Durham’s Investigation and the Non-Exempt IG Files

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This is rather interesting.

Remember that the ACLU FOIA on the torture tapes covered several things: documents describing what the torture tapes originally depicted and documents discussing the torture tapes, both of which Judge Hellerstein recently said could be withheld to protect the CIA’s torture methods. (Well, okay, he said it protected sources and methods.)

Then there were the documents that discussed the actual destruction of the torture tapes. And the CIA has just determined that parts of 100 Inspector General documents are not exempt from FOIA–but cannot be released because doing so would hinder John Durham’s investigation into the torture tapes.

As required by this Court’s order of September 2, 2009, the CIA has conducted a line-by-line review of approximately 100 responsive OIG documents and processed these documents to identify any non-exempt information for release. The CIA has determined that certain of these 100 documents contain information that is not covered by any FOIA exemptions that may be asserted by the CIA. The CIA has been informed, however, that release of the information in question from the OIG documents would interfere with the ongoing criminal investigation of Special Prosecutor John Durham into the destruction of the videotapes.

This information must be fairly innocuous–if it described the actual content of the videotapes or could be claimed to be pre-decisional or attorney work product, the CIA would claim a FOIA exemption. But the information is either directly relevant to Durham’s investigation or the CIA is making shite up again.

I’m interested in this because of the OIG’s review of the Office of General Counsel’s review of the torture tapes–and because of Jay Rockefeller’s attempts to get more information on precisely that subject. After all, Jay Rock’s request for that information would be non-exempt, as would discussions within OIG of whether or not to respond to him. And those discussions would have taken place in 2005, just before the torture tapes were destroyed.

17 replies
  1. bobschacht says:

    How would the release “interfere” with Durham’s investigation? is the idea that people are named who do not have access to these documents, who might be able to “adjust” their testimony in order to avoid perjuring themselves? Kinda like what Karl Rove did with Fitz?

    Bob in AZ

  3. BoxTurtle says:

    Who informed the CIA it would be bad? If it was Durham, let him so file with the court.

    Boxturtle (Suspects the first time Durham heard of it wa when he read it here)

    • WilliamOckham says:

      The letter does say that Durham will be writing to the court himself. I find the construction this phrase rather interesting, though:

      The CIA has been informed

      What, were they mystically informed by the Universal Consciousness or did someone actually do the informing?

    • Mary says:

      Link to the letter
      http://www.aclu.org/pdfs/safefree/govtletter_ciatapes.pdf

      The letter, btw, is from the USA and AUSAs involved, no GC or staff lawyers from CIA and no declarations from CIA legal staff or others.

      And Schumer’s lawyer the USA footnotically reminds the court, in context of:

      The CIA has been informed however, that release of the information in question from these OIG documents would interfere with the ongoing criminal investigation of Special Prosecutor John Durham into the destruction of the videotapes.

      that Durham met with the Court directly:

      … at which time Mr. Durham described, inter alia, “the scope of his criminal investigation into destruction or the videotapes.” Court Order, dated July 30,2009, at 2. The Court “accepted Mr. Durham’s representations,” found that “the material issues of Plaintiffs’ contempt motion [in this case] are subsumed by his criminal investigation)” and accepted Mr.Durham’s “concerns that hearing that [the Court] might conduct on the contempt motion would interfere with his investigation,” Id.

      I was tweaking MD about this earlier, to compare and contrast how the 7A FOIA exemption is being asserted here vs how it was being asserted in Cheney’s case. Did DOJ go to Breuer or Bradbury to get someone to represent to the court, initiallly, that the info could “reasonably be expected to interfere with enforcement proceedings?” Why no – the Special Prosecutor made those reps to the court (and will be following up here in the same regard) The mystery in the Cheney docs was only partly what Cheney said and more specifically the disappearance of the Special Prosecutor and anyone connected with the carved out chain of command on the special prosecution from proferring any reps to the court there.

      In any event, since this is all in connection with contempt proceedings, the best Durham case would be that there are docs indicating that people are discussing specifically the non-compliance with the court’s order and that these are so relevant to his “investigation” into the destruction (going to motivation and knowledge and the like, perhaps) that yeah – they do bear on the court’s contempt concerns, but they also are a big element of his criminal case.

