Posts

CIA Inspector General: We Never Had Any Torture Tapes!

The CIA has responded to ACLU’s motion to hold the CIA in contempt for destroying the terror tapes. They argue they shouldn’t be held in contempt for destroying the torture tapes for three reasons:

The videotapes were held in operational files. The Court ruled that the CIA’s obligation to search for records responsive to Plaintiffs’ FOIA requests did not extend to its operational files. Rather, the Court ordered the CIA to search investigative files of the CIA’s Office of Inspector General (“CIA OIG”) for operational records produced to or collected by CIA OIG during the course of CIA OIG’s investigation into allegations of impropriety in Iraq. The tapes were not produced to or collected by CIA OIG. Thus, the CIA’s destruction of the videotapes did not violate the Court’s orders.

Moreover, the videotapes were not responsive to Plaintiffs’ FOIA requests because the activities depicted on the videotapes were not the subject of a CIA OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by CIA OIG. Under the Central Intelligence Agency Information Act (“CIA Information Act”), the CIA’s operational records are exempt from search or review in response to FOIA requests unless an exception to the Act applies. One exception is where the records requested are the specific subject matter of an investigation by CIA OIG into allegations of impropriety or illegality in the conduct of an intelligence activity. 50 U.S.C. § 431(c)(3). Here, CIA OIG did not conduct an investigation into allegations of impropriety or illegality relating to the interrogations on the videotapes prior to their destruction. Therefore, the tapes were exempt from search and review in response to Plaintiffs’ FOIA requests up to the time of their destruction.

Further, the Department of Justice (“DOJ”) has initiated a criminal investigation into the destruction of the tapes. That investigation is considering, inter alia, whether the destruction of the tapes was inconsistent with or violated any legal obligations, including those arising out of civil matters such as this Court’s orders. Accordingly, if the Court does not deny the contempt application outright, it should stay these proceedings pending completion of DOJ’s criminal investigation. [my emphasis]

In other words, their reasoning depends entirely on the technical status of the CIA IG investigation into detainee interrogation. The CIA submitted a declaration describing that investigation; here’s what they said. Read more

They Really Don’t Want Us Learning About the Torture Tapes, Do They?

I noted several weeks ago that Bob Bennett sounded an awful lot like he was beginning to float excuses for his client, Jose Rodriguez, to ask for immunity before he testified before Congress.

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.

Well, surprise, surprise! Bennett just told Congress he wants Rodriguez to receive immunity before he’ll testify before Congress (h/t maryo2).

Attorneys for Jose Rodriguez told Congress that the former CIA official won’t testify about the destruction of CIA videotapes without a promise of immunity, a person close to the tapes inquiry said Wednesday.

[snip]

Defense attorney Robert Bennett told lawmakers, however, that he would not let Rodriguez testify because of the criminal investigation into the case. Without a promise of immunity, anything Rodriguez said at the hearing could be used against him in court.

Of course, Bennett’s excuse has changed. Rather than use the tired excuse Monica Goodling used–she was the "victim" of a witchhunt–Bennett is using the even more tired Iran-Contra era excuse that, um, maybe Congress can get his client out of all criminal liability if Bennett pulls a fast one … ? But honest, Bennett’s not worried about any real criminal liability, nosiree.

Meanwhile, Judge Mark Kennedy has decided he trusts DOJ a lot more than Judge Mark Wolf does, and he doesn’t see the need to conduct an inquiry into why the CIA was destroying tapes that might have been relevant to cases before him. Read more

John Yoo complains, “I am trapped on a plane in all of this bad weather”

Poor John Yoo. Apparently now he’s trapped. Or, as his lawyer said, faced with "nothing more than a political rant disguised as a lawsuit." I know you’re all crying for him.

I’m a little bit late to posting about the law suit, on the behalf of Jose Padilla and his mother, against the guy who rationalized his torture, John Yoo. But that makes my punditry job easier–I can just borrow liberally from all the smart lawyers who have been debating the suit in this thread.

Though I’m not a lawyer, I agree with bmaz’s take that the suit is fairly weak.

First off, as despicable as Yoo is, I am not sure he is a proper party defendant here. Secondly, I think his actions are probably entitled to qualified immunity. Third, I see a real problem establishing direct causation for Padilla’s damage elements. Fourth, despite the allegations in the complaint, I am not sure that NDCA is the proper venue. fifth, it is just not particularly artfully plead. Read more

Helgerson’s Reports Will Remain Unchanged

Since I’ve been talking so much about Helgerson, and since we now have proof that Helgerson’s investigation was always central to discussions of the torture tape destruction, I would be remiss in ignoring this bit from the LAT (h/t Laura).

