A Peek into the Torture Tape Investigation

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

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

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

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

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

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

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

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

As the NYT broke the other day, General Michael Hayden is conducting an investigation of the CIA’s Inspector General, John Helgerson. Their first report on the story intimated the reason why Hayden was conducting such an unusual investigation.

A report by Mr. Helgerson’s office completed in the spring of 2004 warned that some C.I.A.-approved interrogation procedures appeared to constitute cruel, inhuman and degrading treatment, as defined by the international Convention Against Torture.

That investigation into OIG actually overlapped by several weeks with DOJ’s preliminary investigation of the torture tapes. The destruction of the tapes was revealed on December 6, and the conclusion of the investigation into OIG was reported on December 23. (Mukasey announced Durham’s criminal probe on January 2, 2008.) It’s unclear whether the TCG was formed at the end of December in anticipation of Durham’s appointment, or whether it was formed in response to the preliminary investigation earlier in December. In any case, though, Dietz appears to have been negotiating the establishment of a babysitter for CIA’s OIG at the same time as he was beginning to help DOJ investigate the destruction of the torture tapes.

Which is why this comment from Dietz is all the more interesting:

I understand that at the request of specially appointed prosecutor John Durham, part of the additional search undertaken by the CIA in regard to the Court’s February 14 order was conducted by the Office of Inspector General ("OIG"). And I am advised that the OIG is providing a declaration for the Court regarding the results of that search.

That is, John Durham–whose mandate is to investigate the CIA’s destruction of the torture tapes–intervened into the CIA’s response to a court’s order in a civil case, and made sure that CIA’s OIG, in addition to the CIA’s operational division, undertake a search of the relevant files. Now, that’s not that surprising. One of the things Durham has to do, presumably, it take all of the umpteen cases in which judges issued orders to retain evidence, to see if the destroyed torture tapes pertained to the order. In other words, Durham’s intervention here probably only represented a shift in the order in which he conducted the investigation, not an intervention in matters unrelated to his investigation. We can also presume that the CIA’s response to this Court order probably parallels the activities being undertaken by Durham’s investigation. That is, Durham is doing the same things to collect evidence in the Torture Tape investigation as he’s having CIA employees do in response to Court orders pertaining to potentially destroyed evidence.

That interpretation seems to be supported by this part of Dietz’ statement.

I must note that the TCG’s search has been complicated for several reasons, and thus I cannot at this time confirm that we have exhausted all places we might look for information that may be material to the Court’s February 14 order. The pendency of the investigation by specially-appointed prosecutor Durham, as well as its complexity, have affected our continued search for information relating to the Court’s order. As an initial matter, the assignment of my office to this search was necessitated by considerations related to Mr. Durham’s investigation, even though others in the CIA have far greater knowledge than do I or my staff in connection with this particular piece of litigation. For example, many of the individuals at CIA who would normally be involved in a search for any records evidencing destruction of spoilation are, as I understand it, potential witnesses in the matter under investigation by Mr. Durham. In addition, because of the sensitivity and complexity of the investigation, the TCG must coordinate much of our effort with Mr. Durham’s office, with the result that the search necessarily takes longer and is more difficult than it might otherwise be.

Partly, this passage suggests that Durham is being careful to ensure no one from CIA–not even Dietz, who showed up long after the destruction of the tapes–fiddles with potential evidence without Durham’s involvement. In addition, though, it seems to suggest that the librarians or archivists (you know, the torture tape librarian we’ve heard so much about), are considered potential witnesses in the investigation.

And speaking of archivists, here’s the bit that will get MadDog salivating–the expertise of the person submitting the declaration from OIG: Robert Moritsugu.

