It isn’t actually Durham as Spec Prosecutor who is making the FOIA response or who is looking at “his crew” being the subject of Hellerstein’s contempt proceeding.

What you had was CIA (and DOJ) violating Judge Hellerstein’s original production orders, way back when. Then as it became clear over the years that they were pissing in the courtrom, and one or two judges thought holding up an umbrella wasn’t really a sufficient response, they began to hold the lawyers feet to the fire vis a vis mutterings on contempt. Mukasey then appoints a whitewasher to make it look like he did something. CIA and the lawyers looking at contempt then ran to the courts and said, “hey, sure, you know, we’d love to quit violating court orders and all, but golly, now there’s this special prosecutor looking at some of this and we can’t produce bc it is all a subject of his investigation.

And Durham played along with that originally – yep judge, I’m busy busy busy making sure people who violate court order and destroy torture evidence get investigated. You need to just go away and leave me be. So Hellerstein called their bluff and said, Alrighty boys and girls, if that’s true, that Durham is actually involved in the kind of ‘for real’ criminal investigation that is going to generate charges and where my proceedings might interfere and screw up those charges, I want that in writing, signed off on under penalty of perjury, by Mr. Durham himself.

So I think you have two elements. The first on the Durham objection to paragraph 4 had Hellerstein call their bluff and they folded.

The second element, though,(revealing the existence of responsive documents outside the date paramenters) walks back to the original production requirments and the Judge’s expressions of interest in pursuing contempt against the agency. What I would say is that there is concern on any one of a number of fronts that at some point, something from beyond the period in the order will come out otherwise and the lawyers and officers already looking at contempt don’t want to be explaining to the judge why they were less than candid with him.

Keep in mind that the failure of the parties to be able to work something out is what resulted in the Judge picking the responsive dates and CIA made him pick those dates without even skeletal production. So it is likely that the production they make from those dates will make it very clear that there is likely to be more outside that cutoff date and then you’re going to have a pissed off judge, getting very sick and tired of the games playing. So fessing up on the docs isn’t really something Durham is doing IMO, it’s something that the agency and its lawyers who are looking at contemp has done.

Then Durham and the agency have to pretend that they aren’t both trying to accomplish the same thing – cover ups – by the agency saying, “We’re not so confused now on our duty of candor to the court, Judge, so we’ve mentioned that when you see what we have to produce under you’re order you’re going to know your cutoff date was too short. Aren’t we good? Oh, but by the way, we have no idea what that mean, tough, thorough investigator who is going to laugh off Obama and Holder’s directions to protect torturers might be doing so who knows, he might have some objections to you making us produce those younger docs. Golly, we just don’t know.”

In general, if you were arm’s length the lawyers handling the CIA’s response would never claim to be able to speak to what position the Special prosecutor investigating the CIA and its lawyers might take on docs.

But I don’t think Durham is why we are finding out about the docs past June 2003 — I think that the lawyers for the CIA who can tell the judge is about to shut down their urinal privileges in his court have decided to try to fly right. I do think that Durham’s failure to be able to make a worry-free affidavit, under penalty of perjury, that he is actually pursuing criminal charges is why the production is going forward on the pre-July2003 docs.

fwiw – my take only.