I wanted to return to one other detail of John Brennan’s (designed to be made public, I believe) January 27 letter to Dianne Feinstein explaining the urgent need to continue the “investigative, protective, or intelligence activity” targeted at CIA’s overseers.

In the letter, Brennan describes the original basis for CIA’s claimed suspicion into SSCI this way:

CIA maintains a log of all materials provided to the Committee through established protocols, and these documents do not appear in that log, nor were they found in an audit of CIA’s side of the system for all materials provided to SSCI through established protocols. Because we were concerned that there may be a breach or vulnerability in the system for housing highly classified documents, CIA conducted a limited review to determine whether these files were located on the SSCI side of the CIA network and review audit data to determine whether anyone had access the files. [my emphasis]

The original basis CIA used to justify investigating their overseers was a log purportedly recording which documents they had been given.

Recall that CIA worked with contractors — SAIC, as I understand it — to review and re-review each document before they turned it over to SSCI.

CIA insisted that the Committee review documents at a government building in Virginia. Once the CIA produced relevant documents related to the CIA detention and interrogation program, the CIA then insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided to a small number of fully cleared Committee staff.

This process accounts for much of the $44 million cost of the report.

The log must have come out of this process: contractors, being paid handsomely by the CIA to slow the investigation, recording each document that they claimed to hand over to investigators.

So at the base of Brennan’s claim is a log, made by self-interested contractors employed by CIA, about torture.

The CIA’s contractors don’t have a very reliable history recording issues relating to torture.

Recall that — contrary to much of the public reporting on the matter — the destruction of the torture tapes did not just destroy ugly images of torture inflicted on Abu Zubaydah.

In addition, by destroying the torture tapes, CIA destroyed evidence that:

• The CIA’s contractors used torture on Abu Zubaydah that exceeded the guidelines provided by DOJ
• The CIA’s contractors’ descriptions of those torture techniques — in written cables and logs — did not match what they had actually done to Abu Zubaydah
• By the time CIA shut down the Thai black site and decided to stop taping their torture, someone (the CIA’s contractors?) had already destroyed or sabotaged a number of the torture tapes, including ones depicting waterboarding

That is, one of the likely reasons why CIA destroyed the torture tapes is that their handsomely paid self-interested contractors produced a substantively inaccurate log about torture.

And at the base of the CIA’s witch hunt into SSCI staffers is a log about torture presumably made by handsomely paid self-interested contractors.

The traditional media is catching up to my post the other day focusing on Robert Eatinger, the CIA lawyer who referred Senate Intelligence Committee staffers for criminal investigation. Welcome traditional media!!

Just to expand the discussion of how deeply involved CTC’s lawyers — including, but not limited to, Eatinger — have been in torture, I thought I’d expand on my post from the other day with a timeline of CTC documents and consultation, most from its legal team, that might be among the 1,600 mentions of Eatinger in the Senate Torture Report that Dianne Feinstein referred to the other day.

I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

Note, some of this information relies on the OPR report; at least three of CTC’s lawyers refused to cooperate with that report, two based on advice of counsel. Remember too that, just as happened with the SCIF CIA made the Senate Intelligence Committee use, between 10 and 61 torture documents disappeared from DOJ’s OLC SCIF during the period when OPR was working on its report.

April 2002: Months before the first torture memo, CTC’s lawyers, in consultation with NSC and DOJ, approved 24-48 hours of sleep deprivation for use with Abu Zubaydah (who, remember, was still recovering from life-threatening bullet wounds). The torturers promptly exceeded those limits. So CTC, on its own, approved the new amounts because, they claimed, Abu Zubaydah hadn’t suffered any adverse consequences. (See PDF 113-114)

After consulting with the NSC and DOJ, CTC[redacted] originally approved 24-48 hours of sleep deprivation.

In April 2002 CTC[redacted] learned that due to a misunderstanding, that time frame had been exceeded.

However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucinations (thereby disrupting profoundly Abu Zubaydah’s senses or personality) it was within legal parameters.

After August 1, 2002: After the Bybee Memos laid out which torture techniques were permitted, then, CTC chief lawyer Jonathan Fredman sent out legal guidance to the torturers in Thailand. Rather than relying on the Bybee Memos, he relied on a July 13, 2002 John Yoo memo, purportedly prepared without the knowledge of Bybee (but, given the timing, probably written in response to Chertoff’s refusal to provide pre-declination andwith coaching from David Addington). The earlier memo lacked some of the key caveats of the later ones.

