Dusty Foggo’s Girlfriend, John Rizzo, and the Salt Pit

The AP story on the Salt Pit death makes it clear that–at a time when Dusty Foggo was Executive Director of CIA–he was involved in an internal review of the death.

The current U.S. official insisted that the case was adequately scrutinized. The official also said a CIA accountability review board was held in connection with the death.

The CIA declined to discuss whether the two agency officers cited in the inspector general’s report were punished.

But when the case was put before Kyle D. Foggo, the CIA’s third-ranking officer at the time, no formal administrative action was taken against the two men, said two former intelligence officials with knowledge of the case.

This review must have happened some time after fall 2004, when Foggo started in the ExDir position (it seems to have been a follow-on to the CIA IG Report). That means that Foggo’s decision not to act against any of the people in the Salt Pit killing came at around the same time that his girlfriend was hired at CIA’s Office of General Counsel over the objections of staffers within OGC. That’s significant because among the people in the chain of authorization between the Bybee Memo and the torture was then OGC head John Rizzo, who intervened to make sure Foggo’s girlfriend got and stayed hired.

Details of how Foggo got his girlfriend hired appeared in the sentencing documents for his conviction in the Brent Wilkes/Duke Cunningham case (they were included not just to show Foggo’s corruption, but also because, over the course of the case, Foggo had repeatedly claimed to be happily and faithfully married).

As William Mitchell of the CIA Inspector General’s office described, Foggo’s girlfriend, ER, was at first rejected by OGC because she had previously been investigated for having an affair with her boss (elsewhere the sentencing materials include Foggo’s claim that “she didn’t fuck him”), and then destroyed evidence to cover up the affair. But after OGC rejected her application, Foggo harassed the Managing Associate General Counsel of CIA, who then passed on Foggo’s concern to then Acting General Counsel John Rizzo.

Read more

Durham Going after the First Destruction of Torture Tapes?

Bmaz had a post up this yesterday, based on this WaPo story, concluding that we’re not going to have real accountability for the destruction of the torture tapes. (Thanks to bmaz for minding the shop while I feted mr. ew’s birthday.)

While I agree with bmaz generally that we’re not going to get real accountability out of this investigation, I’m not sure I agree with bmaz’s other conclusions. Here’s why.

As bmaz noted, the big piece of news in this story is that Durham just did or is about to give immunity to John McPherson, who appears to be the CIA Office of General Counsel lawyer who reviewed the torture tapes in November to December 2002, purportedly to make sure the tapes matched the descriptions of allowable torture in the Bybee Two memo.

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, two sources familiar with the case said. That could signal that the case is reaching its final stages. Durham has been spotted at Justice Department headquarters in Washington over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke on the condition of anonymity because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about handling the tapes, and whether they should have been included when agency records were turned over in other court cases. McPherson is not thought to be under criminal jeopardy but had previously hesitated to testify, the sources said.

As you recall, the CIA IG Report gave us two critical pieces of information about this review:

The CIA OGC lawyer (presumably, McPherson) reported that the tapes did match the descriptions of allowable torture in the Bybee Two memos.

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters. He reported that there was no deviation from the Do] guidance or the written record.

But the CIA OGC’s own review of the torture tapes revealed that the waterboarding shown on the tapes did not match the descriptions of allowable waterboarding.

OIG’s review of the videotapes revealed that the waterboard technique employed at was different from the technique as described in the DoJ opinion and used in the SERE training.

The implication, then, is that McPherson was not entirely truthful when he claimed the torturers had not exceeded the allowable limits when he did his review.

Which explains why his lawyer worked to get him immunity before he testified, and explained why Durham hasn’t given it before now: this McPherson appears to have lied in his review of the torture tapes.

And there’s one more detail of importance. As you recall, when the CIA IG reviewed the torture tapes in May 2003 (that is, five months after McPherson’s review), there were 15 tapes in some state of damage or erasure.

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

You see, John Durham is investigating two incidents of torture tape destruction: the first, when in 2002 or 2003 someone removed evidence of two sessions of waterboarding (and potentially, the use of mock burial that would be declared torture by John Yoo) from the videotapes. And the second one, on November 8, 2005, when someone destroyed all the tapes, which not only destroyed evidence of waterboarding that violated the terms of the Bybee Two memo, but also destroyed evidence of the first round of destruction.

