The Timeline of Torture Tape Destruction in John Durham’s Documents

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As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

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Bull Durham Update: Torture Tape Investigation Winding Down Again

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Take this with a grain of salt, because we have heard it before, but there is a new story out that John Durham is winding down his torture tape investigation. Carrie Johnson and Julie Tate at the Washington Post are out this afternoon with an article intimating the investigation appears to be “nearing a close” and, as predicted here, there appears to be little, if anything, useful going to come from it. A false statements charge against a single secondary CIA official appears to be all that is potentially in the offing, and even that is shaky:

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, the sources said. That could signal that the case is reaching its final stages. Durham has been spotted at the Justice Department headquarters in the District over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke anonymously because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about the handling of the tapes and whether they should have been included when agency records were turned over in other court cases. McPherson is not believed to be under criminal jeopardy but he had previously hesitated to testify, the sources said.
…….
Investigators now are turning their attention to the grand jury testimony last year by another agency official, the sources said. Lawyers point out that prosecutors routinely search for discrepancies in grand jury testimony as part of any broad investigation.

Jose A. Rodriguez, the former chief of the CIA’s directorate of operations, triggered the destruction of the 92 tapes in November 2005. But he has not offered any testimony to prosecutors. But an official who worked alongside him did appear before the grand jury for more than a day and that testimony is being scrutinized closely by prosecutors, the sources said. The Washington Post was asked not to publish the name of the official, who is undercover. The official’s attorney declined comment Wednesday.

If the reporting is accurate, there are several things of interest here. First off, there is little, if any, accountability in the offing. False statements against a secondary official giving closed door testimony is not going to take us rule of law adherents where we want to go. And if this official is indeed covert, the odds of charges really being pursued are not very good; not to mention that any prosecution, even if it were pursued, would be fastidiously kept narrow and Read more →

Clarence Thomas’ Revenge

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Rosalind linked to this LAT article describing Clarence Thomas’ pro-abuse views.

According to Supreme Court Justice Clarence Thomas, a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form — but suffered neither serious nor permanent harm — has no claim that his constitutional rights were violated.

Thomas objected when the high court, in a little-noted recent opinion, said this unprovoked and malicious assault by a North Carolina prison guard amounted to cruel and unusual punishment.

[snip]

According to Thomas, this harsh treatment did not qualify as cruel and unusual punishment. “Judges — not jailers — impose punishment,” he wrote.

[Thomas and Scalia] explained that the word “punishment” as it was used in the English Bill of Rights in 1689 referred to judges imposing punishment for a crime. Prison guards do not impose “punishment” even if they mete out cruelty, they said.

The entire article is worth reading not just because it reveals where Thomas will weigh in if torture ever gets to SCOTUS.

But it highlights a point I noted (as did Citizen92): the degree to which Clarence Thomas’ former and future clerks implemented our country’s torture regime.

Page 25 to 27 (PDF page 31 to 33) of the OPR Report includes a section on the background of the lawyers who had significant hand in writing the torture memos:

John Yoo. Clerk, Clarence Thomas,1994 to 1995

Patrick Philbin, Clerk, Clarence Thomas, 1993 to 1994

Jennifer Koester, Clerk, Clarence Thomas, 2004 to 2005

Steven Bradbury, Clerk, Clarence Thomas, 1992 to 1993

Of the list included on those pages, just Jack Goldsmith and Daniel Levin did not clerk for Thomas. And of course, the most egregious work came from lawyers–Yoo, Koester, and Bradbury–who were Thomas clerks.

This is one of the dangers of appointing a partisan hack like Thomas rather than radical, but intelligent, lawyers like Alito and Scalia. Because the partisan hack is going to launch a whole generation of lawyers (see also Citizen92’s focus on James Ho, who also went through OLC) who treat law like one big game of sophistry and human beings like objects into really prominent positions.

And I would bet that Clarence Thomas enjoys the little part he has had in shredding our country’s Constitution.

