CIA Met with White House about How to Respond to Jane Harman’s Torture Warnings

After being briefed on February 5, 2003 that the CIA had used waterboarding and intended to destroy tapes depicting that torture, Jane Harman wrote CIA General Counsel Scott Muller a letter raising concerns. Harman warned CIA they should not destroy the torture tapes, whether or not they constituted an official record.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

And she asked directly whether President Bush had bought off on torture as a policy.

I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

In his response to her, Muller basically ignored her warning about the torture tapes. And he gave her a very indirect answer to the question that–under the National Security Act–she should have been able to get a direct answer on, whether or not Bush had signed off on the torture.

While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.

As it turns out, Scott Muller was not acting alone when he largely blew off Harman’s concern. Document 28 of the CIA’s Vaughn Index on the torture tape destruction reveals that CIA met with the White House about its response to Harman. (There’s also a one-page draft of the letter to Harman dated February 19.) The Vaughn Index describes the second email, which has the subject “Harmon Letter,” this way:

This is a one-page email, discussing a meeting between CIA and the White House regarding the CIA’s response to a congressional inquiry. The document also includes the draft text of a letter to Congress. This document contains information relating to the sources and methods of the CIA. The document also contains predecisional, deliberative information, CIA attorney work-product, and information provided by a CIA attorney to his client in connection with the provision of legal advice.

Thus, even though Harman’s letter and Muller’s response have been declassified, the CIA is claiming that we can’t know what Muller advised (himself? Bush? Tenet? Precisely who is the CIA General Counsel’s client, here?) about how to respond to Harman’s inquiry.

So we know that the White House weighed in on how to respond to Harman. We’re just not allowed to know how they weighed in.

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?

The CIA’s Five Lies

As a number of you have pointed out, the House Intelligence Committee have revealed preliminary results of its investigations into the CIA’s lies and found–wait for it–the CIA lies.

In a hearing of the House Intelligence committee this afternoon, Reps. Anna Eshoo and Jan Schakowsky, both Democrats, pointed to at least five instances going back to at least 2001 in which the C.I.A. withheld information from or lied to Congress.

Those five lies are:

  1. Lies about torture (to Pelosi)
  2. The assassination program that started this probe
  3. The Peruvian plane shoot-down that got Crazy Pete Hoekstra on board
  4. The destruction of the torture tapes
  5. ???

So, first of all, I’m wondering where number 5 is–I’ll follow up tomorrow on that. Was this hearing designed to let CIA know that HPSCI was going to reveal number 5, or did they do so today?

But I’m interested in the inclusion of the torture tape destruction. Is HPSCI asserting that CIA lied about the desruction of the tapes … which would imply that the Committee asked about it in the first place? (I’ll remind you that when the tapes were destroyed, Jane Harman was still on the committee making a stink about the CIA’s other lies about torture)? Or is the Committee just including the torture tape destruction as one misrepresentation among others?

Update: Here’s how The Hill describes it (and they, too, list just four lies).

In addition, the CIA may have failed to properly notify Congress about the 2005 destruction of videotapes recording the interrogation of al Qaeda operatives by intelligence officials, Eshoo and Schakowsky said.

CIA OIG’s Wild Parsing about What Was “Depicted” on the Torture Tapes

I wanted to point out a somewhat weedy detail about how the CIA IG Report describes the torture investigation as compared to how the CIA’s Office of Inspector General described that investigation in court filings last year.

As you’ll recall, after the CIA admitted to the destruction of the torture tapes in 2007, the ACLU filed to hold the CIA in contempt for not having revealed the existence of the torture tapes earlier in their torture document FOIA. In response, the OIG submitted a filing and a declaration describing why they hadn’t revealed the existence of the tapes.

The filing explained that CIA had no obligation to search its operational files in response to the ACLU’s FOIA unless those files had been the subject of an investigation.

Moreover, the videotapes were not responsive to Plaintiffs’ FOIA requests because the activities depicted on the videotapes were not the subject of a CIA OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by CIA OIG. Under the Central Intelligence Agency Information Act (“CIA Information Act”), the CIA’s operational records are exempt from search or review in response to FOIA requests unless an exception to the Act applies. One exception is where the records requested are the specific subject matter of an investigation by CIA OIG into allegations of impropriety or illegality in the conduct of an intelligence activity. 50 U.S.C. § 431(c)(3). Here, CIA OIG did not conduct an investigation into allegations of impropriety or illegality relating to the interrogations on the videotapes prior to their destruction. Therefore, the tapes were exempt from search and review in response to Plaintiffs’ FOIA requests up to the time of their destruction. [my emphasis]

And the declaration went on to make certain claims about the relationship between the CIA IG investigation and the subject matter of the torture tapes.

In January 2003, OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing.


At no time prior to the destruction of the tapes in 2005 did OIG initiate a separate investigation into the interrogations depicted on the videotapes.

