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.

When 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?

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.

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.

[snip]

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.

[snip]

Stated another way, the activities depicted on the videotapes that were reviewed in 2003 were not the specific subject matter of the OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by OIG. [my emphasis]

Yet here’s what the IG Report says about why it initiated an investigation.

In November 2002, the Deputy Director for Operations (DOD) informed the Office of Inspector General (OIG) that the Agency had established a program in the Counterterrorist Center to detain and interrogate terrorists at sites abroad ("the CTC Program"). He also informed OIG that he had iust learned of and had dispatched a team to investigate [redacted] In January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorized interrogation techniques with a detainee, ‘Abd Al-Rahim Al-Nashiri, at another foreign site, and requested that OIG investigate. Separately, OIG received information that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights. In January 2003, OIG initiated a review of Agency counterterrorism detention and interrogation activities [redacted] and the incident with Al-Nashiri. [my emphasis]

In other words, the IG Report says that DDO James Pavitt requested OIG investigate "allegations [of] unauthorized interrogation techniques" used on Rahim al-Nashiri. But we know al-Nashiri’s interrogations were taped.

So how in the hell was OIG claiming that the IG investigation was not"initiated in response to an allegation of wrongdoing," when the second paragraph of the report states that Pavitt asked OIG to launch the investigation because of an allegation of wrongdoing?

It sure sounds like a question ACLU might want to have OIG answer for Judge Hellerstein. But if I had to guess, I’d say the OIG was parsing wildly when it made this claim.

As the IG Report passage above makes clear, OIG set out to investigate two things: the abuse of al-Nashiri, and other abuses conducted (presumably) in Afghanistan. And I’m guessing they formulated their description of the investigation generally to shield these earlier complaints. The IG’s description of their investigation (included as Appendix A) seems to support that more general claim:

OIG tasked relevant components for all information regarding the treatment and interrogation of all individuals detained by or on behalf of CIA after 9/11. [my emphasis]

So in spite of the fact that the OIG says it was asked to investigate the al-Nashiri abuse and in response it launched this investigation, I’m guessing that the fact that they included all CIA interrogations in the scope of their review makes them think it’s cool to now claim specific allegations had nothing to do with it. 

And I suspect there’s another layer of wild parsing going on here. Twice, the OIG claims that the "interrogations" and "activities depicted on the videotapes" were not the "specific subject" of their investigation and/or were not the subject of a "separate" investigation. As I pointed out in March, the inventory suggests the  CIA used a different approach with taping al-Nashiri’s torture sessions than they used with Abu Zubaydah. With Abu Zubaydah, they taped and kept everything (aside from the tapes that were blank or broken by the time OIG got them); with al-Nashiri, they appear to have just cycled two (or three) tapes, rewinding and taping over earlier sessions with each session.

In other words, the only al-Nashiri interrogations "depicted" on the torture tapes were of the last several, the ones that never got taped over.

So while the OIG did, in fact, initiate the investigation in response to allegations of abuse that were taped on those videotapes, those abusive interrogations probably were no longer depicted on the tapes by the time OIG reviewed the tapes in May 2003.

Frankly, I suspect there is still more parsing going on. Given that OIG appears to have gotten Abu Zubaydah’s pscyhological profile as early as January 31, 2003, I suspect that Abu Zubaydah was rather more central to the investigation than the IG Report itself lets on. 

But for the purposes of this declaration, the OIG seems to be claiming that,

1. The torture tapes depict mostly Abu Zubaydah interrogations with just a few al-Nashiri interrogations
2. The investigation was not launched specifically in regards to the Abu Zubaydah (and few al-Nashiri) interrogation sessions depicted on the tapes
3. The investigation was launched in response to allegations of abuse of al-Nashiri that were no longer depicted on the tapes when the investigation was launched
4. But since the investigation was scoped much more broadly than focusing specifically on the abuses of al-Nashiri, even the fact that the abuse had been taped (but then taped over) doesn’t mean that OIG should have revealed the existence of the torture tapes.

And using this logic, CIA is hoping to avoid being held in contempt.

There’s one more thing, though. 

CIA’s OGC watched the video tapes in November and December 2002, before Pavitt asked OIG to investigate the abuse of al-Nashiri (one wonders if that’s when 11-plus tapes mysteriously became blank and broken).

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 DoJ guidance or the written record.

It appears there was a formal report from this review–because Jello Jay requested it, twice, before they destroyed the torture tapes in 2005.

In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005.

So where is this report and why didn’t CIA get that in a Vaughn Index?

