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Durham’s Previous Run-In with Tribalism

There are two more themes emerging on the coverage of John Durham, the guy Mukasey picked to investigate the torture tape destruction. First, there’s this piece from the WaPo that describes how Durham managed to take down the governor of CT.

Pickerstein said Durham relied on a "good versus evil" vision of the world while overseeing the probe of former governor John G. Rowland.

Rowland was sentenced to a year and a day in federal prison and four months of home confinement for accepting $107,000 in gifts from people doing business with the state and for not paying taxes on them. "It wasn’t an easy case, but John was single-minded in his pursuit of the truth," Pickerstein said.

Gotta say I appreciate the emphasis on his willingness to go after Republicans. But folks? Let’s stop with the "Second coming of Fitz" claims, particularly ones that suggest Fitz doesn’t have a sense of humor.

He’s Fitzgerald with a sense of humor Read more

What Did Helgerson Do with the Torture Tapes?

I noted here that both Michael Hayden and John Helgerson are recusing themselves from the torture tape criminal investigation.

Hayden said in a statement today that he was recusing himself from any involvement in the new Justice investigation because of his past role in reviewing the tape destruction. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation," Hayden said.

CIA Inspector General John L. Helgerson announced that he also would recuse himself from the criminal inquiry to avoid a conflict of interest. Helgerson said he and his staff had "reviewed the tapes at issue some years ago," during the time when agency officials were debating whether to destroy them.

"During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said in a statement. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation." [my emphasis]

Since Hayden wasn’t at CIA when the tapes were destroyed in 2005, I presume when he says he was involved in reviewing the tape destruction, he’s referring to his lead-up to sending a silly letter to CIA making transparent excuses for why the torture tapes were destroyed [Update: actually, I take that back. Hayden was Deputy DNI starting in April 2005, so early enough to be party to the summer 2005 discussions between John Negroponte, then DNI, and Porter Goss, in which Negroponte told Goss not to destroy the tapes]. I’ll come back to that in a second. But for now, I’m more interested in Helgerson’s reasons for recusing (I’d point out that if he has to recuse going forward, he should have already recused. But this is the Bush Administration, after all).

Helgerson notes he and his staffers "had ‘reviewed the tapes at issue some years ago,’ during the time when agency officials were debating whether to destroy them." The "time when agency officials were debating whether to destroy them" is generally described as February pr March 2003 (when CIA first pitched destroying them to the Gang of Four) through November 2005 (when they were destroyed). We also know there was a CIA briefing for the White House involving Alberto Gonzales, David Addington, and John Bellinger in May 2004, not long after the Abu Ghraib scandal became public (but long after Gonzales, at least, was likely aware of the impending scandal).

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say. Read more

Mukasey’s Statement

Here’s Mukasey’s statement on the criminal probe into the torture tape destruction.

Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation as outlined below.

This preliminary inquiry was conducted jointly by the Department’s National Security Division and the CIA’s Office of Inspector General. It was opened on December 8, 2007, following disclosure by CIA Director Michael Hayden on December 6, 2007, that the tapes had been destroyed. A preliminary inquiry is a procedure the Department of Justice uses regularly to gather the initial facts needed to determine whether there is sufficient predication to warrant a criminal investigation of a potential felony or misdemeanor violation. The opening of an investigation does not mean that criminal charges will necessarily follow.

An investigation of this kind, relating to the CIA, would ordinarily be conducted under the supervision of the United States Attorney for the Eastern District of Virginia, the District in which the CIA headquarters are located. However, in an abundance of caution and on the request of the United States Attorney for the Eastern District of Virginia, in accordance with Department of Justice policy, his office has been recused from the investigation of this matter, in order to avoid any possible appearance of a conflict with other matters handled by that office.

As a result, I have asked John Durham, the First Assistant United States Attorney in the United States Attorney’s Office for the District of Connecticut, to serve as Acting United States Attorney for the Eastern District of Virginia for purposes of this matter. Mr. Durham is a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past, and I am grateful to him for his willingness to serve in this capacity. As the Acting United States Attorney for purposes of this investigation, Mr. Durham will report to the Deputy Attorney General, as do all United States Attorneys in the ordinary course. I have also directed the FBI to conduct the investigation under Mr. Durham’s supervision.

Earlier today, the Department provided notice of these developments to Director Hayden and the leadership of the Judiciary and Intelligence Committees of the Congress. [my emphasis] Read more

DOJ Launches a Criminal Probe into Torture Tapes

So says AP’s Matt Apuzzo:

"The Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation," Mukasey said in a statement released Wednesday.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.

Anyone know anything about John Durham?

Update: A profile on Durham here:

John H. Durham looked impatient, distracted and, odd as it might seem in the circumstance, privately amused by the spectacle of it all – which is to say, he looked pretty much like he usually looks.

He was in the cavernous new federal courthouse, off to the side of the podium, pinned down by reporters. Heavier hitters in law enforcement – drawn from their offices like moths to television lights – were looking serious and trying not to embarrass themselves while taking questions about Durham’s newest case. It involves nothing less than systemic corruption of an FBI office.