I am a special agent with the Central Intelligence Agency (CIA) Office of Inspector General (OIG). I have been in the OIG for 23 years. Over the course of my work in OIG, I have acquired consideratble familiarity with the case records of the OIG’s investigation staff. I am a seized computer evidence recovery specialist, responsible for computer forensics. For a number of years, I held responsibilities within the OIG for various technical tasks, maintaining OIG’s local area network, and working with the staffs that maintain the OIG’s restricted servers. [my emphasis]

Now, before I move on to the rest of Moritsugu’s declaration, let me point out that Moritsugu is not the person who submitted a declaration regarding OIG files in the ACLU’s FOIA suit. The person who submitted that declaration–on January 10, just after the Durham investigation got started–was Constance Rea, the Deputy Assistant Inspector General for Investigations, someone who was at least tangentially involved in the OIG investigation into interrogation methods and someone who apparently does not have the technical expertise of Moritsugu.

Here’s what Constance Rea said about the record-keeping practices of OIG in her declaration:

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.

[snip]

During the course of the special review [of CIA interrogation methods], 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. [my emphasis]

So in January, Rea noted that sometimes OIG got originals of materials, sometimes it got copies, and sometimes it did not retain (that is, it destroyed) copies of those materials. OIG would also have correspondence describing certain pieces of evidence (or at least identifying who it thought might have such evidence). And, in cases where OIG found potential legal issues, OIG would have correspondence with DOJ. Lots of stuff that might reveal where those torture tapes were and what happened to them.

So here’s what Moritsugu, the computer forensics expert, says:

Attendant to the work of the OIG in [regards to Durham’s investigation], I was assigned the task of searching the investigation staff’s records to determine whether they contained any indication that any information relating to petitioner Abdullah covered by this Court’s preservation order of July 18, 2005 was destroyed or otherwise spoilated. The investigation records constitute the operational files of the investigation staff. They exist both in hard copy and electronic form. The electronic version contains what exists in hard copy, but also a broader universe of investigative records.

3. To carry out that assignment, I searched the electronic records system of the OIG records to determine whether it appeared that those records have, or did at one time have, material relating to petitioner Abdullah. If the investigation staff had at one time any records related to Abdullah, I would expect to find some indication of the existence of such files in the electronic records system. In my search, I found no indication either that such records exist now or that such records ever existed in the past.

So let me review. The CIA gets an order from a judge to reveal whether it once had evidence pertaining to the interrogations of Hani Abdullah. Presumably because such an order requires work that overlaps with the work of John Durham’s own investigation, Durham plays a role in deciding how the CIA must respond. He has Robert Dietz conduct a general search of the CIA’s files, presumably searching the records of the groups that were involved with the interrogations. And he directs the OIG to provide a declaration in response too. But Durham doesn’t ask OIG to do what it did when it responded to the ACLU order in January–to just have someone involved in the OIG’s interrogation investigation review their files and submit a declaration based on that physical review. No. Durham requires OIG to conduct a forensic review of the OIG’s investigative files, to determine whether OIG has–or had–any responsive files.

The fact that Durham required a forensic review of OIG’s files–but not the CIA’s operational files–certainly suggests he has reason to believe that some of the files at OIG got destroyed.

Update: Okay, I got off my ass and looked up the actual preservation order in question to understand what Deitz’s and Moritsugu’s declarations would cover. The preservation order was requested by Rami bin Saad al-Oteibi and Hani Saleh Rashid Abdullah.

But because the government had already been put under a preservation order in two other cases, Judge Roberts treated such a request as moot for this request. So his order only coveres information specifically pertaining to the named petitioners. Here’s what his order states:

ORDERED that petitioners’ motions, insofar as they seek preservation orders governing evidence, documents, and information regarding the torture, mistreatment and/or abuse of detainees held at the Guantanamo Bay detention facility be, and hereby are, DENIED without prejudice as moot. It is further
ORDERED that petitioners’ motions otherwise be, and hereby are, GRANTED. Respondents shall preserve and maintain all evidence, documents and information, without limitation, now or ever in respondents’ possession, custody or control, regarding the individual detained petitioners in these cases.

So that suggests that neither al-Oteibi nor Abdullah came up in the OIG investigation, and that whatever record they had of the Abu Zubaydah and al-Nashiri interrogations did not mention either of these detainees.

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42 replies
  1. JohnForde says:

    Sec Prosecutor = Durham
    Head of OIG = Helgerson
    OIG Computer forensic Specialist = Moritsugu

    Why didn’t Durham require forensics of both OIG files AND operational files? Might he already have copies from the op files?

