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The Last USA: Dana Boente Is the Best Short Term Solution

In the wake of the Comey firing, particularly given the way Deputy Attorney General Rod Rosenstein let himself serve as a pawn, many people have renewed their call for “a special prosecutor.” In the short term, however, I believe Dana Boente — that is, the status quo — is a better solution.

As a reminder, Dana Boente is the US Attorney of Eastern District of VA. With Rosenstein’s confirmation as DAG, Boente is the last remaining confirmed US Attorney in the United States. Boente’s office is overseeing at least two parts of the Russian investigation: the generalized investigation into Wikileaks, and the investigation into Trump’s campaign. The latter investigation recently issued subpoenas to Mike Flynn associates. There are reportedly parts of the investigation in three other places: some work being done in Main Justice, as well a a team investigating Guccifer 2.0/Shadow Brokers in San Francisco, and a team investigating the Russian hackers in Pittsburgh.

But the bulk of what people think of as “the Russian investigation” — the investigation into Trump’s cronies — is happening in EDVA, overseen by The Last USA.

In addition to reporting up to Rosenstein as DAG and Rosenstein as Acting AG for the Russian investigation, Boente just took over as Acting Assistant Attorney General for National Security Division — the office that reviews things like FISA orders. That means Boente — for better and worse — has more authority, on several levels, than a “Special Counsel” would have.

First, note I use the term “Special Counsel,” not “Special Prosecutor.” Ken Starr was a Special Prosecutor, but in the wake of his fiasco and given persistent questions about the constitutionality of having someone who was totally independent from the structure of DOJ prosecuting people, Congress got rid of the provision supporting Special Prosecutors.

So if Rod Rosenstein wanted to appoint someone “independent” to oversee the Russian investigation, he’d have to use the Special Counsel provision.

While I think it is permissible to hire someone from outside of DOJ to do that job (so it is possible he could call up corporate lawyer Pat Fitzgerald for his third ride on the Special Counsel merry-go-round to, in dramatic fashion, save the investigation undercut by the firing of his good friend Jim Comey), in practice the recent Special Counsel appointments (the UndieBomb 2.0 leak investigation, the StuxNet leak investigation, the John Kiriakou prosecution, the Torture investigation, and the Plame investigation) have all been DOJ prosecutors, either US Attorneys (in all but one case) or an Assistant USA Attorney, in the case of John Durham’s whitewash of torture. Plus, while Fitz is still well-loved at DOJ and FBI as far as I know, if Rosenstein appointed him, I bet Trump would fire him within minutes because he’s sure as hell not going to be “loyal.” And because of Fitz’ past gunning hard for Cheney and Bush, many Republicans might not put up much of a stink there.

If Rosenstein were to adhere to the practice of naming existing DOJ prosecutors, though, it’d mean he’d be choosing between Boente, The Last USA, or an AUSA (perhaps one of the ones who recently reported to him in MD). In both cases, the Special Counsel would report to Rosenstein for AG approvals (as Pat Fitz reported to Jim Comey for the Plame case).

You can see quickly why Boente is the preferable option. First, there’s no reason to believe he isn’t pursuing the investigation (both investigations, into Wikileaks and Trump’s associates) with real vigor. He is a hard ass prosecutor and if that’s what you want that’s what you’d get. His grand jury pool is likely to be full of people with national security backgrounds or at least a predisposition to be hawks.

But — for better and worse — Boente actually has more power than a Special Counsel would have (and more power than Fitz had for the Plame investigation), because he is also in charge of NSD, doing things like approving FISA orders on suspected Russian agents. I think there are problems with that, particularly in the case of a possible Wikileaks prosecution. But if you want concentrated power, Boente is a better option than any AUSA. With the added benefit that he’s The Last USA, which commands some real respect.

Sure. If next week Trump calls Boente to dinner and demands his loyalty on threat of firing, this may change. But the same logic that people are using with a Special Counsel (that if Trump fired that person, maybe then Republicans in Congress would want something more independent) holds for Boente. Firing The Last USA ought to be as incendiary as firing an AUSA, assuming anything will be.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Why Is HPSCI’s Snowden Report So Inexcusably Shitty?

There’s now a growing list of things in the HPSCI report on Snowden that are either factually wrong, misleading, or spin.