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

But the agency will not force Helgerson to revise previously issued reports or acknowledge flaws in the reports, including one report that was sharply critical of top CIA officials for intelligence failures before the Sept. 11 terrorist attacks. Read more

Harman’s Letter

TPMM has a copy of Jane Harman’s letter to then CIA General Counsel Scott Muller and his reply (h/t BayStateLiberal). As Paul Kiel notes, Muller blows off Harman’s warning not to dispose of the Zubaydah tape.

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

Muller simply doesn’t acknowledge her advice in his return letter.

But even without a response, Harman’s advice is instructive. It reveals that–at least in February 2003–CIA premised the destruction of the torture tapes on the completion of Helgerson’s IG inquiry into interrogation methods. That confirms my earlier suspicions that the torture tapes were intimately connected with the IG inquiry–and makes the May 2004 White House discussion of whether or not to destroy the tapes all the more damning. After all, they can’t very well deny that the IG reported that the tapes showed methods that may have been illegal if they claimed the torture tape destruction tied to the inquiry itself? So once the report came out, they would be bound to keep the tapes since they would have verified or refuted the IG report.

Also note, Harman mentions only Zubaydah, not al-Nashiri. Did Muller just neglect to mention the latter AQ detainee? Or are we getting a somewhat fickle depiction of what tapes were kept?

Just as interesting is the partial blow-off that Muller gives Harman on the issue of the policy wisdom of torturing detainees, as distinct from the legal implications. She asks, Read more

Durham’s Previous Run-In with Tribalism

There are two more themes emerging on the coverage of John Durham, the guy Mukasey picked to investigate the torture tape destruction. First, there’s this piece from the WaPo that describes how Durham managed to take down the governor of CT.

Pickerstein said Durham relied on a "good versus evil" vision of the world while overseeing the probe of former governor John G. Rowland.

Rowland was sentenced to a year and a day in federal prison and four months of home confinement for accepting $107,000 in gifts from people doing business with the state and for not paying taxes on them. "It wasn’t an easy case, but John was single-minded in his pursuit of the truth," Pickerstein said.

Gotta say I appreciate the emphasis on his willingness to go after Republicans. But folks? Let’s stop with the "Second coming of Fitz" claims, particularly ones that suggest Fitz doesn’t have a sense of humor.

He’s Fitzgerald with a sense of humor Read more

What Did Helgerson Do with the Torture Tapes?

I noted here that both Michael Hayden and John Helgerson are recusing themselves from the torture tape criminal investigation.

Hayden said in a statement today that he was recusing himself from any involvement in the new Justice investigation because of his past role in reviewing the tape destruction. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation," Hayden said.

CIA Inspector General John L. Helgerson announced that he also would recuse himself from the criminal inquiry to avoid a conflict of interest. Helgerson said he and his staff had "reviewed the tapes at issue some years ago," during the time when agency officials were debating whether to destroy them.

"During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said in a statement. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation." [my emphasis]

Since Hayden wasn’t at CIA when the tapes were destroyed in 2005, I presume when he says he was involved in reviewing the tape destruction, he’s referring to his lead-up to sending a silly letter to CIA making transparent excuses for why the torture tapes were destroyed [Update: actually, I take that back. Hayden was Deputy DNI starting in April 2005, so early enough to be party to the summer 2005 discussions between John Negroponte, then DNI, and Porter Goss, in which Negroponte told Goss not to destroy the tapes]. I’ll come back to that in a second. But for now, I’m more interested in Helgerson’s reasons for recusing (I’d point out that if he has to recuse going forward, he should have already recused. But this is the Bush Administration, after all).

Helgerson notes he and his staffers "had ‘reviewed the tapes at issue some years ago,’ during the time when agency officials were debating whether to destroy them." The "time when agency officials were debating whether to destroy them" is generally described as February pr March 2003 (when CIA first pitched destroying them to the Gang of Four) through November 2005 (when they were destroyed). We also know there was a CIA briefing for the White House involving Alberto Gonzales, David Addington, and John Bellinger in May 2004, not long after the Abu Ghraib scandal became public (but long after Gonzales, at least, was likely aware of the impending scandal).

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say. Read more

Mukasey’s Statement

Here’s Mukasey’s statement on the criminal probe into the torture tape destruction.

Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation as outlined below.

This preliminary inquiry was conducted jointly by the Department’s National Security Division and the CIA’s Office of Inspector General. It was opened on December 8, 2007, following disclosure by CIA Director Michael Hayden on December 6, 2007, that the tapes had been destroyed. A preliminary inquiry is a procedure the Department of Justice uses regularly to gather the initial facts needed to determine whether there is sufficient predication to warrant a criminal investigation of a potential felony or misdemeanor violation. The opening of an investigation does not mean that criminal charges will necessarily follow.