  2. radiofreewill says:

    Maybe that was Porter’s assignment: Erase all the Evidence Incriminating Bush used by the IG to form its Cruel and Inhumane Treatment Opinion.

    If true, it’s all the more reason to think the Rank and File CIA was Totally Opposed to Bush’s Torture Program – and it suggests that Bush’s response was to ‘out-source’ the Actual Torturing to Untouchable Rogue Contractors/States.

    There’s a reason Bush doesn’t want US to ’see’ Who and What, and Hear the images on those Torture Tapes…

  3. Peterr says:

    MadDog isn’t the only one salivating.

    The fact that Durham required a forensic review of OIG’s files–but not the CIA’s operational files–certainly suggests he has reason to believe that some of the files at OIG got destroyed.

    OTOH, it could also mean that Durham is a belt-and-suspenders kind of guy, who knows he’s got a lot of people looking over his shoulder. In addition to the folks at DOD and DOJ, he’s got the House Judiciary and Intelligence committees watching his work, as well as their counterparts in the Senate. There are also a couple of folks wearing black robes in the Judicial branch who are going to be asking some rather pointed questions of Durham, no matter what he reports.

    If he *didn’t* have a forensics person involved, question #1 from any of those people would be “Why the hell not?”

    • emptywheel says:

      And why isn’t there a forensic person doing the search on the operational files where, presumably, the file owners would be at greater risk for prosecution of torture?

      • JohnForde says:

        That’s what I was asking @ #1.

        Might Durham already have some evidence from the files that would prove obstruction at the OIG?

      • Peterr says:

        Playing devil’s advocate here (so to speak) . . .

        Perhaps Durham is trying to carefully tailor his investigation, so as to avoid charges of Ken Starr-style overreaching. First comes the focus on the OIG files. If/when anything turns up to indicate deletions, destructions, and/or alterations, that’s when he would go to the operational files, to see what the “original sources” had. He might have reason to believe there was destruction, so by starting with the OIG files, he then has more leverage with the operational folks when he goes to them as says “Got anything you’d like to share, before we take your computers off to be dissected?”

        • BayStateLibrul says:

          This country has over-reacted to everything…

          The Starr Probe — now it is a sin to call for a Special Prosecutor.
          The overreaction to Nam… we can never lose, and you are called “unpatriotic” if you oppose the war….
          Good jornalism replaced with phony-journo

          Bring back the fucking 60’s, I say… with pitchforks. We want our
          democracy back…

          Sorry for the rant…

        • emptywheel says:

          Okay, I’ll bite.

          The scope of the investigation covers 1) whether the CIA’s destruction of the torture tape violated any standing court or Congressional order, and 2) if so, whether the destruction was a deliberate attempt to get around those orders. Included in those orders are a) orders associated with detainee lawsuits or defenses, b) requests for FOIA like the ACLU request, c) requests for materials like the 9/11 Commission request, d) requests for legislative information, most likely tied to John McCain’s torture statute.

          So, given the scope of materials covered by those requests, would the OIG be the logical place to develop a master list of potential documents? The OIG would only have record of the particular materials if 1) the materials pertain to actual interrogation techniques (this would admittedly cover most of the requests listed above) and 2) if we had some reason to be positive that OIG received everything related to interrogation.

          I would suggest there is nothing in the public record that would reassure us that OIG would necessarily have everything. According to Rea’s declaration, the process of discovering materials appears to be somewhat haphazard. I would imagine someone determined to hide something from OIG might well do so.

          More importantly, aside from publishing a report that 1) might have been the impetus for the destruction of the tapes (since it judged the interrogation techniques might be illegal) and 2) had results communicated to DOJ–meaning some people in DOJ may have learned of the contents of the torture tapes, OIG does not appear to have been involved intimately in the decision to destroy the torture tapes. So if you were treating OIG as the master list of files, then you would almost certainly miss out on–for example–any potential communication between John Rizzo and Porter Goss in which Goss passed on the opposition of Negroponte to the destruction of the tapes, or communication between Rizzo and the lawyers who provided the opinion saying the destruction was legal.