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. Holder is said to have been closely engaged with three sets of documents—a group of memoranda from the Bush-era Office of Legal Counsel, since repudiated by the Justice Department; the report of the Office of Professional Responsibility on these memoranda, which has been on his desk, awaiting review and release for months; and the report of the CIA’s inspector general reviewing in great detail the actual techniques used, guidance given by the Justice Department, and results or lack of results obtained. 

Holder released the first set of memoranda and his Justice Department publicly suggested that it would release both the related report and the CIA inspector general’s report—often viewed as the Rosetta Stone of the torture controversy. As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented. [my emphasis]

Finally, recall that Holder announced the investigation only after the new head of the Office of Professional Responsibility recommended doing so.

The Justice Department’s ethics office has recommended reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases, potentially exposing Central Intelligence Agency employees and contractors to prosecution for brutal treatment of terrorism suspects, according to a person officially briefed on the matter.

[snip]

The Justice Department’s report, the most important since Mr. Holder took office, was submitted by Mary Patrice Brown, a veteran Washington federal prosecutor picked by Mr. Holder to lead the Office of Professional Responsibility earlier this year after its longtime chief, H. Marshall Jarrett, moved to another job in the Justice Department.

There has never been any public explanation of why the Justice Department decided not to bring charges in nearly two dozen abuse cases known to be referred to a team of federal prosecutors in Alexandria, Va., and in some instances not even the details of the cases have been made public.

[snip]

It has been known that the Justice Department ethics report had criticized the authors of the legal opinions and, in some cases, would recommend referrals to local bar associations for discipline.

But the internal inquiry also examined how the opinions were carried out and how referrals of possible violations were made — a process that led ethics investigators to find misconduct serious enough to warrant renewed criminal investigation. 

Now, I admit at the time that I thought Brown’s recommendation might have served as cover and nothing more. But consider what this means. Brown picked up the OPR investigation from Marshall Jarrett (whom Holder quickly sidelined to another office at DOJ). According to this NYT article, the investigation focused not just on the torture memos, but also how criminal referrals were made. And that’s the detail–at least according to the NYT–that led Brown to recommend Holder open up an investigation.

Something about the way the Bush lawyers referred these investigations led those investigations to end inconclusively–and it’s that something that Durham seems to have in mind as he pursues the torture violations themselves.

So maybe Wilkerson’s sources are right. Maybe Durham (and Brown and Holder) do have a plan.

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.

[snip]

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. Mr. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

I’ve seen the report’s publication date as either April or May 2004–but in any case, at almost exactly the same time CIA briefed Addington, Gonzales, and Bellinger on the torture tapes. Which makes Helgerson’s claim that he "reviewed the tapes at issue" during that period particularly interesting. Helgerson’s report–which focuses on the treatment of a number of named detainees–may have relied on those torture tapes to form the judgment that the CIA was engaged in cruel and inhuman treatment. In fact, it’s even possible that the CIA briefing in May 2004 pertained not just to Abu Ghraib (which was, after all, a DOD operation, not a CIA one), but also to the fact that the CIA IG had just declared in a written report that the tactics used (and presumably shown in the tapes) amounted to illegal treatment of detainees.

From Hosenball and Isikoff’s preview of Monday’s IG Report, it sounds like I was right.

Nashiri’s interrogators brandished the gun in an effort to convince him that he was going to be shot. Interrogators also turned on a power drill and held it near him. "The purpose was to scare him into giving [information] up," said one of the sources. A federal law banning the use of torture expressly forbids threatening a detainee with "imminent death."

According to the sources, the report also says that a mock execution was staged in a room next to a detainee, during which a gunshot was fired in an effort to make the suspect believe that another prisoner had been killed. The inspector general’s report alludes to more than one mock execution.

Before leaving office, Bush administration officials confirmed that Nashiri was one of three CIA detainees subjected to waterboarding. They also acknowledged that Nashiri was one of two al Qaeda detainees whose detentions and interrogations were documented at length in CIA videotapes. But senior officials of the agency’s undercover operations branch, the National Clandestine Service, ordered that the tapes be destroyed, an action which has been under investigation for over a year by a federal prosecutor.

Not only did al-Nashiri’s torturers laugh in his face, the wielded a drill and a gun to make him falsely confess that al Qaeda had nukes.

I can see why they couldn’t let tapes of that lie on a shelf. 

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.

[snip]

“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.

[snip]

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.

So sometime after Abu Zubaydah and Rahim al-Nashiri were taped being tortured, after the taping was stopped, and almost precisely when Khalid Sheikh Mohammed was being waterboarded, "two CIA officials" (the detail is repeated twice in the story) came to Foggo and asked him to set up black sites around the world.

And, Foggo’s helpfulness on this task appears to be one of the reasons why Foggo was promoted.

