So sayeth one of Pincus and Warrick’s two sources describing the content of John Rizzo’s testimony. Mind you, that source remains anonymous, because "those in attendance were pledged to secrecy about the session." Of course, that didn’t prevent Crazy Pete Hoekstra from blabbing to the NYT and others about it, but he’s never believed that laws on secrecy should apply to him as well as staffers. Though, since I beat up Pincus yesterday for helping Bennett tamper with this investigation, let me just say that he offers, by far, the most interesting tidbit about Rizzo’s testimony.

Two of those at the hearing said that Rizzo said that after the tapes were made in 2002, lawyers at the CIA discussed the possibility that the FBI and the 9/11 Commission might want to see them.

If Rizzo has testified that lawyers at the CIA knew the 9/11 Commission might want to see the terror tapes, it strongly reinforces Tom Kean and Lee Hamilton’s claim that,

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

In fact, lawyers at the CIA knew that the 9/11 Commission would want to see these specific tapes. Which I guess is why George Tenet has lawyered up.

Meanwhile, the battle between Rodriguez, Rizzo, and Goss seems to be heating up. Bob Bennett specifically named Rizzo and Goss to the NYT as those who should have told Rodriguez to retain the tapes.

“Nobody, to our knowledge, ever instructed him not to destroy the tapes,” Mr. Bennett said. “Had the director or deputy director or general counsel told him not to destroy the tapes, they would not have been destroyed.”

Though, as the NYT points out, Rodriguez didn’t seek their permission specifically.

Mr. Bennett acknowledged that Mr. Rodriguez did not seek permission from Mr. Rizzo, Porter J. Goss, then the C.I.A. director, or from any other C.I.A. official before giving the destruction order.

I suspect this is where we get back into questions of timing–including Pincus’ love letter to Bennett, which neglected to date the request from the Thai Station Chief to destroy the tapes. That’s because, for some reason, Porter Goss was discussing the torture tapes with John Negroponte in summer 2005, and Negroponte told Goss, in apparently clear terms, that he should not destroy those tapes. Was that conversation related to the Thai Station Chief’s request? Rodriguez and Goss appear to be banking that they’ll be able to prove an interrupted chain of command between them, yet then why was Goss discussing the torture tapes with Negroponte in the first place?

It sure seems like we ought to be hearing about Porter Goss being asked to testify to Congress. But strangely, for all Crazy Pete’s blabbing, he doesn’t seem to be talking about getting Goss to testify.

One more point about timing. I noted yesterday that Warrick and Pincus’ sources, at least, appear to be obscuring a meeting involving Harriet Miers regarding the tapes, a meeting that almost certainly took place in 2005 when she was White House Counsel. Which is why this comment is so curious.

One of the two sources present said that White House officials did not seem as involved "as they might have or should have been" in 2005 decision making about the tapes.

How is it that folks are determining the involvement of the White House in 2005? Because there seems to be some fudging of facts about it, and I have a suspicion that there is White House involvement in 2005 that we’re not hearing about.

Remember how I suggested that this passage from Pincus’ love letter to Bob Bennett and his client Jose Rodriguez might be targeted to (among others) Porter Goss and John Rizzo?

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

Well, here’s what Rizzo had to say to that.

 "I told the truth," Rizzo said in a brief appearance before reporters.

Which doesn’t sound like it was all too helpful for Rodriguez’ little story.

A congressional official who spoke on condition of anonymity because of the ongoing investigation said the document trail the committee is following strongly suggests Rodriguez knew destruction would be against the advice and wishes of his superiors.

"If you look at the documents, you get very close to a direct order (not to destroy the tapes) without it being, ‘Jose, you’re not going to do this,’" the official said.

Another committee official said the guidance to maintain the tapes might have been even more direct.

"The line we got today was you are not going to destroy these, but it does not say you would be breaking the law if you destroy these," the second official said.

The first official said the committee will try to determine whether any CIA officials suggested "with a wink and a nod" that the tapes should be destroyed, and whether Rodriguez was being forced to take the blame.

Rizzo told the committee that CIA lawyers wrote a memo that said destroying the tapes would be legal. Rizzo advised against it. Then-CIA Director Porter Goss also recommended against the tapes’ destruction, said the official, information confirmed by several former intelligence officials who spoke on condition of anonymity because of an ongoing Justice Department criminal investigation into the matter.

Not that I trust either Rizzo or Goss, because I don’t–I just think they’re working the press than Rodriguez, even with Bob Bennett’s expert assistance. But it does seem clear that Rodriguez didn’t even hold up his end of the bargain that Rizzo and Goss struck with him.

At the meeting it was decided that Rizzo would inform White House counsel Harriet Miers, Rodriguez would tell the leaders of the intelligence committees on Capitol Hill, and Goss would inform the director of national intelligence, according to former intelligence officials.

But intelligence committee leaders said they were not informed until more than a year later.

That seems like a great way to piss off Congress–though I’m not convinced that Goss told DNI Negroponte either, from the sounds of Negroponte’s apparent leaking about the letter he sent to Goss. And while we’re talking about secrets people were keeping, if Rizzo was tasked to tell Harriet after the tapes were destroyed, it sure seems like he would have met with her beforehand to discuss the terror tapes, too, as I speculated earlier.

At this point, I’m really unimpressed that HPSCI has made no noises about subpoenaing Goss. Yeah, I know he’s a former colleague. Does that mean he’s immune from your oversight? Because he sure seems like someone who was at the center of destroying tapes that everyone told him not to destroy. And it sure seems like he was ignoring a great deal of direction when he let Rodriguez destroy the tapes.

I’ve long suspected that the GOP has used the Counter-Intelligence Field Activity (CIFA) as a way to spy on domestic enemies even while making their friends rich. CIFA is the organization that collected information on both Jesus’ General and Quakers, then stuck it into a database without following requisite privacy protections. And then, when Congress and the Carol Lam started focusing on CIFA, its database on private citizens got quickly disappeared.

70% of its staff are contractors. And one of the early CIFA contractors was the company of Mitch Wade–Duke Cunningham’s briber–MZM.

