Immunity

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I’m all in favor of holding the several people in the White House who intervened to destroy evidence responsible for their actions: I expect Steven Cambone, Rummy, David Addington, Alberto Gonzales, and probably Cheney deserve the heat for destroying the torture tapes.

But as we begin to hear about Jose Rodriguez considering immunity…

THE CIA chief who ordered the destruction of secret videotapes recording the harsh interrogation of two top Al-Qaeda suspects has indicated he may seek immunity from prosecution in exchange for testifying before the House intelligence committee.

Jose Rodriguez, former head of the CIA’s clandestine service, is determined not to become the fall guy in the controversy over the CIA’s use of torture, according to intelligence sources.

[snip]

The House intelligence committee has subpoenaed Rodriguez to appear for a hearing on January 16. Last week the CIA began opening its files to congressional investigators. Silvestre Reyes, a Democrat who is chairing the committee, has said he was “not looking for scapegoats” – a hint to Rodriguez that he would like him to talk.

… it might be well to remember what I pointed out when Rodriguez was first floating the idea of immunity.

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. Read more →

Recycling Torture Timelines

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Per Jeff’s suggestion, I took a closer look at Zelikow’s memo on how the CIA stiffed the 9/11 Commission on evidence relating to interrogations of Abu Zubaydah and al-Nashiri. I’ll come back and comment on it in more detail–but I was struck by how closely the requests coincided with the beginnings of the Abu Ghraib scandal and Tenet’s resignation. So for now, I’m just adding some dates to this timeline (which I’ve integrated my torture tapes timeline). Look closely at the roles of Rummy, Cambone, Tenet, and McLaughlin.

August 1, 2002: Bybee Memo on torture governing interrogations by CIA

March 2003: Second John Yoo opinion on torture, governing interrogations by DOD

June 6, 2003: 9/11 Commission requests "’all TDs and other reports of intelligence information obtained from interrogations’ of forty named individuals from CIA, DOD, and FBI

August 31 to September 9, 2003: Major General Geoffrey Miller ordered to Abu Ghraib from Gitmo

September 22 and September 25, 2003: 9/11 discussions with CIA about interrogation process

October 1, 2003: Hamdi petition filed with SCOTUS

October 14 and 16, 2003: 9/11 Commission sends questions to CIA General Counsel Scott Muller on interrogations

October 31 and November 7, 2003: Response to 9/11 Commission with little new information

Fall 2003: General Sanchez visits Abu Ghraib regularly

December 2003: Jack Goldsmith tells Rummy he will withdraw March 2003 opinion on torture

December 23, 2003: 9/11 Commission requests access from Tenet to seven detainees; Tenet says no; Lee Hamilton asks for any responsive documents

January 5, 2004: 9/11 Commission decides CIA responses inadequate

January 9, 2004: SCOTUS agrees to hear Hamdi

January 13, 2004: Joseph Darby gives CID a CD of images of abuse

January 15, 2004: Memo to Gonzales, Muller, and Steve Cambone asking for more information

January 15, 2004: General Craddick receives email summary of story

January 19, 2004: General Sanchez requests investigation of allegations of abuse

January 20, 2004: Craddick and Admiral Keating receive another notice of abuse

January 2004: General Myers learns of abuse

January 26, 2004: After negotiations with Gonzales, Tenet, Rummy, and Christopher Wray from DOJ, 9/11 Commission accepts asking questions through intermediary

January 31, 2004: Taguba appointed to conduct investigation

February 9, 2004: 9/11 Commission requests “all TDs and reports related to the attack on the USS Cole, including intelligence information obtained from the interrogations of Abd al Rashim al Nashiri” from CIA

February 2 to 29, 2004: Taguba’s team in Iraq, conducting investigation

March 9, 2004: Taguba submits his report

Late March, 2004: 60 Minutes II starts on story

April 2004: General Miller ordered to Abu Ghraib to fix problems

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy) Read more →

Timing, Again

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Marty Lederman points out that today’s NYT story clarifies one of the issues I’ve been trying to pinpoint on timing.

If the CIA had destroyed its interrogation tapes during the pendency of the 9/11 Commission investigation, that almost surely would have constituted felony violations of 18 U.S.C. 1512(c)(1). So they retained the tapes during that investigation. However, as the New York Times reports tomorrow, the CIA very carefully avoided informing the 9/11 Commission of the existence of the interrogation tapes — which would have been extremely valuable information for the Commission to use. "A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes" . . . but the Commission never said the magic words!: The Commission sought "documents," "reports" and "information" related to the interrogations from the CIA — but "staff members never specifically asked for interrogation videos."

[snip]

Here’s the really amazing bit, however: "Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active," said a CIA spokesperson.