One part of the spin the report admits itself: the committee assessed damage based on the 1.5 million documents Snowden touched — an approach the now discredited General Michael Flynn presented in briefings to the committee — rather than the far more limited set the Intelligence Community included in its damage assessment.

Over the past three years, the IC and the Department of Defense (DOD) have carried out separate reviews with differing methodologies of the damage Snowden caused. Out of an abundance of caution, DOD reviewed all 1.5 million documents Snowden removed. The IC, by contrast, has carried out a damage assessment for only a small subset of the documents. The Committee is concerned that the IC does not plan to assess the damage of the vast majority of documents Snowden removed.

Clearly, the IC wants a real assessment of the damage Snowden caused. HPSCI, however, appears to be interested in the most damning, which makes sense given that members of Congress actively solicited information they could use to damage Snowden.

Here are other problems with the report.

From Bart Gellman’s rebuttal:

  • HPSCI claimed the “bilateral tibial stress fractures” that led to Snowden’s discharge were “shin splints.”
  • HPSCI claimed he never got a GED. According to official Maryland records, Snowden got his equivalent degree on June 2, 2004.
  • HPSCI claimed Snowden was a computer technician at CIA. At the end he served as a “solutions referent/cyber referent” working on cyber contracts.
  • HPSCI claimed Snowden’s effort to show a security hole in CIA’s human resources intranet was an effort to doctor his performance evaluations.

From me:

HPSCI claimed Snowden failed the Section 702 training. According to an email from the SIGINT Compliance Chief, Snowden did pass it (the Chief had not checked whether or not Snowden had really failed it).“He said he had failed it multiple times (I’d have to check with ADET on that). He did pass the course at some point.”

The claim Snowden didn’t pass the test stems from an email written a year after an exchange between him and a Compliance training person. The training person wrote the email in direct response to Snowden’s claims that he had “contacted N.S.A. oversight and compliance bodies.” While it may be true Snowden failed the test before he passed it, there are enough irregularities with the email claim and related story it should not be credited without backup. When we asked NSA for specific answers about that email in conjunction with this story, they flipped out and went nuclear and preemptively released all the emails rather than provide the very easy answers to validate the email story.

From Patrick Eddington:

HPSCI claimed Snowden could have reported complaints to the committee, but HPSCI killed an effort to extend whistleblower protections to intelligence contractors in 2012.

Eddington and Steven Aftergood both suggest the shitty HPSCI report is good reason to embrace a set of reforms to improve HPSCI oversight.

But depending on the reason for the utter shittiness of the report, I think it might just warrant shutting the entire committee down and devolving oversight to real committees, like Judiciary, Homeland Security, and Armed Services. Remember, every single member of the committee, Democrat or Republican, signed this report. Every single one. For some reason, even fairly smart people like Adam Schiff and Jackie Speier signed off on something with inexcusable errors.

So I wanted to point to this passage on methodology.

The Committee’s review was careful not to disturb any criminal investigation or future prosecution of Snowden, who has remained in Russia since he fled there on June 23, 2013. Accordingly, the Committee did not interview individuals whom the Department of Justice identified as possible witnesses at Snowden’s trial, including Snowden himself, nor did the Committee request any matters that may have occurred before a grand jury. Instead, the IC provided the Committee with access to other individuals who possessed substantively similar knowledge as the possible witnesses. Similarly, rather than interview Snowden’s NSA coworkers and supervisors directly, Committee staff interviewed IC personnel who had reviewed reports of interviews with Snowden’s co-workers and supervisors.

So for this inexcusably shitty report, HPSCI did not interview:

  • Direct witnesses (presumably including the Compliance training woman whose email on 702 training is dodgy and probably also Booz and Dell contractors who might risk losing contracts)
  • Snowden’s co-workers
  • Snowden’s supervisors

They did interview:

  • People who possessed “substantively similar knowledge” as the people DOJ think might be witnesses at trial
  • People who reviewed reports of interviews with Snowden’s co-workers and supervisors

HPSCI spent two years but didn’t interview any of the direct witnesses.

Now, as a threshold matter, the publicly released emails provide good reason to doubt the adequacy of this indirect reporting on Snowden’s colleagues. Here’s how the Chief of NSA’s CI Division backed the conclusion that Snowden never talked about concerns about NSA surveillance with his colleagues.

