, a person close to the tapes inquiry said Wednesday.

[snip]

Defense attorney Robert Bennett told lawmakers, however, that he would not let Rodriguez testify because of the criminal investigation into the case. Without a promise of immunity, anything Rodriguez said at the hearing could be used against him in court.

Of course, Bennett’s excuse has changed. Rather than use the tired excuse Monica Goodling used–she was the "victim" of a witchhunt–Bennett is using the even more tired Iran-Contra era excuse that, um, maybe Congress can get his client out of all criminal liability if Bennett pulls a fast one … ? But honest, Bennett’s not worried about any real criminal liability, nosiree.

Meanwhile, Judge Mark Kennedy has decided he trusts DOJ a lot more than Judge Mark Wolf does, and he doesn’t see the need to conduct an inquiry into why the CIA was destroying tapes that might have been relevant to cases before him.

U.S. District Judge Henry H. Kennedy Jr. said in a three-page ruling in Washington that a group of inmates being held in Guantanamo Bay, Cuba, "offer nothing to support their assertion that a judicial inquiry" is necessary into the tape destruction. He said neither of the detainees whose interrogations were taped and later destroyed has an apparent connection to the prisoners who were demanding the review.

Kennedy also wrote that he expects the Justice Department "will follow the facts wherever they may lead and live up to the assurances it made to this court."

So, let’s see. No Rodriguez testimony before Congress (hopefully, that is … did you know that Non CIA Rat is almost an anagram for Iran-Contra?), no Kennedy inquiry into the terror tapes. That DOJ investigation into the torture tapes is looking like a pretty good way to bury any discussion of the torture tapes for a good little while, isn’t it? Maybe even long enough for Bush to start pardoning people wildly in about a year, huh?


What Did Helgerson Do with the Torture Tapes?

I noted here that both Michael Hayden and John Helgerson are recusing themselves from the torture tape criminal investigation.

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]

Since Hayden wasn’t at CIA when the tapes were destroyed in 2005, I presume when he says he was involved in reviewing the tape destruction, he’s referring to his lead-up to sending a silly letter to CIA making transparent excuses for why the torture tapes were destroyed [Update: actually, I take that back. Hayden was Deputy DNI starting in April 2005, so early enough to be party to the summer 2005 discussions between John Negroponte, then DNI, and Porter Goss, in which Negroponte told Goss not to destroy the tapes]. I’ll come back to that in a second. But for now, I’m more interested in Helgerson’s reasons for recusing (I’d point out that if he has to recuse going forward, he should have already recused. But this is the Bush Administration, after all).

Helgerson notes he and his staffers "had ‘reviewed the tapes at issue some years ago,’ during the time when agency officials were debating whether to destroy them." The "time when agency officials were debating whether to destroy them" is generally described as February pr March 2003 (when CIA first pitched destroying them to the Gang of Four) through November 2005 (when they were destroyed). We also know there was a CIA briefing for the White House involving Alberto Gonzales, David Addington, and John Bellinger in May 2004, not long after the Abu Ghraib scandal became public (but long after Gonzales, at least, was likely aware of the impending scandal).

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The agency said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." It reaffirmed that statement on Tuesday, but would not comment on any classified report issued by Mr. Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law.

The officials who described the report said it discussed particular techniques used by the C.I.A. against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world. They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the C.I.A. since he was captured in March 2003. Mr. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

I’ve seen the report’s publication date as either April or May 2004–but in any case, at almost exactly the same time CIA briefed Addington, Gonzales, and Bellinger on the torture tapes. Which makes Helgerson’s claim that he "reviewed the tapes at issue" during that period particularly interesting. Helgerson’s report–which focuses on the treatment of a number of named detainees–may have relied on those torture tapes to form the judgment that the CIA was engaged in cruel and inhuman treatment. In fact, it’s even possible that the CIA briefing in May 2004 pertained not just to Abu Ghraib (which was, after all, a DOD operation, not a CIA one), but also to the fact that the CIA IG had just declared in a written report that the tactics used (and presumably shown in the tapes) amounted to illegal treatment of detainees.

So let’s review the coinkydinks, for a moment. John Helgerson published an IG report (possibly relying on the tapes) suggesting the CIA’s interrogation program may be illegal almost exactly contemporaneously with the date of CIA-White House briefing at which they discussed destroying the torture tapes. Then, one week after the Dana Priest story and several days after Brinkema’s inquiry on whether the government had any tapes from interrogations, the CIA issues a public statement denying it tortures. And the following day, voila! The most extensive discussion of the IG report comes out in the NYT. And, either shortly before or shortly after this newspaper article, the torture tapes are destroyed.

If Helgerson viewed the tapes and used them to conclude that the interrogations were illegal, it would sure explain one of the motivations for destroying the tapes.

But that’s not all. Recall that between the time that the first tapes were found (September 13, 2007) and the time when the NYT reported on the destruction of the tapes (December 6, 2007), Michael Hayden’s investigation into Helgerson became public (October 11, 2007, also in an article by Mazzetti and Shane).

A small team working for General Hayden is looking into the conduct of the agency’s watchdog office, which is led by Inspector General John L. Helgerson. Current and former government officials said the review had caused anxiety and anger in Mr. Helgerson’s office and aroused concern on Capitol Hill that it posed a conflict of interest.

The review is particularly focused on complaints that Mr. Helgerson’s office has not acted as a fair and impartial judge of agency operations but instead has begun a crusade against those who have participated in controversial detention programs.

[snip]

Some agency officers believe the aggressive investigations by Mr. Helgerson amount to unfair second guessing of intelligence officers who are often risking their lives in the field.

“These are good people who thought they were doing the right thing,” said one former agency official. “And now they are getting beat up pretty bad and they have to go out an hire a lawyer.”

That investigation (which was scuttled by Congress) sure looks like it pertained to Helgerson’s investigation of CIA interrogation methods. And Hayden’s investigation of Helgerson may well have coincided with Hayden’s "review of the tape destruction."

In other words, this investigation seems like nothing so much as the end product of a bloody Spook fight that follows up several skirmishes over the years.

Update: This, from Mazzetti and Johnston, appears to support my supposition that Helgerson’s investigation used the tapes in its determination that the CIA was engaged in cruel and inhuman treatment.

In an announcement on Wednesday, John Helgerson, the inspector general, said he would recuse himself from the investigation to avoid the appearance of a conflict of interest.

Mr. Helgerson’s office had reviewed the videotapes, documenting the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri, as part of an investigation into the agency ‘s secret detention and interrogation program.

The tapes are thought to portray the use of the technique known as waterboarding, which simulates drowning and which has widely been condemned as torture.

Mr. Helgerson completed his investigation into the program in early 2004. [my emphasis]

Copyright © 2024 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/page/2/?s=%22torture+tapes%22