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Jose Rodriguez Briefed Pelosi and Goss in Deceptive Abu Zubaydah Briefing

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As MadDog noted, Judicial Watch just got some new documents detailing briefings Congress received. Or rather, they got new documents providing further proof that CIA has no fucking clue what it said to Congress during some key briefings (this batch shows, for example, that the fall 2003 briefings were never finalized into a Memo for the Record, just as earlier ones weren’t, and PDF 48 shows that many key briefings weren’t recorded).

But in what I’ve reviewed so far, the new documents reveal one important new detail. Page 44 of this PDF provides a mostly redacted record of the briefing CIA gave Porter Goss and Nancy Pelosi on Abu Zubaydah’s torture on September 4, 2002. We know–because both Goss and Pelosi have described this detail the same way–that CIA did not tell the House Intelligence leadership that it had already tortured Abu Zubaydah. CIA told Goss and Pelosi about waterboarding, but spoke of it as a technique that might hypothetically be used in the future, not something that had been used 83 times on one detainee the prior month.

But we haven’t known who gave that badly deceptive briefing. Mind you, I had my suspicions. I thought it likely that Jose Rodriguez, then head of Counterterrorism Center, and the guy who ordered the torture tapes destroyed three years later, was a likely candidate to have done that briefing. But there was no proof.

Until today.

Assuming CIA’s own documentation is accurate (always a big assumption, given the CIA), then Jose Rodriguez–listed as D/CTC–is the one who gave Goss and Pelosi that deceptive briefing.

Jose Rodriguez went on to participate in destroying evidence of torture that should have been briefed to Congress. And these documents prove (again, presuming CIA’s documents are accurate) that Jose Rodriguez was deceiving Congress about torture right from the start.

Allowing Human Experimentation under the War Crimes Act

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I felt like they were experimenting and trying out techniques to be used later on other people. — Abu Zubaydah to the Red Cross

Physicians for Human Rights just released a report documenting what Jeff Kaye and more recently Jason Leopold have been discussing for years: America’s torturers were conducting a kind of human experimentation on the earliest detainees. PHR is calling on Attorney General Holder to investigate whether CIA’s medical personnel committed the war crime of human experimentation.

Most of the contents of the report will be familiar to readers of this blog. I find the following detail the most interesting new observation.

As part of the 2006 Military Commissions Act, the WCA was amended to delineate the specific violations of Common Article 3 that would be punishable. Among those violations is “performing biological experiments.” The amended language prohibits:

The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.61

While this language maintains the existing prohibition on biological experiments contained in the previous version of the WCA, the effect of this amendment appears to weaken the prohibition by moving away from the type of strict language found in the Geneva Conventions (Third Geneva Convention, Article 13), which states:

No prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental, or hospital treatment of the prisoner concerned and carried out in his interest.

The new language of the WCA added two qualifications that appear to have lowered the bar on biological experimentation on prisoners. That language requires that the experiment have a “legitimate” purpose, but does not require that it be carried out in the interest of the subject. It also adds the requirement that the experiment not “endanger” the subject, which appears to raise the threshold for what will be considered illegal biological experimentation.

That is, one of the things the Bush Administration did with the Military Commissions Act was retroactively change the law on human experimentation such that experimentation no longer needed to have a personal benefit to the research subject, and could instead be justified because of a “legitimate” interest.

You know, like the “legitimate” interest of knowing how long a human could be subject to sleep deprivation before they started hallucinating?

Which suggests to me that someone in government recognized the risk CIA’s torturers faced.

Task Force Conclusion: “Many” Detainees Were Legally Detained

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While I was away celebrating my 20th college reunion this weekend (thanks for filling in, bmaz), the WaPo liberated the Gitmo Review Task Force report. As the WaPo reported, the big takeaway is the government’s admission that over 55% of those reviewed by the Task Force were what it called “low level fighters” in al Qaeda, the Taliban, or “associated groups.” The claim itself is not all that credible–and that doesn’t include some of the 20% whom the Task Force described as having some organizational role in al Qaeda but might just mean they’re one of Osama bin Laden’s seemingly infinite number of bodyguards. Just 10% were the “worst of the worst” that Gitmo was supposed to hold (the report did not name Abu Zubaydah among those, for example).

