Would it surprise you to know that the government just admitted to another torture tape, this one of Mohammed al-Qahtani’s treatment? The Obama Administration has continued the Bush Administration’s attempts to stonewall on release of this material.

The government never disclosed the existence of these tapes as exculpatory information in Mr. al Qahtani’s habeas case. CCR had filed a motion in February 2009 to compel the government to turn over exculpatory evidence in their client’s case and to hold the government in contempt for it’s “flagrant violation” of a judge’s November 2008 order to do so. Judge Thomas F. Hogan issued an order in November 2008 (amended in December 2008) requiring the government to turn over promptly any exculpatory evidence it had on the men detained at Guantánamo to their attorneys.  The government filed what was essentially a second motion for an extension of time on  January 30, 2009. Since the original filing in June 2008, the government has twice delayed its compliance with the court’s orders, engaging in what CCR attorneys described as “improper self-help by granting itself an indefinite extension of time.”

Finally, CCR and co-counsel, Sandra Babcock, filed a motion for discovery in March 2009 seeking any video tapes of Mr. al Qahtani’s interrogation and numerous other records.  After seven months of discovery disputes, the court issued the publicly-filed order today.

The videotapes the government is required to produce will reveal the time period at the end of three months of intensive solitary confinement and isolation that immediately preceded the implementation of the “First Special Interrogation Plan,” a regime of systematic torture techniques approved by former Secretary of Defense Donald Rumsfeld for use against Mr. al Qahtani.  In a letter to his superiors reporting possible abuse of men in U.S. custody, T.J. Harrington, Deputy Assistant Director, Counterterrorism Division, FBI described Mr. al Qahtani during this time as “evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reportedly hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).”

Here’s the order.

I’m wondering. Did Susan Crawford admit the government had tortured al-Qahtani because she knew these videotapes might come out?

I wanted to point out a somewhat weedy detail about how the CIA IG Report describes the torture investigation as compared to how the CIA’s Office of Inspector General described that investigation in court filings last year.

As you’ll recall, after the CIA admitted to the destruction of the torture tapes in 2007, the ACLU filed to hold the CIA in contempt for not having revealed the existence of the torture tapes earlier in their torture document FOIA. In response, the OIG submitted a filing and a declaration describing why they hadn’t revealed the existence of the tapes.

The filing explained that CIA had no obligation to search its operational files in response to the ACLU’s FOIA unless those files had been the subject of an investigation.

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

And the declaration went on to make certain claims about the relationship between the CIA IG investigation and the subject matter of the torture tapes.

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

[snip]

At no time prior to the destruction of the tapes in 2005 did OIG initiate a separate investigation into the interrogations depicted on the videotapes.

[snip]

Stated another way, the activities depicted on the videotapes that were reviewed in 2003 were not the specific subject matter of the OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by OIG. [my emphasis]

Yet here’s what the IG Report says about why it initiated an investigation.

In November 2002, the Deputy Director for Operations (DOD) informed the Office of Inspector General (OIG) that the Agency had established a program in the Counterterrorist Center to detain and interrogate terrorists at sites abroad ("the CTC Program"). He also informed OIG that he had iust learned of and had dispatched a team to investigate [redacted] In January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorized interrogation techniques with a detainee, ‘Abd Al-Rahim Al-Nashiri, at another foreign site, and requested that OIG investigate. Separately, OIG received information that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights. In January 2003, OIG initiated a review of Agency counterterrorism detention and interrogation activities [redacted] and the incident with Al-Nashiri. [my emphasis]

In other words, the IG Report says that DDO James Pavitt requested OIG investigate "allegations [of] unauthorized interrogation techniques" used on Rahim al-Nashiri. But we know al-Nashiri’s interrogations were taped.

So how in the hell was OIG claiming that the IG investigation was not"initiated in response to an allegation of wrongdoing," when the second paragraph of the report states that Pavitt asked OIG to launch the investigation because of an allegation of wrongdoing?

It sure sounds like a question ACLU might want to have OIG answer for Judge Hellerstein. But if I had to guess, I’d say the OIG was parsing wildly when it made this claim.

As the IG Report passage above makes clear, OIG set out to investigate two things: the abuse of al-Nashiri, and other abuses conducted (presumably) in Afghanistan. And I’m guessing they formulated their description of the investigation generally to shield these earlier complaints. The IG’s description of their investigation (included as Appendix A) seems to support that more general claim:

OIG tasked relevant components for all information regarding the treatment and interrogation of all individuals detained by or on behalf of CIA after 9/11. [my emphasis]

So in spite of the fact that the OIG says it was asked to investigate the al-Nashiri abuse and in response it launched this investigation, I’m guessing that the fact that they included all CIA interrogations in the scope of their review makes them think it’s cool to now claim specific allegations had nothing to do with it. 