Our findings are that we have found no evidence in the interviews, email, or chats reviewed that support his claims. Some coworkers reported discussing the Constitution with Snowden, specifically his interpretation of the Constitution as black and white, and others reported discussing general privacy issues as it relates to the Internet. Not one mentioned that Snowden mentioned a specific NSA program that he had a problem with. Actually, many of the people interviewed affirmed that he never complained about any NSA program. We also did not have any reflection that he asked anyone how he should/could report perceived wrongdoing.

So colleagues — who would presumably be in great fear of association with Snowden, especially in interviews with NSA’s Counterintelligence people — nevertheless revealed that they discussed the Constitution (and Snowden’s black and white interpretation of it) and general privacy issues about the Internet. “Many” of the interviewees said he never complained about any NSA program, which raises questions about what those excluded from this “many” said.

But it appears that NSA’s CI investigators only considered mention of specific programs to be a complaint, not general discussions about privacy and the Constitution.

We should assume the interview reports back to HPSCI members and staffers were similarly scoped.

There’s another reason I’m interested in this methodology section. That’s the implication from Spencer Ackerman’s series on SSCI’s Torture Report that CIA successfully used the John Durham investigation to undermine the SSCI investigation.

In August 2009, US attorney general Eric Holder expanded the remit of the prosecutor looking at the tapes destruction, John Durham, to include the torture program, much as the Senate committee had. The justice department’s new mandate was not as broad as the Senate’s. It would only concern itself with torture that exceeded the boundaries set for the CIA by the Bush-era justice department. Still, for all of Obama’s emphasis on looking forward and not backward, now the CIA had to face its greatest fear since launching the torture program: possible prosecution.

Holder’s decision, ironically, would ultimately hinder the committee more than the CIA, and lead to a criticism that the agency would later use as a cudgel against the Senate.

Typically, when the justice department and congressional inquiries coincide, the two will communicate in order to deconflict their tasks and their access. In the case of the dual torture investigations, it should have been easy: Durham’s team accessed CIA documents in the exact same building that Jones’s team did.

But every effort Jones made to talk with Durham failed. “Even later, he refused to meet with us,” Jones said.

Through a spokesman, Durham, an assistant US attorney in Connecticut, declined to be interviewed for this story.

The lack of communication had serious consequences. Without Durham specifying who at CIA he did and did not need to interview, Jones could interview no one, as the CIA would not make available for congressional interview people potentially subject to criminal penalty. Jones could not even get Durham to confirm which agency officials prosecutors had no interest in interviewing. “Regrettably, that made it difficult for our committee to do interviews. So the judgment was, use the record,” said Wyden, the Oregon Democrat on the panel.

[snip]

The CIA stopped compiling the Panetta Review in 2010 after Durham told Preston that CIA risked complicating any prosecution if it “made different judgments than the prosecutors had reached”, Charlie Savage reported in his 2015 book Power Wars.

Not only did CIA’s General Counsel Stephen Preston (who later served as DOD General Counsel from October 2013 until June 2015) use the Durham investigation to halt the CIA’s own internal investigation into the worthlessness of their torture, but it served as the excuse to withhold cooperation from SSCI. That, in turn, gave Republicans an excuse to disavow the report.

With the HPSCI report, an FBI investigation has again been used as an excuse to limit congressional oversight.

HPSCI’s failure to interview any of the relevant people directly is all the weirder given that there should be no problem for a witness to appear before both the grand jury and the committee. Certainly, House Oversight had no problem interviewing some of the subjects of the Hillary email investigation! And unlike the email investigation, with the Snowden one, few if any of the people who might serve as witnesses at any Snowden trial would be subjects of the investigation; they’d have no legal risk in also testifying to the committee. Snowden is the one at legal risk, and he has already been charged. And curiously, we’re hearing no squawking from Republicans about the necessity of direct interviews for the integrity of an investigation, like we heard with the Senate Torture Report.

One thing is certain: the public is owed an explanation for how HPSCI came to report knowably false information. The public is owed an explanation for why HPSCI is effectively serving as NSA’s propaganda wing.

And if we don’t get one, we should shut down the entire charade of post-Church Committee oversight committee.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

UN Official: Prosecute “Systematic Crimes and Gross Violations of International Human Rights Law”

Ben Emmerson, UN Special Rapporteur for counterterrorism and human rights. (UN photo)

Ben Emmerson, UN Special Rapporteur for counterterrorism and human rights. (UN photo)


Ben Emmerson is the UN’s Special Rapporteur on counterterrorism and human rights. His statement released yesterday in response to the SSCI torture report points out the clear responsibilities that the US has under the Convention Against Torture and other international human rights laws to prosecute not only those who carried out torture, but those who designed the torture program and gave orders for its implementation.