All of which might explain why the report was so desperate to claim that detaining these men all these years–well, “many” of them, anyway–wasn’t illegal.

For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a legal basis for his detention.

No word about the others who have been detained for up to 8 years for whom the Task Force found no legal basis to hold.

Similarly, the report implies that torture was not why the government cannot prosecute “most” of the 48 detainees it has slated for indefinite detention.

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.

It describes those jurisdictional limitations this way:

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida–e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization–the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees. 21

21 Among these limitations: First, the two relevant statutes–18 USC 2339A and 2339B–were not amended to expressly apply extraterrorially to non-US persons until October 2001 and December 2004, respectively. Thus, material support may not be available as a charge in the federal system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 2001 at the earliest. Second the statute of limitations for these offenses is typically eight years (see 18 USC 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. Third, because the statutory maximum for material support is 15 years (where death does not result from the offense), sentencing considerations may weigh against pursuing prosecution in certain cases. Some of these considerations would not apply to material support charges brought in the military commissions; however, the legal viability of material support charges brought in the military commission system has been challenged on appeal in commission proceedings.

Let’s take a moment to lay out what these passages all suggest, but don’t admit candidly:

  • “Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know.
  • For a significant number of the 48 men slated for indefinite detention, there is no evidence that the man participated in terrorism. Indeed, given the description, it appears there isn’t even any evidence the man took part in an attack on American troops (even granting the government claim that all such attacks were necessarily illegal and not self-defense, which is itself bogus). And given the timing implied by the October 2001 deadline, there’s not even any evidence these men continued their affiliation with Al Qaeda after 9/11 made it clear the organization was attacking US civilians. In short, a significant number of these 48 men are just like the mujahadeen the US used to fund in the glorious Reagan days. But in the glorious post-9/11 days, such actions qualify a man for indefinite detention.
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Abu Zubaydah’s Habeas Doodle

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I want to make one more point about the interview Jason Leopold did with Jon Kiriakou last week. Jason asks Kiriakou about Dan Coleman’s judgment that Abu Zubaydah’s diaries reveal him to be mentally ill. Kiriakou agrees with Coleman that the diaries were written in multiple voices, but dismisses that by saying they were a creative outlet. (my transcription, starting around 24:00)

Those weren’t diaries. … They were journals and doodle books. He would write these letters to himself. They weren’t really letters to himself. It was like a work of fiction. It was just something to relieve some stress and to be creative. Now if you read this as a diary, sure you’re gonna say the guy’s schizophrenic, he has split personalities, he’s writing letters to himself. But they weren’t diaries.

[Jason asks whether Suskind’s description of the diary having three different voices is correct]

No, completely true. They were written, like I say, to himself, each personality to the other. But it was a creative outlet. It wasn’t, they weren’t the ramblings of a lunatic. It wasn’t some insane guy that couldn’t control insanve voices in his head and had to get it all down on paper. It was a creative outlet, nothing more.

For someone critical of the CIA’s waterboarding but still needing to rationalize his treatment, the claim the diaries are fictional offers a nice explanation for what–Kiriakou confirms–are multiple voices in the diary.

But that introduces a problem. As the government stated repeatedly in a filing last year, they base most of their case for holding Abu Zubaydah on his diaries.

The Government filed a factual return and supporting material in this case on April 3, 2009. The Government’s factual return included six volumes of diaries written by [Zubaydah] before his capture, in which [Zubaydah] recounts detailed information about his activities and plans. It also included a propaganda video recorded by Petitioner before his capture in which Petitioner appears on camera expressing his solidarity with Usama Bin Ladin and al-Qaida. The factual return does not rely on any statements made by Petitioner after his capture.