          See, I think there would be no plausible reason–nor legal justification–to presume the OIG has a master list of documents, not least since their inquiry SPECIFICALLY into the torture tapes ended a year before the decision to destroy the tapes.

        • Peterr says:

          The OIG would only have record of the particular materials if 1) the materials pertain to actual interrogation techniques (this would admittedly cover most of the requests listed above) and 2) if we had some reason to be positive that OIG received everything related to interrogation.

          Given the disclosure of the principals’ meetings at the White House that approved the specific techniques to be applied to each of the high value detainees, it seems to me that the OIG would have in the center of this whole thing, or at least in the loop at a very high level.

          The principals were trying to make sure, in their own bizarre and twisted way, that all the i’s were dotted and t’s were crossed. I can easily envision the CIA director coming back to Langley from these meetings, calling in the Director of Operations and the OIG folks to say “OK, here’s what just happened — now you folks in the DO see to your enhanced interrogations and you folks in the OIG don’t worry about it, because we’ve got all the legal bases covered.”

        • Peterr says:

          Preview is my friend . . .

          Should be “it seems to me that the OIG would have been in the center of this whole thing, or at least in the loop at a very high level.”

        • emptywheel says:

          Nope, don’t buy it at all.

          Here’s how Rea describes OIG’s investigation.

          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. 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.

          So, first of all, it didn’t start until after many of the Principals’ meetings (and, as I pointed out, the review ended over a year before the decision to destroy the tapes). So it might have high level stuff received after the fact, but I don’t see why it’d have everything.

        • bmaz says:

          With transitory information or evidence, and where a spoilation/destruction problem is suspected, the “best practice” (to use a phrase I am becoming tired of) would be for an investigative agency to lock down all evidence simultaneously.

          EW @12 – Why would they not be running searches on all possible avenues (cases) at the same time? Isn’t that the real question, not just one?

          I am somewhat surprised at the length of response time on the part of the subject to the “Mad Dog Whistle” you issued earlier. Tisk tisk…..

        • emptywheel says:

          I suspect they are. But I suspect that for most cases (per Deitz’ statement), it is taking a much longer time to COMPLETE the review. CIA asked for an extension, only got a limited one, which then put a deadline on the response.

        • MadDog says:

          I am somewhat surprised at the length of response time on the part of the subject to the “Mad Dog Whistle” you issued earlier. Tisk tisk…..

          Must be an earwax blockage…caused by excessive drooling, doncha know? *g*

        • emptywheel says:

          Incidentally, I wouldn’t NECESSARILY have invoked you drooling, except that talking about MadDog salivating is so much more interesting than talking about William Ockham doing so, for obvious reasons.

        • klynn says:

          And this is why I read these threads…Just when you’re taking in the wealth of information…WHAM! Snark, satire and just plain good humor!

        • MadDog says:

          Incidentally, I wouldn’t NECESSARILY have invoked you drooling, except that talking about MadDog salivating is so much more interesting than talking about William Ockham doing so, for obvious reasons.

          Razor-wielding folks versus crazy canines? Yes, the choices were bad and…worse. *g*

  4. MadDog says:

    Sheesh, you’d think I’d be old enough now to stop drooling…but, n-o-o-o-o! And Pavlov was supposed to keep that a secret…sheesh!

    Anyways, I found this part of Robert Moritsugu, the forsenic expert’s declaration interesting:

    In my search, I found no indication either that such records exist now or that such records ever existed in the past.

    Ok, so combined with Constance Rea, the Deputy Assistant Inspector General for Investigations’ declaration that the OIG reviewed the Interrogation tapes, but did not retain a copy for their own records, did they not at least summarize what they investigated?

    How could it be that Robert Moritsugu couldn’t even find said OIG summaries?

    How could one conduct an investigation and keep no records of the very topic of the investigation?

    Again, Robert Moritsugu says that “no indication…such records ever existed in the past.”