That Durham could have better explained his own case to the press is not to suggest that he is retiring. He is not. In a courtroom, prosecuting a defendant, he sometimes looks ready lunge at defense lawyers – if a 50-year-old lawyer trapped 16 hours a day in a cramped office can still lunge. He’ll clinch with anyone, anywhere. One year in Connecticut, as an assistant U.S. attorney, he put a third of New England’s mafia in jail. He has never lost a case.

[snip]

"He’s obviously a very fierce competitor," Cardinale said. "But he’s not a zealot. And he does it by the rules. He is very professional. He is courteous. I’ve been up against them all over the country and I’d put him in the top echelon of federal prosecutors. He’s such a decent guy you can’t hate him. That can make it hard to get motivated."

The view from within law enforcement is even less complicated.

"There is no more principled, there is no more better living, there is no finer person that I know of or have encountered in my life," said Richard Farley, a former assistant special agent in charge of the FBI’s New Haven division. [my emphasis]

He certainly doesn’t look like a pushover. And given that he’s taken on the FBI, he knows how to go after Federal agencies.

9/11 Commission Decries Obstruction

Thomas Kean and Lee Hamilton must have been waiting all holiday long to launch this grenade against the Administration just as Congress returns and the torture tape inquiry heats up.

MORE than five years ago, Congress and President Bush created the 9/11 commission.

[snip]

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

The op-ed goes on to lay out the key details included in Zelikow’s memo, the chronology of dates when the 9/11 Commission asked for interrogation records that would have included the torture tapes the CIA later went on to destroy. Of note, Kean and Hamilton clearly include the White House among those who obstructed the Commission’s work.

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

I’ll be curious to see whether and how Kean and Hamilton can ratchet up attention on this issue. Unlike the several judges who were ignored in their requests regarding the tapes, Kean and Hamilton are in a position to really hammer this issue. And unlike Congress (who appears to have been lied to about matters depicted in the tapes), Kean and Hamilton seem willing to call obstruction obstruction. They do acknowledge that they aren’t the ones who will get to investigate the torture tape destruction.

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

But it’s probably worth noting that they’re launching this grenade from Mukasey’s home town.

Poland’s Torture Palaces

My supposition that one reasons Dana Priest’s black site article precipitated the torture tape destruction is because the tapes were dangerous to the country on whose territory the CIA tortured Abu Zubaydah led to me to read something I should have already read–the July 2007 COE report on European participation in the US HVD program. This post lays out what it says about Poland. I’m still reading the report, but given the direction of the comment threads on my other posts, I wanted to get this up for discussion.

Assuming the COE report is accurate (it is based on public reports and anonymous sources, including a number of CIA sources), Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, and probably al-Nashiri, were in Poland when Dana Priest’s article ran.

In accordance with the operational arrangements described below, Poland housed what the CIA’s Counterterrorism Centre considered its “most sensitive HVDs,” a category which included several of the men whose transfer to Guantanamo Bay was announced by President Bush on 6 September 2006.

We received confirmations – each name from more than one source – of eight names of HVDs who were held in Poland between 2003 and 2005. Specifically, our sources in the CIA named Poland as the “black site” where both Abu Zubaydah and Khalid Sheikh Mohamed (KSM) were held and questioned using “enhanced interrogation techniques.” The information known about these interrogations has formed the basis of heated debate in the United States and the wider international community, leading, in Zubaydah’s case, to high-level political and legislative manoeuvres and, in KSM’s case, to the admission of some troubling judicial precedents.

But it remains unclear on whether Abu Zubaydah was moved to Poland in 2002 or 2003. The report describes the HVD program as evolving between 2002 and 2003.

The United States negotiated its agreement with Poland to detain CIA High-Value Detainees on Polish territory in 2002 and early 2003. We have established that the first HVDs were transferred to Poland in the first half of 2003.

It describes top-level Polish officials as being aware of the program starting in 2002.

[S]ome individual high office-holders knew about and authorised Poland’s role in the CIA’s operation of secret detention facilities for High-Value Detainees on Polish territory, from 2002 to 2005.

And it describes the genesis of the program as starting in 2001. Read more

Lying to Congress before the Torture Tapes

This morning I suggested that one reason the CIA destroyed the torture tapes was to protect the European countries in which the interrogations took place. I then showed that Mary McCarthy, who was fired from the CIA for allegedly serving as a source for Dana Priest’s black sites article, claims that a high level CIA official (who is likely to have been involved in the torture tape destruction) lied to Congress in the lead-up to the McCain Amendment and, therefore, in the lead-up to the destruction of the terror tapes. Now, I’d like to show how the lies alleged by McCarthy coincide with Jello Jay Rockefeller’s attempts to learn more about the CIA’s torture practices (I’ve updated my torture tapes timeline accordingly).

McCarthy alleges that a senior CIA official lied to Congress on two occasions. Once, to HPSCI (and particularly Jane Harman), in February 2005.

In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA’s detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (Calif.), the senior Democrat.

And once, to staffers of (presumably) SSCI, in June 2005:

A senior CIA official, meeting with Senate staff in a secure room of the Capitol last June, promised repeatedly that the agency did not violate or seek to violate an international treaty that bars cruel, inhumane or degrading treatment of detainees, during interrogations it conducted in the Middle East and elsewhere.