September 6, 2002: On September 4, 2002, Jose Rodriguez and a lawyer from CTC briefed Nancy Pelosi and Porter Goss on torture. The following day, CIA started discussing destroying the torture tapes. Then, on September 6, a lawyer from CTC altered the record of the briefing to Pelosi and Goss. (see PDF 84 and PDF 11-12)

October 2, 2002: CTC top lawyer Jonathan Fredman briefs Gitmo about torture and says a number of inflammatory things about detainee treatment.

December 24, 2002: CTC completes memo advocating for destruction of torture tapes.

Early 2003: After DOJ told CIA’s Inspector General to develop its own set of facts for review of any criminal liability in torture, John Yoo and Jennifer Koester start freelancing with CTC’s lawyers to develop the “Legal Principles” or “Bullet Points” document which expanded on the analysis officially approved by OLC. Koester told DOJ’s Office of Professional Responsibility the document would be used to assess the legality of the torture.

She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.

June 16, 2003: In her review, Koester took out language CIA had included saying that “comparable, approved techniques” to those approved in the Bybee Memo did not violate law or the Constitution. But when CTC’s lawyers sent the “Bullet Points” back to OLC in 2003 as an attempted fait accompli, that language had been inserted back into the memo.

April 2004: Eatinger takes over as top CTC lawyer.

Unknown date: CTC’s lawyers write a declination memo recommending against charges for Salt Pit manager Matt Zirbel in the murder of Gul Rahman based on (according to Jay Bybee’s characterization) an entirely intent-based exoneration. (see footnote 28)

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

May 11, 2004: White House meeting, possibly attended by Eatinger, at which White House lawyers tell CIA not to destroy torture tapes.

June 2004: According to John Rizzo, Eatinger attends White House meeting at which White House lawyers instruct not to destroy torture tapes.

August 4-5, 2004: CTC lawyers provide Daniel Levin additional information on waterboarding; the Torture Report found this information to be inaccurate.

August 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 5, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture Report found to be inaccurate.

September 19, 2004: Another CIA letter, from a lawyer other than John Rizzo, the Torture report found to be inaccurate.

February 2, 2005: A CTC lawyer worked closely with Daniel Levin to try to finish the Combined Memo before Levin moved to NSC. At that point, the Memo did not include waterboarding. Nevertheless, Levin did not complete it, and Steve Bradbury would add waterboarding back in when he completed the memo that April.

Febraury 14, 2005: CTC panics because Congress might hold hearings into detainee treatment.

March 1, 2005: Steven Bradbury’s main contact for Combined and other torture memos is a CTC attorney. The Torture Report found information used in these memos to be inaccurate.

March 2, 2005: CTC sends Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. John Rizzo says CTC lawyers were involved in drafting this document.

April 15, 2005: CTC sends Briefing Notes on the Value of Detainee Reporting to Steven Bradbury for use in Special Needs argument in torture memos. Similar memos that have been released have made demonstrably false claims. Rizzo says CTC lawyers were involved in drafting this document.

May 10, 2005: Steven Bradbury completes two OLC memos — the Techniques Memo and Combined Memo — that the Torture Report found are based on inaccurate information.

May 30, 2005: Bradbury completes a third OLC memo — the CAT Memo — that the Torture Report found is based on inaccurate information.

November 8, 2005: The day CIA destroyed the torture tapes, someone from CTC/LGL gave HPSCI Chair Pete Hoekstra a briefing with no staffers present. (see page 32) The briefing was included in a summary of all Congressional briefings completed that day.

November 8, 2005: Eatinger and another CTC lawyer claim there is no legal reason to retain the torture tapes, in spite of several pending legal requests covering the videos. Jose Rodriguez orders their destruction.

January 25, 2006: Another letter from a lawyer other than John Rizzo that Torture Report may have found to be inaccurate.

April 19, 2006: Fax from a lawyer other than Rizzo that Torture Report may have found to be inaccurate.

May 18, 2006: Letter from a lawyer other than Rizzo, claiming torture techniques would be used for safety reasons, the Torture Report may have found to be inaccurate.

Update: h/t to DocEx blog for some additions to this timeline.

Dianne Feinstein just gave a barn burner of a speech explaining the CIA/SSCI fight over the Torture Report. There are a lot of details I’ll return to.

But one of the most important issues, in my mind, is the detail that the Acting General Counsel of the CIA, Robert Eatinger, referred the Senate Intelligence Committee investigators to DOJ for investigation. (h/t to DocexBlog for identifying Eatinger) Feinstein correctly interpreted this as an attempt to intimidate her staffers as they complete the investigation.

And, as Feinstein made clear, Eatinger is a key focus of the report. Feinstein revealed that Eatinger (whom she did not name) was named, by name, (if I heard Feinstein’s claim correctly) 1,600 times in the Torture Report.