    I realize that the CIA had invented the market on invisible ink, but I had no idea that they invented invisible electrons too?

    • emptywheel says:

      Careful: MOritsugu only searched for any documents pertaining to Hani Abdullah (I need to go back to read hte order, but I think the suit pertains to interrogation methods of HIM, not of Abu Zubaydah). Whereas the ACLU FOIA was for materials relating to torture more generally. Therefore, the fact that Moritsugu found nothing responsive in the case of Abdullah doesn’t mean he wouldn’t find anything responsive to the ACLU.

      • MadDog says:

        Careful: Moritsugu only searched for any documents pertaining to Hani Abdullah (I need to go back to read hte order, but I think the suit pertains to interrogation methods of HIM, not of Abu Zubaydah). Whereas the ACLU FOIA was for materials relating to torture more generally. Therefore, the fact that Moritsugu found nothing responsive in the case of Abdullah doesn’t mean he wouldn’t find anything responsive to the ACLU.

        True and I did indeed make that a consideration, but…consider the question of just how does Robert Moritsugu determine what is related to the Hani Abdullah order.

        For example, could it be that, like the email “searches” done by Addison at the WH for Plame material, that Robert Moritsugu merely does an electronic search of the OIG computer systems for the words “Hani Abdullah”?

        That “search”, like an Addison “search”, could very well be a “search” that misses the “forest for the trees”.

        If you design your “search” such that it will not find anything, well it does just that. *g*

        And relatedly, how does a techie like Robert Moritsugu determine what to search for?

        As might have been working assumption with Fitzgerald’s crew, is John Durham’s crew “constructing” the search criteria themselves? Are they, or have they, computer experts?

        If I were John Durham and crew, I would insist on personally reading and reviewing all material wrt to the OIG Torture Tape investigation.

        I would certainly not depend on a “hit or miss” electronic keyword search to ensure that material that might be responsive to any of the judicial and congressional inquiries was adequate.

        As a computer geek, I would definitely not entrust said “investigation” to computer geeks. *g*

  5. klynn says:

    Thank you for analysis EW. After I read the article yesterday and posted OT, I wondered what was going down and figured you would have something posted soon.

    MD-

    I realize that the CIA had invented the market on invisible ink, but I had no idea that they invented invisible electrons too?

    Perfect statement!

    EW, I hope they did/do find something IRT ACLU…

    • bmaz says:

      Lester Munson is a blithering idiot; I have seen his work before. He “investigated” one of my former clients in relation to a rather infamous point shaving scandal back in the 90s. Alberto Gonzales may have better legal analysis than Munson, and you know what I think of him. Pay attention to Munson at your own risk. That said, there does appear to be a minor conflict with the Pettite/Clemens dual representation, I kind of doubt it is sufficient to get Rusty booted under the circumstances, but it is theoretically possible. I would be surprised though; I think much ado about nothing and just more crap out of McNamee’s stooges. I really cannot emphasize enough that despite your animosity to Clemens, and despite his likely guilt, this persecution/prosecution is filthy dirty and despicable in the way it has evolved and the gross misconduct on the other side of the equation is staggering. Sooner or later, I believe that will come out to where you can actually see and understand it; but i can guarantee you that it is there.

  6. WilliamOckham says:

    One reason for doing the forensics work on the OIG computers first is that they are conveniently located in Virginia. Tracking down computers involved in the operational files would take longer, but I bet the OIG files would tell you where to start.

  7. emptywheel says:

    Btw, updated the post as follows:

    Okay, I got off my ass and looked up the actual preservation order in question to understand what Deitz’s and Moritsugu’s declarations would cover. The preservation order was requested by Rami bin Saad al-Oteibi and Hani Saleh Rashid Abdullah.

    But because the government had already been put under a preservation order in two other cases, Judge Roberts treated such a request as moot for this request. So his order only coveres information specifically pertaining to the named petitioners. Here’s what his order states:

    ORDERED that petitioners’ motions, insofar as they seek preservation orders governing evidence, documents, and information regarding the torture, mistreatment and/or abuse of detainees held at the Guantanamo Bay detention facility be, and hereby are, DENIED without prejudice as moot. It is further ORDERED that petitioners’ motions otherwise be, and hereby are, GRANTED. Respondents shall preserve and maintain all evidence, documents and information, without limitation, now or ever in respondents’ possession, custody or control, regarding the individual detained petitioners in these cases.

