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

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

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

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

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

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

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

[snip]

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

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

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

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

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

A detail this LAT article repeats in significant form.

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

[snip]

Which is, frankly, about the only reason Michael Mukasey is correct in asking the House Intelligence Committee to back off. Crazy Pete Hoekstra is pretty close to Porter Goss, who appears to know more about the destruction of the torture tapes than he is letting on. And I could see Hoekstra doing the same favors–of impeding an investigation by manipulating the less than crafty chair of the House Intelligence Committee–that Dick Cheney did when he was in the same position during Iran-Contra. In other words, I’m not sure we can trust Crazy Pete to want to get to the bottom of this, and if HPSCI starts offering immunity as incautiously as they did with Monica, then I worry their investigation will stall any real investigation by DOJ–if it exists.

That is, in the hands of a less than shrewd majority and a politically reliable minority leader, immunity can be counter-productive. In the case of Monica Goodling, the Dems basically gave Monica a get out of jail card for nothing in exchange. Until I see that Crazy Pete Hoekstra’s heart is in the right place on this issue (which would, frankly, astound me), then I’d suggest we want to be very careful before we give Rodriguez something for nothing.

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

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

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

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

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

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

October 1, 2003: Hamdi petition filed with SCOTUS

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

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

Fall 2003: General Sanchez visits Abu Ghraib regularly

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

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

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

January 9, 2004: SCOTUS agrees to hear Hamdi

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

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

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

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

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

January 2004: General Myers learns of abuse

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

January 31, 2004: Taguba appointed to conduct investigation

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

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

March 9, 2004: Taguba submits his report

Late March, 2004: 60 Minutes II starts on story

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

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

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

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

April 28, 2004: Hamdi v. Rumsfeld argued before SCOTUS; Paul Clement assures SCOTUS that the Administration doesn’t torture

QUESTION: May I ask just one other question, I think it’s just relevant. But do you
think there is anything in the law that curtails the method of interrogation that may be employed?

MR. CLEMENT: Well, I think there is, Justice Stevens. I mean —

QUESTION: And what is that?

MR. CLEMENT: Well, just to give one example, I think that the United States is signatory
to conventions that prohibit torture and that sort of thing. And the United States is going to honor its treaty obligations. The other thing that’s worth mentioning of course —

QUESTION: But you said something about self-executing. In connection with the Geneva
Convention, you said, well, it’s not self-executing. Would you say the same thing about the torture convention?

MR. CLEMENT: Justice Ginsburg, I actually have the sense that the torture victims — you have the Torture Victim Protection Act, of course, which I think doesn’t actually apply to the United States. So I’m not sure that there would be any other basis for bringing a private cause of action against the United States. But as this Court noted in footnote 14 of the Eisentrager opinion, the idea that a treaty is going to be enforced through means other than a private cause of action doesn’t mean that it’s not a binding treaty, doesn’t mean that it’s not going to constrain the actions of the executive branch. Just to finish up my answer to Justice
Stevens’ question, I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or try to do something along those lines.

April 28, 2004: Abu Ghraib story airs on 60 Minutes II

May 2004: CIA briefing for Addington, Bellinger, and Gonzales on torture tapes

May 6, 2004: Taguba meets with Rummy, Wolfowitz, Cambone, Myers, and others

In the meeting, the officials professed ignorance about Abu Ghraib. "Could you tell us what happened?" Wolfowitz asked.

[snip]

“Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.”

May 7, 2004: Rummy testifies before Congress on Abu Ghraib

May 20, 2004: 9/11 Commission asks about Abu Zubaydah reference to Saudi prince; they get no response

June 3, 2004: Tenet announces his resignation; John McLaughlin resigns as well

June 7, 2004: WSJ refers to March 2003 OLC opinion

June 8, 2004: WaPo refers to Bybee Memo

June 15, 2004: Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns

June 28, 2004: Hamdi decision

June 29, 2004: John McLaughlin confirms that CIA "has taken and completed all reasonable steps necessary to find the documents in its possession, custody, or control responsive" to the 9/11 Commission’s formal requests and "has produced or made available for review" all such documents

July 11, 2004: Tenet’s resignation effective

I’m struck by three things.