Emmerson opens by noting the delay in release of the report’s summary:

I welcome the belated publication of the summary report by the United States Senate Select Committee on Intelligence into the crimes of torture and enforced disappearance of terrorist suspects by the Bush-era CIA. It has taken four years since the report was finalised to reach this point. The Administration is to be commended for resisting domestic pressure to suppress these important findings.

In my 2013 report* to the Human Rights Council as SpeciaI Rapporteur, I called on the US Government to release the report without further delay, and to ensure that it was published in full, without excessive and unnecessary redactions.

It seems a bit strange to me that Emmerson would commend the “administration” for “resisting domestic pressure to suppress these important findings”. We can only presume that “administration” refers to the Obama administration. It has been clear that in many instances of the struggle by the SSCI to release the report, the Obama administration has come down more on the side of the CIA than the committee. Only if the committee itself is included in Emmerson’s view of the “administration” does the comment make sense.

Emmerson then gets down to business:

The summary of the Feinstein report which was released this afternoon confirms what the international community has long believed – that there was a clear policy orchestrated at a high level within the Bush administration, which allowed to commit systematic crimes and gross violations of international human rights law.

The identities of the perpetrators, and many other details, have been redacted in the published summary report but are known to the Select Committee and to those who provided the Committee with information on the programme.

So we know that crimes have been committed. Further, the committee also knows who is responsible for those crimes. What to do about it?

It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.

The fact that the policies revealed in this report were authorised at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.

Note the language here. Emmerson doesn’t say that those responsible for the crimes should be brought to justice. He says outright that they MUST be brought to justice. Emmerson further points out that being authorized at a high level in the government gives no protection. Further, he notes a “conspiracy” to carry out the crimes.

Emmerson then goes on to destroy Barack Obama’s “look forward” bullshit and John Durham’s coverup disguised as an investigation:

International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

Obama, Holder and Durham simply cannot grant immunity for these crimes. International law forbids it. More specifically, the Convention Against Torture, to which the US is a signatory, prohibits it. Similarly, the Convention on Enforced Disappearances also comes into play in the crimes committed by the US and also prevents the granting of immunity that Obama has tried to orchestrate.

Emmerson’s conclusion reiterates those points and provides a warning to those guilty of these crimes:

It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.

However, the heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution for their acts.

President Obama made it clear more than five years ago that the US Government recognises the use of waterboarding as torture. There is therefore no excuse for shielding the perpetrators from justice any longer. The US Attorney General is under a legal duty to bring criminal charges against those responsible.

Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to. However, the primary responsibility for bringing them to justice rests with the US Department of Justice and the Attorney General.

Emmerson specifically calls out those who planned and authorized the torture as deserving the “heaviest penalties”.

And they need to be careful. Even though they are facing no punishment in the US for their crimes, these criminals can face prosecution should they travel abroad because torture is a crime subject to universal jurisdiction. Under universal jurisdiction, other countries would normally defer to the US for prosecution of crimes carried out by citizens of the US. However, once it is clear that no such prosecutions will take place, other countries are free to act.

Although I’d like to see them inside cells of much smaller dimensions, it appears that for now those who designed the CIA torture program and ordered its implementation are now imprisoned within the borders of the US because they are at risk of real prosecution while traveling outside the borders.

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.

UNCAT Process Exposes Flaw in US Torture Coverup: DOJ Not Final Authority

A combination of factors is forcing the issue of US torture back into the international spotlight and there are even hints that progress on some fronts is occurring. Consider, for instance, James Risen’s report this morning that the American Pyschological Association, greatly embarrassed by the revelations in Risen’s just-published book, has re-opened an investigation into the role the association played in giving cover to pyschologists who lent their credentials to the torture program in an effort to pronounce it medically ethical. We also have gotten the first official hint from Mark Udall himself that he has not ruled out using the Senate’s speech and debate clause to enter the Senate Intelligence Committtee’s report on torture into the record (the way that Mike Gravel disclosed the Pentagon Papers), bypassing the two year old debate about redactions.