At least some of those mentions surely describe CIA’s decision to destroy the torture tapes, an act Eatinger sanctioned.

Former CIA clandestine branch chief Jose A. Rodriguez Jr., who ordered the destruction of the tapes, has said through his attorney that he based his decision on legal advice from agency lawyers. The lawyers, Steven Hermes and Robert Eatinger, did not endorse the tapes’ destruction but rather concluded there was “no legal impediment” to disposing of them, according to sources briefed on their advice.

Hermes and Eatinger, who only recently were interviewed by Durham, continue to work at the agency and have retained counsel, the sources said.

Feinstein described Eatinger’s key role as the Counterterrorism Center’s chief lawyer (presumably after Jonathan Fredman left). Some things CTC lawyers did were:

• Approved the use of sleep deprivation before DOJ considered the question
• Altered the record of the original briefing to Nancy Pelosi and Porter Goss
• Used a John Yoo freelanced memo as the basis of advice to CIA on torture
• Collaborated with John Yoo to write a “Legal Principles” document that authorized otherwise unauthorized torture techniques

Lawyers probably associated with CTC also lied about the treatment of Hassan Ghul in 2004.

Eatinger also contributed to a CIA cover-up attempt in a key State Secrets case.

There’s a lot that’s amazing about this story. But I find it particularly telling that a lawyer trying to protect his own ass — trying to hide details of the 1,600 mentions of his name in the Torture Report — has targeted Senate Intelligence Committee staffers.

Update: Given that Eatinger is apparently the person who referred the Senate staffers, it is significant that Feinstein started her speech by raising the torture tape destruction.

The origin of this study: The CIA’s detention and interrogation program began operations in 2002, though it was not until September 2006, that Members of the Intelligence Committee, other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA Director Hayden only hours before President Bush disclosed the program to the public.

A little more than a year later, on December 6, 2007, a New York Times article revealed the troubling fact that the CIA had destroyed videotapes of some of the CIA’s first interrogations using so-called “enhanced techniques.” We learned that this destruction was over the objections of President Bush’s White House Counsel and the Director of National Intelligence.

After we read about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence Committee. He assured us that this was not destruction of evidence, as detailed records of the interrogations existed on paper in the form of CIA operational cables describing the detention conditions and the day-to-day CIA interrogations.

The CIA director stated that these cables were “a more than adequate representation” of what would have been on the destroyed tapes. Director Hayden offered at that time, during Senator Jay Rockefeller’s chairmanship of the committee, to allow Members or staff to review these sensitive CIA operational cables given that the videotapes had been destroyed.

The WaPo reports that the woman who helped Jose Rodriguez destroy the torture tapes will not — as had been floated — officially lead the Clandestine Services.

A female CIA officer who was the first woman to lead the agency’s clandestine service, but was also closely tied to the agency’s interrogation program, will not get to keep that job as part of a management shake-up announced Tuesday by CIA Director John O. Brennan, U.S. officials said.

The report (sourced to “US officials,” which can be code for members of Congress or staffers) emphasizes that the intervention of members of Congress — and Dianne Feinstein specifically — played in key role in persuading John Brennan such an appointment would be a problem.

But the woman, who remains under cover, faced opposition from senior lawmakers over her ties to an interrogation program that critics have said employed torture to get information from al-Qaeda captives after the Sept. 11, 2001, attacks.

[snip]

Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Intelligence Committee, had called Brennan to express concern over the possibility that someone so closely linked to the program would be put in position to lead the agency’s spying service.

Kudos to DiFi for what appears to be successful oversight.

The only problem is the same article notes that Brennan is preparing to blow off DiFi’s torture report.

The transition comes at a time when the agency is assembling what is said to be a defiant response to a recently completed report by the Senate Intelligence Committee that is sharply critical of the interrogation program and its results.

As I have noted in the past and elaborated on at Salon yesterday, Brennan’s “defiance” should not matter. Ultimately, the White House has the authority to release the report.

But it’s trying to dodge the issue.

And now, in spite of Panetta’s claims that the White House originally made torture a SAP, the White House has done nothing to accelerate the release of a report that — according to Democrats on the committee and John McCain — will correct many misconceptions about the torture program.

Of course, as president, Obama would have the authority to order John Brennan to declassify the report in any case. But the White House seems unwilling to acknowledge whether it possesses the sole authority over this decision. In response to a question whether — as Panetta’s statement indicates — the White House has classification authority over the program, NSC spokesperson Caitlin Hayden didn’t answer.