OLC Identified 31 Missing Documents During Period Leading Up to Torture Tape Investigation

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As I reported on Monday, DOJ lost not only John Yoo and Patrick Philbin’s emails from the period when they were writing the Bybee Memos. It also lost at least 10 documents on torture, a number of them that went into the development of the torture memos.

We first learned these documents had disappeared from a declaration that David Barron, Acting head of OLC, submitted in response to an ACLU FOIA last September. In it, he described the six month effort OLC made last year to recreate the original Vaughn document first created in 2005. With a lot of searching last year, OLC was able to identify 171 documents that might be the documents referenced in the original Vaughn Index.

But OLC appears to have first discovered the problem before last year. Barron’s declaration describes one OLC lawyer attempting–but failing–to identify all the documents in the Vaughn index during late December 2007 or early January 2008. At that time, the OLC lawyer was only able to identify 150 of the 181 documents listed in the Vaughn index.

On at least one occasion in late 2007 or early 2008, when the documents were recalled by OLC from OPR for purposes of another matter, an OLC attorney made significant efforts to recompile the 181 documents listed on the original Vaughn index based on the descriptions of the documents in that index. The attorney made tentative identifications of approximately 150 of the 181 documents and marked the original documents with pencil numbers corresponding to the Vaughn index in the lower left-hand corner of each of those 150 documents.

It’s likely, but not certain, that these documents were recalled as part of DOJ’s review of whether it should criminally investigate the torture tape destruction (news of the tape destruction broke December 6 and Mukasey announced the investigation on January 2). And whether or not that’s why they recalled these documents, the OLC lawyer who tried to recreate the Vaughn index had to have been aware that CIA had destroyed evidence of its torture program.

And yet, according to Barron’s declaration, no one made any attempt to look for the 31 documents that OLC lawyer had not been able to find for more than another year.

That’s a remarkably lax attitude regarding documents potentially disappearing from a SCIF.

What Glenn Greenwald Said On American Terrorism Cowardice

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Just go read it. Because every word Glenn Greenwald wrote in his post today, entitled Nostalgia for Bush/Cheney Radicalism, is the gospel truth. It is rare that you will see a post here just pointing you somewhere else because the other source says it all. This is one of those times. Here is a taste:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist. That’s how far we’ve fallen, how extremist our political consensus has become.

Now go read the rest and weep for your country.

OPR Report Altered To Cover Bush DOJ Malfeasance

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dbamericasafeMike Isikoff and Dan Klaidman put up a post about an hour ago letting the first blood for the Obama Administration’s intentional tanking of the OPR (Office of Professional Responsibility) Report. In light of Obama’s focused determination to sweep the acts of the Bush Administration, no matter how malevolent, under the rug and “move forward” the report is not unexpected. However, digesting the first leak in what would appear to be a staged rollout is painful:

…an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

The news broken in the Newsweek Declassified post is huge, assuming it is accurate, and the sense is that it is. In spite of the weight of the report, the report tucks the substantive content behind the deceptively benign title “Holder Under Fire”. The subject matter is far too significant though for it to have been casually thrown out. Consider this description of the OPR finding on the nature and quality of the critical August 1, 2002 Torture Memo:

The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

Hard to figure how this finding and conclusion could be determined by David Margolis to warrant the “softening” of the original finding of direct misconduct. Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of. Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation. In short, the man has some bona fides.

Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis’ contemporaries and friends were committed. For one such filter to redraw the findings and conclusions of such a critical investigation in order to exculpate his colleagues is unimaginable.

One thing is for sure, with a leak like this being floated out on a late Friday night, the release of the full OPR Report, at least that which the Obama Administration will deem fit for the common public to see, is at hand. Mike Isikoff and Dan Klaidman have made sure the torturers and their enablers can have a comfortable weekend though. So we got that going for us.

New ACLU Torture FOIA Docs Working Thread

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There are new documents in at the ACLU from their ongoing FOIA effort on the torture tape destruction matter. Here is the ACLU press release with link:

We’ve received some new documents in our DoD torture FOIA lawsuit, related to the CIA’s destruction of interrogation videotapes. They are posted here: http://www.aclu.org/national-security/aclu-v-department-defense, at the end of the section titled Documents Relating to CIA Contempt, with the date of 01/08/2010.