Which is why I noted, back in May 2006, that CIFA seemed like a huge improvement (from a Republican perspective) on Nixon-era domestic spying.

Back when Nixon was spying on his enemies, he used the agencies of the US government. He was using civil servants subject to congressional oversight to do his dirty work. But the newfangled Republican party learned in Iran-Contra that, if you outsource the dirty work far enough, you’re more likely to avoid the oversight that will lead to discovery.

[snip]

So let me connect the dots here. Republican legislators have set up this nifty scheme, whereby their buddies ply them with golf trips, swank real estate deals, and prostitutes. In exchange for that booty, they give their buddies contracts at Defense or Homeland Security or CIA. Spying contracts. Under those spying contracts, the buddies spy on American citizens, even funny bloggers and peaceniks. And although it is known that these buddies are a little sloppy with the way they spy on American citizens, they continue to get more work.

Now, as I said, back in 2006, as the whole Cunningham scandal was erupting, all of a sudden people decided it might be good to start exercising some oversight over CIFA. The Cunningham investigation extended to Wade’s contracting on CIFA. Congress held some hearings. More interestingly, Stephen Cambone claimed to lead an inquiry.

Undersecretary of Defense Stephen A. Cambone has ordered an internal study of how funding earmarked in a bill by then-Rep. Randy "Duke" Cunningham (R-Calif.) led to contracts for MZM Inc. to do work for the Pentagon’s newest intelligence agency, the Counterintelligence Field Activity, a Defense Department spokesman said.

[snip]

Cmdr. Greg Hicks, a Pentagon spokesman, confirmed yesterday that Cambone has ordered an internal inquiry. Hicks said he was "unable to comment on MZM contracts or related matters since they are the subject of ongoing investigations by the appropriate organizations in the department and the U.S. government."

Hicks added that Cambone’s request to CIFA focused on the undersecretary’s "desire to understand the temporal relationship between the congressional earmark and contract actions taken by the department."

But oversight over CIFA hasn’t gotten any better. Significantly, CIFA is one of the DOD agencies that insists its budget cannot be made public in the new USASpending.gov.

Several defense intelligence agencies will withhold unclassified information about their contracts from a new public database of government spending.

The new database at USAspending.gov is intended to provide increased transparency regarding most government contracts.

But when it comes to intelligence spending, there will actually be a net loss of public information because categories of intelligence contracting data that were previously disclosed will now be withheld.

The Defense Intelligence Agency (DIA), the National Geospatial-Intelligence Agency (NGA), and the Counterintelligence Field Activity (CIFA) argued that online disclosure of their unclassified contracts could present an operational security vulnerability.

"I appreciate your concerns that reporting these actions to the publicly accessible website could provide unacceptable risk of insight to your individual missions and budgets," wrote Shay D. Assad of the Under Secretary of Defense in a December 7 memorandum (pdf).

Which makes it all the more interesting that Stephen Cambone–the guy who feigned concern over the contracting habits of CIFA and launched an apparently bogus DOD inquiry–just scored a new contract with CIFA.

On January 7, QinetiQ (pronounced “kinetic”) North America (QNA), a major British-owned defense and intelligence contractor based in McLean, Virginia, announced that its Mission Solutions Group, formerly Analex Corporation, had just signed a five-year, $30 million contract to provide a range of unspecified “security services” to the Pentagon’s Counter-Intelligence Field Activity office, known as CIFA.

[snip]

The new CIFA contract with QinetiQ expands work that Analex has provided CIFA and its various directorates since 2003. Under its first contract, according to the QinetiQ website, Analex staffers were sifting through information “from traditional to non-traditional providers, ranging from unclassified through top secret classification using sophisticated information technologies and systems specifically designed by CIFA analysts.”

The CIFA contract was awarded just two months after QinetiQ hired Stephen Cambone, the former undersecretary of defense for intelligence and a longtime Rumsfeld aide, as its vice president for strategy. Cambone is the most senior of a savvy group of former high-ranking Pentagon and intelligence officials hired by QinetiQ to manage its expansion in the U.S. market. (See boxes.)

While he was at the Pentagon, Cambone oversaw CIFA and was deeply involved in the Pentagon’s most controversial intelligence programs. [my emphasis]

So now we’ve got GOP cronies, in the employ of foreign companies, winning contracts from agencies they set up themselves.

Agencies that spy on American people.

I’ve already ranted about how irresponsible it was for Walter Pincus and Joby Warrick to publish Bob Bennett’s statement on behalf of Jose Rodriguez–a statement that Rodriguez refused to give under oath without immunity–on the same day that John Rizzo testifies before Congress. Nothing like assisting the obstruction of an ongoing investigation. But now that I’ve done my ranting (and enjoyed the sun), here is another rant about the dubious timeline offered in Pincus and Warrick’s article.

The article alternates between vague and specific in curious fashion. For example, the article specifies that the taping started in August and ended in December 2002.

According to interviews with more than two dozen current and former U.S. officials familiar with the debate, the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.

That detail directly contradicts the date offered in the CIA’s previous attempt to straighten out its story on the terror tapes, which claimed the taping started in spring 2002.

If Abu Zubaydah, a senior operative of Al Qaeda, died in American hands, Central Intelligence Agency officers pursuing the terrorist group knew that much of the world would believe they had killed him.

So in the spring of 2002, … they set up video cameras to record his every moment: asleep in his cell, having his bandages changed, being interrogated.

Now, there are two big reasons why the CIA might want to change that date. First, the CIA wasn’t authorized to torture until August 2002–so the later date magically makes any torture that happened legal, at least according to OLC. In addition, we know that Abu Zubaydah identified Padilla in the first several weeks of his captivity. By claiming no tapes were taken before August, the CIA pretends that any claim from Padilla regarding the tapes is irrelevant, since (if they really weren’t taken until August), the tapes would have no evidence relevant to Padilla’s case.

But here’s the problem with the new dates, beyond just the contradiction with the CIA’s earlier story: the CIA still wants you to believe they took the tapes to prove they weren’t killing Abu Zubaydah. But by August, he had already been under medical treatment for four months, presumably well beyond the time they needed to prove they weren’t killing Zubaydah.