Instead, she used the same kind of stalling technique as the CIA:

The Administration is currently reviewing the full 6,000 page report at the invitation of the SSCI and we look forward to working with the Committee once that review is complete.

I suspect the White House will use Brennan’s “defiance” as cover for keeping the report hidden.

What Brennan does in personnel decisions that remain hidden won’t get the CIA out of the torture business. Only real transparency on it will.

Update: The Cable published the entire letter announcing the personnel changes at CIA. It ends with this claim about the woman passed over at Clandestine Services.

The assertion she was not chosen because of her affiliation with the CT mission is absolutely not true.

I guess for the CIA, destroying evidence of torture is considered “the [counterterrorism] mission.”

Oh hi! Are you folks still here? Missed you!

First off, thanks to bmaz and Jim and Rayne for holding down the fort while Mr EW, McCaffrey the MilleniaLab, and I explored Kentucky. There are many wonderful aspects of the state: the sandstone arches, the ham, and I think we’re even finally beginning to get this Bourbon thing!

I’ll be catching up for a few days, probably commenting on things that broke while I’m away. Such as this news, that John Brennan is showing his leadership at CIA by having three former CIA people weigh in on whether he should retain the woman who destroyed the torture tapes as the head of the clandestine service (she’s the acting head now, Brennan is considering making her appointment permanent; Mark Mazzetti has more details on her career here).

To help navigate the sensitive decision on the clandestine service chief, Brennan has taken the unusual step of assembling a group of three former CIA officials to evaluate the candidates. Brennan announced the move in a previously undisclosed notice sent to CIA employees last week, officials said.

[snip]

“Given the importance of the position of the director of the National Clandestine Service, Director Brennan has asked a few highly respected former senior agency officers to review the candidates he’s considering for the job,” said Preston Golson, a CIA spokesman.

The group’s members were identified as former senior officials John McLaughlin, Stephen Kappes and Mary Margaret Graham.

Note that at least two of these three were deeply implicated in the torture program, with McLaughlin involved in decisions and briefing of the program itself (and also vouching for Brennan’s claimed opposition to torture back when it mattered, solely because he’s “honest”), and Kappes involved in covering up the Salt Pit killing of Gul Rahman, among other things. So they’re not exactly neutral on the contributions of people who cover up the CIA’s torture program. While the selection of these three is being spun as expertise (I suspect they were also selected because Dianne Feinstein respects them, though that’s a guess), it should be clear that they are not neutral on torture.

But I’m just as amused at how this process — Brennan’s fairly transparent attempt to outsource the morally repugnant decision to promote someone involved in torture and its cover-up — undermines all the carefully cultivated claims about Brennan’s role as the priest serving as a moral compass for others, at least on the drone program.

Among other descriptions offered of the guy in charge of drone assassinations, Harold Koh described him as a priest.

“If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude,” Mr. Koh said. “It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.”

That same formulation–moral rectitude–shows up in Karen DeYoung’s profile of John Brennan today.

Some White House aides describe him as a nearly priest-like presence in their midst, with a moral depth leavened by a dry, Irish wit.

One CIA colleague, former general counsel John Rizzo, recalled his rectitude surfacing in unexpected ways. Brennan once questioned Rizzo’s use of the “BCC” function in the agency’s e-mail system to send a blind copy of a message to a third party without the primary recipient’s knowledge.

“He wasn’t joking,” Rizzo said. “He regarded that as underhanded.”

Back when Brennan’s boosters were promising he’d be a controlling figure at CIA, they suggested he’d make these decisions based on a priest-like moral compass.

Yet, just weeks into the job, he has instead asked those who benefitted from this woman’s cover-up to bless her promotion, thereby dodging the responsibility himself.

I warned that this moral rectitude thing was just a myth when Brennan was nominated. It sure didn’t take long to be proven right.

[youtube]mRAHa_Po0Kg[/youtube]

This was one of the most interesting little-noticed exchanges at John Brennan’s confirmation hearing last week.

CHAMBLISS: In 2002 what was your knowledge of interrogation videotapes about Abu Zubaydah, and did you seek any information about an Office of General Counsel review of them in 2002?

BRENNAN: I have — I don’t have a recollection of that, Senator.

CHAMBLISS: Of the tapes, or that request?

BRENNAN: At the time, in 2002, I do not know what my involvement or knowledge was at the time of the tapes. I believe that they — I was aware of the Abu Zubaydah debriefings and interrogation sessions being taped.

John Brennan not only knew of the torture tapes but … well, he doesn’t remember whether he asked about the OGC review of torture tapes or not.