We should pay special attention, though, to word filtering out of Geneva as the United Nations Committee Against Torture reviews the report submitted by the US. As a signatory to the Convention Against Torture, the US is required to make periodic reports to the committee. The process, however, is exceedingly slow. The current report from the US (pdf) is finally getting around to answering questions submitted to the US in 2006 and 2010. A New York Times story from Charlie Savage shows that the committee has been paying close attention both to what the US is saying and to what the US is doing. Consider this blockbuster:

Alessio Bruni of Italy, a member of the United Nations committee, pressed the delegation to explain Appendix M of the manual, which contains special procedures for separating captives in order to prevent them from communicating. The appendix says that prisoners shall receive at least four hours of sleep a day — an amount Mr. Bruni said would be sleep deprivation over prolonged periods and unrelated to preventing communication.

Brig. Gen. Richard C. Gross, the top legal adviser to the Joint Chiefs of Staff, said that reading the appendix as intended to permit sleep deprivation was a misinterpretation. Four hours is “a minimum standard; it’s not the maximum they can get,” he said, adding that the rule had to be read in the context of the rest of the manual, including a requirement for medical and legal monitoring of treatment “to ensure it is humane, legal and so forth.”

Mr. Bruni was not persuaded. He said that calling the provision a minimum standard still meant four hours a night for long periods was “permissible.” He suggested that Appendix M “be simply deleted.”

This exchange counts as a huge victory for the community of activists who have fought hard to abolish all forms of torture by the US. When it comes to the Appendix M battle, though, perhaps nobody has been more determined to expose the torture still embedded in Appendix M practices than Jeff Kaye, and he is to be congratulated for the support he provided in getting this question to the forefront.

The most important part of the proceedings, though, pertains to the questions about US investigation of torture since it now openly admits torture took place. Returning to Savage’s report:

A provision of the treaty, the Convention Against Torture, requires parties to investigate and provide accountability for past instances of torture. The American delegation said that the United States had investigated the C.I.A. program, and that the coming publication of a Senate Intelligence Committee report would add to the public record.

/snip/

The American officials pointed to a criminal investigation by John H. Durham, an assistant United States attorney in Connecticut, whom Michael B. Mukasey, then attorney general, appointed in 2008 to look at whether the C.I.A. had broken the law by destroying videotapes of its interrogations of Qaeda suspects.

In 2009, Attorney General Eric H. Holder Jr. expanded Mr. Durham’s mandate to look at C.I.A. torture that went beyond what the Justice Department had said was legal. Mr. Durham eventually closed the investigation without indicting anyone.

Another member of the United Nations panel, Jens Modvig of Denmark, pressed for details. He asked if Mr. Durham’s team had interviewed any current or former detainees.

It is clear from Modvig’s question that he feels the US investigation fell short of what is required. To get a good feel for that, we can look to this terrific “shadow report” (pdf) to the UNCAT prepared by “Advocates for US Torture Prosecutions” at Harvard Law School.

The report does an excellent job of framing the questions at hand, beginning with the observation that “The U.S. Government’s criminal program of torture was authorized at the highest levels” (fitting nicely with Marcy’s post earlier today about it being authorized by the President). But when we get to inadequacy of Durham’s investigation, we see this (footnotes removed): Read more

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.

Unsaid at the UN: “Because the President Ordered It”

I caught a bit of the grilling that UN experts put the US panel of witnesses through, asking about the various areas where the US does not abide by our treaty obligations on torture and cruel treatment. The spin was thick, as US officials tried to pretend things like the Durham investigation were legitimate exercises. Here’s Kevin Gosztola’s take:

One of the many critical issues raised was the fact that Attorney General Eric Holder had appointed Assistant US Attorney John Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” But, in June 2011, Durham decided that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations.”

By August 30, 2012, the criminal investigations into the deaths of those individuals were closed. The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

David Bitkower, who is the Deputy Assistant Attorney General for the Justice Department’s Criminal Division, attempted to satisfy the concerns of the Committee:

…Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.

After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…

However, there were no specific incidents, which Durham may have examined, mentioned by Bitkower.

“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared. “Overall, however, the investigations involved interviews of approximately 96 witnesses and the examination of physical and documentary evidence. In short, Mr. Durham had access to and reviewed a broad array of information relating to allegations of mistreatment.”

The easy explanation these officials should have offered is that Durham let the Statutes of Limitation on torture expire on the torture and wrongful death cases he investigated.