And the changing date is all the more suspicious since Zubaydah’s health remains one of the chief reasons the WaPo’s sources give for stopping the taping.

By December 2002, the taping was no longer needed, according to three former intelligence officials. "Zubaida’s health was better, and he was providing information that we could check out," one said.

If the tapes were precipitated on Zubaydah’s health, then why didn’t they start until August, according to this latest iteration of the CIA story?

Interestingly, the article suggests another possible reason why the taping ended in December 2002: the departure of Cofer Black from the CIA.

… after the Sept. 11, 2001, terrorist attacks, [Jose Rodriguez] was promoted to deputy director of the fast-expanding counterterrorism center. He served under the center’s director then, J. Cofer Black, who had been his subordinate in the Latin America division.

When Black — who played a key role in setting up the secret prisons and instituting the interrogation policy — left the CIA in December 2002, Rodriguez took his place. Colleagues recall that even in the deputy’s slot, Rodriguez was aware of the videotaping of Zubaida, and that he later told several it was necessary so that experts, such as psychologists not present during interrogations, could view Zubaida’s physical reactions to questions.

Note that the taping started when Black was director of CTC, but ended when Rodriguez–the same guy who would eventually order their destruction–took over as director. And, at least according to Bennett’s statement for Rodriguez (which of course Rodriguez refused to give under oath), "the CIA" wanted to destroy the tapes as early as 2002, conveniently less than a month before the CIA IG investigation began.

But Rodriguez’ attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

Though I’m not sure I buy it, particularly given the squirrelly way they refer to the CIA IG investigation, which we know started before the CIA informed Congress that they were going to destroy the tapes.

An internal probe of the interrogations by the CIA’s inspector general began in early 2003 for reasons that have not been disclosed. In February of that year, then-CIA General Counsel Scott W. Muller told lawmakers that the agency planned to destroy the tapes after the completion of the investigation. That year, all waterboarding was halted; and at an undisclosed time, several of the inspector general’s deputies traveled to Bangkok to view the tapes, officials said. [my emphasis]

Pincus, don’t you think you could have pushed Bennett to ask Rodriguez why that IG investigation got started if you were going to do him the favor of helping to obstruct the investigation into the torture tape destruction? At least according to the IG, their investigation began in January, perhaps just weeks or even days after the claimed "December" intention to destroy the torture tapes. And not like it matters, but OIG says they saw the torture tapes in May.

The vagueness surrounding dates regarding the OIG investigation that are already (albeit just recently) in the public domain suggests that Pincus and Warrick didn’t talk to anyone in IG–presumably part of the anti-torture CIA faction–for their story. Which might be why this story makes absolutely no mention that the report concluded that the interrogations might be illegal.

Note to journalists covering this story: the one thing that can discredit you almost as much as printing up a witness’s statement that he refuses to give under oath in perfect timing to align testimony with another witness, it’s to ignore the CIA IG report and its conclusion that seems to be at the center of the decision to destroy the tapes. Just as an example, when you discuss the events surrounding the May 2004 discussion over whether to destroy the tapes or not, you might mention that the CIA IG had just concluded that the interrogation program might violate the law.

In May 2004, CIA operatives became concerned when a Washington Post article disclosed that the CIA had conducted its interrogations under a new, looser Bush administration definition of what legally constituted torture, several former CIA officials said. The disclosure sparked an internal Justice Department review of that definition and led to a suspension of the CIA’s harsh interrogation program.

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

And while I’m not certain, I think that that May 2004 is actually the June 8, 2004 WaPo article revealing the contents of the Bybee memo–which wouldn’t have factored into the reported May briefing at the White House, but which would have alerted the CIA that people–probably within the CIA–were leaking the justifications for torture, presumably in an attempt to get the CIA out of the torture business.

Also, that claim that the White House was involved in discussions about destroying the tapes just twice? That’s impossible, given other details in the story. Given the description above, the discussions with the White House would have included the May 2004 briefing, and another one that happened before Scott Muller left in July 2004 (it was probably in February 2003, since I doubt CIA would tell Congress it was destroying tapes without first alerting the White House). But if that’s true, and those were the only two briefings the White House participated in, then this statement cannot also be true.

Those known to have counseled against the tapes’ destruction include John B. Bellinger III, while serving as the National Security Council’s top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA’s general counsel; and John D. Negroponte, while serving as director of national intelligence. [my emphasis]

Harriet did not become White House Counsel until late 2004, after Muller had already left the CIA. So if she participated in discussions about the torture tapes as White House Counsel, then there was at least one more discussion involving the White House before the tapes were destroyed.

One final detail about the timeline presented in the WaPo story. Note how vague it is regarding precisely when the Thai station chief asked to destroy the videotapes.

In late 2005, the retiring CIA station chief in Bangkok sent a classified cable to his superiors in Langley asking if he could destroy videotapes recorded at a secret CIA prison in Thailand that in part portrayed intelligence officers using simulated drowning to extract information from suspected al-Qaeda members.

I find that particularly curious, since the next precipitating factor for the destruction of the tapes is the appointment of Porter Goss and the assumption, by John Rizzo, of the acting Counsel role, both events that happened in 2004.

The CIA had a new director and an acting general counsel, neither of whom sought to block the destruction of the tapes, according to agency officials. The station chief was insistent because he was retiring and wanted to resolve the matter before he left, the officials said. And in November 2005, a published report that detailed a secret CIA prison system provoked an international outcry.

Now, I suspect these details come from Jose Rodriguez (have I mentioned that he wouldn’t testify to these details under oath?) so who knows how reliable they are. The detail about Goss and Rizzo might be an attempt to throw blame their way, as this statement from appears to do as well.

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

And the three factors Bennett lists for Rodriguez’ decision to finally order the tapes be destroyed obscure the congressional debate on torture, the multiple court orders and 9/11 Commission inquiries regarding torture tapes, and the ongoing leaks from the CIA anti-torture faction. All of which suggests the timeline–the entire timeline, with all its contradictions and vagueness–is suspect.