As a threshold matter, remember that Brennan was in a logistical role at the time the torture sessions were first taped. He had nothing to do with the development of the techniques, he says. But thus far, I think no one has asked him if he procured any of a number of items the torturers used.

For example, did John Brennan help set up the torture taping system? That would explain how he knew they were taping the sessions.

But that’s not all. Remember, the Office of General Counsel reviewed the torture tapes — originally as a preliminary to them being destroyed in 2002 — to make sure what the torturers did matched what DOJ’s Office of Legal Counsel approved them to do.

We know they shouldn’t have. We know the tapes should have shown the torturers exceeding the guidelines of waterboarding. We know the tapes should have shown the torture preceding the date when OLC actually approved it.

And we know the tapes should have shown the torturers putting Abu Zubaydah in a box as part of a mock burial, the only torture technique John Yoo ever labeled illegal.

In short, we know that the tapes should have shown that the torturers exceeded even the limited restrictions OLC put on them.

Instead, by the time OGC reviewed the torture tapes, 15 of the tapes were already partially or entirely destroyed. Some were taped over, some were broken, some showed the taping system had been shut off. 21 hours of Abu Zubaydah’s torture somehow did not remain on the tapes at the time of the OGC review in November to December 2002. As it happened, when the Inspector General later reviewed the tapes and compared what John McPherson, the OGC lawyer who had reviewed the tapes, actually recorded, he discovered that McPherson had found it unremarkable that the torturers were deviating from the guidelines approved by OLC.

But it appears, given Saxby’s comment, that Brennan was not so much interested in what the IG found, but in what McPherson found. Brennan appears to have been interested in what remained on the tapes after they had been partially destroyed, the first time, after the presumably most incriminating aspects of Abu Zubaydah’s torture had been destroyed.

Here’s another question. Did logistics guy John Brennan procure the waterboard the use of which exceeded the guidelines laid out by OLC? More importantly, did logistics guy John Brennan procure the box used to conduct an even-John-Yoo-said-it-was-illegal mock burial? And if so, did John Brennan know that the torturers considered the box a coffin?

Did John Brennan know, because he had done the logistics for the torture program, that the torturers had violated the only law Yoo ever put into place?

It would sure explain why the Obama Administration worked so hard to cover up the torture program.

The Senate Intelligence Committee’s new anti-leak laws are the part of the Intelligence Authorization that will generate the most attention. Greg Miller already got Dianne Feinstein to admit there’s no reason to think one of the new provisions–permitting only the most senior intelligence officials to do background briefings–will limit leaks.

Feinstein acknowledged that she knew of no evidence tying those leaks or others to background sessions, which generally deal broadly with analysts’ interpretations of developments overseas and avoid discussions of the operations of the CIA or other spy services.

Another of the provisions–requiring intelligence committee heads to ensure that every sanctioned leak be recorded–ought to be named the Judy Miller and Bob Woodward Insta-Leak Recording Act.

(a) RECORD REQUIREMENT.—The head of each element of the intelligence community shall ensure that such element creates and maintains a record of all authorized disclosures of classified information to media personnel, including any person or entity under contract or other binding agreement with the media to provide analysis or commentary, or to any person or entity if the disclosure is made with the intent or knowledge that such information will be made publicly available.

I’m sure someone can think of some downside to this provision, but I can’t think of it at the moment (which is why Obama will probably find some way to eliminate it). It will end some of the asymmetry and abuse of classification as it currently exists.

In addition, there are a bunch of provisions that are just dumb bureaucracy.

But it’s this one that is deeply troubling. Among the other provisions making nondisclosure agreements more rigorous is a provision that would allow an intelligence community head to take away a person’s pension if they “determine” that an individual violated her nondisclosure agreement.

(3) specifies appropriate disciplinary actions, including the surrender of any current or future Federal Government pension benefit, to be taken against the individual if the Director of National Intelligence or the head of the appropriate element of the intelligence community determines that the individual has knowingly violated the prepublication review requirements contained in a nondisclosure agreement between the individual and an element of the intelligence community in a manner that disclosed classified information to an unauthorized person or entity;

Ron Wyden objects to this on the obvious due process grounds (and notes a big disparity between the treatment of intelligence agency employees and those in, say, the White House). He also describes a scenario in which a whistleblower might be targeted that gets awfully close to the plight of Thomas Drake, who was prosecuted for the documents he had–upon the instruction of the NSA Inspector General–kept in his basement to make a whistleblower complaint.

It is unfortunately entirely plausible to me that a given intelligence agency could conclude that a written submission to the congressional intelligence committees or an agency Inspector General is an “unauthorized publication,” and that the whistleblower who submitted it is thereby subject to punishment under section 511, especially since there is no explicit language in the bill that contradicts this conclusion.