First, Rummy and Cambone almost certainly knew of the Abu Ghraib scandal when they were negotiating with the 9/11 Commission about getting testimony from Abu Zubaydah, among others.

Second, one of the last things McLaughlin did before he resigned as DDCI was to assure the 9/11 Commission they had handed over all the documents relating to the interrogations in question.

Third, look at the context of that CIA briefing for Addington, Gonzales, and Bellinger in May 2004. Not only was the Administration dealing with the aftermath of the Abu Ghraib story, but it was also facing Goldsmith’s reconsideration of John Yoo’s torture guidance.

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

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

[snip]

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

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

This tactic may be familiar to you from your youth. I know when I was four or five, I used to parse parental requests very narrowly so as to rationalize behavior I knew to be wrong. By the time I tried it in Middle School, though, it was no longer considered a valid dodge and I got busted by teachers and school administrators (though it still worked to legalize gum chewing in Algebra class). But I guess those rules are different for the Bush Administration when they’re trying to hide their torturous ways.

If Marty is correct that the CIA held onto the tapes until the 9/11 Commission finished and then found a period to destroy them (apparently in the time period between when Leonie Brinkema asked if there were tapes and they said no), then it may explain why the public reports on when the White House weighed in on matters are so dodgy. The NYT claims that Addington, Gonzales, and Bellinger were involved in 2003. But the memo documenting their involvement (and, at least Gonzales’ and Bellinger’s opposition to the destruction of the tapes) dates to 2004. I’m guessing, from this general dodginess, that we’ll find some members of this White House crowd all of a sudden expressing robust support for destroying the terror tapes at a time when it became legally comfortable to do so.

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

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

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

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

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

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

For those who didn’t see it, ther (almost) consensus from the panel was:
1) that there was no way Mukasey could avoid conflict of interest because he had signed the material witness warrant for Jose Padilla that was based, in part, on information gained during interrogations that were depicted on the missing tapes;
2) a special prosecutor is needed to replace Mukasey who should recuse himslef;
3) as long as Congress doesn’t immunize anybody, there is no reason for Congress to wait on its own investigation;
4) CIA investigating itself is just batshit crazy

The Regan Admin guy thought that Congress should wait a couple weeks to give Mukasey a chance to do the right thing and recuse himself, because if they acted swiftly it would embarras Mukasey and imply that DOJ is still broken. (he didn’t say that exactly, but it’s what he meant)

Yee haw! Thank you LHP and the committee!

Ok, those are just a few of the points that have been made, and there are many more implications too. Here is the broader context I think it is time to return to. Impeachment. There is no question, at least in my view, that Mukasey for his own personal involvement, and the DOJ as an office for both it’s conduct and the roles played by senior officials, have severe and disqualifying conflicts of interest. The talk of a special prosecutor is warranted, but shortsided and inefficient; and this country simply cannot abide more inefficiency. There is no question but that a special prosecutor should be appointed, but it is time for more. It is time for impeachment.

I am going to come back to this again today. I am also working on a post describing some of the parameters on conflict of interest concerns for prosecutors and prosecuting agencies to give you all a little more information on the standards and concerns behind this element of the discussion. For now though, I have an emergency requiring me to go down to IA court and spring a poor soul suffering from a bum rap (aren’t they all?). To the extent EW is not around for the remainder of the holidays (and she does deserve some peace and good cheer I might add), I will be around. I know everybody has a lot going on, but we are running out of viable opportunities to bring about the accountability that simply must be made if we are to put this country, and it’s Constitution, back on the road to stability. Please chip in and keep working on this. Keep working through the implications of torturegate (sorry about the -gate; I am in a hurry) and the surrounding facts, as well as how we can leverage this straw to break the camel’s back. I will be back in a couple of hours. P.S. I will get a trash talk thread up a little later as well because, well, thats what we do!

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

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

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

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

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

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

Another of the administration attorneys, John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers came to a consensus that the tapes should not be destroyed, said a senior official familiar with Bellinger’s account of the 2003 White House discussion. Bellinger could not be reached for comment.

