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John Adams and Patrick Fitzgerald

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About a million of you, seeing Isikoff and Hosenball’s and Justin Elliott’s coverage of a story about Fitzgerald getting involved in an investigation of how photos of torturers ended up at Gitmo have emailed me the story in alarm. (This is a story I first covered 8 days ago.)

I’m going to attribute the alarm to the fact that neither Newsweek nor Elliott mention Bill Gertz’s much more detailed and informative story that first broke this. And to the use of phrases like “most feared,” “paparazzi,” “national controversy,” “star prosecutor,” which sensationalize the story more than it appears to merit, at least thus far.

Here’s what I think is going on:

1) DOJ has been investigating the John Adams Project since last August to find out how photographs of torturers got into the hands of detainees at Gitmo. The JAP has employed a Private Investigator to track down likely interrogators of detainees, to take pictures, get a positive ID, and once done, call those interrogators as witnesses in legal proceedings. DOJ appears concerned that JAP may have made info–learned confidentially in the course of defending these detainees–available to those detainees, and therefore violated the protective order that all defense attorneys work under. Yet JAP says they collected all the info independently, which basically means the contractors in question just got caught using bad tradecraft.

2) DOJ appears to believe no crime was committed and was preparing a report to say as much for John Brennan, who will then brief Obama on it.

3) But CIA cried foul at DOJ’s determination, claiming that because one of the lawyers involved, Donald Vieira, is a former Democratic House Intelligence staffer, he is biased.  They seem to be suggesting that Vieira got briefed on something while at HPSCI that has biased him in this case, yet according to the CIA’s own records, he was not involved in any of the more explosive briefings on torture (so the claim is probably bullshit in any case). After CIA accused Vieira of bias, he recused himself from the investigation.

4) So apparently to replace Vieira and attempt to retain some hold on DOJ’s disintegrating prosecutorial discretion, DOJ brought in Patrick Fitzgerald to pick up with the investigation. Fitz, of course, a) has impeccable national security credentials, and b) has the most experience in the country investigating the Intelligence Identities Protection Act, having investigated the Torturer-in-Chief and his Chief of Staff for outing CIA spy Valerie Plame. In other words, DOJ brought in a guy whom CIA can’t bitch about, presumably to shut down this controversy, not inflame it.

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The Torture Apologists Ratchet Up the Attack

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You know how the Moonie Times let go almost all of its “journalists” last year? Well, apparently they haven’t let go of their CIA mouthpiece (not a surprise, I guess, since MT has always been one big disinfo campaign), Bill Gertz. And he’s out this morning suggesting (though not saying explicitly) that the CIA wants human rights lawyers trying to identify the people who interrogated their clients investigated for Intelligence Identity Protection Act violations–the crime Dick Cheney got away with when he outed Valerie Plame. (h/t MadDog)

As a reminder, detainee defense lawyers have undertaken what they call the John Adams Project–an effort to take pictures of suspected interrogators that they can show to their clients to positively ID. The hope is to call detainees’ interrogators to testify at their habeas proceedings and/or criminal trials. Of course, this information should be available to detainees in any case, but the government routinely protects it under national security classification rules.

The CIA, of course, is apoplectic that its interrogators might be tied to what they did to these detainees. So, in a brief to longtime CIA guy and now top Homeland Security advisor to Obama, John Brennan, they appear to be trying to suggest the John Adams project be investigated for IIPA violations. And because one of the DOJ staffers is a former House Intelligence Committee staffer (but not, according to the CIA, one of the guys briefed during the most secretive torture briefings), and because the torture apologists are already conducting a witch hunt of those at DOJ they say are al Qaeda sympathizers, Vieira has recused himself and DOJ has apparently brought in Patrick Fitzgerald Read more →

Did DOJ “Lose” the Smoking Gun Torture Document?

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You know what I find surprisingly absent from the OPR Report?

Any discussion of how–just days after potentially receiving a document making clear that SERE techniques were torture and that torture was not effective–John Yoo still authorized the use of torture in US interrogations.

Here are the last two paragraphs of that document:

(U) Another important aspect of the debate over the use of torture is the consideration of its potential impact on the safety of U.S. personnel captured by current and future adversaries. The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel. While this would have little impact on those regimes or organizations that already employ torture as a standard means of operating, it could serve as the critical impetus for those that are currently weighing the potential gains and risks associated with the torture of U.S. persons to accept torture as an acceptable option.

(U) CONCLUSION: The application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject’s environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation ofthe subject’s environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns. [my emphasis]

This document was written by JPRA–the people that administer the SERE program from which our torture program was purportedly reverse-engineered. It provides clear evidence that, on July 25, 2002, JPRA was aware of an ongoing debate over whether or not to use torture with prisoners in US custody. The document clearly states that torture leads to unreliable information. And the document calls these techniques “torture.”