But there’s one thing Wyden left out: the proven arbitrariness of the existing prepublication review process. A slew of people have well-founded gripes with the prepublication review process: Valerie Plame, for CIA’s unwillingness to let her publish things that Dick Cheney already exposed; Peter Van Buren for State’s stupid policy on WikiLeaks; Glenn Carle for the delay and arbitrariness. That list alone ought to make it clear how a provision giving agencies even more power to use the prepublication review process as a means to exact revenge for critics would be abused.

Now consider the most egregious case: the disparate treatment of Jose Rodriguez and Ali Soufan’s books on torture. Rodriguez was able to make false claims, both about what intelligence torture produced and about legal facts of his destruction of the torture tapes. Yet Soufan was not permitted to publish the counterpart to those false claims. Thus, not only did prepublication review prevent Soufan from expressing legitimate criticism. But the process facilitated the production of propaganda about CIA actions.

What’s truly bizarre is that the same people who want to leverage the already arbitrary power prepublication review exacts over government employees have also expressed concern about how arbitrary the prepublication review process is.

U.S. officials familiar with the inquiry, who spoke on condition of anonymity, said that it reflects growing concern in the intelligence community that the review process is biased toward agency loyalists, particularly those from the executive ranks.

Members of the Senate Intelligence Committee expressed such concerns in a recent letter to CIA Director David H. Petraeus, a document that has not been publicly released.

As it is, intelligence community officials will be subject to unreliable polygraph questions focusing on unauthorized (but not authorized) leaks. Those expanded polygraphs come at a time when at least one agency has already been accused of using them for fishing expeditions.

And now the Senate Intelligence Community want to allow agency heads to use a prepublication review process that they themselves have worried is politicized to punish alleged leakers?

Document Exploitation blog has read Jose Rodriguez’ book so I don’t have to!

Seriously, I will eventually get around to reading Rodriguez’ book, when I can get it cheaper than toilet paper. But until then, I’m glad a document wonk has done the work.

One of the more interesting observations from DocEx pertains to Judge Hellerstein’s apparent misreading of CIA’s promises to fix their contemptuous document responses. Click through for that. (Though now that I understand that Hellerstein was unsuccessfully trying to expose that the President had authorized all this torture, perhaps he believed he had achieved a just result.)

But the real “ah ha” for me was this–showing that the CIA lawyer that reviewed the already-damaged torture tapes and found evidence of that damage not noteworthy…

This report appears to show McPherson admitting that he saw some of the tapes were partially blank, or had snow on them.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

Though he claims not to have noticed that two of the tapes were broken (though perhaps they were broken later). When asked why he had not reported the blank tapes in his report, McPherson said he didn’t find that “noteworthy.”

… Was also the lawyer who provided the original, contemptuous FOIA response.

Rodriguez’s account also sheds new light on a crucial lynchpin in the ACLU FOIA case by identifing the CIA attorney from the Office of General Counsel (OGC) who viewed the videotapes in Nov. 2002 as “one of the assistant general counsels” whom Rodriguez calls “a very senior Agency officer.”  The attorney was later interviewed by the CIA Office of Inspector General (OIG) about that review. Rodriguez’s small, but important details corroborate earlier reporting by the AP and WashPo that the OGC attorney was John L. McPherson, who based on unrelated court filings, was an Assistant General Counsel as of 2001 and later became an Associate General Counsel.

Why is this significant? Hellerstein found the tapes subject to FOIA because they were “identified and produced to” the CIA’s OIG “as part of its investigation into allegations” of unauthorized interrogations and human rights violations. Yet Hellerstein stopped short of finding the CIA in contempt in part because “the individuals responsible for processing and responding to plaintiffs’ FOIA requests may not have been aware of the videotapes’ existence before they were destroyed.”

Remarkably, however, the crucial FOIA response from the CIA regarding the records of the OIG in April 2005 (ergo, 7 months prior to the destruction of the tapes) was written by none other than John L. McPherson. That is, the most important FOIA response in the case was written by the very CIA attorney who, if reporting that Rodriguez’s book tends to support is true, arguably knew more about the tapes than anyone else. See for yourself here.

In other words, the lawyer who chose not to mention the torture tapes in the original ACLU FOIA is the guy who first saw evidence the torturers were exceeding DOJ guidelines and covering that up on those torture tapes.

That’s the guy, by the way, John Durham gave immunity to.

Abu Zubaydah’s legal team just wrote the Convening Authority for the Military Commissions demanding that it charge Zubaydah.