While Harman has only publicly noted her written objection to the terror tape destruction in 2003, Jello Jay has outlined his attempts to exercise oversight over the CIA’s torture.

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

Mary McCarthy and the Terror Tapes

In this post, I speculated that the torture tapes were destroyed to protect the European country on whose soil we conducted waterboarding. I say that for several reasons. First, in its description of how Bush was compartmented out of details of the program, it specifies that Bush didn’t know the location of secret prisons.

The tapes documented a program so closely guarded that President Bush himself had agreed with the advice of intelligence officials that he not be told the locations of the secret C.I.A. prisons. [my emphasis]

Second, it suggests that after Dana Priest’s story on the black sites, the detainees were moved to a new location.

Yet in November 2005, Congress already was moving to outlaw “cruel, inhuman and degrading” treatment of prisoners, and The Washington Post reported that some C.I.A. prisoners were being held in Eastern Europe. As the agency scrambled to move the prisoners to new locations, Mr. Rodriguez and his aides decided to use their own authority to destroy the tapes, officials said.

Couple that with the news that the tapes were always stored in the country where the interrogations took place, and it seems highly likely that one source of urgency behind the destruction of the tapes was to hide evidence of torture occurring within Europe.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

This revelation made me think of Mary McCarthy, who was fired for allegedly serving as a source for Priest’s story. At the very least, the way in which McCarthy was investigated and fired challenges some of the stories on the torture tapes. More importantly, it suggests she may have been fired because she’s a witness to the fact that the CIA lied to Congress in the period leading up to the tapes’ destruction. Read more

The CIA Solidifies its Terror Tapes Story–or Tries To

Mark Mazzetti and Scott Shane have done good reporting on the terror tape story. But their latest installment reads like an attempt on the part of the CIA to get its story straight. That attempt might work–so long as you don’t read it too closely. (Update: Scott Horton thinks this is a transparent cover story too.)

The story as a whole is full of no-nonsense logical explanations for the CIA’s actions with regards to the terror tapes. For example, Buzzy Krongard provides a very logical explanation for why the CIA took the tapes:

“You couldn’t have more than one or two analysts in the room,” said A. B. Krongard, the C.I.A.’s No. 3 official at the time the interrogations were taped. “You want people with spectacular language skills to watch the tapes. You want your top Al Qaeda experts to watch the tapes. You want psychologists to watch the tapes. You want interrogators in training to watch the tapes.”

In addition, the NYT’s sources claim the CIA took the tapes to document that they weren’t killing Abu Zubaydah specifically, and because they had so rarely interrogated such high level detainees. But then, the risks of keeping the tapes increased, partly because the CIA was using torture and partly because detainees were dying in custody. So the CIA stopped taking tapes and started trying to get rid of those they already had.

This set off a big debate internally in the CIA. CIA General Counsel Scott Muller advised against the tapes destruction. Then CIA’s IG John Helgorsen started investigating the CIA’s interrogation program; an April 2004 report concluded some of the CIA’s methods amounted to cruel, inhuman, and degrading treatment. After Muller and Tenet left and Porter Goss and John Rizzo and Jose Rodriguez came in, those trying to protect the interrogators attempted to get approval for destroying the tapes again. Goss objected (the story says). But a year later, as Congress was passing the McCain Amendment banning torture, Rodriguez made the decision to destroy the tapes. And remarkably, Goss did not discipline Rodriguez, even though he claims to have opposed the tapes’ destruction.

It’s all a neat, logical story, isn’t it? It all explains the whole chronology such that American taxpayers won’t fault the CIA for trying to do the right thing, right?

Except it remains a vague story full of holes. Read more

The Torture Debate

Dan Eggen and Walter Pincus have an interesting article describing the debate between CIA and FBI over whether waterboarding worked with Abu Zubaydah. If the timeline they describe is accurate, then it means that Abu Zubaydah may have given up his most important intelligence before they started torturing him (save, perhaps, fingering Ramzi bin al-Shibh). As to the information he gave up under torture, the CIA and FBI dispute whether it was useful or not. The article suggests the possibility that the CIA may have destroyed the torture tapes to hide the fact that the water-boarding was ineffective (which also might explain why Kiriakou so far hasn’t gotten scolded for telling the world that the United States tortures, since he claims it was effective).

The article explains that Abu Zubaydah was first detained on March 28, 2002 and describes him undergoing traditional interrogation methods from April and August. And apparently, using those traditional methods, they were able to get two of the most public pieces of information from Abu Zubaydah.

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.

[snip]

Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.

But then, the CIA and Bush wanted more, so they started water-boarding Abu Zubaydah, apparently in August (at least according to the CIA).

Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the "torture memo" narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

Note, there appears to be some debate about this detail. But the assertion by the CIA that it started in August implies that they didn’t start waterboarding Abu Zubaydah until the Bybee memo authorized it. And that the intelligence used to arrest Padilla was gathered without using torture. Of course, the CIA has a big big incentive to say that they didn’t start torturing Zubaydah until they were authorized to, so take that detail with motivation in mind. Read more