Judge Hellerstein Spanks (Figuratively) the CIA

Michael Hayden and the rest of the torture apologists have been wandering around all week claiming that the Administration could have won its FOIA case against ACLU and withheld the torture memos.

If this ruling from Juge Hellerstein is any indication, they couldn’t be more wrong. It did five things:

  • Demanded a full "Vaughn" index for the FOIAed materials, describing the people involved and other details.
  • Refused the government’s attempt to limit production of descriptions of the torture tapes to August 2002, and instead demanded all of it (through December 2002)
  • Required the government to produce documents relating to the torture tape destruction through at least June 20, 2003.
  • Sent the government back to reconsider the redactions on documents pertaining to the torture tapes that takes into consideration the release of the torture memos.
  • Asked whether it’s too soon to hold CIA in contempt for destroying the torture tapes that were resposive to the original FOIA.

I would imagine we’re going to be seeing a lot more revealing documents get processed through Hellerstein’s Courtroom.

Detainee Abuse Pictures to Be Released May 28

Thanks, again, to the ACLU:

By orders dated June 9, 2006 and June 21, 2006, the Court directed the Government to release twenty-one photographs depicting the treatment of detainees in Iraq and Afghanistan. By opinion dated September 22, 2008, the Second Circuit affirmed this Court’s orders. On November 6, 2008, Appellants filed a petition for rehearing en banc only as to the panel’s decision on FOIA exemption 7(F); that petition was denied March 12, 2009. As the Government has now determined that it will not seek certiorari of the Second Circuit’s decision, the Department of Defense is preparing to release the 21 photos at issue in the appeal and 23 other photos identified as responsive. In addition, the Government also is processing for release a substantial number of other images contained in Army CID reports that have been closed during the pendency of this case; these other images will be processed consistent with the Court’s previous rulings on responsive images in this case. The parties have reached an agreement that the Department of Defense will produce all the responsive images by May 28, 2009. [my emphasis]

Whether you believe Obama is impeding investigation or playing 11 dimension chess to set it up without looking like the bad guy, his policy on FOIA has already begun to open up the floodgates that may enable public opinion make this happen. 

I know we’ve been having our own fund-raiser, but if you can, please show some appreciation to the ACLU for fighting this fight. Multi-year FOIA fights don’t come cheap.

The Torture Tape Library, Episode 51

Last week, in an attempt to claim it didn’t have to turn over any of the 3,000 documents in its torture tape library (or, for that matter, the list of witnesses who had viewed the tapes), the CIA told Judge Alvin Hellerstein that they weren’t going to produce any of their torture tape library to the ACLU.

There is no meaningful non-exempt information from the list of documents covered by Point 2, which identifies roughly 3,000 documents, including cables, memoranda, notes and emails, that can be produced at this time. All of the information on the list of witnesses covered by Point 3 is either classified or otherwise protected by statute. Accordingly, the CIA is not producing either list to Plaintiffs in redacted form.

On Thursday, Hellerstein reviewed a chunk of those documents and that list. After reviewing them, he has ordered the CIA to start putting together an index of what they’ve got and why they’re refusing to turn it over.

On March 26, 2009, I reviewed, ex parte and in camera, representative documents and information produced by the CIA relating to the destroyed videotapes that are the subject of Plaintiffs’ motion for contempt and sanction. I ordered the Government to create a work plan for production of this material to Plaintiffs, beginning with a Vaughn index within thirty days of my in camera review and production on a rolling basis thereafter, and to file this plan by April, 2009 for my approval.

A Vaughn index is a list of all documents withheld in a FOIA case, with individualized descriptions of why those documents can’t be turned over. Presuming this Vaughn index at least identifies the dates of the documents, we’ll see how widespread discussion of the torture tapes were in 2002, when the CIA and (presumably) its contractors were torturing Abu Zubaydah, in 2003, when CIA’s OIG viewed them, in 2004, when the 9/11 Commission started asking for the torture tapes, and 2005, when Jello Jay asked about them and–later–the CIA created plausible deniability for those who had warned against destroying them and destroyed them.We might see some of the recipients.

And I’m suspecting, given Judge Hellerstein’s continued skepticism after having reviewed the documents, we might see some of the documents.

Read more

“Reasonable grounds to conclude”

In honor of what appears to be warrantless wiretap day here at emptywheel, I’ve got myself lost in some hopeless weeds. Among other things, I decided to compare the unclassified declarations DNI and NSA submitted in the ACLU case on May 27, 2006 (I’m not positive, but I think they submitted identical declarations in the other pending warrantless wiretap cases) with those submitted in the al-Haramain case on June 21, 2006. (Note, in both cases, classified filings were submitted at the same time, but we don’t get to see those.)