You’d think, if there were proof Yoo had read it, that OPR would include some discussion of how JPRA’s expert opinion that this was torture should have affected Yoo’s own definition of torture (heck–JPRA’s language here would be more on point than the “organ failure” language that Yoo and Jennifer Koester used to define torture). You’d think, given the experts’ opinion that torture produced unreliable information, OPR would have challenged Yoo’s acceptance of the CIA’s claims that torture was the only way to get Abu Zubaydah to reveal the intelligence they claimed he had. You’d think OPR would ask Yoo why–given his reliance on the same JPRA experts to claim that waterboarding didn’t cause psychological harm–he chose to ignore this document from JPRA.

This document, in other words, ought to be a cornerstone of OPR’s analysis of Yoo’s failure to provide independent analysis and include all relevant information about what constituted torture. It ought to be used as proof that Yoo knew he was authorizing what the experts deemed to be torture.

If OPR had proof Yoo read this document, it would be the “smoking gun” that when he wrote the torture memo he knew he was deliberately authorizing torture.

But it’s not clear whether Yoo did read it. And it’s not clear that if he did, proof to that fact would still have been in OLC’s collection of torture documents by the time OPR got around to reviewing those documents.

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It’s Not Just the Emails DOJ Lost, It’s the Backup Documentation

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We’ve been talking quite a bit about John Yoo and Patrick Philbin’s emails on the torture memos that OLC deleted: with a rebuttal of John Yoo’s claims there were no email, a report on the National Archives’ attempts to learn what happened, and a catalog of damning facts we learned from the few emails left over.

But it’s not just the emails that are missing. It’s also some of the backup documentation. Some of the documents that went into the production of the torture memos–and should have been reviewed by OPR over the course of its investigation–disappeared some time in the last 5 years.

As I reported last September, after some delay in a FOIA response, Acting head of OLC, David Barron confessed that OLC could not find all of the documents that it had first listed on a 2006 FOIA response.

The problem, as Barron explained in his declaration, seems to stem from three things: CIA, not OLC, did the original FOIA search in 2005 and at that time did not make a copy of the documents responsive to FOIA; for long periods OPR had the documents, lumped in with a bunch of other torture documents, so it could work on is investigation; the documents got shuttled around for other purposes, as well, including other investigations and one trip to the CIA for a 2007 update to the FOIA Vaughn Index. [Here’s the 2007 Vaughn Index and here’s the Vaughn Index that accompanied Barron’s declaration last September.]

And, somewhere along the way, at least 10 documents originally identified in 2005 as responsive to the FOIA got lost.

Poof!

The 10 Missing Documents

Here’s a list of the short descriptions of what disappeared:

  • Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice
  • Document 20, 09/12/2003, 1 page Top Secret memo requesting legal advice
  • Document 47, 07/07/2004, 1 page Top Secret memo providing legal advice
  • Document 77, 08/16/2004, 2 page Top Secret memo providing legal advice
  • Document 142, undated 2 page Top Secret memo requesting legal advice
  • Document 155, undated 3 page Top Secret draft memo with attached handwritten notes requesting legal advice
  • Document 172, undated 5 page Top Secret memo requesting legal advice
  • Document 175, undated 6 page Top Secret draft memo providing legal advice
  • Document 177, undated 10 page Top Secret draft memo providing legal advice
  • Document 181, undated 127 page Top Secret draft memo providing legal advice

Why did CIA do the FOIA responses?

Now, before I get into why this is troubling in terms of the OPR Report, let me just challenge a claim Barron made in his declaration. He explained that CIA, rather than OLC, had done the first and second FOIA searches this way:

CIA attorneys were initially given access to the OLC Sensitive Compartmented Information Facility (“SCIF”) in 2005 to search for documents responsive to the FOIA request at issue in this litigation. CIA attorneys conducted the search because no OLC attorneys assigned at the time to the processing of FOIA requests had the clearances needed to access and review the documents.

It’s not entirely clear when CIA would have been rifling through OLC’s SCIF drawers in 2005 (and Barron apparently doesn’t feel like telling us). But it would have come after Judge Alvin Hellerstein ordered the CIA to respond to the FOIA on February 2, 2005 (they had been refusing to respond to his order to do so from the previous fall). And they would have done it over the next year and a half. In any case, it would have happened after Daniel Levin wrote his unclassified torture memo, about which the OPR Report explains,

Virtually all of OLC’s attorneys and deputies were included in the review process,

And it would have happened during or after the drafting of the Bradbury memos, about which the OPR Report explains,

Bradbury circulated drafts of his memoranda widely within the Department.

Granted, the OPR Report doesn’t say the Bradbury Memos were circulated widely within OLC, but when they had an incentive to make the claim, DOJ later claimed that the torture memos, which would have been the same compartment as all the FOIA documents, were widely circulated. It seems unlikely that Levin’s memo was reviewed by “virtually all of OLC’s attorneys,” but that the following year they couldn’t find a single OLC lawyer to put together a FOIA response.

And what seems even more curious is that rather than invite CIA to OLC’s SCIF to do the updated FOIA response in 2007–at a time when the documents were under investigation–DOJ would instead send all the documents over to CIA for them to do it.

In 2007, the documents were recalled from OPR by OLC so that they could be sent to the CIA for processing and for purposes of updated the unclassified Vaughn Index submitted in this matter.