But there’s another, one mirrored in US claims that David Passaro represents its commitment to prosecute abuse. Passaro, I’ve pointed out, was specifically denied documents that would have shown his alleged conduct (there were other problems with his trial) fell squarely in the Interrogation Guidelines in place at the time. Passaro was also denied access to the Presidential finding, which not only authorized his function in training Afghan paramilitaries, but authorized what was ultimately the torture program. (See my review of these issues from the last time the government used Passaro’s case as an exemplar.)

The people Durham would have investigated would all have had much better access to those documents (though Passaro had a briefcase of documents that were seized from him). As soon as you got to the Jonathan Fredmans and the Stephen Kappes, you’d have people with good claims to have been ordered personally to implement a torture program.

Ordered, by the President.

That’s why the panel yesterday all gave such consistently awkward answers. They’re still trying to hide that this came right from the President.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Where the Bodies Are Buried: A Constitutional Crisis Feinstein Better Be Ready To Win

In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.

What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.

I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.

Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.

If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.

Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.

Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues  to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).

But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.

Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.

Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)

Then FP turns to DOJ’s potential role in this dispute.

The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.

Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.

There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.

Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.

And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.

If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.

“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”

Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.

And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.

Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.

I meant that very, very literally.

Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.

Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.

I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.

Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.

I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Eric Holder Rewards the Teams that Gave Torturers and Mortgage Fraudsters Immunity

As TPM’s Ryan Reilly noted yesterday, among the awards Attorney General Eric Holder gave out at yesterday’s Attorney General’s Award Ceremony was a Distinguished Service Award to John Durham’s investigative team that chose not to prosecute Jose Rodriguez or the torturers who killed their victims.

The 13th Distinguished Service Award is presented to team members for their involvement in two sensitive investigations ordered by two different Attorneys General. In January 2007, Attorney General Michael Mukasey asked Assistant U.S. Attorney John Durham to lead a team that would investigate the destruction of interrogation videotapes by the CIA. Assistant U.S. Attorney Durham assembled the team and began the investigation. Then, in August 2009, Attorney General Holder expanded Assistant U.S. Attorney Durham’s mandate to include a preliminary review of the treatment of detainees held at overseas locations. This second request resulted in the review of 101 detainee matters that led to two full criminal investigations. In order to conduct the investigations, the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.

The timing on this award–coming even as DOJ aggressively prosecutes John Kiriakou for talking about this torture–is particularly cynical.

Holder also presented a Distinguished Service Award to the team that crafted a $25 billion settlement effectively immunizing the banksters for engaging in systemic mortgage fraud.

The third Distinguished Service Award is presented to the individuals involved in procuring a $25 billion mortgage servicing settlement between the United States, 49 state attorneys general and the five largest mortgage servicers, representing the largest federal-state settlement in history.   The settlement includes comprehensive new mortgage loan servicing standards, $5 billion to state and federal treasuries and borrowers who lost their homes to foreclosure, $20 billion in consumer relief and a $1 billion resolution of False Claims Act recoveries by the Eastern District of New York.

As DDay has documented relentlessly, the settlement is little more than kabuki, with most of the “consumer relief” consisting of actions the banks were already taking.

To get an idea of how outrageous it is to give an award to the torture non-prosecution team and the kabuki settlement team, compare what those teams did with the rest of the Distinguished Service recipients.

  1. The team that successfully prosecuted United States v. AU Optronics et al.,an international cartel that fixed the price of liquid crystal display (LCD) panels sold in the United States and around the world
  2. The team that implemented national standards aimed at eliminating sexual abuse in our nation’s confinement facilities
  3. The kabuki mortgage settlement team
  4. The team that investigated and dismantled the Coreflood Botnet, also known as Operation Adeona [this was a controversial expansion of Federal power to combat hacking, though since the team worked with a court order, better at least than what the government did to WikiLeaks]
  5. The team that investigated and convicted 37 members of the La Mara Salvatrucha (MS-13) gang in the San Francisco area
  6. The Tribal Trust Negotiation Team, which negotiated settlements with more than 40 Tribes in complex and long-running Tribal Trust cases [I’m not sure, but I believe this is the Cobell settlement, which is in many ways another kabuki settlement, but at least the tribes finally get some compensation]
  7. The Raj Rajaratnam investigation and prosecution team
  8. “The team whose extraordinary service led to the prosecution of Ahmed Warsame” [I quoted this because Warsame has not been convicted yet; the second-to-last item in his docket was a sealed January 5, 2012 document following a continuance, suggesting he may be cooperating in some way; this award should be considered recognition for the further twisting of our legal system to allow for novel war on terror uses]
  9. The Rod Blagojevich investigation and prosecution team
  10. INTERPOL Senior Inspector Joseph J. DeLuca for his outstanding leadership and law enforcement coordination in the apprehension and extradition of international fugitives
  11. Assistant Inspector General Thomas F. McLaughlin for 22 years of service in OIG and certain initiatives he conducted while there, including prosecuting department employees
  12. The CrimeSolutions.gov Development Team for its leadership in creating and launching the premier online resource for information about evidence-based programs and practices in criminal justice, juvenile justice and crime victim services
  13. The torture non-prosecution team
  14. The Congressman William Jefferson investigation and prosecution team