Here they are:

ACLU: DNI John Negroponte declaration, Major General Richard Quirk (NSA) declaration

al-Haramain: DNI John Negroponte declaration, Lieutenant General Keith Alexander (NSA) declaration

As you’ll see, these declarations are almost the same in many respects, though subtly different particularly in how they discuss the warrantless wiretap program and whether or not they can disclose that someone has been wiretapped.

For the moment, I’m most interested in how they describe the warrantless wiretap program.

In the ACLU case (and the CCR case), the government claimed,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain "one-end foreign" communications where one party is associated with the al Qaeda terrorist organization …

In the al-Haramain case a month later, the government said,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain international communications originating or terminating in the United States where there was reasonable grounds to conclude that one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. 

In a case where no one had proof they’d been tapped, NSA and DNI claimed that they were only using the program where "one party is associated with" al Qaeda. But in a case where the plaintiff knew they had been tapped, the government weakened their claim to "reasonable grounds to conclude … one party is a member or agent of al Qaeda or an affiliated terrorist organization."

How much, in the month longer it took them to invoke state secrets in al-Haramain, do you think they pondered the possibility that a judge would demand proof that al-Haramain "is associated with" al Qaeda?

And yes, I’m waiting for William Ockham and MadDog to explain what they make of the switch from "one-end foreign" to "international communications originating or terminating in the United States." Read more

A Few Thoughts on the Torture Tape Inventory

The ACLU has released the inventory of torture tapes the CIA destroyed (h/t MD).

Silly me. I once suggested that the CIA didn’t have a torture tape librarian! This is, as it turns out, a fairly meticulous list of torture tapes.

The inventory makes clear something I had suggested on Monday. While there were over 90 tapes destroyed, they are still just torture tapes from two detainees. There are clear references to Abu Zubaydah in the first set (labeled Detainee #1), so the second set must be al-Nashiri (Detainee #2).

Note the description on the first tape "Do not tape over." Then tapes 89 and 90 are listed as "Tape and rewind." And the two al-Nashiri tapes are also "Tape and rewind" tapes. This suggests that at some point, the CIA stopped keeping each torture video, and started simply reusing them–much the same way the White House started reusing the storage tapes for its email (I’m sure that’s just a coinkydink, really). Al-Nashiri was captured in November 2002, so they presumably switched to tape and rewind by then. (That is, incidentally, around the time they first briefed Congress on the torture they were doing, though they claimed they were not yet doing it.)

But look at the numbering. Tapes 91 and 92–presumably of al-Nashiri–are labeled Tapes 2 and 3. This suggests there’s a Tape 1 that is not in this inventory. Where did Tape 1 from al-Nashiri go?

In any case, it looks like they took about six months of tapes of Abu Zubaydah’s interrogations, saved them for years, and destroyed them in 2005. You think that’s one of the many reasons they have never gotten around to charging Abu Zubaydah?

Who Watched the Torture Tapes?

As a number of you have pointed out, DOJ just informed the ACLU and Judge Alvin Hellerstein that CIA destroyed 92 tapes showing torture.

In the meantime, the CIA can now identify the number of videotapes that were destroyed, which is information implicated by [Hellerstein’s order that ACLU gets information responsive to its FOIA request]. Ninety-two videotapes were destroyed. 

Once McCaffrey the MilleniaLab and I go for a walk, I’m going to follow-up to see whether those 92 tapes all came from Abu Zubaydah and al-Nashiri’s torture (remember–original reports said there had been thousands of hours of videotape) or whether the torture tapes of different detainees were included.

Just as interesting (particularly in light of the goings on in the al-Haramain case), is the list of information that the ACLU will shortly be getting (the CIA wants this week to put together a schedule for turning over the information). That includes:

  • A copy of the CIA Office of Inspector General’s Special Review Report–a redacted copy of which had previously been supplied to the ACLU–with the details regarding the torture tapes un-redacted.
  • A list identifying and describing each of the destroyed records.
  • A list of any summaries or transcripts describing the destroyed records’ content.
  • Identification of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Note, they are warning that they will protect CIA identities wrt that last bullet. But we may get the names of other people (I’m curious whether Cheney, David Addington, or John Yoo might be among them) who had viewed the torture tapes.

And this is perhaps the most interesting bit:

The CIA intends to produce all of the information requested to the Court and to produce as much information as possible on the public record to the plaintiffs.

Watch out below, because I think this dam may well break.

Check Out ACLU’s Relaunched Blog

As some of you have noted, the ACLU relaunched its blog this week in fine fashion–by hosting a symposium on torture with a bunch of bloggers and experts. They had posts from Glenn, Christy, McJoan, Nicole Belle, Jeralyn, and Digby.