An investigation of this kind, relating to the CIA, would ordinarily be conducted under the supervision of the United States Attorney for the Eastern District of Virginia, the District in which the CIA headquarters are located. However, in an abundance of caution and on the request of the United States Attorney for the Eastern District of Virginia, in accordance with Department of Justice policy, his office has been recused from the investigation of this matter, in order to avoid any possible appearance of a conflict with other matters handled by that office.

As a result, I have asked John Durham, the First Assistant United States Attorney in the United States Attorney’s Office for the District of Connecticut, to serve as Acting United States Attorney for the Eastern District of Virginia for purposes of this matter. Mr. Durham is a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past, and I am grateful to him for his willingness to serve in this capacity. As the Acting United States Attorney for purposes of this investigation, Mr. Durham will report to the Deputy Attorney General, as do all United States Attorneys in the ordinary course. I have also directed the FBI to conduct the investigation under Mr. Durham’s supervision.

Earlier today, the Department provided notice of these developments to Director Hayden and the leadership of the Judiciary and Intelligence Committees of the Congress. [my emphasis] Read more

DOJ Launches a Criminal Probe into Torture Tapes

So says AP’s Matt Apuzzo:

"The Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation," Mukasey said in a statement released Wednesday.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.

Anyone know anything about John Durham?

Update: A profile on Durham here:

John H. Durham looked impatient, distracted and, odd as it might seem in the circumstance, privately amused by the spectacle of it all – which is to say, he looked pretty much like he usually looks.

He was in the cavernous new federal courthouse, off to the side of the podium, pinned down by reporters. Heavier hitters in law enforcement – drawn from their offices like moths to television lights – were looking serious and trying not to embarrass themselves while taking questions about Durham’s newest case. It involves nothing less than systemic corruption of an FBI office.

That Durham could have better explained his own case to the press is not to suggest that he is retiring. He is not. In a courtroom, prosecuting a defendant, he sometimes looks ready lunge at defense lawyers – if a 50-year-old lawyer trapped 16 hours a day in a cramped office can still lunge. He’ll clinch with anyone, anywhere. One year in Connecticut, as an assistant U.S. attorney, he put a third of New England’s mafia in jail. He has never lost a case.

[snip]

"He’s obviously a very fierce competitor," Cardinale said. "But he’s not a zealot. And he does it by the rules. He is very professional. He is courteous. I’ve been up against them all over the country and I’d put him in the top echelon of federal prosecutors. He’s such a decent guy you can’t hate him. That can make it hard to get motivated."

The view from within law enforcement is even less complicated.

"There is no more principled, there is no more better living, there is no finer person that I know of or have encountered in my life," said Richard Farley, a former assistant special agent in charge of the FBI’s New Haven division. [my emphasis]

He certainly doesn’t look like a pushover. And given that he’s taken on the FBI, he knows how to go after Federal agencies.

Poland’s Torture Palaces

My supposition that one reasons Dana Priest’s black site article precipitated the torture tape destruction is because the tapes were dangerous to the country on whose territory the CIA tortured Abu Zubaydah led to me to read something I should have already read–the July 2007 COE report on European participation in the US HVD program. This post lays out what it says about Poland. I’m still reading the report, but given the direction of the comment threads on my other posts, I wanted to get this up for discussion.

Assuming the COE report is accurate (it is based on public reports and anonymous sources, including a number of CIA sources), Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, and probably al-Nashiri, were in Poland when Dana Priest’s article ran.

In accordance with the operational arrangements described below, Poland housed what the CIA’s Counterterrorism Centre considered its “most sensitive HVDs,” a category which included several of the men whose transfer to Guantanamo Bay was announced by President Bush on 6 September 2006.

We received confirmations – each name from more than one source – of eight names of HVDs who were held in Poland between 2003 and 2005. Specifically, our sources in the CIA named Poland as the “black site” where both Abu Zubaydah and Khalid Sheikh Mohamed (KSM) were held and questioned using “enhanced interrogation techniques.” The information known about these interrogations has formed the basis of heated debate in the United States and the wider international community, leading, in Zubaydah’s case, to high-level political and legislative manoeuvres and, in KSM’s case, to the admission of some troubling judicial precedents.

But it remains unclear on whether Abu Zubaydah was moved to Poland in 2002 or 2003. The report describes the HVD program as evolving between 2002 and 2003.

The United States negotiated its agreement with Poland to detain CIA High-Value Detainees on Polish territory in 2002 and early 2003. We have established that the first HVDs were transferred to Poland in the first half of 2003.

It describes top-level Polish officials as being aware of the program starting in 2002.

[S]ome individual high office-holders knew about and authorised Poland’s role in the CIA’s operation of secret detention facilities for High-Value Detainees on Polish territory, from 2002 to 2005.

And it describes the genesis of the program as starting in 2001. Read more