[snip]

Additional searches also would not be likely to produce significant additional information that would demonstrate that Petitioner’s detention is unlawful, especially given that a large part ofthe Government’s case for detaining Petitioner is drawn from diaries and a propaganda video that [redacted].

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Walter Pincus’ Chummy Torture Apology

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This is the kind of lede you’d expect from a dirty hippie blogger, not from a septuagenarian TradMed journalist.

Who other than the acerbic John A. Rizzo, who served a long tenure as the CIA’s acting general counsel, would use his first talk after retiring from government to lay out a series of ironies that illustrate the frustration felt by older agency professionals, given the treatment of their activities during the past decade?

Rather than focusing on the details John Rizzo revealed that slightly advanced the story of the investigation into the John Adams Project, Pincus chooses to uncritically air Rizzo’s complaints about torture. Pincus doesn’t even challenge Rizzo’s claim that there is an irony to the way CIA has been treated.

Which is a pity, because Rizzo made some downright absurd comments. Take Rizzo’s complaint about the shock over the number of times Abu Zubaydah and Khalid Sheikh Mohammed were waterboarded.

He pointed out that while Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, and Khalid Sheik Mohammed were undergoing waterboarding in CIA detention, the United States was conducting lethal operations against terrorists. “There was never, ever, as far as I could discern, any debate, discussion, questioning on moral or legal grounds about the efficacy of the United States targeting and killing terrorists,” he said.

“A lot of attention, a lot of criticism was given about the number of waterboarding sessions they [Abu Zubaida and Mohammed] had,” Rizzo said, “but I don’t believe there would have been nearly as much similar discussion about the number of bullets that would have been pumped into them if they had been killed rather than captured.”

The shock over the revelation that Abu Zubaydah was waterboarded 83 times and Khalid Sheikh Mohammed 183 times in a month doesn’t just stem from the claims John Yoo made–based on representations from Rizzo–that waterboarding was not torture. The shock also stems from the divergence between CIA-sponsored disinformation that waterboarding worked immediately, after just one use, and the reality that CIA used it over and over and over. Which in turn leads to questions of efficacy–and to the inaptness of Rizzo’s comparison. You pump someone full of bullets and each bullet adds just one more piece of certainty that the objective–the neutralization or death of the target–is accomplished. But when you waterboard someone an 83rd time, does it advance the objective–purportedly collecting reliable information–in the least? In the case of Abu Zubaydah, whose 83 waterboardings seem to have yielded in just 10 pieces of useful intelligence, the answer appears to be no. Indeed, in a memo addressed to and based on information from John Rizzo, John Yoo wrote,

Moreover, you have also orally informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.

[snip]

You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.

There’s no irony here! John Rizzo (and the lawyers from the Counterterrrorism Center who contributed to this memo) either lied to John Yoo about the number of times waterboarding would be used, or CIA itself failed to meet the terms of this memo. And poor John Rizzo thinks the public is wrong to be shocked at the result.

All of which details might be appropriate to mention in an article about Rizzo’s self-indulgent claims of irony. But they don’t appear in this article.

Breaking! Torture Is Illegal! Except when Consistent with the Interests of Justice!

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Thanks to BoxTurtle for linking to the manual for military commissions rushed out last night in time for the Omar Khadr hearing.

There are a number of interesting details in it, but since Khadr’s hearing today pertains to torture–whether statements he made after allegedly being tortured will be admissible–I thought I’d start with what the manual says about torture. And, ironically, there’s a big section on torture … in the section describing potential charges under military commissions. Here’s how the manual describes the crime of torture:

(11) TORTURE.
a. Text. “Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

The details for the most part track the analysis done by OLC on torture, including the language on intent:

(3) The accused intended to inflict such severe physical or mental pain or suffering;

But there’s also this, which appears to be a potential loophole:

(6) The conduct took place in the context of and was associated with hostilities.