Oh, and me! Here’s a bit of my post from yesterday:

On May 9, the Convening Authority for the Gitmo military commissions signed charges against five detainees alleged to be responsible for 9/11.  Yet, in spite of the fact that George Bush named Abu Zubaydah in a September 2006 speech in which he promised to "bring these people to justice," Zubaydah was not included among those charged. Zubaydah remains, more than six years after he was first detained, uncharged.

Don’t get me wrong. It’s not that I think the military commissions are in any way adequate vehicles to try Gitmo detainees alleged be terrorists (a problem the ACLU has tried to address). But it seems that Zubaydah remains in limbo precisely because he embodies the failures of the nation’s embrace of torture.


Now, perhaps the Administration plans to charge Zubaydah with something else. Perhaps they will justify their excuse for torturing him, that he was a high level operative. But thus far, the Administration seems more interested in hiding the real evidence on Zubaydah: that they tortured a man, and that torture proved useless.

Go read the rest

Warrantless Wiretap Memos Timeline

I laid out the OLC opinions described in the Steven Bradbury declaration to the ACLU. In this post, I’ll add in the other significant documents he describes. Note, Bradbury names four documents–OLC 56, 57, and 58, and OIPR 138–which are documents created by the President or his immediate staff, and so are not agency documents; he provides no description of these documents. There are, of course, a great number of documents withheld, which therefore have no description or date.

Materials not included in Bradbury’s memos are not bold.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists.

October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.

October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.

November 2, 2001, from DAAG OLC to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities.

Read more

Pentagon “Closing” CIFA

You all remember CIFA, don’t you? It’s the Pentagon’s very own counter-intelligence organization, one with the added benefit that, like all things Pentagon, it can serve as the source of contracting bounty for corrupt Republican cronies (up to and including Stephen Cambone, who created the damn organization). CIFA has spied on, among other things, the Quakers and Jesus’ General. You know, because peaceniks and DFH satirical bloggers are apparently the biggest threat to our military…

I’ve long suspected that CIFA was a clever plot, on the part of the Republicans, to outsource their Nixonian domestic spying, so as to hide it from oversight better than Nixon managed to. That suspicion only hardened when I learned that the CIFA database (including its records on the Quakers and Jesus’ General) went “poof” one day, remarkably enough at the same time as Carol Lam was closing in on the Mitch Wade subcontractor associated with CIFA, MZM (the same organization that had a contract with OVP to do something with emails).

It’s a real treasure trove of civil liberties atrocities, CIFA is.

Well, as luck would have it, on the very same day that the Pentagon released documents to the ACLU revealing that CIFA had abused National Security Letters to (among other things) collect information on a few Pentagon employees, the Pentagon has announced it is shutting down CIFA.

The Pentagon is expected to shut a controversial intelligence office that has drawn fire from lawmakers and civil liberties groups who charge that it was part of an effort by the Defense Department to expand into domestic spying.


The intelligence unit, called the Counterintelligence Field Activity office, was created by Mr. Rumsfeld after the Sept. 11, 2001, terrorist attacks as part of an effort to counter the operations of foreign intelligence services and terror groups inside the United States and abroad.

Yet the office, whose size and budget is classified, came under fierce criticism in 2005 after it was disclosed that it was managing a database that included information about antiwar protests planned at churches, schools and Quaker meeting halls.

The Pentagon’s senior intelligence official, James R. Clapper, has recommended to Mr. Gates that the counterintelligence field office be dismantled and that some of its operations be placed under the authority of the Defense Intelligence Agency, the officials said.

The NYT presents advocates saying the closure is a great thing and others suggesting this is just a cover-up–that the domestic spying will get buried deep in the Pentgon where we’ll have to ferret it out again. Read more

Judge Hellerstein Calls the CIA on its BS

Wow. Judge Hellerstein is not amused with the CIA’s assertion that the torture tapes–which IG staffers flew to Thailand to view as part of their investigation into CIA interrogation methods–were not part of their investigation. Nor does he buy the assertion that the "special review" is not an investigation. He basically called Bull on the CIA’s assertions in about six different ways.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

In fact, Judge Hellerstein even suggested what I did: that the CIA intentionally did not put any mention of the torture tapes in their IG report as a way to shield them from FOIA.

Judge Hellerstein raised the possibility that C.I.A. officials had intentionally not placed the tapes in the investigative files so as to avoid a freedom of information request.

“It seems to me that you were gulled,” he told Mr. Skinner, “and that the court was gulled.”

Gotta love a good skeptical judge. Read more