Hey, what do you know? The White House still sufficiently recognizes the third branch of government to respond to a judge’s request regarding all its lost emails. And as I suspected, the answer to whether or not the back-up tapes for White House emails include the emails not properly archived between March 2003 and October 2005 is, partly, "no." As the CIO of the Office of Administration, Theresa Payton, explains, the White House recycled its backup tapes up until October 2003, so it would not have any missing emails from March 2003 (the beginning of the period when the emails started going missing) and October 2003 (the period when the OA stopped recycling its backup tapes).

Prior to October 2003 and continuing through 2005 and to the present, this office has regularly created back-up tapes for the EOP Network, which includes the system’s email servers. Consistent with industry best practices relating to tape media management for disaster recovery back-up systems, these tapes were recycled prior to October 2003. In October 2003, this office began preserving and storing all back-up tapes and continues to do so.

But watch how Payton pretends that this doesn’t mean the White House might be missing a chunk of emails.

For that reason [the post-October 2003 preservation of backup tapes], emails sent or received in the 2003-2005 time period should be contained on existing back-up tapes.

[snip]

…in view of this office’s practice in the 2003-2005 time period of regularly creating back-up tapes for the EOP Network, which includes servers containing emails, and in view of this office’s practice of preserving all such back-up tapes from October 2003 to the present, the back-up tapes should contain substantially all the emails sent or received in the 2003-2005 time period.

As everyone who has read this can understand clearly, Payton’s statement doesn’t mean what it says. Rather, it is an admission that the White House may well be missing emails written or received between March 2003 and October 2003.

Such a misleading response is only one of the ways in which this response is disingenuous.

Payton explains in her statement that she has been CIO since May 2006–more than six months after the disappearing emails stopped disappearing, and two months after Fitzgerald received the missing OVP emails. Since Payton wasn’t present for this documented example of email recovery, she can speak in hypotheticals about the whole process, even while she appears to admit that the tapes have been used to restore data in the past.

The back-up tapes have been used to restore information that is not otherwise available on the EOP Network. When applied to email recovery, the process is complex, labor intensive and costly. By way of hypothetical example, a request to recover a specific file(s) from a particular date or date range within the period of 2003-2005 would be forwarded to the OCIO [that is, to Payton]. The OCIO would then ordinarily consult a media database, similar to a catalogue or back-up tape index, to identify a range of tapes that correspond to that request. In this process, the OCIO may pull tape sets backed up prior to and/or subsequent to the target date period to ensure they have the full population of potential tape sets that may contain the requested file. Additionally, the OCIO would then restore the data-type environment, applicable software, and/or information, and then conduct a search for the information requested. [my emphasis]

Mind you, Payton isn’t admitting this has been done (I’m not sure it has, but it seems likely it was in the Plame case), she’s just speaking hypothetically.

But the real disingenuous stance she takes has to do with her treatment of CREW’s claim that a bunch of email has disappeared. Payton writes,

I am aware of a chart created by a former employee within the OCIO that purports to identify certain dates and EOP components for which the chart’s creator appears to have concluded that certain EOP components were missing emails on certain dates in the 2003-2005 time period. Specifically, the chart appears to have concluded that some components on some dates had either (i) a lower-than-expected number of emails preserved in the normal electronic archiving process, or (ii) no emails preserved in the normal electronic archiving process. I believe this is what Plaintiffs refer to as the "detailed analysis."

The OCIO has reviewed the chart and has so far been unable to replicate its results or to affirm the correctness of the assumptions underlying it. Accordingly, this office has serious reservations about the reliability of the chart.

But here’s how CREW describes this "chart."

… when the problem was uncovered the White House Office of Administration created abundant documentation that included multiple estimates of the volume of missing email, not a single chart that the White House now suggests is the only documentation. Could it be that having now destroyed the evidence documenting the missing email problem, the White House feels free to retreat from its acknowledgment to Mr. Fitzgerald that White House emails are missing? [my emphasis]

Lucky for us (ha!), Payton assures us she will shortly complete her own review.

…this office has undertaken an independent effort to determine whether there may be anomalies in Exchange email counts for any particular days resulting from the potential failure to properly archive emails for the 2003-2005 time period. That process is underway and we expect the independent assessment to be completed in the near term.

At the very least, the judge should ask for this review as soon as it is completed (heck, a deadline would be nice–after all, the White House responded the last time it got a deadline from this judge), as well as the name of the former employee who put together the "chart" in the first place.

I’d also love to have CREW ask whether Payton’s assertions about the Executive Office of the President (EOP)’s emails hold true, as well, for OVP’s emails, because Payton engages in some squirminess about Dick’s emails. In her general description of the OCIO’s duties, Payton explains that it serves both EOP and OVP.

The OCIO, which is an operating unit of OA, provides around-the-clock customer service for all EOP components and the Office of the Vice President, consisting of more than 3000 users and customers, in excess of 200 servers, and over 100 applications.

This seems to suggest that she considers (as the White House has, at times, to protect Dick) OVP a separate entity from EOP. That’s curious because the rest of Payton’s assertions about the treatment of email backups refer to the "EOP network." Has OCIO been backing up Dick’s emails in the same way it does Bush’s?

For all its disingenuousness, Payton’s statement is useful for one reason. It pinpoints the date when, if these emails and backups were deliberately deleted, that deletion was done: no later than October 2003. Which, of course, happens to be when DOJ started investigating the Plame leak.

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

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

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

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

[snip]

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

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

Much as I love Walter Pincus and usually respect Joby Warrick’s work, this article is no better than the Steno Sue and Pool Boy article that appeared on the day Judy Miller testified, outlining in detail how Scooter Libby would like her testify. Pincus and Warrick allowed themselves to be used by Bennett (who, incidentally, was apparently leaking strategic bullshit to Pincus back in the Iran-Contra days, too–see Firewall, p. 422) to present his client’s perspective after that client refused to go before Congress and present that perspective under oath. The article basically allowed John Rizzo and Jose Rodriguez to coordinate the stories they’ll tell to Congress and John Durham, which may well have hurt the chances that either Congress or John Durham will be able to get to the truth about the terror tapes.