And I suspect there’s another layer of wild parsing going on here. Twice, the OIG claims that the "interrogations" and "activities depicted on the videotapes" were not the "specific subject" of their investigation and/or were not the subject of a "separate" investigation. As I pointed out in March, the inventory suggests the  CIA used a different approach with taping al-Nashiri’s torture sessions than they used with Abu Zubaydah. With Abu Zubaydah, they taped and kept everything (aside from the tapes that were blank or broken by the time OIG got them); with al-Nashiri, they appear to have just cycled two (or three) tapes, rewinding and taping over earlier sessions with each session.

In other words, the only al-Nashiri interrogations "depicted" on the torture tapes were of the last several, the ones that never got taped over.

So while the OIG did, in fact, initiate the investigation in response to allegations of abuse that were taped on those videotapes, those abusive interrogations probably were no longer depicted on the tapes by the time OIG reviewed the tapes in May 2003.

Frankly, I suspect there is still more parsing going on. Given that OIG appears to have gotten Abu Zubaydah’s pscyhological profile as early as January 31, 2003, I suspect that Abu Zubaydah was rather more central to the investigation than the IG Report itself lets on. 

But for the purposes of this declaration, the OIG seems to be claiming that,

1. The torture tapes depict mostly Abu Zubaydah interrogations with just a few al-Nashiri interrogations
2. The investigation was not launched specifically in regards to the Abu Zubaydah (and few al-Nashiri) interrogation sessions depicted on the tapes
3. The investigation was launched in response to allegations of abuse of al-Nashiri that were no longer depicted on the tapes when the investigation was launched
4. But since the investigation was scoped much more broadly than focusing specifically on the abuses of al-Nashiri, even the fact that the abuse had been taped (but then taped over) doesn’t mean that OIG should have revealed the existence of the torture tapes.

And using this logic, CIA is hoping to avoid being held in contempt.

There’s one more thing, though. 

CIA’s OGC watched the video tapes in November and December 2002, before Pavitt asked OIG to investigate the abuse of al-Nashiri (one wonders if that’s when 11-plus tapes mysteriously became blank and broken).

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters. He reported that there was no deviation from the DoJ guidance or the written record.

It appears there was a formal report from this review–because Jello Jay requested it, twice, before they destroyed the torture tapes in 2005.

In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005.

So where is this report and why didn’t CIA get that in a Vaughn Index?

There’s a keystone to understanding the story from David Johnston (who frequently regurgitates highly motivated leaks) and Mark Mazzetti (CIA’s guy at NYT) on Dusty Foggo’s role in setting up the black sites run by the CIA: Foggo’s testimony in the torture tape investigation. Early this year, remember, DOJ and CIA told the ACLU that they couldn’t FOIA information pertaining to the disappearing torture tapes because John Durham’s investigation of their destruction was ongoing and would be for perhaps two more months.

And then, just as Dusty Foggo was about to go to jail, John Durham said he needed to interview Foggo. And since then, as far as we know, Durham’s investigation continues, now four months beyond when he thought he’d finish up. As recently as a month or so ago, Durham was flying people back from remote locations to appear before the grand jury. While we can’t be sure, it does seem likely that Foggo’s testimony provided new information that has sustained it.

And, thanks to Johnston and Mazzetti, we now know why Foggo would have something pertinent to say about the torture tapes–because he was the guy who set up the black sites. 

In March 2003, two C.I.A. officials surprised Kyle D. Foggo, then the chief of the agency’s main European supply base, with an unusual request. They wanted his help building secret prisons to hold some of the world’s most threatening terrorists.

[snip]

“It was too sensitive to be handled by headquarters,” he said in an interview. “I was proud to help my nation.”

With that, Mr. Foggo went on to oversee construction of three detention centers, each built to house about a half-dozen detainees, according to former intelligence officials and others briefed on the matter.

[snip]

Early in the fight against Al Qaeda, agency officials relied heavily on American allies to help detain people suspected of terrorism in makeshift facilities in countries like Thailand. But by the time two C.I.A. officials met with Mr. Foggo in 2003, that arrangement was under threat, according to people briefed on the situation. In Thailand, for example, local officials were said to be growing uneasy about a black site outside Bangkok code-named Cat’s Eye. (The agency would eventually change the code name for the Thai prison, fearing it would appear racially insensitive.) The C.I.A. wanted its own, more permanent detention centers.