    So that suggests that neither al-Oteibi nor Abdullah came up in the OIG investigation, and that whatever record they had of the Abu Zubaydah and al-Nashiri interrogations did not mention either of these detainees.

    • bmaz says:

      Crtikey, i am trying to work on something else, so my attention is even lamer than usual. So are you telling me that Roberts denies a PO to Abdullah because he feels existing POs in other cases already cover that; but the CIA is looking to weasel out of culpability here because they did not have the “other cases” cross referenced to Abdullah for evidence protection and retention purposes?

      • emptywheel says:

        I THINK I’m saying that when Roberts wrote the order in 2005, he did not envision that anyone would be working backward from the confirmation that evidence was destroyed. FWIW, I think the CIA is entirely in its right to do the search just for the two named plaintiffs. What we need to do is get the plaintiffs in the other suits to file for contempt as well–just so we can get a sense of what was destroyed.

        • bmaz says:

          I don’t necessarily disagree with that take on the CIA, but here’s the deal I THINK, shouldn’t the DOJ have flagged the respective cases for cross-referencing and evidence retention in light of the nature of Robert’s ruling. The DOJ was involved in all of those cases, but appears to be compartmentalizing them and saying “what me worry”. I haven’t read all the links and the order itself yet, so I am stabbing a little in the dark here.

        • MadDog says:

          And none of this computer keyword “searching” stuff. Human Mark I eyeballs need to read and review all of the material!

          Computers are notoriously binary. If you search for “fish”, you ain’t gonna find “sharks”.

          People, on the other hand, just might react with alarm bells should they stick their toes in the water and find “sharks”.

          Same logic applies to the Torture Tape material and any applicability to judicial and congressional inquiries.

          That one doesn’t find “Abdullah” in a computer keyword search does not mean there ain’t “sharks” in the water.

  8. R.H. Green says:

    The details of this post are complex and deserve more careful reading than I now have time for; perhaps this evening I can analyze things(including all the unread commentary) in sufficient detail to answer my own questions, but on an initial reading, my BS alarm went off, and I can’t make it stop, so maybe someone else can make sense of this.
    Ms Rea says that someone went to a covert site to view a videotape and did not take any of the following possible actions: (1) take the tape into custody, (2) make a copy of the tape for their records, or (3) retain a copy for their records. My problem is that I see (2) and (3) as redundant, so why make a point of enumerating them as seperate (non)actions? What set of circumstances could arise to make these to be meaningful distinctions? Well, if a COPY of the tape was furnished to the investigators and returned (not retained), that would be different from not making a copy of the viewed tape. Would it be outside of reason to inquire as to whether it could have been an edited copy? A simpler explanation is that Ms Rea is simply noting that, as earlier enumeratied, there are 3 options that apply in any case, and none were taken. Poof;problem solved?

  9. Mary says:

    I got a little lost somewhere here. I’m not certain I understand “and sometimes it did not retain (that is, it destroyed) copies of those materials” this. As I read the excerpt from the declaration, when it says: “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” it seems to be saying that OIG left the overseas location with nothing. They didn’t make a copy, they didn’t take a copy or the original. So they didn’t retain a copy – but that doesn’t seem to be the same as saying that OIG destroyed copies. I missed a link somewhere.

    I agree that the OIG isn’t likely to have a master list of documents. For one thing, the intel divisions pretty much have the right to clamp down on what anyone gets, including the anyones in OIG. Plus there was such a mix and mishmash going on – you had the Iraqi general killed in the sleeping bag who got interrogations by some guys (speculation in the articles that this was CIA assisted by MEK or locals of some kind) at night, and “military” suffocation interrogation during the day. Then there would be the guys shipped to foreign countries and involvement of the State Dept and so many things that intertwine and tangle – it would be hard to decide where, for example, OIG for CIA had capability and where instead you were shifting to OIG for DoD or State or DOJ/FBI etc.