Jeebus, Pincus. Congress, thus far, appears to have learned the lesson of Iran-Contra, not to taint criminal investigations by offering immunity willy-nilly. But here you are, more than fifteen years later, doing Bob Bennett’s dirty work once again.

The CIA has responded to ACLU’s motion to hold the CIA in contempt for destroying the terror tapes. They argue they shouldn’t be held in contempt for destroying the torture tapes for three reasons:

The videotapes were held in operational files. The Court ruled that the CIA’s obligation to search for records responsive to Plaintiffs’ FOIA requests did not extend to its operational files. Rather, the Court ordered the CIA to search investigative files of the CIA’s Office of Inspector General (“CIA OIG”) for operational records produced to or collected by CIA OIG during the course of CIA OIG’s investigation into allegations of impropriety in Iraq. The tapes were not produced to or collected by CIA OIG. Thus, the CIA’s destruction of the videotapes did not violate the Court’s orders.

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.

Further, the Department of Justice (“DOJ”) has initiated a criminal investigation into the destruction of the tapes. That investigation is considering, inter alia, whether the destruction of the tapes was inconsistent with or violated any legal obligations, including those arising out of civil matters such as this Court’s orders. Accordingly, if the Court does not deny the contempt application outright, it should stay these proceedings pending completion of DOJ’s criminal investigation. [my emphasis]

In other words, their reasoning depends entirely on the technical status of the CIA IG investigation into detainee interrogation. The CIA submitted a declaration describing that investigation; here’s what they said.

Although OIG reviewed the videotapes that were destroyed in 2005 in connection with a special review of the CIA terrorist detention and interrogation program, OIG did not initiate an investigation of the activities depicted on the videotapes as a result of the special review. Moreover, OIG never had the videotapes or copies of the videotapes in their files.

OIG is making a distinction here between "investigation" and "special review," going on at some length to distinguish between them. It includes a copy of a document referring to "special assessment report," as if that’s proof that this distinction is meaningful–though the document refers to the treatment of reports, not to the treatment of investigation. In other words–it seems like a stretch to provide this as evidence that an investigation and a special review are different, since it doesn’t reflect OIG’s claims about the distinctions between the two.

General Assertions Standing in for Specifics about this Case

OIG then goes onto make very vague assertions about OIG’s practices regarding record-keeping.

8. Depending on the nature of the audit, inspection, investigation, or special review, OIG often sends a notice to those CIA components that OIG deems likely to have relevant information. Such notices describe the subject of the review and the categories of information sought and provide instructions to make potentially relevant records available to OIG to review. The instructions regarding records vary from case to case, depending on the nature and scope of the review. Depending on the volume and sensitivity of the records and the nature of the OIG inquiry, OIG may instruct the components to produce all records to OIG, produce certain categories of records to OIG, maintain certain categories of records on-site for OIG inspection, maintain all records on-site for OIG inspection, await further instructions, or some combination of the above. In addition, OIG may independently collect records without the assistance of other CIA components.

9. After OIG reviews records, whether on-site or in OIG offices, it determines what records are relevant to its review and what copies of records to retain in OIG offices. OIG does not use “markers” in its case files to designate records maintained in operational files. When OIG chooses to retain a record, it retains that record, or in most cases a copy of the record, in OIG files. If OIG has a reasonable basis to believe a federal crime may have been committed, the IG reports the information to the Attorney General. [my emphasis]

Notice all of this language speaks of general circumstances–it does not describe what happened in this particular case. It provides one motivation for seeking records with a particular entity. It provides two criteria (volume and sensitivity) OIG uses to determine how to use records. And it asserts that OIG decides whether or not to keep records–though, tellingly, it dosen’t describe the criteria by which it decides whether to keep its own records. And finally, it states that OIG will report information to the AG if it believes a federal crime has been committed.

But none of these details address the specifics of this case! Thus, we don’t know whether OIG informed the AG that the practices depicted in the videos that a federal crime had been committed in this case. That’s critically important, because we know the conclusion of the IG report was that, in fact, the CIA may well have been violating international treaties.

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 Against Torture].

[snip]

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.

By making this general statement, the OIG declaration seems to suggest that if the "special review" had found legal violations, it would have reported them to the AG. But it doesn’t admit that the central finding of the report is that the treatment may have been illegal (whether or not it violated "federal" law), nor does it explain what happened with that assertion in this particular case. Given that the CIA and the White House had high level meetings in the same month the report was completed, that seems like pretty important information!

Specific Description that Leaves Key Details Vague

Only after these general assertions does the OIG declaration describe its actual review of the 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]

During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS to review the videotapes at the overseas location where they were stored.

OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified DOJ and other relevant oversight authorities of the review’s findings. 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.

Because OIG did not take custody or make copies of the videotapes, they were not among the materials that OIG provided to the CIA components responsible for processing Plaintiff’s Freedom of Information Act (FOIA) request–the Information Management Staff (IMS), the Office of General Counsel (OGC), and the NCS Information Review Officer.

Note the angst of this passage. First, it assures you that the "special review" was not, itself, a response to allegations of wrong-doing. This is surely an effort to insist on that distinction between "special review" and "investigation" on which CIA’s claims it didn’t need to turn over this tape rely.

Notice, too, the declaration’s reversion into a passive construction–"OIG was notified of the existence of videotapes of the interrogations of detainees." Want to bet some money that that use of the passive deliberately hides the back-story to how and why OIG learned of the tapes? Particularly in light of the earlier "OIG often sends a notice to those CIA components that OIG deems likely to have relevant information," this construction appears to be an attempt to avoid explaining how OIG learned they should contact Clandestine Services to arrange to see those tapes stored in some other country.

And then, after having made some effort to explain the criteria OIG uses to decide whether to get a copy of evidence for their own records in the more general section, the specific description of what happened in this case says only, "OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files." Once again, the declaration avoids one of the key questions: why didn’t they get a copy of the videotapes for their own records? Did they do so to avoid having custody of the tapes, and therefore exposing them to FOIA? Did DO refuse to give them a copy of the tapes? We don’t know … and I’d wager that’s no accident.