Then, as soon as the Commission issued its report and closed up shop, the CIA quickly destroyed the evidence, precisely because there was no longer any proceeding pending (and arguably no foreseeable proceeding that would trigger 1512(c)(1) culpability, although that is far from certain). Read more →

The Wheels Of Justice

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Top of the morning to one and all. As Marcy and family hit the road on their much delayed Christmas expedition, it occurs to me that it is time to grease the wheels of justice and get them rolling down the road of accountability. EW and Mad Dog are right about the implications of the new AP article. The collective insight and wisdom of the community are doing a wonderful job of dissecting the situation. I would like to highlight a couple of the angles that have been raised, and ask that you consider them, and the torture tape situation as a whole, in a broader context.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?
….
No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

These are not mere "administration officials"; with the exception of Cheney and Bush, they are as high as you go. Negroponte is DNI and Addington, despite his putative position as Cheney’s counsel/chief of staff, is the legal heart and soul of the Bush Administration. Toss in Gonzales, Miers and Bellinger, and there is simply no viable way to argue that "the White House", did not know about, and was not involved in, the intentional spoiling and destruction of material evidence; which, of course, means direct obstruction of justice.

“CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be “cautious” about destroying the tapes, according to sources familiar with his classified testimony.”

To me, that sounds like they were briefed and urged the agency to be careful about destroying the tapes. In other words, destroy them, but be really careful how you do it. JMHO

LS’s take here is just about right I should think. Ralphbon’s response is dead on the money too.

For those who didn’t see it, ther (almost) consensus from the panel was:
1) that there was no way Mukasey could avoid conflict of interest because he had signed the material witness warrant for Jose Padilla that Read more →

Dates

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MadDog is right. This AP article provides a slew of interesting details on the torture tapes, including a list of Administration lawyers who objected to the destruction of the tapes. The article adds Alberto Gonzales and John Bellinger to the list of White House lawyers who–along with Harriet Miers–objected to the destruction of the tapes.

But no David Addington. Funny. Who would have thought that Addington would be the one lawyer who–at least thus far–doesn’t appear in records as having objected to the destruction of the tapes?

But there are a few more details I’d like to focus on. First, the AP offers a list of who Reyes plans to invite to testify to HPSCI, and it includes the CIA lawyers who wrote the opinion used–however fraudulently–to justify the destruction of the tapes.

Reyes also wants the CIA to make available CIA attorneys Steve Hermes, Robert Eatinger, Elizabeth Vogt and John McPherson to testify before the committee. Former CIA directors Porter Goss and George Tenet, former deputy director of operations James L. Pavitt and former general counsel Scott Muller are also on the list.

No mention of Negroponte, who apparently advised strongly against the destruction in 2005, when he was DNI (and presumably should have had significant sway over the decision). Hey Silvestre Reyes! Didn’t you get Isioff’s telegram?

For now, though, I’d like to return to the issue of timing, because it looks like somebody is fudging the true nature of the discussion by playing with the dates of discussions on the destruction of the tapes. John Bellinger is out there saying that in 2003, at least, the White House "consensus" objected to the tapes’ destruction. Read more →

2004

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It seems the NYT was not the only one who knew that Addington, Gonzales, and Bellinger got a briefing on the terror tapes. It appears the whole SSCI knew that too.

CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be "cautious" about destroying the tapes, according to sources familiar with his classified testimony.

The three White House officials present at the briefing were David S. Addington, then Vice President Cheney’s chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden’s closed-door testimony before the Senate intelligence committee.

When told that some high-ranking CIA officials were demanding that the tapes be destroyed, the White House lawyers "consistently counseled caution," said one U.S. official familiar with Hayden’s testimony. Another source said that Harriet E. Miers followed up with a similar recommendation in 2005, making her the fourth White House lawyer "urging caution" on the action.

The ambiguity in the phrasing of Hayden’s account left unresolved key questions about the White House’s role. While his account suggests an ambivalent White House view toward the tapes, other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed.

Also unexplained is why the issue was discussed at the White House without apparent resolution for more than a year.

But note what’s funny about this story (and therefore, about Hayden’s testimony). Hayden says this briefing took place in 2004, not 2003, when we know the Gang of Four got a briefing.

Yesterday’s NYT story suggested the discussions started in 2003.

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

So which is it? Did the briefings start in 2003? And if so, did Hayden tell the SSCI about those briefings?

In Which Country Were the Tapes Stored?

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The NYT’s article has one more detail of note–again, reporting something that is intuitive, but not something that had been confirmed before, AFAIK. The torture tapes were stored in the country–singular–where the interrogations of Abu Zubaydah and al-Nashiri took place.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

Which raises some really interesting questions. Abu Zubaydah has been widely reported to have been taken from Pakistan to Thailand to be interrogated. Yet al-Nashiri’s trajectory has been less clear. He was reported to have been detained in the United Arab Emirates but it has never been clear where he was taken after he was captured (though I’ve seen unreliable sources say al-Nashiri was taken to Jordan).