And John McPherson is likely the only person who can pinpoint when the first round of destruction occurred, before or after November-December 2002.

Now, all that doesn’t tell us precisely what Durham is after or whom, though I’d suggest he’s at least as interested in the people in the loop of the first round of destruction as the second.

Which means it is almost certainly premature to suggest that Jose Rodriguez is in the clear here. The WaPo focuses on Rodriguez’ role, as head of the Directorate of Operations in 2005, in ordering the 92 tapes to be entirely destroyed. But my analysis here suggests his role in 2002-3, when he was head of CIA Counterterrorism Center, is just as important. And if, as WaPo suggests, someone working closely with Rodriguez lied to the grand jury, then chances are good that Rodriguez was involved in the activities involved in the subject of lying. (Remember that Rodriguez’ lawyer, Robert Bennett, has consistently refused to let Rodriguez testify under oath, preferring instead to produce fictions about Rodriguez’ role for the WaPo to obligingly print.)

I agree with bmaz in concluding that this inquiry is likely not to charge anything beyond obstruction or false statements. But if the target is Rodriguez, which I’d bet money to be the case, he’s not directly responsible for the torture in any case.

Bull Durham Update: Torture Tape Investigation Winding Down Again

Take this with a grain of salt, because we have heard it before, but there is a new story out that John Durham is winding down his torture tape investigation. Carrie Johnson and Julie Tate at the Washington Post are out this afternoon with an article intimating the investigation appears to be “nearing a close” and, as predicted here, there appears to be little, if anything, useful going to come from it. A false statements charge against a single secondary CIA official appears to be all that is potentially in the offing, and even that is shaky:

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, the sources said. That could signal that the case is reaching its final stages. Durham has been spotted at the Justice Department headquarters in the District over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke anonymously because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about the handling of the tapes and whether they should have been included when agency records were turned over in other court cases. McPherson is not believed to be under criminal jeopardy but he had previously hesitated to testify, the sources said.
Investigators now are turning their attention to the grand jury testimony last year by another agency official, the sources said. Lawyers point out that prosecutors routinely search for discrepancies in grand jury testimony as part of any broad investigation.

Jose A. Rodriguez, the former chief of the CIA’s directorate of operations, triggered the destruction of the 92 tapes in November 2005. But he has not offered any testimony to prosecutors. But an official who worked alongside him did appear before the grand jury for more than a day and that testimony is being scrutinized closely by prosecutors, the sources said. The Washington Post was asked not to publish the name of the official, who is undercover. The official’s attorney declined comment Wednesday.

If the reporting is accurate, there are several things of interest here. First off, there is little, if any, accountability in the offing. False statements against a secondary official giving closed door testimony is not going to take us rule of law adherents where we want to go. And if this official is indeed covert, the odds of charges really being pursued are not very good; not to mention that any prosecution, even if it were pursued, would be fastidiously kept narrow and Read more

A Catalog of the Destroyed Torture Evidence

I just re-read Philippe Sands’ Torture Team and, given the news of disappearing emails and documents, this passage struck me anew:

[Mike Dunlavey, who was in charge of Gitmo as they put together the torture plan for Mohammed al-Qahtani] would have liked to have gone back to the daily diaries and schedules that were kept on the computer system, together with reports that were sent out on a daily basis, and details of the videoconferences that had taken place with the Pentagon. “I need to see that stuff,” he mused, “how am I going to get it?” It seemed doubtful that he would. “They were backed up at SOUTHCOM,” he explained, but “a couple of months after I left there was a SNAFU and all was lost.”

Sands goes onto wonder whether there might be a connection to the destruction of the torture tapes. Dunlavey left Gitmo in November 2002, so those materials would have been lost in late 2002 or early 2003, when we now know people were panicking about what to do about the torture tapes. That was also between the time when–at the end of November 2002–a lawyer from CIA’s Office of General Counsel reviewed the tapes and claimed they matched the torture logs exactly, and the time when–in May 2003–CIA’s Inspector General discovered they weren’t an exact match. More importantly, CIA IG discovered there were 11 blank tapes, 2 broken ones, and 2 more mostly blank ones, suggesting that a first round of efforts to hide evidence on the torture tapes took place before CIA’s IG reviewed them.