Five of these are for successful prosecutions–AU Optronics, MS-13 gang members, Raj Rajaratnam, Rod Blagojevich, William Jefferson. Another two–the Coreflood Botnet and Warsame actions–neutralized a threat, albeit through novel and controversial means. And then there are the teams that worked to make the criminal justice system more humane.

But rather than holding criminals accountable–punishing those that degraded our nation and created new reasons for people to join terrorists, punishing those who crashed our economy and stole the wealth of millions of families–the Durham and Mortgage Settlement teams made us less safe. They immunized crime, rather than punishing it.

“No one is above the law,” Eric Holder has said on other occasions. Not surprisingly, he didn’t say that yesterday, because it’s clear that some people–the torturers and the banksters–are indeed above the law.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The First Torture Cover-Up Was Covered Up By The First Torture Cover-Up Lawyer

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

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

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

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

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

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

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

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

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

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

Remarkably, however, the crucial FOIA response from the CIA regarding the records of the OIG in April 2005 (ergo, 7 months prior to the destruction of the tapes) was written by none other than John L. McPherson. Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Eric Holder: Torture Inquiries, Ted Stevens Prosecutorial Misconduct Investigations Almost Finished

Eric Holder is testifying before the Senate Judiciary Committee right now. [watch here]

In response to two questions from Orrin Hatch, Eric Holder revealed that the John Durham investigation into torture and the Office of Public Responsibility investigation into the prosecutorial misconduct in the Ted Stevens case are both nearing their end.

While none of the Senators asked for Holder to make the results in the torture investigation public, Hatch, Pat Leahy, and DiFi all asked for the Stevens report to be made public.

Let me predict for them what that report will say: While problematic, the behavior of DOJ’s own does not merit punishment. Love, David Margolis.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

John Rizzo: We Should Have Been Prouder of Our Cover-Up

John Rizzo’s second regret is that after the CIA destroyed torture tapes in 2005, they should have briefed Congress and the Courts on their attempt to cover-up their own torture.

Mind you, that’s not exactly what he says. Here’s his version:

We should have made damn sure that the intelligence committees’ leadership—if not the full committees—were told about the destruction as soon as it happened. To take whatever lumps we deserved (and we clearly deserved some) then and there. We should have done the same thing with judges presiding over then-pending court cases potentially implicating the tapes, even if we weren’t obligated to do so as a technical legal matter. In short, we should have told everyone in all three branches in the Government who had even an arguable need to know.

To some degree this looks like a statement designed for John Durham’s benefit: a performance of real regret for doing something bone-headed (though why bother now that Durham has already let the statute of limitations expire on the case?). Though Rizzo probably overstates the outcome of Durham’s investigation here, as there is a difference between “no evidence of a cover-up” and “insufficient evidence to charge when your President is demanding you look forward.”

Ultimately, the various investigations would find no evidence of a cover-up, but rather that the whole thing was one monumental screw-up.

I’m particularly amused, however, by this statement.

In 2002, CIA videotaped the interrogation of the first captured Al Qaeda terrorist to be water-boarded. It was lawfully conducted, but the tapes were graphic and hard to watch. Almost immediately, those in CIA who made the tapes wanted to destroy them, fearing the faces of the interrogators on the tapes would put them in danger if and when they were ever made public.

We know the “hard to watch” and “fearing the faces of the interrogators” lines at most describe one, the smallest one, problem with the tapes. There were at least two other problems with them. First, they proved the torturers had exceeded DOJ 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.

In addition, the tapes show that the torturers had already altered the tapes to hide something on 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.