But Scott Muller, then CIA Counsel, says he didn’t consult with the White House in 2003–the CIA decided what they would do within the agency.

Muller did not seek White House input in 2003 because he believed the issue had been decided within the agency, the officials said.

This is pretty odd, considering that 1) the CIA claims to have briefed Congress on the tapes in 2003, and 2) NYT says they White House was involved in the discussion in 2003.

But then there’s this briefing in 2004–of which there is a paper record.

Among the documents the House Intelligence Committee could see is a May 2004 memo Muller wrote recording details of a meeting with White House officials that occurred as the Bush administration was scrambling to deal with the unfolding Abu Ghraib prison abuse scandal. According to these officials, the White House raised the issue in that meeting and recommended the tapes be retained intact.

This appears to be the same briefing that Michael Hayden already discussed with the SSCI.

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

The three White House officials present at the briefing were David S. Addington, then Vice President Cheney’s chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden’s closed-door testimony before the Senate intelligence committee.

So this suggests the Administration, in a panic after the Abu Ghraib images came out on April 28, revisited the question of the torture tapes. But that’s a full nineteen months before the tapes were destroyed. What happened in between those two dates?

Note: I’m finally going on my delayed roadtrip to the East Coast. Will be driving most of the day, so I’m leaving you in the very capable hands of bmaz.

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.

Which raises some really interesting questions. Abu Zubaydah has been widely reported to have been taken from Pakistan to Thailand to be interrogated. Yet al-Nashiri’s trajectory has been less clear. He was reported to have been detained in the United Arab Emirates but it has never been clear where he was taken after he was captured (though I’ve seen unreliable sources say al-Nashiri was taken to Jordan).

But according to the NYT, al-Nashiri was apparently interrogated in the same country as Abu Zubaydah. So, presumably, Thailand, unless Abu Zubaydah was moved.

Though there is a distinct possibility that Abu Zubaydah was moved. From James Risen’s State of War:

The CIA assigned a group of agency officials to try to find alternative prison sites in countries scattered around the world. They were studying, said one CIA source, "how to make people disappear."

There were a number of third world countries, with dubious human rights records, willing to play host. One African country offered the CIA the use of an island in the middle of a large lake, according to CIA sources, and other nations were equally accommodating. Eventually, several CIA prisons were secretly established, including at least two major ones, code-named Bright Lights and Salt Pit. A small group of officials within the CIA’s Counterterrorist Center was put in charge of supporting the prisons and managing the interrogations.

[snip]

Bright Light is one of the prisons where top al Qaeda leaders–including Abu Zubaydah and Khalid Sheikh Mohammed, the cenral planner of the September 11 attacks–have been held. Bright Light’s location is secret, and it has been used for only a handful of the most important al Qaeda detainees. (30)

This passage follows Risen’s reporting that Abu Zubaydah was moved to Thailand not long after his capture. Which suggests, as far as Risen knows, Bright Light may not be in Thailand. And therefore, the country where Abu Zubaydah and al-Nishiri were tortured (and where their torture tapes were stored for three years) may not be Thailand.

That’s not much to go on. But I find this news particularly interesting considering the news that,

… the CIA came into possession of the three recordings [revealed to Leonie Brinkema in October] 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 videotape of the interrogation of [redacted]

The whole discussion of the destroyed torture tapes appears to be connected to the discovery, three months ago, of these other torture tapes, which were not destroyed. So it might suggest that the "separate national security matters" might have something to do with the location at which the torture tapes had been stored.

As Scarecrow pointed out in the last thread, the White House has done something colossally stupid: they’ve objected to the sub-heading of the NYT’s story revealing the involvement of David Addington and Alberto Gonzales (among others) in the destruction of the terror tapes.

The White House on Wednesday took the rare step of publicly asking The New York Times to change the sub-headline of a story on the destruction of CIA tapes showing the interrogations of suspected terrorists.

At issue is the story’s sub-headline that stated: “White House Role Was Wider Than It Said.” The White House called this sub-headline inaccurate and demanded that it be corrected.

