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Briefing Congress and Destroying Torture Tapes

As I mentioned in this post, I’ve been weeding through the documents released under FOIA to Judicial Watch last week. I think they suggest there’s a much closer relationship between the CIA misrepresentations on Congressional Briefings and the destruction of the torture tapes than we’ve known before.

Nancy Pelosi Was Proved Fucking Right

As you might recall, Judicial Watch pursued this FOIA because they thought they were going to catch Nancy Pelosi in a lie.

After the torture memos were released, the torture apologists tried to claim that Congress had been briefed on–and had approved–of torture. But Pelosi pointed out that when CIA briefed her in September 2002, they did not tell her and Goss that CIA had already gotten into the torture business. In spite of the fact that that was completely consistent with Porter Goss’ tales of Congressional briefing, the press took Pelosi’s story as an accusation that the CIA had lied. So the right wing transparency group Judicial Watch FOIAed the records of Congressional briefings, with a focus on proving that Pelosi had lied about having been briefed about the torture that had already happened.

Perhaps in response to this hullabaloo, the CIA’s Inspector General started a review of Congressional–particularly Pelosi–briefings on June 2, 2009. After about six weeks of reviewing their documentation, they came to the following conclusion (starting on PDF 27):

  • Pelosi was briefed on April 2002, before CIA started torturing Abu Zubaydah, and in September 2002, in the briefing under discussion.
  • CIA’s own records regarding the September 4, 2002 briefing are so erroneous they show Jane Harman, not Pelosi, received the briefing.
  • The only CIA record on the content of the September 4, 2002 briefing is the set of cables between Jose Rodriguez, (probably) Jonathan Fredman, and one other CTC person; this is the cable altered after the fact.
  • People from the Directorate of Operations, and James Pavitt personally, repeatedly made claims about the content of the Pelosi briefing over the years, yet none of that sourced any first-hand knowledge or documentation.

That is, as is the case with CIA’s other briefings on torture, they have no fucking clue what they briefed to Pelosi.

Which leaves Pelosi and Goss’ consistent claim that CIA didn’t even tell them they had already waterboarded Abu Zubaydah 83 times by the time they briefed them.

Creating the Illusion of Congressional Oversight

But the bigger news, as I pointed out earlier, is that the CIA appears to have been crafting a record of Congressional Briefing in conjunction with their efforts to destroy the torture tapes.

As my earlier post laid out, Jose Rodriguez briefed Pelosi and Goss on September 4, 2002. That was the the day before–according to an October 25, 2002 cable (see PDF 3)–folks at CIA HQ started talking in earnest about the danger of the torture tapes. The following day, the briefers altered their record of the meeting (see PDF 84 and PDF 11-12), though we don’t know what the change entailed. No official Memorandum for the Record was ever made of the briefing and there is no record of Stan Moskowitz weighing in on the accuracy of CTC’s version of the meeting (though he did receive a BCC of it). In other words, CTC made a record of the briefing at the same time as they were laying a plan to destroy the torture tapes, and CIA deviated from standard policy by not making any other record of the briefing (though not completing MFRs of torture briefings appears to have become a habit).

As a side note, I’m not certain, but I believe Jonathan Fredman is one of the other two people involved–along with Jose Rodriguez–in this. On PDF 7 of this set, the IG investigation into Pelosi’s briefings describe the last set of documents in its possession as one that someone turned over to DNI leadership on March 23, 2009. On that date, Jonathan Fredman worked at DNI, making him a likely person to have been asked for his documentation on briefing Congress. The description notes that “he, Director (D)/CTC [Jose Rodriguez]” and someone else did the briefing. PDF 11 of the same set quotes from that email: “On 4 September, D/CTC, C/CTC/LGL, and [redacted] provided notification…” which I believe means Fredman–C/CTC/LGL–was the second of three people in the briefing. PDF 84 of this set shows the actual email. This notes that the third person at the briefing was a CTC/Reports person. If I’m right and Fredman had to turn over his documentation, the notice of the “BCC” to Stan Moskowitz would mean that he wrote the email (because otherwise the BCC wouldn’t show up). A later description says someone–whom I believe to be Fredman, given the CTC/LGL return address–showed it to Rodriguez who determined it to be “short and sweet.” In other words, Fredman, one guy on the hook for translating (or mistranslating) DOJ’s limits to the torturers in the field, may have been the guy helping Rodriguez to tweak that record of the briefing.