Now, given that torture is laid out all nice and tidy like that in the military commission manual, you’d think that the discussion of whether evidence collected through the use of torture is admissible might also include some comment about what happens to the people who did the torture if evidence is deemed inadmissible because it was collected using torture. But it doesn’t.

Here’s what the manual says about statements collected using torture.

(1) Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.

Which would seem to say no evidence collected using torture will be admissible in these military commissions, unless it’s to try to someone for torture.

Except there’s this loophole:

(5) Derivative Evidence.

(A) Evidence Derived from Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. Evidence derived from a statement that would be excluded under section (a)(1) of this rule may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection, unless the military judge determines by a preponderance of the evidence that—

(i) the evidence would have been obtained even if the statement had not been made; or

(ii) use of such evidence would otherwise be consistent with the interests of justice. [my emphasis]

That is, to exclude evidence collected using torture, the defendant has to make a timely motion to suppress that evidence. Fair enough.

But the military commission can still use the evidence if it decides the evidence would have been obtained anyway (this seems to be a giant wall of protection for evidence collected using a clean team, meaning that evidence that matches tortured confessions but was collected using other means can still be used even if the evidence also came out in a tortured confession).

Or, more troubling, if the military judge decides that using evidence collected using torture “would otherwise be consistent with the interests of justice.”

Here’s what the manual has to say about “interests of justice:”

The intention of Mil. Comm. R. Evid. 304(a)(5) is that the “interests of justice” standard generally will restrict the admission of evidence derived from statements obtained by torture or cruel, inhuman, or degrading treatment (other than where the evidence would have been obtained even if the statement had not been made). The admission of evidence derived from a statement that was made incident to lawful conduct during military or intelligence operations and that would not be excluded under section (a)(1) of this rule generally should be regarded as consistent with the interests of justice for purposes of section (a)(5)(B) of this rule.

So torture is illegal. Except when it consists of “lawful conduct during military or intelligence operations,” in which case torture can be regarded as “consistent with the interests of justice.”

Here’s what the manual says about statements made by others under torture (I originally didn’t find this section–this is an update):

(3) Statements from persons other than the accused allegedly produced by coercion. When the degree of coercion inherent in the production of a statement from a person other than the accused offered by either party is disputed, such statement may only be admitted if the military judge finds that—

(A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

(B) the interests of justice would best be served by admission of the statement into evidence; and

(C) the statement was not obtained through the use of torture or cruel, inhuman, or degrading treatment as defined in section 1003(d) of the Detainee Treatment Act, Pub. L. 109-148 (2005) (codified at 42 U.S.C. 2000dd(d)).

Since this section requires that the coerced statement both serve the interest of justice and that it not be obtained through use of torture, it seems that self-incrimination through torture is allowed, when consistent with the interests of justice, but not the incrimination of others.

Why Were the Torture Tapes Destroyed?

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Bob Baer has a column out stating that he can’t figure out why the torture tapes were destroyed–and repeating CIA spin claiming the torture depicted in the tapes should not, itself, be a legal problem, since it was approved by DOJ. (h/t cs)

Did the CIA want to destroy graphic evidence of sleep-deprivation or waterboarding? They were interrogation methods approved by the Department of Justice in memos sent to the CIA, and therefore shouldn’t have been deemed a legal problem. The closest thing we come to answer is an internal CIA e-mail released last Thursday, in which an unidentified CIA officer writes that Rodriguez decided to destroy the tapes because they made the CIA “look horrible; it would be devastating to us.”

[snip]

I haven’t been able to clear up the mystery either, beyond the fact that a former CIA officer aware of the details of the 2002 interrogation of the two al-Qaeda suspects told me that the tapes’ images were “horrific.” He believes that although the interrogations fell within the guidelines provided by the Department of Justice, if the public ever saw them, it would conclude that “enhanced interrogation” is just another name for torture.

Those of you who have been following along already know this, but I thought I ought to sum up what we do know–but what Baer’s CIA sources aren’t telling him.