In other words, this “SNAFU” happened around the same time as the first round of destruction of the torture tapes took place.

Since there are so many incidences of destroyed or disappearing torture evidence, I thought it time to start cataloging them, to keep them all straight.

  • Before May 2003: 15 of 92 torture tapes erased or damaged
  • Early 2003: Dunlavey’s paper trail “lost”
  • Before August 2004: John Yoo and Patrick Philbin’s torture memo emails deleted
  • June 2005: most copies of Philip Zelikow’s dissent to the May 2005 CAT memo destroyed
  • November 8-9, 2005: 92 torture tapes destroyed
  • July 2007 (probably): 10 documents from OLC SCIF disappear
  • December 19, 2007: Fire breaks out in Cheney’s office

(I put in the Cheney fire because it happened right after DOJ started investigating the torture tape destruction.)

There are two more evidence-related issues pertaining to the torture program.

First, recall that the government has refused to turn over all of Abu Zubaydah’s diaries to him [update: here’s a more updated description of the diaries status from Jason Leopold]. The status of both the diaries and the legal argument over them remains largely sealed, so we can’t know for sure whether all the diaries remain intact. I believe they are just being withheld and haven’t been destroyed, but we don’t know for sure.

Also, remember that Alberto Gonzales was wandering around DC with a briefcase full of CYA documents just after he became Attorney General. Among those documents were draft and final versions of OLC opinions relating to torture, and possibly memos describing some operational aspects of the program.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program; correspondence from congressional leaders to the Director of Central Intelligence; and other memoranda describing legal and operational aspects of the two classified programs.

Since this briefcase appears to have been about CYA, it is unlikely Gonzales would have destroyed any of them. But we know only that they were not in secure custody for about two years.

In other words, at least five pieces of evidence on torture has disappeared or been destroyed. But it could well be more than that.

John Durham? For a guy investigating disappearing evidence, you’ve been awfully quiet…

The CIA Asked to Destroy Torture Tapes on Same Day They Claimed They Didn’t Torture

As William Ockham has noted, there is a new–very informative–Vaughn Index and Declaration out. I’ll have much more to say about these. But for now, look at what documents 3 and 4 from the Vaughn Index tell us about the timing of the torture tape destruction.

November 1, 2005: Bill Frist briefed on torture.

November 1, 2005: Dana Priest reveals the use of black sites in Europe. In response, CIA starts moving detainees from the countries in question.

November 3, 2005: Leonie Brinkema inquires whether govt has video or audio tapes of interrogations. CIA IG Report on Manadel al-Janabi’s death completed.

November 4, 2005: Member of Congress writes four page letter to CIA IG.

November 8, 2005: CIA requests permission to destroy torture tapes. CIA reaffirms March 2005 statement that all interrogation methods are lawful. Duncan Hunter briefed on torture. Pete Hoekstra briefed on torture.

November 9, 2005: CIA confirms destruction of torture tapes.  Doug Jehl article on spring 2004 CIA IG report on interrogation methods appears.

November 14, 2005: Govt tells Brinkema it has no audio or video tapes.

That is, the CIA requested to destroy the torture tapes in email on November 8, 2005. They confirmed the destruction on November 9. Not surprisingly, after Leonie Brinkema had asked about videotapes. But also right in the middle of debates about McCain’s Detainee Treatment Act. And note that briefing for Crazy Pete Hoekstra–but not the other Dems in Intelligence Committee leadership–on the same day that CIA started asking to destroy the torture tapes.

Torture Tape Destruction Accountability: How It Is Done

images5thumbnail1.thumbnail1When the government possesses videotape evidence of the torture of subjects under its dominion and control, there is only one reason to destroy the tapes. That reason is not because they possess no evidentiary value; in fact it is the direct opposite, it is because they are smoking guns. Videotapes are definitive for one of the two sides; they either prove the subject was tortured, or they prove that he was not.

Either way, videotapes of detainee treatment are of paramount evidentiary value where there are allegations of torture. It would be insane to argue that such tapes have “no possible evidentiary value”; yet that is exactly what the United States government has officially claimed as their rationale with respect to the infamous destruction of the “torture tapes” depicting the treatment of detainees Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes were wantonly destroyed by the CIA in 2005, news of the destruction became public via a December 6, 2007 article in the New York Times and the DOJ specially assigned a prosecutor, John Durham, at the end of December 2007.