Read more

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

Hiding al-Nashiri’s Torture

Less than a month after the NYT first revealed the CIA had destroyed torture tapes, I suggested that Doug Jehl’s November 9, 2005 story may have been the precipitating factor that led the CIA to destroy the torture tapes.

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

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

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


The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The agency said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." It reaffirmed that statement on Tuesday, but would not comment on any classified report issued by Mr. Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law.

The officials who described the report said it discussed particular techniques used by the C.I.A. against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world. They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the C.I.A. since he was captured in March 2003. Read more

NYT Neglects to Mention Foggo and the Torture Tapes

There’s a keystone to understanding the story from David Johnston (who frequently regurgitates highly motivated leaks) and Mark Mazzetti (CIA’s guy at NYT) on Dusty Foggo’s role in setting up the black sites run by the CIA: Foggo’s testimony in the torture tape investigation. Early this year, remember, DOJ and CIA told the ACLU that they couldn’t FOIA information pertaining to the disappearing torture tapes because John Durham’s investigation of their destruction was ongoing and would be for perhaps two more months.

And then, just as Dusty Foggo was about to go to jail, John Durham said he needed to interview Foggo. And since then, as far as we know, Durham’s investigation continues, now four months beyond when he thought he’d finish up. As recently as a month or so ago, Durham was flying people back from remote locations to appear before the grand jury. While we can’t be sure, it does seem likely that Foggo’s testimony provided new information that has sustained it.

And, thanks to Johnston and Mazzetti, we now know why Foggo would have something pertinent to say about the torture tapes–because he was the guy who set up the black sites. 

In March 2003, two C.I.A. officials surprised Kyle D. Foggo, then the chief of the agency’s main European supply base, with an unusual request. They wanted his help building secret prisons to hold some of the world’s most threatening terrorists.


“It was too sensitive to be handled by headquarters,” he said in an interview. “I was proud to help my nation.”

With that, Mr. Foggo went on to oversee construction of three detention centers, each built to house about a half-dozen detainees, according to former intelligence officials and others briefed on the matter.


Early in the fight against Al Qaeda, agency officials relied heavily on American allies to help detain people suspected of terrorism in makeshift facilities in countries like Thailand. But by the time two C.I.A. officials met with Mr. Foggo in 2003, that arrangement was under threat, according to people briefed on the situation. In Thailand, for example, local officials were said to be growing uneasy about a black site outside Bangkok code-named Cat’s Eye. (The agency would eventually change the code name for the Thai prison, fearing it would appear racially insensitive.) The C.I.A. wanted its own, more permanent detention centers.

Read more

ACLU Torture Tape Working Thread

New filings by the ACLU. Dissect and discuss.




CIA Sticks with Its Waterboarding Shiny Object Strategy

A month ago, I argued that the CIA was deploying a waterboarding "shiny object" strategy in its attempt to hide the details of the torture program that they otherwise eliminated by destroying the torture tapes–particularly, that torture started before OLC approved it, and that Abu Zubaydah had cooperated without torture, meaning their entire premise for torture was false.

The CIA was hoping–it appears–that its narrative that the torture tapes portrayed waterboarding, and that’s the big reason they were sensitive, would distract Hellerstein and the ACLU and therefore allow them to hide a slew of other information: the success of the FBI before Abu Zubaydah’s torture started, the torture that started before the OLC opinions were written (and the White House’s intimate involvement in approving the earlier torture), the role of contractors in the torture, the quality of intelligence they got using persuasive interrogation as compared to the quality of intelligence they got using torture, whatever happened in al-Nashiri’s waterboarding that led them to stop and even admit it didn’t work with him, whatever happened to Abu Zubaydah around October 11, 2002 that led them to take a picture of him, and the Inspector General’s reconstruction of the Abu Zubaydah’s interrogation (which should have been turned over in the first FOIA).


They submitted a filing in the case today that sticks with that same shiny object strategy. Of particular note, there’s a long paragraph that seems to be written for Mary personally. Mary always reminds us that you can’t use classification to hide an example of crime. The CIA responds, as if to Mary, that they couldn’t be hiding a crime because they already revealed all this stuff.

To the extent that plaintiffs argue that the intelligence methods in these documents are illegal and outside the scope of the agency’s authority, and thus are not properly classified, the interrogation and detention methods addressed in the documents were, until January 2009, within the CIA’s authority. See Executive Order 13491, 74 Fed. Reg. 4,893 (Jan. 22, 2009) (terminating CIA terrorist and detention interrogation program). Moreover, Section 1.7(a) of the Executive Order does not bar the Government from classifying information that might contain evidence of illegality, but rather bars the Government from classifying otherwise unclassified information “in order to”— i.e., for the purpose of—concealing violations of law. 68 Fed. Reg. at 15318. Read more

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