This letter requests that the Convening Authority immediately commence proceedings against our client, Zayn al-Abidin Muhammad Husayn (abu Zubaydah), ISN # 10016. Failure to act would raise serious questions about the integrity and legitimacy of the Convening Authority and, indeed, of the whole process established to try or release Guantanamo detainees.

[snip]

Nearly six years ago, President Bush announced that abu Zubaydah and thirteen other so-called high-value detainees were to be tried by a military commission:

So I’m announcing today that Khalid Sheikh Mohammed, abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Cheers, applause)….
With these prosecutions, we will send a clear message to those who kill Americans: No matter how long it takes, we will find you and we will bring you to justice. (Emphasis added)

It’s an interesting legal tactic. If the Convening Authority doesn’t charge AZ, it will surely present a Constitutional challenge on speedy trial grounds. But, as the letter makes clear, any charge would fall far short of the claims made about AZ over the last decade.

Furthermore, if the CA doesn’t respond here, then the letter’s predictions of a lost legitimacy may well bear out.

Abu Zubaydah has not been tried, has not been charged, and has not even had military commission counsel assigned to him. He has requested the appointment of military commission counsel repeatedly but has received no response. This overt failure to prosecute a supposed terrorist leader causes the world to wonder why. One possibility is that the claims, despite their number and decibel level, are simply untrue, so that the government cannot prove all (or any) of them. A second possibility is that the prosecution would be successful but only at the unacceptable cost of exposing the government to worldwide censure for the manner in which Zubaydah was treated and the evidence against him was obtained. The third possibility, worst of all, is both that the claims are not true and that his treatment is too shameful to be revealed to the world.

Curiously, the letter mentions the Bush Administration’s efforts to destroy Phillip Zelikow’s dissent on the OLC memos. It describes that as “spoilation of evidence. But it doesn’t describe the spoilation of the other big piece of evidence (and likely one of the main reasons the government can’t charge AZ, in addition to his mental stability): the torture tapes.

In any case, it’s a very interesting approach and one that, if successful, I’d expect more detainees (particularly Mohammed al-Qahtani) to try.

Frankly, I think Jose Rodriguez was being naive when he claimed that having Jay Bybee’s signature on a memo authorizing some, but not all, of the torture the torturers had already done by August 1, 2002 constituted full authority for what they had done.

But before moving forward, Jose Rodriguez got his superiors, right up to the president – to sign off on a set of those techniques, including waterboarding.

Jose Rodriguez: We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed.

Lesley Stahl: Their big boy pants on–

Jose Rodriguez: Big boy pants. Let me tell you, I had had a lot of experience in the agency where we had been left to hold the bag. And I was not about to let that happen for the people that work for me.

Lesley Stahl: There wasn’t gonna be any deniability on this one?

Jose Rodriguez: There was not gonna be any deniability. And I tell you something. In August of 2002, I felt I had all the authorities that I needed, all the approvals that I needed. The atmosphere in the country was different. Everybody wanted us to save American lives.

After all, to this day, these counterterrrorism programs are being run on a Memorandum of Notification that not only doesn’t comply with the terms of the National Security Act, but shields the President (Obama even more so than Bush) from any direct accountability, a carefully crafted deniability that the CIA has worked to preserve.

Lesley Stahl was apparently not up to the task of asking Rodriguez about the torture the torturers actually used which exceeded the terms of the authorization. She describes waterboarding as laid out in the Bybee Memo, without acknowledging that the torturers didn’t follow those guidelines. Stahl asserts as fact that the CIA kept Abu Zubaydah up for 3 straight days, when evidence suggests his sleep deprivation lasted longer, perhaps as long as 11 days. Had Stahl laid out the degree to which the torturers were known to have exceeded guidelines (both before and after those guidelines were codified in the Bybee Memo), she might have noted the underlying problem with this exchange.

Lesley Stahl: Oh, you had rules for each thing?

Jose Rodriguez: Yes, we had rules. And not only that, but every time we did any of this, we had to ask permission. The field had to ask permission of headquarters.

Lesley Stahl: Each time.

Jose Rodriguez: Each time.

As she herself pointed out, Rodriguez was not doing the torture. He wasn’t in the field. He was at HQ. In fact, he was one of the guys sitting in Langley giving the oral permissions for individual torture techniques both before and after Bybee signed his memo, the techniques that exceeded the rules laid out in Bybee. You’d think Stahl might have pointed that out.

There’s something similar going on in this passage.

Lesley Stahl: Mock executions. People threatened with power drills.

Jose Rodriguez: Yes.

Lesley Stahl: People told that, that you were gonna go and hurt their children, rape their wives.