So sometime after Abu Zubaydah and Rahim al-Nashiri were taped being tortured, after the taping was stopped, and almost precisely when Khalid Sheikh Mohammed was being waterboarded, "two CIA officials" (the detail is repeated twice in the story) came to Foggo and asked him to set up black sites around the world.

And, Foggo’s helpfulness on this task appears to be one of the reasons why Foggo was promoted.

Mr. Foggo’s success in Frankfurt, including his work on the prisons, won him a promotion back in Washington. In November 2004, he was named the C.I.A.’s executive director, in effect its day-to-day administrative chief.

Of note, Foggo was promoted at a time when Porter Goss was DCI and Jose Rodriguez (who was head of counter-terrorism when Foggo took on the task of setting up the black sites and therefore a superb candidate to be one of the two people who asked him to do so) was Deputy Director of Operations.

And then, in 2005–the same year that Jose Rodriguez would have the torture tapes destroyed and Porter Goss would unexplicably fail to stop him from doing so–Foggo went to the black sites with John Rizzo and others.

In 2005, before he came under investigation, Mr. Foggo and other officials, including John Rizzo, the agency’s top lawyer, paid a rare visit to some of the prison sites, assuring C.I.A. employees that their activities were legal, according to former intelligence officials.

John Rizzo, btw, was pressuring others at CIA to make sure that Foggo’s mistress kept a job as a CIA lawyer she was not doing competently.

So let’s see:

2002: Torture tapes made

2003: Foggo recruited to set up black sites

2004: Foggo promoted unexplicably after some politicized firings

2005: Foggo and Rizzo and others visit the black sites to calm the host countries

2005: Dana Priest does a story exposing the black sites and, within days, the torture tapes are destroyed

It’s all beginning to make some sense now.

Oh, and one more thing. In an affidavit submitted in support of Foggo’s sentencing that would otherwise serve no purpose in the severity of Foggo’s sentencing, Porter Goss claimed he didn’t know that Foggo was an ethical and counterintelligence nightmare when he promoted him in 2004. But, Laura Rozen reported, that claim was an out and out lie. 

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

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

Oh boy. Things are getting clearer and clearer.

So Goss–installed at CIA to be Cheney’s mole–fired the people who were trying to prevent him from promoting Foggo. The next year, Foggo was traveling with other high level CIA people to calm the torture site hosts. That same year, the torture tapes were destroyed. Then the following year, Foggo became a problem in the Cunningham aftermath. And Foggo and Goss got fired as a result. And, at the one time Goss had an opportunity to make a statement about his role in all this, he allegedly lied about knowing Foggo and all his problems (and, of course, all the skills that led people to ask him to set up the black sites in the first place). 

Interesting. Very very interesting.

New filings by the ACLU. Dissect and discuss.

Here

and

Here.

Jason Leopold reported on and posted a late update to the ongoing torture tape FOIA exchange. If I read the latest exchange correctly, Special Prosecutor John Durham is at least preparing to identify–and potentially make available through FOIA–a number of older documents on the torture tape destruction, as well as admitting that some more recent documents on the torture tape destruction exist.

Today’s letter does two things. First, it withdraws John Durham’s objection to Judge Hellerstein’s order that:

The government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002. I find that the period for such production should be April 1, 2002 through June 30, 2003. If this longer period imposes an unreasonable burden, the Government should show why, and whether a reasonably shorter period would provide sufficient disclosure.

Today’s letter states:

For the reasons stated in the enclosed ex parte letter from John H. Durham provided for the Court’s in camera review, we write to advise the Court that Mr. Durham withdraws his objection to paragraph 4 of the Court’s April 20, 2009 Order.

In addition, the letter admits that the CIA has documents pertaining to the torture tape destruction,

that fall outside the date range provided in the Order; namely, April 1, 2002 through June 30, 2003. Mr. Durham may have objections to the production of documents created outside the date range specified in the Order.

This news is not surprising–it had always bugged me that the otherwise thorough Hellerstein hadn’t demanded documents for the period right up until the destruction of the torture tapes in November 2005. Now, Durham is admitting such documents exist–which we knew, because among other things, we knew that John Negroponte sent Porter Goss a memo in 2005 telling him not to destroy the tapes. But it’s nice to know that Durham is willing to go out of his way to admit that such documents exist.