[snip]

The White House argues that the newspaper article implies that “there is an effort to mislead in this matter,” adding that such a conclusion is “pernicious and troubling.”

They appear to be making a fairly narrow objection. Since they have not publicly, officially, responded to the news that someone destroyed the terror tapes, they can’t be described to have "said" anything. Never mind that someone has been shopping the cover story that only Harriet Miers was involved in the deliberations on the tapes.

And, as we might expect from the Bill Keller- and Pinch Sulzberger-led NYT, they have obliged with the White House’s request and changed the entire title to: "Bush Lawyers Discussed Fate of C.I.A.Tapes." Given that the point of the sub-headline was that the story had been floated, by someone, that Harriet was the only one involved in the terror tape deliberations, I think the more appropriate response would have been to demand that the source for those original allegations either publicly retract them, or consider his source confidentiality sacrificed. Because, as it is, the NYT’s change of headlines coddles the people who have been pitching the cover story about Harriet.

But I’m also interested in the White House’s ham-handed response to this. The last time they handled a public allegation this badly was, oh, around July 8, 2003, when on Dick Cheney’s apparent order, Scooter Libby outed a CIA spy to (the NYT again!) Judy Miller. Thus far, they haven’t tried to out any of the parties involved–at least as far as we know. But as with Joe Wilson’s allegations, they are responding in such a panicked mode that the most logical conclusion is that they are, truly, panicked by the possibility that they will have to answer for the destruction of the torture tapes.

Mr. Mukasey–can we return to the discussion of a Special Proescutor for this issue?

Update: Oh, this is rich. Here’s the White House statement:

The New York Times today implies that the White House has been misleading in publicly acknowledging or discussing details related to the CIA’s decision to destroy interrogation tapes.

The sub-headline of the story inaccurately says that the "White House Role Was Wider Than It Said", and the story states that "…the involvement of White House officials in the discussions before the destruction of the tapes…was more extensive than Bush administration officials have acknowledged."

Under direction from the White House General Counsel while the Department of Justice and the CIA Inspector General conduct a preliminary inquiry, we have not publicly commented on facts relating to this issue, except to note President Bush’s immediate reaction upon being briefed on the matter. Furthermore, we have not described – neither to highlight, nor to minimize — the role or deliberations of White House officials in this matter.

The New York Times’ inference that there is an effort to mislead in this matter is pernicious and troubling, and we are formally requesting that NYT correct the sub-headline of this story.

It will not be surprising that this matter will be reported with a reliance on un-named sources and individuals lacking a full availability of the facts — and, as the New York Times story itself acknowledges, some of these sources will have wildly conflicting accounts of the facts. We will instead focus our efforts on supporting the preliminary inquiry underway, where facts can be gathered without bias or influence and later disseminated in an appropriate fashion.

We will continue to decline to comment on this issue, and in response to misleading press reports. [my emphasis]

First, in response to "misleading press reports," you’re going to do what? Are you going to finish that sentence? Did someone forget to have this reviewed by someone smarter than Dana "Pig Missile" Perino?

And where does this Administration get off, after leaking Valerie Wilson’s cover as an un-named source, getting all skittish about the use of un-named sources? Not to mention the same Administration that brought us to war by laundering classified information through un-named sources. 

Apparently, I’m not the only one who noticed that, since the time when Henry Waxman first asked Michael Mukasey to hand over the White House-related materials from the CIA Leak Case investigation, he has proven to mighty responsive to requests from Congress when it involves covering up for the White House. Compare these two response times to requests from Congress:

Torture Tapes: 6 Days Response

December 8: Congress begins to call for its own investigation of the destruction of the torture tapes

December 14: Mukasey sends a letter telling Congress to butt out

CIA Leak Investigation: 15 days and counting

December 3: Waxman requests White House investigation materials from Mukasey

December 18: Waxman asks again

Given the disparity in time–and the apparent logic that the disparity seems to stifle oversight in both cases–I can see why Waxman is getting impatient. He sets up his very own confrontation with Mukasey, too, giving him a deadline of January 3:

Thus, I request that you provide the Committee by January 3,2008, with the documents requested in the Committee’s July 16 letter
to Mr. Fitzgerald, including the reports of interviews with President Bush, Vice President Cheney, and other White House officials.

