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

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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. 

[snip]

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 →

John Durham’s Torture Tape Documents

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Jason Leopold reported on and posted a late update to the ongoing torture tape FOIA exchange. If I read the latest exchange correctly, Special Prosecutor John Durham is at least preparing to identify–and potentially make available through FOIA–a number of older documents on the torture tape destruction, as well as admitting that some more recent documents on the torture tape destruction exist.

Today’s letter does two things. First, it withdraws John Durham’s objection to Judge Hellerstein’s order that:

The government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002. I find that the period for such production should be April 1, 2002 through June 30, 2003. If this longer period imposes an unreasonable burden, the Government should show why, and whether a reasonably shorter period would provide sufficient disclosure.

Today’s letter states:

For the reasons stated in the enclosed ex parte letter from John H. Durham provided for the Court’s in camera review, we write to advise the Court that Mr. Durham withdraws his objection to paragraph 4 of the Court’s April 20, 2009 Order.

In addition, the letter admits that the CIA has documents pertaining to the torture tape destruction,

that fall outside the date range provided in the Order; namely, April 1, 2002 through June 30, 2003. Mr. Durham may have objections to the production of documents created outside the date range specified in the Order.

This news is not surprising–it had always bugged me that the otherwise thorough Hellerstein hadn’t demanded documents for the period right up until the destruction of the torture tapes in November 2005. Now, Durham is admitting such documents exist–which we knew, because among other things, we knew that John Negroponte sent Porter Goss a memo in 2005 telling him not to destroy the tapes. But it’s nice to know that Durham is willing to go out of his way to admit that such documents exist.

If I had to guess, I’d say that Durham has finished his investigation of the earlier period–through June 30, 2003–so is now willing to produce at least a Vaughn Index of what documentation exists for the period (note, this should include the documents surrounding the Jane Harman briefing from February 5, 2003, including her letter telling the CIA not to destroy the tapes, and any paper response Scott Muller made internally at CIA). Read more →

Torture Tapes and Briefings

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Isikoff has an article that basically catches everyone up on torture investigation. The big piece of news is that John Durham is flying spooks back from overseas stations to appear before the grand jury.

In recent weeks, prosecutor John Durham has summoned CIA operatives back from overseas to testify before a federal grand jury, according to three legal sources familiar with the case who asked not to be identified discussing sensitive matters. The sources said Durham is also seeking testimony from agency lawyers who gave advice relating to the November 2005 decision by Jose Rodriguez, then chief of the CIA’s operations directorate, to destroy the tapes.

There are lawyers probably named Robert Bennett quoted as saying, "maybe he’s just tying up loose ends," but that news, coupled with the news that Durham interviewed  Dusty Foggo, who had recently been hung out to dry by Porter Goss, suggests Durham has been able to break the omerta at the CIA and make some headway on this case.

But I’m sort of interested in this claim:

Durham was appointed by former attorney general Michael Mukasey shortly after the December 2007 revelation about Rodriguez’s decision. At the time, then-CIA director Michael Hayden insisted the tapes were destroyed only after "it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries—including the trial of Zacarias Moussaoui." But since then, declassified filings in the Moussaoui case show that around the time the tapes were destroyed, Moussaoui’s lawyers were seeking CIA records about the interrogation of Abu Zubaydah—who, according to recent disclosures, was waterboarded 83 times. On Nov. 3, 2005, Judge Leonie Brinkema even ordered government lawyers "to confirm or deny that it has video- or audiotapes" of interro-gations of potential witnesses.

Now, this is assuredly not news. The Moussaoui request has been on my torture tape timeline for well over a year, based on this and other reporting. And it is just one case where a party had made a legally binding request for any torture tapes–the other two being the ACLU FOIA and the 9/11 Commission request for any such materials.

(On the 9/11 Commission request, keep in mind that Philip Zelikow, Commission Executive Director, has been saying "let the prosecutor work" in his recent public critiques of torture; he may well have been interviewed in this case, so he may have reason to be confident in the quality of the invsetigation.)

Okay, back to Moussaoui. Not new news. Read more →

What Does Dusty Foggo Know about the Torture Tapes?

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The AP caught something rather curious.

Dusty Foggo, heading off to prison for his role in schemes involving Brent Wilkes, has a date to talk with John Durham, who is investigating the torture tape destruction, and because of that date, he’ll get to put off reporting to prison for a week.

Mr. Foggo seeks this brief continuance because he has agreed to be interviewed by Special Prosecutor John H. Durham concerning the destruction of videotaped evidence by the Central Intelligence Agency. The interview is scheduled to be held in Washington, D.C. on April 8, 2009. However, Mr. Foggo is currently scheduled to report to USP McCreary in Pine Knot, Kentucky on April 7, 2009.

[snip]

Special Prosecutor Durham has consulted with the government and has informed counsel for Mr. Foggo that the prosecution team has no objection to the proposed continuance.

I find this curious for a few reasons. 

First, Durham was reportedly almost done with his inquiry, having determined that he could not bring charges. Yet here he is just now interviewing the third-ranking CIA guy during the period the tapes were destroyed.

More interestingly, Foggo would likely badly like to get revenge on some of the people who allowed him to face criminal charges, whether in the Bush Administration or CIA or former CIA witnesses. 

Just as one hypothetical, Porter Goss claimed to know nothing about Foggo’s problematic past (including his counter-intelligence problems). Yet, as Laura Rozen has reported, that was a lie.