    Cul de sacs of information within intel communities not required to cough things up to their various IGs and coupled with the umbrella that “Congress” has been briefed and knows anyway – the prime OIG function really – finding things out for Congress for its oversight function.

    33 – It’s not just Roberts ruling too. While I don’t remember the exact scope of Durham’s investigation (I didn’t remember that it included a review of responses to 911 commission requests and legislative requests – which I think per 11 are being included) the thing is that when it comes to not only court orders, but situations giving rise to notice about possible future litigations sufficient to cause a litigation hold to go out – – – – go look at Gonzales’ memo of Jan 2002, the one where he says that there is a chance that future administrations will view what they are doing as violations of the war crimes act.

    From that statement on – WH Counsel acknowledging in writing in Jan 2002 that there might be future criminal prosecution under the domestic War Crimes Act based on the actions involving detainees – from that statement on there should have been a litigation hold on all things related to those interrogations (at least in my non-litigator, non-criminal, non-ivy view).

    From then on, you just had a succession of cases where this became clarified to a greater or lesser degree, either through being raised by a direct motion to the court alleging abuse, coercion, torture, etc. (like those in Padilla, objecting to the arrest/material witness warrant or in Moussaoui) or through being the subject of a subpoena issued by a party (which, unless objected to and litiagated to limit, has the effect of an order) or through being the direct topic of an actual preservation and/or production order issued by a court,

    So for any given particular item you may have had a moving target of time from which preservation would be appropriate – but IMO there’s no way that, with the Gonzales statement in the Jan 2002 memo, you can’t say there was a direct acknowledgement there that a litigation hold should be put on all the information related to the detainee treatment that did not comply with the Geneva Conventions.

    • bmaz says:

      Oh, well, you know I agree with that. I still fully maintain that the tapes could not be destroyed because they were evidence, you know, relevant to the detainees on the stinking tapes. And I challenge anybody to tell how that is not the case.

    • MrWhy says:

      Isn’t one of the possibilities that the original interrogations were done by a foreign agency, e.g. in Syria or the Phillipines? The CIA may not have had jurisdiction over the media to make or retain copies.

  10. Mary says:

    38 – it’s certainly possible that foreign agencies or contractors were involved (although intel is a jealously guarded item if they truly thought they might get something actually worthwhile they would have wanted the control IMO) But my point is a lot broader than merely the torture tapes and goes to ALL the evidence of authorized detainee abuse. Litigation holds should have been going out from all kinds of places and sources over the years and there should have been all kinds of preservation notices, etc. I don’t think there’s anything to indicate that happened at all, anywhere.

    Also, if someone has a cell phone, they can make a crude copy. I really don’t think the US would have allowed any taping of interrogations to be so out of their hands that they couldn’t control what happened to it – whether it ended up in Soviet hands to be played on international press, whether the an analyst urgently needing to double check on something could or could not get access, etc. Plus, the convesations with the members of Congress that Muller was involved in seemed to indicate that US players had the ultimate say over what happened to the tapes – not foreign sources.

    I’m thinking that that OIG was just told things were too classified to copy.

  11. Mary says:

    37 – EXACTLY. And there were a handful of lawyers – including, but not limited to Yoo, who knew about things like the tapes and knew that their knowledge was unique to a limited group – and who did nothing to put on the lit holds or to make sure info was produced or held and privileges asserted pending court evidentiary determinations etc.

    Instead, they all proceeded to breach their professional ethics and engage in systemic fraud on the courts – at least, that’s how it looks at first blush (if any of them can still blush)

  12. LabDancer says:

    I leave aside the issue of the expertise & bona fides of the technical analyst for the experts in that area, but on the two of the other three themes of this thread, those concerning what this might say on the scope of Durham’s “probe” [a term which itself suggests something short of a comprehensive investigation], I really don’t understand why anyone would imagine Durham to have been given more room & greater access than say Fitzgerald was provided in his “probe” into the Plame leak.