First, Baer’s source who “believes … the interrogations fell within the guidelines provided by the Department of Justice” is wrong–at least so long as we’re talking DOJ’s written guidelines. As CIA’s Inspector General made clear, the waterboarding that was depicted on the tapes in 2003 did not fall within the limits of the Bybee Two memo, both because the torturers used far more water, forced it down Abu Zubaydah’s throat, and used it with far more repetition than allowed by the memo. Furthermore, the torturers exceeded even the guidelines the Counterterrorism Center set on sleep deprivation–though Yoo may (or may not have) have set the limit in the Bybee Two memo high enough to cover what had already been done to Abu Zubaydah. Folks in the IG’s office had about seven more pages of concerns about what was depicted on the torture tapes (PDF 86-93)–but that all remains redacted.

So the tapes did not, in fact, match the written guidelines DOJ gave them. The torturers claim to have kept John Yoo and others up-to-date on their variances, but John Yoo’s statements thus far challenge that claim.

And in any case, that only describes the evidence on the torture tapes as they existed in 2003 when the IG reviewed them and presumably in 2005 when CIA destroyed them.

The other, potentially bigger problem for those depicted in the torture tapes has to do with what once appeared on the 15 tapes that the torturers altered before November 30, 2002, when CIA lawyer John McPherson reviewed them. Before that point, the torturers had altered 21 hours of the torture tapes, which covered at least two of the harshest torture sessions. Had someone done forensics on the tapes before they were destroyed, we might have learned what happened during those 21 hours. But by destroying the tapes completely, the CIA prevented that from happening.

I’m guessing–though it’s only a guess–that was the point.

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Mudd Wrestling and Torture

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Spencer’s got one of the big scoops of the day: that Philip Mudd left the FBI about six weeks ago (so early March).

Philip Mudd, one of the intelligence community’s leading al-Qaeda analysts, has quietly retired from the FBI, where he was associate executive director of the National Security Branch. Mudd confirmed in an email that he left “about six weeks ago,” but didn’t immediately respond to additional questions about his departure.

Mudd was a longtime CIA counterterrorism specialist before coming to the FBI, but it doesn’t appear as if he’ll return to his home agency. This could be it for Mudd’s government career.

Spencer describes Mudd as one of the smartest guys on al Qaeda in government (here’s Mark Hosenball’s report on this, repeating the superlatives). But, last year, when he was nominated to take over Department of Homeland Security’s intelligence side, he was forced to withdraw his nomination after Senate staffers questioned whether he had ties to the torture program.

The White House nominee to be the undersecretary of intelligence and analysis at the Department of Homeland Security has withdrawn, he and the White House said in statements Friday. 

The withdrawal of the nomination of Philip Mudd, a veteran CIA analyst who had worked in recent years as a senior executive at the FBI, comes after an AP report yesterday. The report said that a Republican lawmaker planned to question Mudd over whether he had “direct knowledge” of the Bush-era harsh interrogation program while serving in a senior analytical role at the CIA.

The sinking of the nomination of someone who had served in an analytical capacity at the CIA, rather than in an operational or senior policy one, shows the broad scope of exposure to the controversial Bush-era harsh interrogation program for officials who did not obviously have a direct role in the program.

An aide to Sen. Susan Collins (R-ME) told the AP that “Mudd’s analysts used information obtained through harsh interrogations, and the official said that Mudd is likely to be questioned on whether the analysis branch pressured interrogators in the field to use harsher methods because they believed detainees were not telling the truth.” Collins sits on the Senate Homeland Security and Government Affairs committee that oversees the DHS. [my emphasis]

Now, I didn’t make the connection between these two events last year, but since I’ve been reading the questions CIA’s Inspector General was (probably) asking a manager at CTC in February 2003, I happen to have read this passage of the CIA IG Report just this morning.