One potential problem would be if the interrogators used a coffin–as they had planned to–after John Yoo judged that mock burials would be illegal. Or maybe they just broke the law in other ways.

But given that Rizzo’s explanation for why the tapes were destroyed is so obviously a fiction, I’m guessing he knows well that the interrogation of Abu Zubaydah was not “lawfully conducted.”

I’m most interested, though, in this BS from Rizzo:

While we had informed the intelligence committee leadership in early 2003 of the tapes’ existence, we did not tell them on a timely basis about their unauthorized destruction. It was not our intent to hide that fact; it was simply a communications breakdown inside CIA in which then-Director Porter Goss neglected to inform the leadership as we agreed he would do the day he and I learned about the destruction. To this day I am convinced it was an unintentional oversight on his part, and I blame myself for not following up to make sure he had informed the Hill. The whole thing had just fallen through the cracks, something I saw happen far too often in my long Agency career.

Oh, my. Poor Porter Goss forgot to tell Congress that Jose Rodriguez had covered up illegal torture.

Or did he?

How is it that Crazy Pete Hoekstra got his very own briefing on torture on the very day the torture tapes were destroyed?

What went on at Crazy Pete’s briefing–a briefing for Crazy Pete alone, without his counterpart Jane Harman, who had long expressed opposition to destroying the torture tapes, or his own staff–on the very day CIA destroyed the torture tapes?

That’s right. As I have noted in the past, Crazy Pete Hoekstra (and Duncan Hunter, in a separate briefing) got a “complete brief” on the torture program on November 8, 2005, the day the torture tapes were destroyed.

An MFR lacking real detail (see PDF 32) at least reveals that Office of Congressional Affairs head Joe Wippl and C/CTC/LGL (who I believe would still be Jonathan Fredman) gave the briefing. A number of chronologies on Member Briefings included in this FOIA set note that no staffers attended these two briefings (see, for example, page 100 of this PDF), and those appear to be the only briefings for which CIA noted that no staffers attended. And note, minimal as the MFR on this is, it is one of just five or six briefings in the years before the torture tapes were destroyed for which CIA actually did do an MFR (one of the others is the briefing at which Pat Roberts okayed the destruction of the torture tapes).

In other words, this was one of the few torture briefings CIA’s Office of Congressional Affairs saw fit to memorialize. They don’t say what was briefed, really, but they’ve got proof that two men from the CIA briefed Crazy Pete and just Crazy Pete on something related to the torture program the day CIA destroyed the torture tapes.

It’s not definitive they were talking about the torture tapes, mind you; after all, the torture apologists were in full court press trying to prevent McCain’s Detainee Treatment Act from taking away all the torture toys.

But one more thing suggests there may be a connection. On the evening of the same day Crazy Pete got this briefing, the same day CIA destroyed the torture tapes, someone sent an email with a list of all Congressional briefings related to the torture program (see page 90-92 of the second PDF). It says only, “Per your request please find attached List of Members who have been briefed and a couple of other categories.” The list is interesting for two reasons. First, because the email forwarded a list with some key errors, in that it listed Harman, not Pelosi, as having been briefed at the first torture briefing in September 2002 (with a handwritten note, “error, it is Pelosi per 145166″). It also includes an error that remained in the CIA’s own records until last year, showing Goss, not Crazy Pete, as the Chair in a meeting in March 2005 (it’s unclear the meeting with Harman happened; what appears to have happened instead is an extra briefing with Dick Cheney for Pat Roberts and Jay Rockefeller).

More interestingly, the Crazy Pete and Hunter briefings–which had taken place that very day–were already in the Excel spreadsheet showing all the briefings. It’s as if they briefed Crazy Pete and Hunter just so they could print this out as part of a CYA attempt to say that Congress had approved the torture tape destruction. And maybe Crazy Pete and Hunter did just that.

Goss’ so-called oversight seems a lot more suspicious given that one of Dick Cheney’s lackies, Joe Wippl, and one of the people involved in the tape cover-up from CTC was off briefing Hoekstra that same day.

Now, we’ll never know, because as with most key briefings, the CIA didn’t make a record of what went on the briefing (and why would you, if you had gone to the trouble of excluding even Hoekstra’s aides?).

But as with Rizzo’s first regret, this seems to be more about rehashing the fictions that got him out of legal trouble than any actual regret.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.