Mr. Foggo’s success in Frankfurt, including his work on the prisons, won him a promotion back in Washington. In November 2004, he was named the C.I.A.’s executive director, in effect its day-to-day administrative chief.

Of note, Foggo was promoted at a time when Porter Goss was DCI and Jose Rodriguez (who was head of counter-terrorism when Foggo took on the task of setting up the black sites and therefore a superb candidate to be one of the two people who asked him to do so) was Deputy Director of Operations.

And then, in 2005–the same year that Jose Rodriguez would have the torture tapes destroyed and Porter Goss would unexplicably fail to stop him from doing so–Foggo went to the black sites with John Rizzo and others.

In 2005, before he came under investigation, Mr. Foggo and other officials, including John Rizzo, the agency’s top lawyer, paid a rare visit to some of the prison sites, assuring C.I.A. employees that their activities were legal, according to former intelligence officials.

John Rizzo, btw, was pressuring others at CIA to make sure that Foggo’s mistress kept a job as a CIA lawyer she was not doing competently.

So let’s see:

2002: Torture tapes made

2003: Foggo recruited to set up black sites

2004: Foggo promoted unexplicably after some politicized firings

2005: Foggo and Rizzo and others visit the black sites to calm the host countries

2005: Dana Priest does a story exposing the black sites and, within days, the torture tapes are destroyed

It’s all beginning to make some sense now.

Oh, and one more thing. In an affidavit submitted in support of Foggo’s sentencing that would otherwise serve no purpose in the severity of Foggo’s sentencing, Porter Goss claimed he didn’t know that Foggo was an ethical and counterintelligence nightmare when he promoted him in 2004. But, Laura Rozen reported, that claim was an out and out 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." So they both got fired. [my emphasis]

Oh boy. Things are getting clearer and clearer.

So Goss–installed at CIA to be Cheney’s mole–fired the people who were trying to prevent him from promoting Foggo. The next year, Foggo was traveling with other high level CIA people to calm the torture site hosts. That same year, the torture tapes were destroyed. Then the following year, Foggo became a problem in the Cunningham aftermath. And Foggo and Goss got fired as a result. And, at the one time Goss had an opportunity to make a statement about his role in all this, he allegedly lied about knowing Foggo and all his problems (and, of course, all the skills that led people to ask him to set up the black sites in the first place). 

Interesting. Very very interesting.

New filings by the ACLU. Dissect and discuss.

Here

and

Here.

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).

SHINY OBJECT!! WATERBOARDING!!!

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. Here, the details of the EITs have already been released in the context of the OLC memoranda. Thus, the CIA’s classification of these operational documents was not intended to conceal any illegal activity, as the activity itself has already been disclosed.

They made this argument even after repeating, several times, Leon Panetta’s all-but admission that the techniques in practice exceeded the techniques as authorized. 

As the Court knows, on April 16, 2009, the President of the United States declassified and released in large part Department of Justice, [OLC] memoranda analyzing the legality of specific [EITs]. As the Court also knows, some of the operational documents currently at issue contain descriptions of EITs being applied during specific overseas interrogations. These descriptions, however, are of EITs as applied in actual operations, and are of a qualitatively different
nature that then EIT descriptions in the abstract contained in the OLC memoranda. As discussed below and in my classified declaration, I have determined that information . . . concerning application of the EITs must continued to be classified TOP SECRET, and withheld from disclosure in its entirety under FOIA Exemptions b(1) and b(3).

That of course doesn’t make sense! They can’t logically argue that the techniques have already been exposed, and therefore obviously they’re not claiming they’re still classified to hide evidence of a crime, but then say they have to keep the techniques as practiced hidden, because …

Because, we all know, the techniques as practiced are evidence of a crime.

And then, of course, there’s the problem of timing and the representations made in the OLC memos. If the documents in question show–as they almost certainly do–that CIA was engaging in torture before the OLC memos were written, or if the CIA documents show–as they almost certainly do–that the claims made in the OLC memos were false, then the fact that the OLC memos later went on to approve the torture based on false assumptions means that their claim that this was authorized until January 2009 fall apart temporally (it wasn’t approved yet) and logically (and not given what we know about Abu Zubaydah). 

The brief then goes onto list a bunch of cases in which judges ruled there was no evidence that the agency was trying to hide a crime, and conclude, all pat like, that given the presumption, generally, of good faith, there’s no evidence in this case that CIA had an improper motive for keeping this stuff classified.

For all of these reasons, there is no evidence that the CIA had an improper motive in classifying the operational documents currently at issue before the Court. Accordingly, the CIA properly withheld these operational documents in full under Exemption 1.