      If that were the case, then the USA is in a weird spot when they say that the CIA “has been told” bc the USA works for DOJ; Durham is just handling an assigned task from DOJ without any special carveouts, protections or chains of authority – so basically the USA is saying,
      umm, my *clients* here, the CIA, um, well, uh, I’m informing them – – well, not me so much as, you know, my boss and my employer — well, anyway, we at DOJ – – um, but not *me* as the USA who is acting as lawyer *for* the CIA, but you know, the imperial *we* that America has come to know and embrace for its DOJ; — anyway Judge, um, DOJ is telling you that DOJ is telling it’s client, the CIA, that there are documents that are not protected by other FOIA exemptions but are going to be protected because, well, because I’m, I mean we, I mean – some “other” guy at CIA is going after my clients, I mean, um, the CIA, well, for you know, criminal charges.

      Is that clear your honor?

      It’s no wonder no one wants to nail that booger to the board cripsly and clearly. And if Durham has decided that some things are indeed evidentiary of criminal activity and behavior, how does that apply to override other FOIA exemptions that *might* have applied, absent the info being evidentiary for a criminal case?

      It’s no wonder the USA is acting like he’ll get cooties from both his clients at CIA and his colleagues at DOJ working on the isn’thatspecial non-prosecution. It’s a kind of awkward situation to be in – please judge, don’t find me and mine here at the USA’s office, or my predecessors you were dealing with before with the USA’s office, or our clients at CIA – don’t find any of us guilty of contempt, for what we did then or for not handing over things now, bc, well, we are pursuing criminal investigations against ourselves instead and we’ll get back to you later on whether we think we know “who did it.”

      lame
      lamelamelamelamelame

      But given what Hellerstein has bought into with them so far, I don’t think you can look there for much.

      • Jim White says:

        I’ll admit that I haven’t gone very far into the weeds on this one, but I wonder if there isn’t a simpler explanation here. You cite that Durham went to the judge and explained that hearing the contempt motion would compromise his case through use of the documents in question and that the judge accepted Durham’s explanation/request. Isn’t it possible then that the judge felt obligated to explain to CIA why they were no longer defending the contempt motion? [I realize that the weakness of this argument is that it should be supported by a written ruling from the judge.]

        • Mary says:

          Earlier Durham went to the Judge and made some generic representations – not so much on specific docs IIRC.

          The letter linked is a letter from the USA’s office/team handling the matter in front of Hellerstein to the Judge (not from the Judge to the CIA).

          That letter is a follow up to other, earlier production revisions (including the “DOJ cites the Britany Shield as a defense to losing and being unable to identity other Vaughn index docs – *oops, we lost things again* is apparently gaining acceptance in multiple judicial districts – go figure) that dealt with other torture document categories, but still left hanging the OIG documents that were “paragraph 4” documents under prior court orders.

          So it is not the Judge feeling obligated to explain things to the CIA – it is the USA’s office following up on existing orders from the court to produce. And now they (the DOJ, through the USA office representing the CIA in this contempt proceeding) are saying – well, we didn’t look for documents in the CIA’s OIG office, but our client, CIA, did. Not with us or anything, just, you know, the CIA searched the CIA OIG’s office, we here at the USAs office didn’t ask to accompany and participate and be observers to what was found and make recommendations – no one has or wants that super duper national security “clearance to commit crimes of obstruction” clearance.

          So having turned CIA loose on the OIG’s office, the USA’s office says CIA then undertook to do the line by line review ordered by “this court” (and without it’s lawyers there at the USA’s office involved, despite all the earlier problems and issues) And lo and behold, the USA’s office is saying, “heckfire, those CIA guys and gals showed up with some docs that they told US, their lawyers, that they didn’t think should be wittheld under any FOIA exemption and heckfire, it looked like we-uns was gonna have to produce that stuff!” [iow, “The CIA has determined that certain of these 100 documents contain information that is not covered by any FOIA exemptions that may be asserted by the CIA”]

          and then a miracle happened, to quote a farside strip.

          Somehow the CIA, which had been doing all this document review all on its lonesome with no involvement of the USA’s office, was “informed” that these docs it was ready to hand over as not being subject to any exemption that might be asserted “by the CIA” (as opposed to, oh, maybe the WH?) was not going to be handed over at all, despite all those efforts by the CIA and willingness by the CIA, bc they impacted on Durham’s investigation.