If I had to guess, I’d say that Durham has finished his investigation of the earlier period–through June 30, 2003–so is now willing to produce at least a Vaughn Index of what documentation exists for the period (note, this should include the documents surrounding the Jane Harman briefing from February 5, 2003, including her letter telling the CIA not to destroy the tapes, and any paper response Scott Muller made internally at CIA). And I’d guess Durham has finished any interviews in which he would have wanted to avoid disclosing that there are documents of any sort from the later period. But it sounds like he’s not willing to give these later documents up. 

Yet.

A number of people are panicking about Leon Panetta’s statement to CIA employees, believing it rebuts Nancy Pelosi’s statement.

There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress.

Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

My advice — indeed, my direction — to you is straightforward: ignore the noise and stay focused on your mission. We have too much work to do to be distracted from our job of protecting this country.

We are an Agency of high integrity, professionalism, and dedication. Our task is to tell it like it is—even if that’s not what people always want to hear. Keep it up. Our national security depends on it.

But there’s a better way to understand this. 

First, look at Panetta’s statement about the briefings themselves.

As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

Panetta is stating two things:

1. The contemporaneous records (that is, the CIA briefer’s own notes on the briefing) show that the briefers "briefed truthfully … describing ‘the enhanced techniques that had been employed’" on Zubaydah.
2. It is up to Congress to evaluate this evidence and "reach its own conclusions about what happened."

Now, first of all, Panetta is not saying (nor has anyone said, not even Porter Goss) that the briefers briefed Congress that these techniques had been used. I know this sounds weasely, but until someone says, in plain language, that the CIA told Congress those techniques had already been used on Abu Zubaydah, we should assume that’s not what the notes reflect, because if they did, you can be sure both the briefing list and the public statements would say so. But no one is saying that. And against that background, Panetta is reiterating the statement that Congress should determine what happened–a reiteration of the admission that CIA’s own briefing records are not the totality of the story.

The CIA briefing list records that the following people participated in the briefing: Nancy Pelosi, her staffer Michael Sheehy, Porter Goss, his staffer Tim Sample, briefers from the CounterTerrorism Center (CTC), and the Office of Congressional Affairs (OCA; elsewhere, we’ve been told four people, total, from CIA attended). 

While CIA doesn’t say it, the chances are very good that the head of CTC was among the four CIA officials who attended that briefing–he probably led the briefing. On September 4, 2002, the head of CTC was Jose Rodriguez.

Jose Rodriguez, you’ll recall, is one of the key suspects in the torture tape destruction.

Rodriguez admits to overseeing the destruction of the torture tapes, though he excuses doing so with this story (delivered by his lawyer, leaker extraordinaire Bob Bennett):

Rodriguez, whom the CIA honored with a medal in August for "Extraordinary Fidelity and Essential Service," declined requests for an interview. But his attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover."

That is, Rodriguez doesn’t deny having the torture tapes destroyed–tapes showing Abu Zubaydah’s torture, which Rodriguez probably briefed Nancy Pelosi incompletely on on September 4, 2002. Rather, he says that 1) they had intended to destroy the tapes going back to 2002, 2) Congress had been briefed on the plan to destroy them in 2003, and 3) Rodriguez got the legal okay to destroy them in 2005.

With that in mind, consider that the other key suspect in the torture tape destruction is Porter Goss, in the role he played in 2005 as Director of Central Intelligence. We know that Goss was explicitly warned, in writing, not to destroy the torture tapes. We know that Goss didn’t tell Rodriguez not to destroy the tapes. And there are reasons to believe that the rest of Goss’ story about the torture tape is less than forthcoming. 

So Jose Rodriguez, may have, at a time when (he now says) he was already thinking about destroying the torture tapes of Abu Zubaydah’s torture, briefed Nancy Pelosi and Porter Goss on the techniques used to torture Zubaydah. He, or someone else at the briefing, went back afterwards and wrote down what he remembered from the briefing, which is that he described the techniques used on Zubaydah (though not neecssarily that he had told Pelosi and Goss those techniques had been used). Porter Goss has said Nancy Pelosi is nuts not to have assumed–at that time–that they were going to use waterboarding going forward. But even he, thus far, has not claimed that CIA told them torture had already been used.

We’ve got Nancy Pelosi in a briefing with (probably) the two prime suspects from the torture tape destruction. She has said CIA misled them, then, about whether or not CIA had already used torture. And neither Goss nor the CIA generally (representing CTC and therefore probably Rodriguez) is really disputing that they didn’t tell her that torture had already been used.

Now do you understand why people are coming after Pelosi so aggressively, even though there appears to be no disagreement about whether CIA told Congress torture had already been used?