But according to the NYT, al-Nashiri was apparently interrogated in the same country as Abu Zubaydah. So, presumably, Thailand, unless Abu Zubaydah was moved.

Though there is a distinct possibility that Abu Zubaydah was moved. From James Risen’s State of War:

The CIA assigned a group of agency officials to try to find alternative prison sites in countries scattered around the world. They were studying, said one CIA source, "how to make people disappear."

There were a number of third world countries, with dubious human rights records, willing to play host. One African country offered the CIA the use of an island in the middle of a large lake, according to CIA sources, and other nations were equally accommodating. Eventually, several CIA prisons were secretly established, including at least two major ones, code-named Bright Lights and Salt Pit. A small group of officials within the CIA’s Counterterrorist Center was put in charge of supporting the prisons and managing the interrogations.

[snip]

Bright Light is one of the prisons where top al Qaeda leaders–including Abu Zubaydah and Khalid Sheikh Mohammed, the cenral planner of the September 11 attacks–have been held. Bright Light’s location is secret, and it has been used for only a handful of the most important al Qaeda detainees. (30)

This passage follows Risen’s reporting that Abu Zubaydah was moved to Thailand not long after his capture. Which suggests, as far as Risen knows, Bright Light may not be in Thailand. Read more →

Sub-Heading: White House Panics

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As Scarecrow pointed out in the last thread, the White House has done something colossally stupid: they’ve objected to the sub-heading of the NYT’s story revealing the involvement of David Addington and Alberto Gonzales (among others) in the destruction of the terror tapes.

The White House on Wednesday took the rare step of publicly asking The New York Times to change the sub-headline of a story on the destruction of CIA tapes showing the interrogations of suspected terrorists.

At issue is the story’s sub-headline that stated: “White House Role Was Wider Than It Said.” The White House called this sub-headline inaccurate and demanded that it be corrected.

[snip]

The White House argues that the newspaper article implies that “there is an effort to mislead in this matter,” adding that such a conclusion is “pernicious and troubling.”

They appear to be making a fairly narrow objection. Since they have not publicly, officially, responded to the news that someone destroyed the terror tapes, they can’t be described to have "said" anything. Never mind that someone has been shopping the cover story that only Harriet Miers was involved in the deliberations on the tapes.

And, as we might expect from the Bill Keller- and Pinch Sulzberger-led NYT, they have obliged with the White House’s request and changed the entire title to: "Bush Lawyers Discussed Fate of C.I.A.Tapes." Given that the point of the sub-headline was that the story had been floated, by someone, that Harriet was the only one involved in the terror tape deliberations, I think the more appropriate response would have been to demand that the source for those original allegations either publicly retract them, or consider his source confidentiality sacrificed. Because, as it is, the NYT’s change of headlines coddles the people who have been pitching the cover story about Harriet.

But I’m also interested in the White House’s ham-handed response to this. Read more →

Lawyering the Torture Tapes

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I speculated, a week ago, that the Directorate of Operations lawyers who gave Jose Rodriguez the green light to destroy the torture tapes did not know of the outstanding court orders that would have covered the tapes.

Most importantly, it sounds like the Directorate of Operations lawyer who purportedly authorized the destruction of the tapes only said there was no legal reason not to do so.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

Which suggests this lawyer had no fucking clue that Judge Leonie Brinkema had asked the government about such tapes explicitly, within weeks of the time when the tapes were destroyed. I’m guessing that was by design–the only way they could figure out how to get a legal opinion defending the indefensible, the destruction of evidence.

Which is why I think the description in today’s NYT story on the torture tapes is so important.

The officials said that before [Jose Rodriguez] issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the C.I.A.’s top lawyer, John A. Rizzo, about the legal advice they had provided. But officials said Mr. Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the C.I.A. director, before he sent the cable to destroy the tapes.

“There was an expectation on the part of those providing legal guidance that additional bases would be touched,” said one government official with knowledge of the matter. “That didn’t happen.”

Look at the language of these two versions, taken together. Read more →

Dick versus Scottish Haggis: The Grudge Match

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Arlen "Scottish Haggis" Specter took the opportunity yesterday to enter a letter exchange he had with Dick Cheney into the Congressional Record. Here’s that exchange (see below the letters for my analysis; h/t for Selise to alerting me the transcripts were up):

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.

Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance,

No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration’s continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration’s electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration’s position on this legislation, I have been unable to get any response, including a “no”. Read more →