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The Abu Zubaydah Document

One of the most curious documents turned over in last week’s FOIA dump is the last one, titled “The CIA Interrogation of Abu Zubaydah” (PDF 110-122). While these are just wildarsed guesses, I suspect it may either have been a summary developed for the CIA Inspector General’s office for use in its review of the torture program or a summary to prepare Stan Moskowitz, then head of CIA’s Office of Congressional Affairs, to brief the Gang of Four in early February 2003.

The Timing

This document must have been written between January 9 and January 28, 2003. On PDF 117, the document describes CIA’s Office of General Counsel completing its review of the torture tapes; that report was finalized on January 9. The same page describes the “Guidelines on Interrogation Standards,” which was ultimately signed by George Tenet on January 28, as not yet having been approved. The document makes no mention of the Inspector General’s plan to review the torture tapes impacting the decision on destroying the torture tapes, that decision was initiated in early February. It also refers to the need to brief Congress on the torture tapes in the future.

The Structure

The document includes a long Top Secret section, followed by a short summary of the document classified Secret. That suggests that the audience of this document might in turn have its own audience with which it could use the Secret summary. So, for example, if the IG were the audience, it might be permitted to use the summary description in its final report. If Gang of Four members were the audience, they might be permitted to keep the Secret summary but not to see the Top Secret report.

The Top Secret section of the document has the following sections (each section has its own classification mark, which shows in the margin, which is how we know where redacted titles appear):

  • Abu Zubaydah: Terrorist Activities
  • Injuries at Time of Capture
  • Highlights from Reporting by Abu Zubaydah
  • [Completely redacted section]
  • Interrogation Techniques Used on Abu Zubaydah
  • [Redacted title and page and a half, though this section includes discussion of videotapes and training, which suggests the section describes the management controls on the torture]
  • [Completely redacted section]

The Hand-Written Notes

Curiously, this document showed up in the January 8, 2010 Vaughn Index but not–as best as I can tell–in the November 20, 2009 Vaughn Index (or, if it showed up in the earlier Index, John Durham had not yet protected it under a law enforcement privilege). That means that the document existed as an electronic document. Yet, as the Vaughn Index tells us, this document has “handwritten marginalia” on it. These are presumably what the redactions are to the right of the main text on PDF 111 and 112. The redactions on PDF 113 are also wider than other sections, suggesting there is marginalia there, too.

In other words, the reader of this document made notes in response to the following claims (in addition to whatever appears in the long redacted section on PDF 113):

  • [AZ] was heavily involved in al Qa’ida’s operational planning, and had previously been an external liaison and logistics coordinator.
  • Abu Zubaydah was provided adequate and appropriate medical care.
  • Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa’ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington DC, or New York City.

The first and third of these claims, of course, are somewhat dubious (though the first is more restrained than the CIA was publicly making at the time). So the reader may have been questioning these claims. And the notation next to the claim about AZ’s “adequate” medical care reminds me of the Ron Suskind report that George Bush got enraged when he learned AZ had been given pain killers. In any case, these notations suggest the reader of this document may have had a very high level of information on AZ.

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The Timeline of Torture Tape Destruction in John Durham’s Documents

As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

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Did the White House Review CIA’s Records on Congressional Briefings?

A month ago, I wrote a post noting that CIA had never finished its Memos for the Record of several key Congressional briefings. But as I’ve been reviewing old Vaughn Indices to get a better sense of what we received yesterday, I’ve seen some details that raise new questions about CIA’s use of Congressional briefings.

That post from last month was based on this FOIA dump, including a collection of materials on whether or not Congress was briefed on the tapes. Those materials include:

  • A 2-page MFR of Pat Roberts’ February, 4 2003 briefing on torture and the tapes printed out on November 19, 2008. It noted that Roberts named “10 reasons right off” for Congress not to exercise any oversight over torture. It also recorded these details about what CIA told Roberts about the torture tapes:

[Deputy Director of Operations Jim] Pavitt and [CIA General Counsel Scott] Muller described the circumstances surrounding the existence of tapes of the Zubayda debriefing, the inspection of those tapes by OGC lawyers, the comparison of the tapes with the cables describing the same interrogations. According to Muller, the match was perfect and the lawyer who did the review was satisfied that the interrogations were carried out in full accordance with the guidance. Muller indicated that it was our intention to destroy these tapes, which were created in any case as but an aide to the interrogations, as soon as the Inspector General had completed his report. (In a subsequent briefing to Congressmen Goss and Harman, Muller said that the interrogators themselves were greatly concerned that the tapes might leak one day and put themselves and their families at risk.) Senator Roberts listened carefully and gave his assent. [my emphasis]