In the nearly two years that have elapsed since the appointment of Durham, he and the crack US Department of Justice have apparently not been able to find anything wrong with the destruction of the torture tapes. But, once again, US Federal courts have demonstrated the dithering perfidy of the Executive Branch, whether it be that of George W. Bush or, in many key Constitutional respects, his clone, Barack Obama.

From the Kansas City Star:

A Missouri prison inmate claims he was restrained for 17 hours without breaks to get a drink of water or use the bathroom.

But videotape that could prove or disprove Darrin Scott Walker’s allegations of abuse cannot be found.

And a federal judge this week concluded that prison officials intentionally destroyed the tape “in a manner indicating a desire to suppress the truth.”

U.S. District Judge Richard Dorr made the ruling in a lawsuit Walker filed alleging that he was subjected to cruel and unusual punishment.

The case is Darrin Scott Walker v. Michael Bowersox, and is filed in the Western District of Missouri (WDMO) in Case No. 05-3001-CV-S-RED. Here is a copy of Judge Dorr’s Order.

First off, it should be noted that as bad as the alleged torture of Walker is, it is nowhere near the the sadistic and egregious conduct performed upon Zubayduh and al-Nashiri. Secondly, in Walker, the court was confronted with a tape that was “lost”, maybe taped over. In the cases of Zubayduh and al-Nashiri, the US government, with malice aforethought, wantonly and intentionally physically destroyed the evidence; light years worse conduct than that in Walker. Yet Judge Dorr blistered the state for its acts in destruction of evidence:

For all of the following reasons, this Court agrees with Walker that the videotape was intentionally destroyed in a manner indicating a desire to suppress the truth. The prison had adopted a policy that required episodes on the restraint bench be videotaped. The Defendants offered no explanation of what happened to the tape, other than the fact the tape could have been taped over, which indicates intentional destruction. The videotape was delivered to a responsible person for safekeeping by people who believed the videotape should have been kept in case of litigation. The Defendants were on notice to keep the videotape because prison officials knew Walker was considering a lawsuit the night of the incident. Lastly, the loss or taping over of the videotape was not a first time incident.

You have to wonder what Judge Dorr would think of the acts of Jose Rodriquez, the CIA and the highest levels of authority in the Executive Branch in destroying the “torture tapes” if this was his opinion in Walker. Dorr went on to hold that there should be a presumption that the destroyed tape was negative to the interests of the government in Walker and cited strong authority for said holding.

The Walker v, Bowersox case, and the strong foundation it is based on, just adds to the curiosity of the lack of ability of John Durham to find addressable conduct in the case of the torture tapes. Granted, one is a civil rights lawsuit, and one is a criminal investigation for obstruction, but the theory of culpability is the same.

Hey John Durham, where are you and what say you? Or are we just going to be peddled a bunch of Bull by Durham?

Wilkerson on Durham’s Investigation

A number of you have pointed to Andy Worthington’s detailed interview with Lawrence Wilkerson. You should read the whole thing, if only to see Wilkerson tee up on Crazy Cheney.

But the part I found most interesting is this bit:

Lawrence Wilkerson: No. My wife thinks that ultimately there’s going to be something. I’m a little more cynical than she, but she’s convinced that this investigation that’s been going on [by John Durham] — very low-key, the guy’s very persistent, he’s very determined, he reminds me of [Patrick] Fitzgerald on the Valerie Plame case, and his starting point is the destruction of the videotapes, and I’m told he’s got a plan, and he’s following that plan, and I’m told that plan is bigger than I think. [my emphasis]

While I was on the record as saying Durham’s appointment probably meant the torture investigation would never go after John Yoo or John Rizzo or Addington (because it would be harder for an AUSA to go after so senior an official), I also said there’s one scenario in which Durham’s appointment could be a good sign. That’s if the evidence Durham had discovered in the torture tape investigation was part of the new information that merited reopening investigations into torture itself that–even credible people seem to think–has already been investigated.

Now, there are a few more breadcrumbs that suggest the lawyers may be as much a focus of this as the torturers. When Eric Holder announced the investigation, for example, he described the two inquiries as related and Durham’s mandate as expanded.

Assistant United States Attorney John Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review.