Jose Rodriguez: Stupid things that were done by people who had no authority to do that.

Lesley Stahl: And they just took it on themselves.

Jose Rodriguez: Correct. And we found out about it and we self-reported, and actually called in the I.G. and said, “You better take a look at what these people did and do what you need to do.”

A big reason the CIA sought OLC sanction after the fact is that the torturers brought out a coffin-shaped box and prepared to use it with Abu Zubaydah. In response, Ali Soufan left the black site, citing the CIA’s use of borderline torture. When CIA attempted to get everything they had done and planned to do authorized by DOJ, they included mock burial among the techniques in question. As I’ve noted, the failure to get OLC buyoff for mock burial–regardless of what they called the small box confinement they used with Abu Zubaydah–made all the later mock executions legally suspect in a way even waterboarding beyond the scope of Bybee’s approval did.

Though no one seems to have gotten in trouble not just for rape threats of prisoners’ family members, of prisoners themselves, or even imprisonment of prisoners’ children, so I’m not sure why Rodriguez is claiming to be squeamish about that too.

And since Stahl was not in the business of journalism with this interview, it’s unsurprising all she missed in this exchange on the actual torture tapes.

Lesley Stahl: Well, that’s ironic. You wanted to have a video record that he was being well treated, but in the end they became– a video record that he had been subjected to these harsh techniques.

Jose Rodriguez: Yeah, we weren’t hiding anything.

Lesley Stahl: But you then ordered these tapes destroyed.

Jose Rodriguez: Correct. Ninety-two tapes.

Lesley Stahl: Ninety-two tapes. Why did you order that they be destroyed?

Jose Rodriguez: To protect the people who worked for me and who were at those black sites and whose faces were shown on the tape.

Lesley Stahl: Protect them from what?

Jose Rodriguez: Protect them from al Qaeda ever getting their hands on these tapes and using them to go after them and their families.

[snip]

Jose Rodriguez: Everything that was on those tapes were authorized activities by the U.S. government. So there was nothing to cover up.

Not that Stahl was going to note that much of the tapes Rodriguez had destroyed–perhaps as many as half–were blank, tampered, and mangled. By no means were all these 92 tapes depicting the torture, and we have every reason to assume the tapes did not depict the worst torture (they may have depicted only 3/5 of the waterboarding sessions at all).

Furthermore, the guards, at least (though not Abu Zubaydah’s torturers) wore masks.

But I’m particularly interested in Rodriguez’ last claim: “everything that was on the tapes were authorized activities by the US government.”

Yes, and many of the tapes that taped interrogation sessions were blank by the time Rodriguez destroyed them.

Those are not incompatible claims in the least. Indeed, Rodriguez’ claimed certainty that what was on the tapes when he destroyed them had been authorized may well stem from an awareness that the stuff that had already been destroyed was not authorized.

Over and over again, Rodriguez dodges the degree to which the CIA program exceeded even the oral authorizations given for torture and the evidence that Rodriguez–right at the nexus of accountability for the times CIA exceeded what guidelines they had been given–was protecting himself when he destroyed these tapes.

Which brings us to this wail.

Lesley Stahl: President Obama has said that what we did was torture.

Jose Rodriguez: Well, President Obama is entitled to his opinion. When President Obama condemns the covert action activities of a previous government, he is breaking the covenant that exists between intelligence officers who are at the pointy end of the spear, hanging way out there, and the government that authorized them and directed them to go there.

Let’s review what’s going on here. Rodriguez–whose torturers broke the law with no written cover from the President, went to “everybody in government” and demanded they don their “big boy pants.” He claims they did, to his satisfaction. But somehow, all the ways his torturers either didn’t have authorization or Rodriguez had insufficiently submitted Bush and Cheney to big boy pants has left them exposed for crimes (though not really, because Rodriguez knows Obama isn’t going to prosecute).

And so now that Rodriguez’ big boy pants have failed, he invokes, instead, a “covenant,” which says Presidents have to pretend their predecessors wore precisely the big boy pants CIA’s torturers hoped they had, after the fact.

Don’t get me wrong–to some degree Rodriguez is fucked because while he was boasting of his big boy pants the rest of the national security establishment was building in protections for the guy Rodriguez insinuates was forced to wear them.

Jose Rodriguez looks awfully tough boasting of having made our Cowboy President wear big boy pants, of invoking a “covenant” that binds all future Presidents to overlook our spooks’ past crimes. And maybe Presidents are as responsive to Rodriguez’ taunts as he makes out.

Still, if I were President reading a torturer try to insulate himself for his past crimes, I might not take too kindly to this taunt about big boy pants.