Finally, here’s the real doozy: "OIG notified DOJ and other relevant oversight authorities of the review’s findings." If OIG "notified DOJ," is that the same as reporting the information to the AG, as OIG would do if it had found a criminal violation of the law? If not, whom at DOJ did OIG inform? OLC? "Jack Goldsmith, you had better sit down and rewrite Yoo’s trash opinion, because it’s going to get some CIA officers arrested." It’s relevant that Goldsmith was still in charge of OLC and was in the process of ditching precisely the opinion that legalized this torture.

And what about this description? "OIG notified … other relevant oversight authorities of the review’s findings." Would those "other relevant oversight authorities" include David Addington, (thenWhite House Counsel) Alberto Gonzales, and John Bellinger, in a briefing at the White House at which they discussed destroying the torture tapes? Because if you told the President’s lawyer that the treatment of detainees violated international bans on torture, it sure seems that that treatment rises to the level of specific complaint which would then qualify it as an OIG file.

Who Writes the Declaration

As if all this vagueness wasn’t enough to make you take notice, consider the author of the declaration: Constance Rea.

I am the Deputy Assistant Inspector General for Investigations of the Office of Inspector General (OIG) of the Central Intelligence Agency (CIA). As Deputy Assistant Inspector General for Investigations, I supervise the Investigations Staff. I have served as Deputy Assistant Inspector General for Investigations since March 2004.

A couple of details. First, Rea didn’t start at this position until March 2004, when the report relying on the torture tapes was probably largely written (it was released in May). Add that to her description of who conducted this report,

The special review was led by the Deputy Inspector General and the team comprised personnel from across OIG, including the Assistant Inspector General for Investigations, the Counsel to the Inspector General, a senior Investigations Staff manager, three Investigators, two Inspectors, an Auditor, a Research Assistant, and a Secretary.

Unless Rea was one of those three Investigators she describes as having been involved in this review, she was not involved in the "special review," and she got involved after the decisions regarding whether to obtain a copy of the tapes were already made.

Even more interesting, Rea was not among those who decided how to respond to the ACLU FOIA, whom she describes as,

the Information Management Staff (IMS), the Office of General Counsel (OGC), and the NCS Information Review Officer

So she may not have been involved in the actual review, and she apparently wasn’t involved in the FOIA response. Interesting that the CIA had someone write the review who could be very vague about the key issues.

The Torture Tapes, CIA, and Congress

But this entire declaration appears particularly disingenuous given the chronology of the CIA’s briefings to Congress on the torture tapes. Here’s a mini-timeline:

Fall 2002: Gang of Four briefed on the existence of the terror tapes–but no mention of destroying the tapes is made

January 2003: CIA’s OIG begins "special review" of detainee interrogations

"During the course of the ‘special review’": OIG learns of the torture tapes

February 5, 2003: Scott Muller briefs Jane Harman and Porter Goss on torture tapes, and tells them the

videotape of Abu Zubaydah following his capture … will be destroyed after the Inspector General finishes his inquiry

May 2003: OIG reviewed the torture tapes

First of all, the notion that OIG learned of the torture tapes "during the course of the review" is ridiculous. CIA’s Counsel was briefing Congress on the torture tapes in relation to the OIG investigation within a month of the beginning of the inquiry; OIG learned of those tapes right at the beginning of its inquiry, and those tapes may well have been involved in its decision to conduct such a "special review."

Furthermore, Scott Muller presented those tapes as fundamentally connected to the OIG investigation even before OIG had seen the tapes.

The CIA is desperately trying to claim that those tapes were only incidental to the OIG inquiry. But in February 2003, Scott Muller was telling Congress a different story.

And do you find it even a little suspicious that in Fall, 2002, the CIA apparently had no intention of destroying the terror tapes, but one month into an IG investigation into detainee interrogation, they had decided the tapes would be destroyed?

I noted several weeks ago that Bob Bennett sounded an awful lot like he was beginning to float excuses for his client, Jose Rodriguez, to ask for immunity before he testified before Congress.

The article also includes a clear signal from the masterful press manipulator, Bob Bennett, that he intends to advise his client John Jose Rodriguez to plead the Fifth.

Bennett told NEWSWEEK that his client had been "a dedicated and loy­al public servant for 31 years" and "has done nothing wrong." But he warned that Rodriguez may refuse to cooperate with investigators if he concludes that the probes are a "witch hunt." "I don’t want him to become a scapegoat."

In case you missed it, Bennett uses the same phrase Monica Goodling’s lawyer, John Dowd, used, "witch hunts," just before he snookered Congress into offering her immunity for a bunch of stuff that Congress already had evidence she was doing. As a reminder, Monica said almost nothing that incriminated Rove or Harriet and only sort of incriminated AGAG. But she managed to get herself immunity for "crossing the line" and politicizing DOJ’s hiring practices. Bennett’s use of precisely same language as Monica’s lawyer may be no accident.

Well, surprise, surprise! Bennett just told Congress he wants Rodriguez to receive immunity before he’ll testify before Congress (h/t maryo2).

Attorneys for Jose Rodriguez told Congress that the former CIA official won’t testify about the destruction of CIA videotapes without a promise of immunity, a person close to the tapes inquiry said Wednesday.

[snip]

Defense attorney Robert Bennett told lawmakers, however, that he would not let Rodriguez testify because of the criminal investigation into the case. Without a promise of immunity, anything Rodriguez said at the hearing could be used against him in court.

Of course, Bennett’s excuse has changed. Rather than use the tired excuse Monica Goodling used–she was the "victim" of a witchhunt–Bennett is using the even more tired Iran-Contra era excuse that, um, maybe Congress can get his client out of all criminal liability if Bennett pulls a fast one … ? But honest, Bennett’s not worried about any real criminal liability, nosiree.

Meanwhile, Judge Mark Kennedy has decided he trusts DOJ a lot more than Judge Mark Wolf does, and he doesn’t see the need to conduct an inquiry into why the CIA was destroying tapes that might have been relevant to cases before him.

U.S. District Judge Henry H. Kennedy Jr. said in a three-page ruling in Washington that a group of inmates being held in Guantanamo Bay, Cuba, "offer nothing to support their assertion that a judicial inquiry" is necessary into the tape destruction. He said neither of the detainees whose interrogations were taped and later destroyed has an apparent connection to the prisoners who were demanding the review.