Okay, with that in mind, return to the bulk of Panetta’s comment, where he tells everyone not to get distracted, where he says that CIA does not have a policy of lying to Congress.

There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress.

Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

My advice — indeed, my direction — to you is straightforward: ignore the noise and stay focused on your mission.

This is a statement reflecting not just the worries at CIA that they’ve been sold out again, asked to break the law, but then hung out to dry after the fact. This is a statement given at a time when the very people being investigated (probably)–Rodriguez and Goss–are two of the three key players in the briefing at the time.And this is a statement that narrowly affirms the accuracy of the briefing (given the briefing notes), while admitting that Congress should determine the full story. Yes, Panetta gives that narrow defense of CIA’s statement. But the bulk of Panetta’s statement implores the rest of CIA not to get hung up on the circus happening around them. 

Panetta is doing two things. First, affirming that CIA has not misrepresented what got recorded in the briefing notes and that the language of the briefing notes is accurate–as far as that goes. And, at the same time, casting doubt on the full meaning of the statement while imploring the rest of CIA not to get distracted by yet another challenge to CIA’s credibility.

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

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

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

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

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

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

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

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

DOJ writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

But I’m sort of interested in this claim:

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

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

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

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

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

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

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

The AP caught something rather curious.

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

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

[snip]

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

I find this curious for a few reasons. 

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

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

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

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

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

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

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

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

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

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

graphic by PirateCat

Marcy earlier noted the article in today’s Washington Post by Peter Finn and Joby Warrick detailing the story surrounding abu-Zubaydah’s capture and torture. I want to pick up with Marcy’s last line:

Yet more reason they destroyed the torture tapes showing Abu Zubaydah’s interrogation.

Well, yes, because it was crystal clear at the outset the explanation initially given by the Bush/Cheney Administration – that they had researched the matter completely and the tapes had no evidentiary value in any possible proceeding whatsoever and they were concerned about privacy of hard working investigators – was totally bogus.

It has been my belief from the outset that the reason the "torture tapes" were destroyed was not simply because they depicted the brutal torture of detainee subjects but, just as importantly, if not more so, they demonstrated there was no credible/usable information produced as a result of that torture. Warrick and Finn confirm this. Even worse, they confirm what little good information the Bushies did extract from abu-Zubaydah was obtained through traditional interrogation prior to the onset of the torture program:

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda’s chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed.

Abu Zubaida was not even an official member of al-Qaeda, according to a portrait of the man that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources.

And there you have it. The Bushies made the conscious and criminal decision to go full tilt torture having direct reason to know both that abu-Zubaydah was cooperating through traditional interrogation and he was of very marginal use as an information source to start with.

Frustrated, the Bush administration ratcheted up the pressure — for the first time approving the use of increasingly harsh interrogations, including waterboarding.
…
The application of techniques such as waterboarding — a form of simulated drowning that U.S. officials had previously deemed a crime — prompted a sudden torrent of names and facts. Abu Zubaida began unspooling the details of various al-Qaeda plots, including plans to unleash weapons of mass destruction.
…
Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms….Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

"We spent millions of dollars chasing false alarms," one former intelligence official said.

Such is the clincher as to why the torture tapes had to be destroyed. It wasn’t just that Bush/Cheney et. al wanted to keep evidence of their torture program secret, there was never any complete way to do that. But there was only one thing that could prove they tortured for nothing and got nothing – the tapes. Cheney and his coterie of fellow Torquemadas were fiends proud of their handiwork; if they had evidence that it worked, they would have kept it. They burn spies for fun, crow on television about their willingness to torture and what they have accomplished, do you really think for one second they wouldn’t retain proof if they had it?

And let us not forget just who we are talking about here – it is the White House Principals group:

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

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

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

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

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

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies.

Cheney, Rice, Rumsfeld, Powell, Tenet and Ashcroft. Means, motive and opportunity. Who could have imagined?

This certainly explains why it was top White House lawyers including Gonzales, Addington, Bellinger and Miers, with "vigorous sentiment", assisted the CIA in the decision and process to destroy the torture tapes of abu-Zubaydah and others. There are definable offenses in their conduct: obstruction of justice, contempt of court, conspiracy, false statement/perjury, mishandling of classified material, and willful destruction of material evidence in federal investigations.

There exist patently clear crimes; where is the criminal justice system? We should not have to be humiliated by having to rely on other first world countries such as Spain, or international committees such as the Red Cross, to show us functioning justice and the rule of law.

I don’t want the Obama Administration to be partisan and spiteful, I want them to do their damn job. Is that too much to ask?