  • A two-page MFR by Office of Congressional Affairs head Stanley Moskowitz prepared on July 11, 2004, presumably in advance of the 2004 Congressional briefings on (among other things) the IG Report. It lists 4 relevant briefings (the February 4, 2003 briefing for Roberts; the February 5, 2003 briefing for Goss and Harman; the September 4, 2003 briefing for Goss and Harman; the September 4, 2003 briefing for Roberts and Rockefeller). Moskowitz attached the February 4, 2003 Roberts briefing to that memo, noting that “the remainder of the sessions are being finalized.”
  • A one-page MFR for the February 5, 2003 Goss and Harman briefing printed out on April 27, 2009 (so not long before CIA released its torture briefing list on May 7, 2009). The MFR states, “Pls see attached notes.” It also records that the “MFR never completed. Closed in FELIX 10/3/07 by OCA IMO.”
  • An earlier version of that same one-page MFR of the February 5, 2003 Goss and Harman briefing. The print date on it is not shown, though it shows no record of being closed out and/or never completed. There is a post-it on the document labeling it for the “AZ FILE.”
  • A stub noting that “Pages 3-5 withheld in full,” which suggests the two previous pages–the two copies of the Goss and Harman MFRs–were considered part of a package with these withheld pages. This suggests these withheld pages may be the actual notes from the briefing.
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CIA’s Lawyer Did Not Find Alteration of Torture Tapes “Noteworthy”

As I noted in my last thread, the latest ACLU document dump is here. And this is, indeed, the set of documents John Durham was withholding for his investigation.

I’ve long been interested in the role of the earlier destruction of the torture tapes in Durham’s investigation. As you recall, in December 2002, when the interrogators were getting antsy to destroy the torture tape, a CIA Office of General Counsel lawyer, John McPherson, reviewed the torture tapes to make sure they matched the cables. He reportedly said the tapes matched the logbooks and the direction the interrogators received. But when CIA’s Inspector General reviewed the tapes in May 2003, they discovered that 15 of the tapes were largely or completely blank and or damaged.

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.

I’ve long wondered whether one of the reasons the CIA destroyed the torture tapes is because a review of the tapes would have revealed that the torturers altered the tapes to avoid capturing certain activities on video. The latest dump appears to confirm this happened before December 2002.

On January 9, 2003, McPherson did a report on his review of the tapes (PDF 24-28). Though it is heavily redacted, it appears that he reviewed the log book and the video, claimed to have watched every minute of the video, and declared that the video accurately reflected what had been recorded in the logbook.

Note, it is not clear from the unredacted materials whether he reviewed the guidance to the interrogators as to what they were supposed to be doing–even though that was purportedly one of the reasons he conducted the review.

It appears that PDF 33-37 is the interview report the Inspector General did with McPherson on June 17, 2003, after they had reviewed the torture tapes themselves in May 2003. 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.”

Furthermore, it appears to indicate that McPherson had not reviewed the guidelines given to the interrogators when he did his review.

When asked if it was consistent with guidance [redacted] would have to check guidance before answering.

In other words, his review did not do what it was purported to do. It did not review whether the interrogators were following guidelines.

After the initial December 2002 review, CIA gave clear instructions to the interrogators not to destroy or edit the tapes. However, it appears that the review–inasmuch as it didn’t reveal glaring concerns with the tapes and didn’t actually review whether the interrogators were following instructions–was largely a whitewash of the original tapes in an effort to green light their destruction.

Is John Durham Finally Done?

While we’re waiting to get the documents discussed in these NYT and WaPo and WSJ stories, in which (among other things) Dusty Foggo’s Deputy records that Porter Goss “laughed and said that actually, it would be he, PG, who would take the heat” about the destruction of the torture tapes, I wanted to look at this passage from the NYT:

One American official familiar with the matter cautioned that the e-mail messages were merely the account of one unnamed C.I.A. official, not the results of a formal investigation.

“It’s a little risky to draw cosmic conclusions from something like that,” he said.

And this similar passage, from the WaPo:

“There may have been some people who thought precise procedure wasn’t followed, but I haven’t heard of anyone who believed at the time that any law had been broken,” said a U.S. official familiar with the matter, speaking on the condition of anonymity to discuss the subject of an ongoing investigation. “That’s quite a different thing.”

I raise these quotes–dismissing the damning nature of the emails while suggesting they don’t amount to criminal activity–because these emails look like they could be some of the 13 documents John Durham withheld in the ACLU’s FOIA. For example, the documents described appear to be some of these documents.

Document 5, November 8, 2005, Request for approval to proceed w/authorization of tape destruction

This document is a one-page cable from the field to CIA Headquarters requesting permission to destroy 92 videotapes.