Kennedy also wrote that he expects the Justice Department "will follow the facts wherever they may lead and live up to the assurances it made to this court."

So, let’s see. No Rodriguez testimony before Congress (hopefully, that is … did you know that Non CIA Rat is almost an anagram for Iran-Contra?), no Kennedy inquiry into the terror tapes. That DOJ investigation into the torture tapes is looking like a pretty good way to bury any discussion of the torture tapes for a good little while, isn’t it? Maybe even long enough for Bush to start pardoning people wildly in about a year, huh?

A number of you sent me the AP article reporting that the White House will have to ‘fess up to whether or not the millions of missing emails are on the back-up tapes.

A federal magistrate ordered the White House on Tuesday to reveal whether copies of possibly millions of missing e-mails are stored on computer backup tapes.

[snip]

Facciola gave the White House five business days to report whether computer backup tapes contain e-mails written between 2003 and 2005.

But the actual order is more interesting than that. Here’s what Facciola ordered:

With that understanding, the court will order the defendants to provide answers to the following questions:

1. Are the back-ups catalogued, labeled or otherwise identified to indicate the period of time they cover?

2. Are the back-ups catalogued, labeled or otherwise identified to indicate the data contained therein?

3. Do the back-ups contain emails written and received between 2003-2005?

4. Do the back-ups contain the emails said to be missing that are the subject of this lawsuit?

See, I’m guessing the answer to the more general question–whether the missing emails are on the backup tapes–will be "no." But consider what it would mean if the four questions are answered as follows:

1. Yes, the back-ups are labeled to indicate the period of time they cover.

2. Yes, the back-ups are labeled to identify the data contained there-in.

3. Yes, the back-ups contain e-mail written between 2003 and 2005.

4. No, the back-ups do not contain the emails that are the subject of this lawsuit.

I’m really not sure of number 2 [see the update below for smarter speculation]–or, for that matter, any of my suggested answers. But I think it quite likely the White House will respond (or not respond) in the next 5 days to say that, yes, they know what are on the tapes, but no, most of the missing emails are not on there.

I say that for two reasons. First, review this speculative piece I wrote about when Fitzgerald got particular emails (you know, incriminating ones from Rove to Hadley) during his Plame investigation. I speculated then that Fitzgerald was suspicious about the dearth of emails at least as early as March 2004 (he asked Libby about it), didn’t get the Rove-Hadley email until October 2004 (when Rove explained why he forgot but then remembered talking to Cooper), but didn’t start pursuing the missing emails aggressively until October 2005 (which is precisely when the Office of Administration "discovered" there were a bunch of emails missing). Then, in January 20006, Fitzgerald told Libby’s lawyers that,

In an abundance of caution, we advise you that we have learned that not all email of the Office of Vice President and Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.

But he didn’t have the emails yet, not until February 6. So in spite of the fact that (via whatever means) Office of Administration "discovered" in October 2005 that they hadn’t been archiving email properly, they hadn’t gotten Fitzgerald the missing email until January to February 2006, three months later.

So they certainly weren’t able to waltz down to the basement and find the backup tape to reconstruct Rove’s (and Libby’s) missing emails–at least not very easily.

But then there’s this bit, from Gold Bars Luskin (the CNN link on which this was based is dead, but here’s a similar Luskin statement).

The prosecutor probing the Valerie Plame spy case saw and copied all of Rove’s e-mails from his various accounts after searching Rove’s laptop, his home computer, and the handheld computer devices he used for both the White House and Republican National Committee, Luskin said.

The prosecutor, Patrick Fitzgerald, subpoenaed the e-mails from the White House, the RNC and Bush’s re-election campaign, he added.

[snip]

Rove voluntarily allowed investigators in the Plame case to review his laptop and copy the entire hard drive, from which investigators could have recovered even deleted e-mails, Luskin said.

As the investigation was winding down, Luskin said, prosecutors came to his office and reviewed all the documents — including e-mails — he had collected to be sure both sides a complete set.

Now what’s unclear is whether Fitzgerald found any additional emails doing all those hard drive scans, or whether the Office of Administration was able to reconstruct them all themselves (though Jeffress said that Office of Administration is the entity which discovered the OVP emails, at least–does that mean they used a backup tape??). But it seems clear that it was no easy task in October 2005 to just go find emails missing from Rove’s and OVP’s document production.

Which suggests that 1) Office of Administration knows what they’ve got, and 2) at least in 2005, the missing emails weren’t immediately accessible.

Again, the stuff related to Fitzgerald’s investigation is all speculative. But it might suggest that OA is going to have to come back, just in time for the hearing on the destroyed torture tape on January 16, and explain that they do have backup tapes, but that the missing emails are remarkably missing from the backup tapes, too.

In any case, we should know a good deal more in just five days, unless BushCo tells yet another Federal Judge to go fuck himself.

Update: MadDog, who knows a thing or two about computers, says the backup tapes would most likely not be labeled (that is 1 and 2 would be "no").

Based upon my techie experiences, no, the backups are not “catalogued, labeled or otherwise identified to indicate the data contained therein.”

Backups are typically only identified by the date and the system backed up. Content would be unknown other than something as generic as “WH system emails” or “OVP My Document folders”.

The only way that content would be identified would be if someone personally examined each backed-up record or constructed a software program to scan for certain keywords (kinda like how one would imagine the NSA would scan for stuff on all the databases that were warrantlessly eavesdropped upon).

Which brings one to the real hot fact: If someone in the WH is claiming that specific stuff is missing (i.e. Rove’s Abramoff involvement, various parties including Rove’s involvement in Valerie Plame Wilson’s betrayal, etc.), then be sure that they have done that scanning to arrive at that position.

You can’t have that kind of specificity without having done the dirty work to find out just what is on the backups.

And here’s William Ockham, who also knows a thing or two about computers:

The answers to 1 and 2 should be straightforward. The answer to 3 will be interesting. I would expect by this time the answer to 4 would be some of them.