Handgun and Power Drill
91. [Redacted] interrogation team members, whose purpose it was to interrogate al-Nashiri and debrief Abu Zubaydah, initially staffed [redacted]. The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [redacted] they assessed him to be “compliant.” Subsequently, CTC officers at Headquarters [redacted] sent a [redacted] senior operations officer (the debriefer) [redacted] to debrief and assess Al-Nashiri.

92. The debriefer assessed Al-Nashiri as withholding information, at which point [redacted] reinstated [redacted] hooding, and handcuffing. Sometime between 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information.44 After discussing this plan with [redacted] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head.45 On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. [my emphasis]

Of note, the torturers had deemed al-Nashiri compliant. But CTC decided he had more information and sent out an operations guy to further question him, which is what led to two death threats being used against al-Nashiri (the kind of threats John Yoo had specifically refused to approve around July 25, 2002).

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The Abu Zubaydah Document

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One of the most curious documents turned over in last week’s FOIA dump is the last one, titled “The CIA Interrogation of Abu Zubaydah” (PDF 110-122). While these are just wildarsed guesses, I suspect it may either have been a summary developed for the CIA Inspector General’s office for use in its review of the torture program or a summary to prepare Stan Moskowitz, then head of CIA’s Office of Congressional Affairs, to brief the Gang of Four in early February 2003.

The Timing

This document must have been written between January 9 and January 28, 2003. On PDF 117, the document describes CIA’s Office of General Counsel completing its review of the torture tapes; that report was finalized on January 9. The same page describes the “Guidelines on Interrogation Standards,” which was ultimately signed by George Tenet on January 28, as not yet having been approved. The document makes no mention of the Inspector General’s plan to review the torture tapes impacting the decision on destroying the torture tapes, that decision was initiated in early February. It also refers to the need to brief Congress on the torture tapes in the future.

The Structure

The document includes a long Top Secret section, followed by a short summary of the document classified Secret. That suggests that the audience of this document might in turn have its own audience with which it could use the Secret summary. So, for example, if the IG were the audience, it might be permitted to use the summary description in its final report. If Gang of Four members were the audience, they might be permitted to keep the Secret summary but not to see the Top Secret report.

The Top Secret section of the document has the following sections (each section has its own classification mark, which shows in the margin, which is how we know where redacted titles appear):

  • Abu Zubaydah: Terrorist Activities
  • Injuries at Time of Capture
  • Highlights from Reporting by Abu Zubaydah
  • [Completely redacted section]
  • Interrogation Techniques Used on Abu Zubaydah
  • [Redacted title and page and a half, though this section includes discussion of videotapes and training, which suggests the section describes the management controls on the torture]
  • [Completely redacted section]

The Hand-Written Notes

Curiously, this document showed up in the January 8, 2010 Vaughn Index but not–as best as I can tell–in the November 20, 2009 Vaughn Index (or, if it showed up in the earlier Index, John Durham had not yet protected it under a law enforcement privilege). That means that the document existed as an electronic document. Yet, as the Vaughn Index tells us, this document has “handwritten marginalia” on it. These are presumably what the redactions are to the right of the main text on PDF 111 and 112. The redactions on PDF 113 are also wider than other sections, suggesting there is marginalia there, too.

In other words, the reader of this document made notes in response to the following claims (in addition to whatever appears in the long redacted section on PDF 113):

  • [AZ] was heavily involved in al Qa’ida’s operational planning, and had previously been an external liaison and logistics coordinator.
  • Abu Zubaydah was provided adequate and appropriate medical care.
  • Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa’ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington DC, or New York City.

The first and third of these claims, of course, are somewhat dubious (though the first is more restrained than the CIA was publicly making at the time). So the reader may have been questioning these claims. And the notation next to the claim about AZ’s “adequate” medical care reminds me of the Ron Suskind report that George Bush got enraged when he learned AZ had been given pain killers. In any case, these notations suggest the reader of this document may have had a very high level of information on AZ.

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The Timeline of Torture Tape Destruction in John Durham’s Documents

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As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

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