As a gentle reminder, this litigation is about whether the CIA should be held in contempt because they destroyed the videos showing these activities!! Destruction that a Special Counsel has spent 18 months, thus far, investigating.

But, nonetheless, the CIA insists that there’s no bit of evidence that the CIA is trying to hide a crime.

This whole argument is falling apart, and that’s even before ACLU picks it apart in their response brief (due in a couple of weeks). 

But at least they responded (ha!) to Mary’s biggest objection.

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. It also wants to anticipate information that is going to come out one way or another–such as the involvement of contractors in the torture–so it can reveal that information now, in controlled fashion, and appear to be cooperative with the FOIA request. It has to cooperate but–assuming some of this information might support a contempt finding–not too much.

After the John Durham stall tactic finally stopped working in March, and after the CIA produced really redacted information on the torture tapes (thereby sort of complying with item 1 of Hellerstein’s order),  the CIA then submitted a list to Hellerstein of what it had that complied with items 2 and 3 on March 26. The very next day, having reviewed the materials, Hellerstein ordered the government to put together a schedule for FOIA production of this material by April 9, and production starting a month later. The government’s April 9 workplan and its first Vaughn Index (which I’ve called Vaughn A) was an attempt to look really compliant quickly. And that’s where they started getting cute. The April 9 workplan basically offered to produce:

• A "Vaughn-like" index, but not a Vaughn Index
• Information on the cables for August, but not for April through August and September through December (thereby excluding most of the contents of the destroyed torture tapes)
• Information on Abu Zubaydah but no information on Rahim al-Nashiri
• No "derivative" documents, which it is now clear would include documents generated during the IG investigation (and which therefore should have been revealed in the first round of FOIA)

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).

SHINY OBJECT!! WATERBOARDING!!!

Only, it didn’t work. The ACLU called bull on April 10, the release of the torture memos on April 16 mooted many of their arguments, Hellerstein called bull on April 20, and ordered the government to come up with something a bit more responsive. 

Nevertheless, when CIA submitted its first Vaughn Index on May 1, it was still, significantly, telling its shiny object story. This was compliance that focused exclusively on the two weeks after the Bybee Two memo authorized waterboarding. So it effectively revealed the degree to which the interrogators were deliberating on a daily basis with folks in Langley and DC–why not?? That deliberation might make waterboarding look more careful. It also appears that, with its personnel-related FOIA exemption, the CIA might have been admitting that others besides CIA personnel were at the torture sessions; though they appear to have avoided confessing to the role of contractors.

But per Hellerstein’s April 20 order, the CIA had to submit a second round of documentation, this time covering the full range of dates that the torture tapes had captured, as well as the "derivative" information that should have been identified originally.

And in the interim period, a number of new details came out. Significantly, on May 13, Ali Soufan testified to Congress that contractors had led the interrogations. And on May 20, Ari Shapiro reported that Alberto Gonzales was approving interrogation techniques in response to cables on a nearly-daily basis. And the CIA probably has a good idea of what will be in the OPR report, due out any day.

And so we get the Vaughn Index released the other day. Panetta’s declaration makes a couple of big new admissions: Contractors were present at the interrogations, and someone at NSC, rather than George Tenet, made this program a special access program. But the new materials continue to hide the following evidence that might support a contempt citation:

• Details about the interrogations from May (May overall was undersampled, particularly from May 14 through 23) 
• Deliberative discussions that took place before August (which might include the approval of torture before the OLC memos)
• The degree to which torture, as practiced, exceeded the torture as authorized 
• Mistakes the CIA made about Abu Zubaydah’s identity
• The extent to which FBI interrogators got more and better intelligence than the CIA contractors
• Someone’s–perhaps the Inspector General’s–reconstruction of the timeline concerning the torture
• Interview records from both the Inspector General’s investigation or the early CIA response to revealing the torture tapes had been destroyed

Perhaps most telling, the CIA undersampled in May and did not turn over any of four timelines and six notes/outlines (which I suspect were part of the IG investigation), but included in Vaughn B two totally decontextualized descriptions of waterboarding (and mark my words–I bet the CIA will soon agree to hand those over to prove its cooperation).

SHINY OBJECT!! WATERBOARDING!!!!

The CIA still wants to pretend this is all about waterboarding. But it is increasingly clear that it is about the things CIA did in May and June, the high level authorizations for it, the success of the FBI, and the completely false claims they used to later authorize their torture.

The torture tapes were destroyed not because they showed OLC-authorized waterboarding. They were destroyed (among other reasons) because they proved that the foundation of our torture program was a lie. And the CIA is still trying to hide that fact from Judge Hellerstein.