Btw, the WH has spent some money this year on consultants who should have been able to help them.

Thanks to both MD and WO.

Poor John Yoo. Apparently now he’s trapped. Or, as his lawyer said, faced with "nothing more than a political rant disguised as a lawsuit." I know you’re all crying for him.

I’m a little bit late to posting about the law suit, on the behalf of Jose Padilla and his mother, against the guy who rationalized his torture, John Yoo. But that makes my punditry job easier–I can just borrow liberally from all the smart lawyers who have been debating the suit in this thread.

Though I’m not a lawyer, I agree with bmaz’s take that the suit is fairly weak.

First off, as despicable as Yoo is, I am not sure he is a proper party defendant here. Secondly, I think his actions are probably entitled to qualified immunity. Third, I see a real problem establishing direct causation for Padilla’s damage elements. Fourth, despite the allegations in the complaint, I am not sure that NDCA is the proper venue. fifth, it is just not particularly artfully plead.

For example, consider the venue question. The complaint cites, with no explanation, 28 U.S.C. § 1391(b)(2) and (e) as its justification for suing in Northern California. So here’s the language they’re using to justify filing in NoCal:

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in

[snip] (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

(1) a defendant in the action resides,

(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.

But no event described in the complaint happened in Northern California–for the most part, it happened in DC or in the brig in South Carolina, so (b)(2) doesn’t seem to apply. And the complaint specifically states that they’re suing Yoo individually, not in his official capacity (presumably to try to avoid some of the immunity that extends to government officials). Furthermore, while Yoo is currently a resident of California, I suspect he would dispute that he was a resident of California when the events occurred (though he probably maintained his voter registration in CA, so who knows). In short, it seems like this suit should be filed in DC or in SC.

And as to suing Yoo–as opposed to President Bush, John Ashcroft, Rummy, or any of the other people described as making the decision to declare Padilla an enemy combatant and subsequently to torture him–the suit appears to rely on two pieces of logic. First, they’re arguing that Padilla was improperly declared an enemy combatant. Though they don’t say it, I suspect they would argue that the government’s changing treatment of Padilla (first as a material witness, then as an enemy combatant, then as a indicted defendant, each change coming just before a Court ruling that might rule that status as improper) proves the enemy combatant–and therefore the treatment he received in the Brig–was not legal.

Presuming that’s what they’re intending (and mind you, I am imposing this logic onto the complaint, they don’t say that), then you get into the allegation that Yoo wrote an opinion that deliberately legalized this illegal designation and went on to write the opinions that legalized the illegal treatment of Padilla.

96. Upon information and belief, Defendant Yoo was personally involved in formulating the recommendation to President George W. Bush that Mr. Padilla be detained without charge as an “enemy combatant.” The actions of Defendant Yoo proximately and foreseeably caused Mr. Padilla to be seized from the civilian criminal system and transferred to military detention.

97. Upon information and belief, Defendant Yoo personally participated in and/or approved the decision militarily to detain Mr. Padilla with the intention of subjecting Mr. Padilla to conditions of confinement designed to coerce from him potentially self-incriminating evidence, to shield the illegal detention and interrogation from judicial review, and to deprive Mr. Padilla of due process of law, proximately and foreseeably causing harm to Mr. Padilla and Ms. Lebron.

98. Defendant Yoo authored the legal opinion recommending that Mr. Padilla could be taken into custody as a military combatant. Defendant Yoo himself has publicly asserted that Attorney General Ashcroft relied on this opinion in recommending Mr. Padilla’s seizure out of the civilian justice system and detention without charge in a military prison.

Though, IMO, this logic doesn’t hold up, as the government always maintained that the criminal indictment in civil court did not rescind Padilla’s enemy combatant status.

The threat of re-detention is not a figment of Mr. Padilla’s imagination. On or about November 23, 2005 – shortly after the criminal indictment against Mr. Padilla was made public – Deputy Solicitor General Gregory Garre informed Mr. Padilla’s counsel, Jonathan Freiman, that it was the government’s position that the “enemy combatant” designation had not been rescinded and that the government could therefore militarily redetain Mr. Padilla at any time based on his alleged past acts.

But then, the suit is much vaguer than I’m making out here, and one of the central intents of this suit appears to be to get Padilla’s status as an enemy combatant back before the Courts. There’s no way Padilla could win this suit, after all, unless a court ruled that his designation as an enemy combatant was improper.

Now, all that’s my take before you get to the question of whether or not Yoo is entitled to immunity for his actions (see bmaz, masaccio, and Mary debating that). And, as bmaz points out, we won’t get to discovery if we don’t overcome the jurisdictional issues, including immunity but also venue.

So, on balance, I guess I’m agreeing with bmaz. I don’t see how this suit gets to the fun part of discovery, for the several reasons bmaz mentions. But I’m not sure that’s the point, yet. Most optimistically, it seems designed to re-open the question of whether Padilla was properly designated an enemy combatant. That might actually work if the plaintiffs work this suit in different venues. But even at the most basic level, this is going to push judges to weight their own self-respect against the government’s claims that it can break the law without any legal consequences. As masaccio argues,

It looks like the point of the complaint is the vivid description of the torture. In the decision, first the judge writes out all of that, stating that the facts stated by the plaintiff are entitled to a presumption of correctness, accompanied by dozens of cites. Then the judge has to patch together some kind of argument to get Yoo out. The contortions in that part will be obvious to a casual observer, and the question is the limits of the willingness of the judge to show to the world that the judge possesses the level of intellectual dishonesty that will be required.

One final thing. The neatest thing about this suit is the way it uses good conservatives against the government. If I’m right about the possibility of using the government’s changing claims as to Padilla’s status, then Michael Luttig’s opinion on those little games comes into play. It relies on past testimony from several people who work at the Brig where Padilla was tortured. And, most neatly, it relies centrally on Jack Goldsmith’s claims about the Yoo’s role in the various memos at the heat of the case, as well as Goldsmith’s stated opinions about how crappy they were.

I doubt this suit, as filed, will ever get to Court. But if it does, it would rely on a long parade of very uncomfortable conservatives having to denounce the torture their party leaders endorsed.