Document 2, November 9, 2005, Request approval to destroy field videotapes

This document is a fourteen-page email chain with six embedded cables. Three of the cables relate to the decision to destroy the 92 videotapes. The remaining cables discuss an unrelated counter-terrorism operation.

Document 4, November 9, 2005, Videotape destruction confirmation

This document is a one page cable from the field to CIA Headquarters, confirming the destruction of the videotapes.

Document 23, November 25, 2005, Short backgrounder of tape destruction

This is a three-page email chain that provides background information on the tape destruction.

I’m interested in whether these documents are the 13 documents, because Durham was withholding those until his investigation was finished. Which would sure suggest that Durham may be finished.

Now, Robert Bennett appears in all these stories talking about how Rodriguez should be treated as a hero for destroying these tapes. The quotes make Bennett sound almost desperate to defend his client. So maybe … just maybe … we’ll get an indictment over this.

Or the two officials quoted (perhaps they’re the same guy) are simply trying to tamp down expectations before John Durham announces all this was hunky dory.

One more thing. The WSJ version of the story notes that the CTC drafted the request to destroy the tapes on November 4.

More than a year later, on Nov. 4, 2005, the CIA’s Counterterrorism Center was asked to draft language requesting approval from Jose A. Rodriguez Jr., then chief of the agency’s National Clandestine Service, to destroy the tapes, the memorandum says. Mr. Rodriguez authorized the tapes’ destruction four days later, it says.

November 4 was the day after Leonie Brinkema asked the government whether it had any tapes of interrogations of various detainees, and the same day that a member of Congress wrote a letter to CIA’s IG (I suspect this was one of Jay Rockefeller’s requests to see the IG report on the tapes). It was just days after the Dana Priest article on the black sites. But I’m sure the timing is all a coinkydink.

Abu Zubaydah’s Drawings

Jason Leopold has a long article on Abu Zubaydah out that you should read in detail. It provides an update on AZ’s torture diaries (which his lawyer now has, though in untranslated form). And the tidbit that one reason officials are so worried about information on AZ coming out is that it’ll show the massive intelligence failure that resulted in the conclusion that he was a top al Qaeda officer.

These officials claim that while there is some concern within the Justice Department about the details of Zubaydah’s interrogations prior to August 2002 being revealed and leading to renewed calls for an investigation, there is greater unease with the fact that if the case moved forward it would expose the massive intelligence failure that took place in the last months of the Clinton administration and during George W. Bush’s first term that resulted in Zubaydah at one point being named the No. 3 official in al-Qaeda and one of the planners of the 9/11 attacks.

There’s also further confirmation that Mitchell and Jessen were conducting a human experiment on AZ, including testing how long a human could go without sleep.

For example, one current and three former CIA officials said some videotapes showed Zubaydah being sleep deprived for more than two weeks. Contractors hired by the CIA studied how he responded psychologically and physically to being kept awake for that amount of time. By looking at videotapes, they concluded that after the 11th consecutive day of being kept awake Zubaydah started to “severely break down.” So, the torture memo concluded that 11 days of sleep deprivation was legal and did not meet the definition of torture.

But I’m particularly interested in the degree to which AZ’s lawyer, Brent Mickum, seems to believe that John Durham is interested in AZ’s drawings of the torture done to him.

During a recent meeting with Durham, Mickum said he learned that the special prosecutor had obtained drawings during the course of his probe that Mickum believed were Zubaydah’s. In addition to the diaries, Mickum had previously sought from the Justice Department drawings Zubaydah made while in CIA custody. But the Justice Department told Mickum they could not locate the drawings.

“When I met with John Durham I discovered he had drawings, which, based on my review I believed were my client’s,” Mickum said. “The drawings were ultimately produced to us in late 2009.”

The Justice Department would not discuss the drawings, diaries, or other issues related to Zubaydah’s case.

Mickum said in lieu of the torture tapes, the drawings Zubaydah made contain the best description of the torture techniques CIA interrogators used against Zubaydah while he was being held at the agency’s black site prison facilities. Mickum said he could not disclose how many drawings Zubaydah made nor could he discuss the content.

“These are a good group of drawings and he is a pretty good artist,” Mickum said. “The depictions would be of interest. [Zubaydah] can draw and with great detail.”

This suggests two things. First, that until some time last year, DOJ claimed not to be able to locate drawings that had already been turned over to Durham for his investigation. And that those drawings may be detailed enough to clarify precisely what the torturers did to him when.

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.

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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