Then there’s the detail that Holder decided he had to do an investigation after reading not just the torture memos and the IG Report, but also the  OPR Report.

But, then, Holder decided to take a close, personal look at the issues, and his perspective began to change. Read more

Cheney: No, I Won’t Cooperate with a Torture Prosecutor

Far and away, here’s my favorite exchange in the Cheney interview:

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

Wallace asks Cheney if he will speak with Durham, if asked. Cheney does not say yes. Instead, PapaDick immediately suggests he won’t cooperate with an investigation he deems as improper. 

He then takes a tack Karl Rove took in the US Attorney firings: claiming that his many public statements on the issue could substitute for an interview (or better yet, a grand jury appearance) about what role OVP had in establishing our torture regime. 

Cheney hides an obvious unwillingness to commit to cooperating with Durham behind his purported "forthrightness" about torture in the past.

Now, I’ll say more on this tomorrow in regards to DOJ’s ongoing claims that they need to suppress Cheney’s CIA Leak interview so high level White House officials will cooperate in the future. But for now, know that Cheney is already laying the groundwork to refuse to cooperate with Durham based on some claim that the investigation is improper.

Durham to be Torture Special Prosecutor

And thus the whitewash starts.

Holder is poised to name John Durham, a career Justice Department prosecutor from Connecticut, to lead the inquiry, according to the sources, who spoke on condition of anonymity because the process is not complete.

Durham’s mandate, the sources added, will be relatively narrow: to look at whether there is enough evidence to launch a full-scale criminal investigation of current and former CIA personnel who may have broken the law in their dealings with detainees. Many of the harshest CIA interrogation techniques have not been employed against terrorism suspects for four years or more.

As I said in my panel at Netroots Nation, we’ll know a lot about whether Holder intends to do a real investigation, or just a whitewash investigating the Lynndie Englands, by the stature of the prosecutor he names. And while Durham is already neck deep in the investigation of torture on the torture tapes, he doesn’t necessarily have the stature to go after–say–Jim Haynes and John Rizzo for setting up the torture regime.

I guess Holder wasn’t that serious about investigating torture after all. 

Why the CIA Would Want to Hide May 2002 from Judge Hellerstein (and the ACLU)

Update July 20: See this post for the CIA’s explanation for the gaps in May’s production and the timelines. While their explanation makes them permissible to withhold, it doesn’t change the underlying reasons why they may have wanted to withhold them.

I’ve had a couple of really weedy posts examining the CIA’s response to the torture FOIA (Cherry-Pick One, Cherry-Pick Two, FOIA Exemptions). And I wanted to pull back a bit, and explain what I think they might mean.

We’re getting all these documents because the CIA is trying to avoid being held in contempt for not revealing the now-destroyed torture tapes in a response to this FOIA in 2004. At that time, the CIA had to reveal the torture related documents held by its Inspector General or Office of General Counsel. When ACLU learned of the torture tape destruction, it argued that the tapes should have been included in that FOIA compliance and certainly should not have been destroyed. The CIA argued, though, that since the Inspector General had never physically had the tapes, they were not responsive to the original FOIA. Things got delayed because of the John Durham investigation into the torture tape destruction. But last September, Judge Hellerstein deferred the decision on whether the CIA had deliberately ignored his earlier orders in destroying the torture tapes.

I find the facts before me are insufficient to justify a holding of civil contempt. 


Here, I find that there has yet to be any such "clear and convincing evidence" of noncompliance on the CIA’s part.

He asked the DOJ to explain why Durham’s investigation prevented the production of a catalog listing:

1) A list identifying and describing each of the destroyed records;

2) A list of any summaries, transcripts, or memoranda regarding the records, and of any reconstruction of the records’ contents; and

3) Identification of any witnesses who may have viewed the videotapes or retained custody of the videotapes before their destruction.

The government was able to get another delay because of the Durham investigation, but the FOIA reponse we’re getting now is basically this long-awaited catalog, which Hellerstein will use to determine whether the CIA deliberately ignored his 2004 order in this FOIA case.

So the CIA has a couple of goals in its response to Judge Hellerstein’s orders. It wants to appear as cooperative as possible, lest Hellerstein believe that the CIA was and is continuing to cover something up. At the same time, the CIA wants to hide any evidence that it would have had reason to destroy the torture tapes to cover something up. Read more