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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 

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.  

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.

My supposition that one reasons Dana Priest’s black site article precipitated the torture tape destruction is because the tapes were dangerous to the country on whose territory the CIA tortured Abu Zubaydah led to me to read something I should have already read–the July 2007 COE report on European participation in the US HVD program. This post lays out what it says about Poland. I’m still reading the report, but given the direction of the comment threads on my other posts, I wanted to get this up for discussion.

Assuming the COE report is accurate (it is based on public reports and anonymous sources, including a number of CIA sources), Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, and probably al-Nashiri, were in Poland when Dana Priest’s article ran.

In accordance with the operational arrangements described below, Poland housed what the CIA’s Counterterrorism Centre considered its “most sensitive HVDs,” a category which included several of the men whose transfer to Guantanamo Bay was announced by President Bush on 6 September 2006.

We received confirmations – each name from more than one source – of eight names of HVDs who were held in Poland between 2003 and 2005. Specifically, our sources in the CIA named Poland as the “black site” where both Abu Zubaydah and Khalid Sheikh Mohamed (KSM) were held and questioned using “enhanced interrogation techniques.” The information known about these interrogations has formed the basis of heated debate in the United States and the wider international community, leading, in Zubaydah’s case, to high-level political and legislative manoeuvres and, in KSM’s case, to the admission of some troubling judicial precedents.

But it remains unclear on whether Abu Zubaydah was moved to Poland in 2002 or 2003. The report describes the HVD program as evolving between 2002 and 2003.

The United States negotiated its agreement with Poland to detain CIA High-Value Detainees on Polish territory in 2002 and early 2003. We have established that the first HVDs were transferred to Poland in the first half of 2003.

It describes top-level Polish officials as being aware of the program starting in 2002.

[S]ome individual high office-holders knew about and authorised Poland’s role in the CIA’s operation of secret detention facilities for High-Value Detainees on Polish territory, from 2002 to 2005.

And it describes the genesis of the program as starting in 2001.

In my understanding, the narrative of the HVD programme has played out largely over a five-year period, from September 2001 to September 2006. CIA insiders told us that there was widespread surprise that it operated and remained secret quite as long as it did. From 2004 onwards, the President was being strongly advised to place a time limit on the programme because it was regarded as having been somewhat improvisational in its nature and therefore could not be sustained: “every period in history has its bookends”.

It also admits that its sources about the Polish facility where top AQ members were held did not provide specifics about timing.

Beyond this fleeting insight, however, neither Polish nor American sources who discussed the HVD programme with us would agree to speak about the exact “operational details” of secret detentions at Stare Kiejkuty, nor would they confirm how long it was operated for, which other facilities were used as part of the same programme in Poland, nor how and when exactly the detainees left the country.

So from the report, we cannot tell whether the waterboarding of Abu Zubaydah alleged to have started in August 2002–and therefore the filming of that waterboarding–happened in Poland or Thailand, which the COE report mentions briefly.

Second we have been told that Thailand hosted the first CIA “black site,” and that Abu Zubaydah was held there after his capture in 2002. CIA sources indicated to us that Thailand was used because of the ready availability of the network of local knowledge and bilateral relationships that dated back to the Vietnam War.

[footnote] One CIA source told us: “in Thailand, it was a case of ‘you stick with what you know’;” however, since the allegations pertaining to Thailand were not the direct focus of our inquiry, we did not elaborate further on these references in our discussions. The specific location of the “black site” in Thailand has been publicly alleged to be a facility in Udon Thani, near to the Udon Royal Thai Air Force Base in the north-east of the country. This base does have long-standing connections to American defence and intelligence activities overseas: during the Vietnam War it served as both a deployment base for the US Air Force and the Asian headquarters of the CIA-linked aviation enterprise, Air America.

That said, the report explains one reason why the Priest article would be so problematic for Poland. While her article didn’t name Poland, it was a reasonably easy guess (I guessed it the day her article came out). More importantly, the then-President of Poland was responsible for negotiating Poland’s participation in the program personally.

The following persons could therefore be held accountable for these activities: the President of the Republic of Poland, Aleksander KWASNIEWSKI, the Chief of the National Security Bureau (also Secretary of National Security Committee), Marek SIWIEC, the Minister of National Defence (Ministerial oversight of Military Intelligence), Jerzy SZMAJDZINSKI, and the Head of Military Intelligence, Marek DUKACZEWSKI.

[snip]

There was complete consensus on the part of our key senior sources that President Kwasniewski was the foremost national authority on the HVD programme. One military intelligence source told us: “Listen, Poland agreed from the top down… From the President – yes… to provide the CIA all it needed.” Asked whether the Prime Minister and his Cabinet were briefed on the HVD programme, our source said: “Even the ABW [Internal Security Agency] and AW [Foreign Intelligence Agency] do not have access to all of our classified materials. Forget the Prime Minister; it operated directly under the President.”

Now, aside from all the reasons why Poland wouldn’t want civilized types to know they hosted our torture program for up to three years, there are reasons why Kwasniewski wouldn’t want that known as well. At the time of the Priest article, Poland had just elected a new President (Kwasniewski was term-limited, so couldn’t run, but Kwasniewski’s party did poorly in the election, so he knew an opposition party would take over). Kwasniewksi even had aspirations to becoming the UN Secretary General.

Kwasniewski wasn’t much use to use at the point Priest’s article came out–he had even already announced the withdrawal of troops from Iraq. But when a news article threatens to ruin the aspirations of statesmen, I can imagine they would make further cooperation more difficult to negotiate.

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?

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.

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.

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.