Wow – thanks Selise/EW. I was mostly just getting that part off my chest and posted so it will stay in my archives and I’ll have it later.

Re: 4 above, Gigliamo (sp?) has specifically said on the record in one of the pieces that the “found and turned over” tapes are not the same as the “destroyed’ tapes, but his response leaves a huge lot to be desired, in large part bc he also tries for more cover by saying the destroyed tapes did not have anything to do with the particular Moussaoui possible witness/detainees who had been specified in Brinkema’s order. However, it’s pretty clear that Zubaydah would have been on the Moussaoui list and it’s also being reported over and over that Zubaydah and Nashiri were on the destroyed tapes – so it does make you scratch your head of G as a reliable spokesperson. Still, no one is going to turn tapes over to Brinkema and also hit the presses saying they don’t exist IMO – I have to think her fuse is pretty short by now.

phred – that’s an interesting fact to add in – anytime new people are showing up in significant slots, it makes you wonder how that impacted what happened.

EW – I was talking about Larry’s references to the Italian kidnap case, so I’m not sure I follow the reference to “There’s simply no way the Moussaoui case doesn’t come into things, with the 2003 and Nov. 2005 timing” I absolutely believe the Moussaoui case comes into things – I would have known that Moussaoui was calling on Zubaydah to be produced as a witness back in 2003, I just can’t believe any DOJ lawyer didn’t know that too.

Larry, though, brings in the Italian kidnap case:
http://www.tpmcafe.com/blog/co…..e_tapegate

It appears that the June 2005 decision of the Italian judge to issue arrest warrants for C.I.A. officers and contractors involved in the kidnapping of Hassan Mustafa Osama Nasr in 2003 may have been the precipitating incident convincing Jose Rodriguez that Agency must destroy video tapes of terrorist interrogations.

I think that case comes into play in the decision to destroy the tapes too, but not for the exact same reason as Larry.

He says that:

That operation was conducted with the full knowledge and approval of the Italians. If the Italians could flip on us that meant anyone could.

I’m thinking the problem larger than the arrest warrants was that the foreign governments were executing search warrants, as they did in Italy at Robert Lady’s villa. As they went to arrest him, he took off, but he left behind him files and a computer at his villa (Lady’s villa) that the Italian investigators took into their possession. So suddenly, the offshoring theory to keep documents out of a US courts jurisdiction, but leaving them IN an ITALIAN court’s jurisdiction (or Egyptian, Moroccan, Polish, etc. – depending on where they offshored – court’s jurisdiction) might have become more startling when you realized that your kidnap/torture activities just resulted in Italian police forces validly and legally seizing you CIA station chief’s computer and files.

91 – I don’t have the actual orders which the Judge issued in 2003 an 2005, so I can not tell you for sure. They may even be sealed. But what would be typical would be that the Judge’s order would incorporate some of the defense subpoena language that she chose to grant.

If you haven’t seen that kind of language that gets in subpoeanas, it is typically pretty broad and is set forth in a pretty thorough and annoying *lawyerspeak* multiparagraph description.

So what would have been requested, and granted in some possibly reduced form, as to the specific named terrorist suspect detainees, would be first a relatively broad characterization of the US Government entities (since the US is a party to the litigation in a criminal matter) that are required to look – describing by identity and function (the Who of the production) – then a broad listing of what is being sought (the what of the production) – then a broad listing of the possession – control issues (the where) and specifications as to the way it is turned over and to whom (for example, here, perhaps in a certain type of room to just the Judge ex parte initially)

e.g. (just as a rough outline)

function:
– all applicable government entities involved in the interrogation and application of interogation techniques (including, without limitation, harsh interrogation or specially authorized interrogation) questioning, surveillance (including without limitation, data, audio, visual or any other form of surveillance of any kind or nature), caretaking, recordkeeping,(yada yada – this is just for example and not based on working it through) …..(collectively, the “Activities”),

identies:
such entities including, without limitation (and a list would ensue – for example FBI, CIA, NSA, military intelligence or other known possible sources, etc.) and all related or affiliated entities and their officers,employees, agents, contractors and subcontractors …..(collectively, the “Producing Persons or Entities”)
and the order/request would also have a description of what would need to be turned over:

shall produce to the court (or other parties, but probably all to the court initially for ex parte review) all records of any kind whatsoever relating to the files, notes,(including, without limitation, handwritten, audio, electronic, digital…)video tapes, audio tapes, digital or electronic records, summaries, memoranda, … whether now existing or formerly existing and presently memorialized, summarized or otherwise referenced in any manner whatsoever(the “Information”)

and for example on the where:

in the possession of, warehoused by, under the control of, owned by, or reasonably accessible by or to each or any of the Producing Persons or Entities …

As others can attest, that’s just a short sample of how the defense requests might have appeared, but they are very unlikely to have failed ot include issues regarding which entity, control, etc.

I have to think that, while it would have been pared down from the broad requests language, Brinkema would not have failed to address control, agency, etc. issues. Which makes the exact wording of her orders and the declarations interesting. It appears that with respect to another order by another Judge, specifically directing the CIA not to destroy evidence, CIA is now trying to parse that the destruction of the disclosed destroyed tapes was ok bc the order language only related to interrogations of GITMO detainees, not the then unacknowledged black site detainees who were first publically alluded to in the Dana Priest story.

Gigliamo tried the same kind of parsing early in the initial story as it came out with respect to Brinkema, indicating that only specific terrorist suspect detainees were mentioned in Brinkema’s orders, and that the destroyed tapes were not of those detainees (but that seems to be falling apart with the acknowledgements that Zubaydah was on the destroyed tapes, bc there is almost no way he would not have been in the Judge’s order, even though I haven’t seen that order. Moussaoui was requesting Z as a witness from the very very very beginning, and very publically so.

And lest anyone forget, the Padilla arrests were initiated by DOJ getting arrest warrants based on what appears to have been the torture statements of Zubaydah and Binyam Mohammed (who, alone of the British GITMO detainees is not being released to a country where he might start talking to the press and where his abuse claims could be medically investigated). Given the high profile of the Padilla case and his objection to that arrest warrant and allegations of torture in relation to the statements supporting it – – how can tapes of Zubaydah being tortured not be deemed relevant to that case and its appeals? I have to wonder if there wasn’t a preserving order in that case too, but by the time Padilla was undisappeared after years, it looks like Gov may have already taken all many gifts Judge Luttig gave them, including the time and free hand to destroy evidence, and put it to good use. I believe the Comey prequel to Nifong (press conf) on Padilla was June of 05 (I’m notoriously bad on names and dates though – so don’t rely). All the allegations that he made about Zubaydah’s interrogations and information – – within a few months of that presser and well before the Padilla case was decided (the Sup Ct at that juncture remanded) his DOJ was destroying all that evidence it supposedly reviewed and which Comey assured everyone “proved” that the President was a wonderful guy who made great decisions.

Gosh – who would want to destroy proof of such nobleness?

To put in the the lhp comment for her — “maybe the CIA was waiting for Comey to leave” to destroy the tapes? Was he involved in those heated discussions? Seems likely that he was involved in the discussions. Given the distortions and misrepresentations and misuse of public statements in the Padilla presser, I have to speculate as to whether he would more likely have been a prop, rather than a block, to conspiracies to conceal DOJ’s involvement with making the US a state sponsor of torture – but who knows?