A former US intelligence source thought that Brent "nine fingers" Bassett was the Goss staffer who recommended the hire of Foggo as ExDir.

He said that Goss lied in his testimony, that he was not aware about the problems with Foggo when he hired him for executive director. He said that a major fight had broken out between Goss staffer Patrick Murray and then associate deputy director of operations Michael Sulick about the Foggo hiring. "Murray told ADDO/Counterintelligence Mary Margaret that if Dusty’s background got out to the press, they would know who to come looking for. Mary Margaret tried to warn them that Dusty Foggo had a problematic counterintelligence file. Sulick defended Mary Margaret. Goss told [deputy director of operations Steve] Kappes he had to fire Sulick." After that, Kappes and Sulick quit. "Goss bears major responsibility here," the former intelligence official says. It was finally the "White House that demanded that Goss fire Dusty and he refused." Read more →

Who Watched the Torture Tapes?

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

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

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

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

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

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

And this is perhaps the most interesting bit:

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

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

A Peek into the Torture Tape Investigation

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As the NYT and AP have reported, the CIA says none of its records were responsive to the Court order in the Hani Abdullah case.

A records search by the Central Intelligence Agency has found no evidence that the agency violated a judge’s order when, in 2005, it destroyed videotapes that showed harsh interrogations, the C.I.A. said in a court declaration this week.

Since the CIA is still reviewing its records, though, that declaration may or may not be conclusive.

But the CIA’s declaration is far more interesting for what it says about John Durham’s Torture Tape investigation than what it says about Hani Abdullah’s civil suit against George Bush. Comparing the two declarations submitted in response to Abdullah’s suit with an earlier declaration the CIA submitted in response to the ACLU’s FOIA suggests that John Durham may have reason to suspect that some records pertaining to the torture tapes were destroyed in the Office of Inspector General.

First of all, consider who wrote the two declarations submitted Wednesday by the CIA. First, there’s Robert Dietz, who conducted a general search of the CIA’s operational files. Here’s how Dietz describes his expertise in this matter:

I am the senior councilor to the Director of the Central Intelligence Agency. I joined the CIA in Autumn of 2006. Although I am a lawyer by training, I am not serving in a legal capacity and I am not part of the Office of General Counsel. In my position, I report to the Director of the CIA and receive assignments from him. For example, I have chaired an Agency Accountability Board, and I have recently concluded a management review of the Office of the Inspector General. In December 2007, in connection with the public disclosure that the CIA had destroyed certain videotapes, the Director asked me to chair the so-called Tapes Coordination Group ("TCG"). This Group’s assignment is to respond to requests for information from Acting United States Attorney John Durham, specially appointed prosecutor investigating the destruction of the tapes, and similar requests by the House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence.

Dietz is not a lifetime CIA employee. Rather, he appears to have come in when Michael Hayden took over as Director. That means he had nothing to do with the destruction of the torture tapes. But it also likely means he’s a Hayden loyalist, there to protect Hayden.

Most interesting, Dietz reveals he was in charge of the "management review of the Office of the Inspector General." I find that interesting, not least, because the spat between OIG and Hayden (or rather, and the rest of the CIA) relates to OIG’s report finding CIA’s interrogation methods constituted cruel and inhuman treatment.

Read more →

Remember the Torture Tapes?

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Just about everyone is talking about ABC’s confirmation of what we already knew: the torture was approved–in excruciating detail–by the most senior members of the Bush Administration.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Now, the article is actually incredibly vague about which of the high-value detainees the Principals discussed interrogating. For example, it suggests that Abu Zubaydah’s torture was planned by the Principals. But then–where elsewhere it asserts that all of the Principals approved the torture–it backs off that claim specifically with regards to Zubaydah.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand, he was uncooperative.

[snip]

The CIA wanted to use more aggressive — and physical — methods to get information.

The agency briefed high-level officials in the National Security Council’s Principals Committee, led by then-National Security Advisor Rice and including then-Attorney General Ashcroft, which then signed off on the plan, sources said. It is unclear whether anyone on the committee objected to the CIA’s plans for Zubaydah.

Read more →

A Cheap Ploy to Avoid Giving Testimony, Jose Rodriguez

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Today’s article from Joby Warrick and Walter Pincus answers a lot of questions we’ve been asking about the torture tapes–the biggest being that the tapes were stored and destroyed in Thailand. And it has a lot of interesting details I’ll return to in a follow-up post, after I enjoy some rare MI sun with my dog. But the most important detail readers should take away is its function, as suggested by the following two passages. First, the recognition that John Rizzo will testify before HPSCI today.

John A. Rizzo, the CIA’s acting general counsel, is scheduled to discuss the matter in a closed House intelligence committee hearing scheduled for today.

And second, the incorporation of long excerpts from a written statement from Bob Bennett to present Jose Rodriguez’ justifications for his actions.

Those three circumstances pushed the CIA’s then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved. Rodriguez consulted CIA lawyers and officials, who told him that he had the legal right to order the destruction. In his view, he received their implicit support to do so, according to his attorney, Robert S. Bennett.

[snip]

Rodriguez, whom the CIA honored with a medal in August for "Extraordinary Fidelity and Essential Service," declined requests for an interview. But his attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover." [my emphasis] Read more →

Durham’s Previous Run-In with Tribalism

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

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

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

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

He’s Fitzgerald with a sense of humor Read more →

Mukasey’s Statement

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

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

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

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

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

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