          Who told them that? Well, the USA’s office is pretty deliberately vague on that and as I mentioned above, if your “law partners” (that’s not truly correct and its an oversimplification even where it is analagous, but stilll) are going to be using docs your client is producing for a contempt proceeding to go after your client in a criminal proceeding, I think everyone is going to be a little touchy about who is telling whom what, and why. All of this hands off by the USA’s office is interesting, and apparently they are expecting Durham to come in and make the item by item ex parte type of representations to the court for the documents at issue. Maybe hoping to get a ruling, too, that the docs don’t have to even be Vaughn Indexed since the descriptions might interefere with the investigation too (maybe by letting CIA et al know which docs Durham has and which he doesn’t and if he knows of things from computer forensics etc. that they still haven’t produced, etc.)

          In any event, it’s all more delay, and suddenly you have attorney’s who are representing the CIA to the court making all their statements as removed, “don’t look at us, we’re just telling you what some guy told us that some other guy told him” second hand expressions.

        • Jeff Kaye says:

          Let me summarize: the CIA is a rogue agency, unanswerable to other branches of government, who must serve the aims of the CIA, which are to produce intelligence product, while conducting covert operations at the behest of the executive branch.

          Shorter summarization: Durham is a tool. The courts will tell you their hands are tied. No one will note (except maybe here and a few other blogs, or ACLU, etc.) that the CIA is allowed to involve themselves in the investigation to an unprecedented degree.

          Langley should be shut down, and yellow tape placed all around it, until the investigation is completed.

  4. Mary says:

    OT – but now that Lithuania is going all “we investigate crime and stuff” on Obama, I’m wondering how the Obama administration is going to threaten them.

    I guess with Shaquille on board now, the win-win diplomatically would be to threaten to have the Cavaliers bench Žydrūnas Ilgauskas. But somehow that just doesn’t have the same punch to it as threatening to let terrorists blow up Britain and all the Americans visiting it like we did over Britain’s torture evidence.

  5. bmaz says:

    PIN head to step down. From WaPo:

    William M. Welch II, head of the Justice Department’s public integrity unit, will step aside and return to Massachusetts, where he spent the bulk of his career exposing corruption in state government, according to two sources familiar with the move.

    Welch reached the decision after consulting with authorities about his family responsibilities and professional opportunities in his home state, the sources added. Welch notified subordinates in the public integrity unit late Monday. He will remain an employee of the department’s criminal division.

      • bmaz says:

        I particularly liked this clause “after consulting with authorities about his family responsibilities and professional opportunities in his home state”. Heh; in plainer English “time for you to get the fuck outta here Welch”.

        • emptywheel says:

          Hey! Welch! You’re a civil service employee, so we can’t fire you, but how about a nice demotion??

          And the Stevens trial was likely not the only thing they were scrutinizing him for.

          What’s interesting, of course, is that this may have come from OPR, in which Marshall Jarrett got a similar demotion.

    • Mary says:

      The whole article was weird. What is this supposed to mean:

      Bill knows that his management decisions, where permitted, comported with his own and the department’s highest ethical standards,” said Welch’s attorney

      emph added

      Are they arguing that there were instances where someone trumped his management decisions? And how does he stay on as an employee of crim div? And how strange is it that, after being shot down bit time on the Ring prosecution and the almost concurrent Safavian sentencing (after the bulkof his convictions were overturned) a DOJ official in the witness protection program requesting anonymity for speaking out of school, chimes in to praise Welch “for his oversight of the ongoing investigation into disgraced lobbyist Jack Abramoff”

      That gets praise? Nothing done on the firings and demotions of the Mariannas report authors, no proceedings against Ayres and Ashcroft over handing off info about the classified report to Abramoff or about quashing the report and hiding it from Congress, Ring’s interactions with Ashcroft over the classified report not even a part of his now defunct trial – and this all gets praise? Wow – lower that bar any lower and we’ll all have to start digging to find it.

      I thought Breuer stole the piece with his supporting role, though.

      Last week Assistant Attorney General Lanny A. Breuer appeared at a judicial conference in Seattle to outline a series of robust training measures and other reforms to help prosecutors understand their responsibility to share evidence in criminal cases. The department is resisting attempts by judges to impose more expansive obligations on its prosecutors.

      emph added

      LOLOLOLOLOLOL

      or not.

      Gee, not destroying torture tapes is an expansive obligation? Not lying to courts about the innocence of GITMO detainees and their torture is an expansive obligation?

      I’m looking for someone to like in Obama’s admin and coming up pretty dry.

      Meanwhile, I ran an errand and listened to NPR and the discussion of Obama thumbs upping the use of drones that are killing civilians in our “allies” countries. I guess the empty suit will fill with other people’s blood fast enough.

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