It’s sort of funny that DOJ took fewer cautions with these documents after they were actively under investigation than they did beforehand. Here, DOJ seems to have said to the CIA, see if you can’t make some of these documents accidentally blow into the Potomac on your way back to DOJ…

Three Troubling Documents

Now, it’s hard to tell what disappeared, since we don’t actually get to see either the documents that disappeared or those the DOJ thinks might be close matches. But three of the documents, in particular, trouble me.

Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice

Here’s the longer description of this document submitted in the 2007 FOIA response:

Document No. 6 is a 60-page document dated 25 July 2002 that consists of a 3-page memorandum and six attachments of 2 pages, 7 pages, 10 pages, 13 pages, 13 pages, and 12 pages, respectively. It is classified SECRET.

The memorandum and attachments contain confidential client communications from the CIA on a matter in which it requested legal advice from OLC.

Aside from the fact that DOJ has said, at different times, this packet of information was 46, 60, and 59-pages long (and that the same FOIA claims it is classified both Top Secret and Secret), the questions about this document alarm me because I’m fairly certain this is the packet of JPRA information sent OLC in the last days of drafting of the first torture documents. It’s going to take me a full post to explain the many reasons questions about this document’s provenance is problematic–tune in next post for the next installment of disappearing evidence!

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Justice Denied: Voices from Gitmo

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ACLU just put together a video of some of the detainees who mistakenly ended up at Gitmo. The whole video is quite good–but these two lines should be read by all Americans.

Moazzam Begg: My experience of America prior to this was everything that I had seen in the films… the concept of the good guys, the concept of people trying to do the right thing…and, that was shattered.

Omar Deghayes: I want the people themselves, humans, the people in America, good people which I met many of, to realize how in their names those ugly people have done to others.

9th Circuit Will Rehear Jeppesen Suit

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This will be a very significant showdown for the Constitution. The 9th Circuit will rehear the government’s argument in the Jeppesen Dataplan suit. From the ACLU:

A federal appeals court today announced that it will hear the government’s appeal of an earlier ruling that allowed an American Civil Liberties Union lawsuit to go forward against a Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful “extraordinary rendition” program. The government claims that allowing the case to be heard would endanger national security.

In April, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The lawsuit charged that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these men to detention and interrogation. The Bush administration had intervened, improperly asserting the “state secrets” privilege to have the case thrown out. The appeals court ruled, as the ACLU has argued, that the government must invoke the “state secrets” privilege with respect to specific evidence, not to dismiss the entire suit. The Obama administration’s appeal of that decision will be heard by an “en banc” panel of 11 judges.

Whichever way the 9th (re)decides, I presume this is headed for Anthony Kennedy’s lap. How can Obama continue to hide all of Bush’s secrets, after all, if he’s only allowed to hide the pieces that are actually classified?

“New” State Secrets Policy “Smoke and Mirrors”

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That’s what a spokesperson for the Center for Constitutional Rights had to say about Eric Holder’s new State Secrets policy: that it’s just "smoke and mirrors."

The ACLU is similarly unimpressed. Ben Wizner, of the ACLU’s National Security Project, says,

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security. 

Congressman Nadler welcomes some of the changes but promises to continue pushing a State Secrets bill through Congress.

These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege. I also applaud the Attorney General’s positive declaration that the state secrets privilege cannot be used to conceal unlawful conduct by the federal government or to prevent the exposure of embarrassing details. Another important change is the mandatory referral to the Inspector General of any case in which assertion of the state secrets privilege raises credible concerns.

These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary. There is still no prohibition against dismissing entire cases from the outset, before the courts and parties have an opportunity to determine whether the information at issue is subject to the privilege and, if so, whether a case can proceed regardless.

We must not understate the extent to which the abuse of the state secrets privilege poses a major threat to our system of justice. Read more →

CIA OIG’s Wild Parsing about What Was “Depicted” on the Torture Tapes

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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.

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The Context of the Torture Index

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I wanted to return to the torture index released to ACLU the other day to comment on what the CIA claims to have in terms of records.

First, remember what this index is. The April 21 order required CIA to turn over two things. 

  • Records "relating to the content" of the torture tapes "from the entire period of the tapes that were destroyed"
  • "Documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction"

The second bullet (referred to as Paragraph 4 material) is the stuff discussed in the recent John Durham squabble. The first bullet (referred to as Paragraph 3 material) is the stuff we got the other daya and which I’ll discuss in this post.

The May 7 order summarizes how CIA and ACLU agreed CIA would treat those records that described the content of the torture tapes.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. With respect to the contemporaneous and derivitive records, the parties jointly propose the following: 

  • May 18, 2009: The Government will produce a list of all contemporaneous records and all derivative records. The list will, to the greatest extent permissible on the public record (i.e., the list will not include classified information or information otherwise protected by statute), identify the date, sender, recipient, type, and subject matter for each record;

So the stuff we got the other day is one of three things:

  • Documentation made contemporaneously with interrogations that were videotaped
  • Documentation made contemporaneously to the viewing of the videotapes
  • Derivative records that summarize the contents of the contemporaneous record

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Did Mitchell and Jessen Have the Three OTHER Torture Tapes? Or the Egyptians?

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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. Read more →