    In this assuming I havent misread her, I would go with Mary @ 36 in her use of the term cul-de-sac. The Nixon administration had a far less sophisticated array of tools to obfuscate & secret abuses than does the Bush-Cheney crimorg in part because a lot of the egos at the top didnt perceive the need for any more idiot-proofing including in particular Nixon who fancied himself not “a” but “THE” pre-eminent American foreign policy genius. Cheney had more pliable material to work with in Ford and someone inclined to consult a lot more widely in Daddy Bush, but in Waterbush he had someone who brought next to no agenda to the White House on foreign policy [and the biases of a Xenophobe at that], with no inclination to question or limit whatever his VP was up to, and the impression that it looked good on him to be seen to give up controls of the nation’s security & intelligence apparatus to an old hand like Cheney. And Cheney’s expertise lying in bureaucratic skullduggery we could have expected him to use everything he’d ever learned to insulate the various branches of that major limb of government power from his patron, from himself, and, vitally, from each other.

    In other words the most secure manifestation of compartmentalization he can get.

    Plus, my experience with the spooks lurking at the edges of the criminal investigations Ive seen from both sides is that someone like Durham, granting that hes had a better viewpoint than I had [I left prosecution at a point more than a decade short of his first involvement in the New England police corruption investigations] is that they even less revelatory of what’s going on in their world than the part of icebergs above water. I would find it very hard to accept that Durham has been granted access to that world; Cheney wouldn’t stand for it. Nor would I be inclined to accept that he would know what to make of it if he had such access. Your most compromised & corrupt cop is several deviations less twisted than your garden variety spook.

    [With all due respect for & appropriate apologies to those for example Ms Valerie Plame Wilson who by appearances tried to maintain some values consistent with civility & hold to some code of ethical behavior in their work, the CIA’s history of abuses & willingness to pander to the political agenda of the administration of the day from a period well within a decade of its inception suggest that they are not at all representative of CIA spook behavior.]

    Then there’s the additional problems of the CIA’s cultural hierarchy of granting to spooks a higher sphere of freedom to operate, including barriers to holding them accountable but even to determining who in hell they are. The design is that the only people who know who are spooks are those handling spooks – and many times through several layers of spooks being handled by spooks being handled by spooks etc up to a putative leader of various lines of spooks descending down from him even he doesnt have a handle on. John McLaughlin in particular would be able to make this only too clear.

    In sum, were I in Durham’s position, I wouldn’t just resort to OIG because it holds the promise of being the most reliable repository of records on the torture tapes – I would recognize as being the ONLY place the administration will let me go anyway – & moreover VERY LIKELY THE ONLY office bearing the slightest resemblance to a repository of agency-wide records that exists.

    Im not trying to appear as a Durham apologist or booster in any of this. He’s a career DOJ lawyer & as I’d expect bmaz or anyone else who has worked in federal prosecution would agree, those types are not prone to turning down assignments generally, & certainly not merely because there will be some problems or challenges involved; if anything such problems & challenges promise to make the job more interesting. The Durhams of the DOJ made a commitment a long time before to work within in the system as best they were able. I left before having to face up to that commitment, but for the most part the top career lawyers I worked with in prosecution offices were like that, the differences between them being mostly things individual things like personal discipline, legal talent, and which of family versus career is more important, or at least before the daily erosion involved in working under Bushies started taking its toll.

    Finally, having mentioned him in dispatches & not wishing to throw a dis; I have to ask bmaz why he refers to Roger Clemens’ legal team with such deference yet calls McAmee’s lawyers “stooges”?

    • MadDog says:

      Excellent commentary LD!

      I too would enjoin folks not to let our hammering on parts of the CIA be misunderstood as animus to all the CIA does.

      As LD well knows, as do most other folks here, there are good folks and not-good folks in any organization.

      Wrt to the CIA in particular, there are CIA folks like Valerie Plame Wilson who are on the side of the Angels, and then there are CIA folks sup with the Devil, and enjoy the meal.

      And if Valerie were to read our ramblings, I hope she knows that we know the difference!

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