And if a deadline isn’t enough, Waxman throws Mukasey’s logic back at him.

You resisted providing information to the committees because of your concern that providing information could undermine the Justice Department’s on-going investigation. In the Plame matter, there is no pending Justice Department investigation and no pending Justice Department litigation. Whatever the merits of the position you are taking in the CIA tapes inquiry, those considerations do not apply here.

I’m not holding my breath. But seeing Dick and Bush’s interview transcripts sure would be an interesting way to start the New Year.

Dan Eggen and Walter Pincus have an interesting article describing the debate between CIA and FBI over whether waterboarding worked with Abu Zubaydah. If the timeline they describe is accurate, then it means that Abu Zubaydah may have given up his most important intelligence before they started torturing him (save, perhaps, fingering Ramzi bin al-Shibh). As to the information he gave up under torture, the CIA and FBI dispute whether it was useful or not. The article suggests the possibility that the CIA may have destroyed the torture tapes to hide the fact that the water-boarding was ineffective (which also might explain why Kiriakou so far hasn’t gotten scolded for telling the world that the United States tortures, since he claims it was effective).

The article explains that Abu Zubaydah was first detained on March 28, 2002 and describes him undergoing traditional interrogation methods from April and August. And apparently, using those traditional methods, they were able to get two of the most public pieces of information from Abu Zubaydah.

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.

[snip]

Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.

But then, the CIA and Bush wanted more, so they started water-boarding Abu Zubaydah, apparently in August (at least according to the CIA).

Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the "torture memo" narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

Note, there appears to be some debate about this detail. But the assertion by the CIA that it started in August implies that they didn’t start waterboarding Abu Zubaydah until the Bybee memo authorized it. And that the intelligence used to arrest Padilla was gathered without using torture. Of course, the CIA has a big big incentive to say that they didn’t start torturing Zubaydah until they were authorized to, so take that detail with motivation in mind.

Bush, at least, claims the water-boarding led to the capture of Ramzi bin al-Shibh.

"We knew that Zubaida had more information that could save innocent lives, but he stopped talking," Bush said in September 2006. "And so the CIA used an alternative set of procedures," which the president said prompted Abu Zubaida to disclose information leading to the capture of Sept. 11, 2001, plotter Ramzi Binalshibh.

But the FBI holds that the information gathered from Abu Zubaydah got increasingly crummy as the torture continued.

But FBI officials, including agents who questioned him after his capture or reviewed documents seized from his home, have concluded that even though he knew some al-Qaeda players, he provided interrogators with increasingly dubious information as the CIA’s harsh treatment intensified in late 2002.

Abu Zubaydah himself maintains as much, too.

In legal papers prepared for a military hearing, Abu Zubaida himself has asserted that he told his interrogators whatever they wanted to hear to make the treatment stop.

So that appears to be the big debate. Did Abu Zubaydah give up useful intelligence under torture, or just crap? Did he give up Ramzi bin al-Shibh before or after they started torturing him?  

Now, one of the most interesting details of this article, given the debate, is that Abu Zubaydah identified al-Nashiri under torture, and then al-Nashiri was in turn tortured.

According to the 9/11 Commission, which had access to FBI and CIA summaries of the interrogation, after August 2002 — when the harsh questioning is said to have begun — Abu Zubaida identified Abd al-Rahim al-Nashiri as a productive recruiter for al-Qaeda. Nashiri was subsequently captured and subjected to harsh interrogation, including waterboarding, but videotapes of that questioning were also destroyed by the CIA

I find this particularly interesting. If Zubaydah gave up  al-Nashiri under torture, was the intelligence any good? If not, it might explain why they’d eliminate Abu Zubaydah’s and al-Nashiri’s torture tapes, among all the tapes I presume they have. Or, there’s another possibility. The evidence about what Abu Zubaydah said when comes from the 9/11 Commission. Is it possible they got false information about what was gained under torture and what was gained before the torture started?