One thing we found interesting – there are a number of documents that focus on “lessons for the future,” some of those from as early as 8/2002, as though the documents memorialize what the CIA is learning as its interrogation program marches on.

Jeff Kaye has already spotted this one:

I think this is first evidence of actual approval from HQ for tape

destruction. Compare this with previous ACLU timeline (as of 11/09):

http://www.aclu.org/files/assets/20091124_Chronology_of_Videotapes.pdf

We knew about the 11/8 request, but not that permission was granted on

that day. If I’m wrong about this, please set me straight.

Torture Tape Destruction, the OGC Review, and the IG Report

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One of the most fascinating aspects to the torture tape Vaughn Index is the way it hints at a tension between the torturers in the field growing increasingly panicked about the torture tapes and the CIA’s Office of General Counsel’s decision to review the tapes and, subsequently, not to destroy them (yet). The tension grew worse as the Inspector General decided to review the torture program (and ultimately, the tapes) and as Jane Harman challenged the CIA’s careful excuse allowing them to destroy the tapes. This post will trace what we can see of that tension.

Early in the Abu Zubaydah interrogation, there were two communications pertaining to how to retain the torture tapes. (Note, I’ve indicated: the classification of the documents as question, whether John Durham asserted they were protected under his investigation, and some indication of attorney involvement, though the latter deserves closer attention, as there is significant variation in the way CIA claimed exemption under attorney work product.)

April 17, 2002: Someone (the Vaughn provides no sender or recipient information) sends cable providing guidance on the retention of the video tapes (TS; atty doc)

April 27, 2002: One CIA officer sends another CIA officer cable, copied to several additional officers and attorneys, regarding the interrogation of Abu Zubaydah (S; Durham document)

From the period of August (around the time the waterboarding occurred) until November, 2002 the Index shows recurrent and (as far as we can tell from a Vaughn Index) increasingly urgent communications from the Field, asking to change the protocol regarding interrogation tapes and ultimately, asking to destroy them.

August 20, 2002: Field write to HQ discussing “policy for the security risks of videotape retention and suggests new procedures for videotape retention and disposal” (S)

September 6, 2002: Email between CIA attorneys, titled, “Destruction proposal on disposition of videotapes at field” (S; atty doc)

September 6, 2002: Email between CIA attorneys on revisions of a draft cable regarding the disposition of the video tapes (S; atty doc)

October 25, 2002: Field writes to HQ “discussing the security risks if videotapes are retained” (S; Durham document; atty doc)

November 6, 2002: CIA officer sends CIA officers and attorneys email, titled, “Tapes issue,” following up with the proper procedures for destruction of the interrogation video tapes (S; atty doc)

In mid-November (note, the dates on these emails may be confusing if sent from different sides of the date line), an officer in the Field expresses “personnel concerns” with the disposition of the videotapes. In what appears to be a response, HQ asks to have a “random independent review of the video tapes, before they are destroyed.” This seems to be the genesis of what became the OGC review of the tapes.

November 15, 2002: HQ sends email to Field titled, “Videotapes–response” requesting “to have a random independent review of the video tapes, before they are destroyed” (TS; atty doc)

November 15, 2002: HQ sends email to Field titled, “Video tapes” requesting “to have a random independent review of the video tapes, before they are destroyed, to ensure accuracy” (TS; atty doc)

November 15, 2002: Email chain “including an email from a CIA officer in the field to CIA officers at headquarters expressing personnel concerns with the disposition of the video tapes and headquarters requset to have a random independent review of the video tapes, before they are destroyed, discussed in a two-page email from a CIA attorney at headquarters to the field that is also part of the email chain (TS; atty doc)

November 16, 2002: Someone (the Vaughn provides no sender or recipient information) sends email, forwarding two additional emails, between CIA attorneys, discussing draft language on the logistics of destroying the tapes” (TS; atty doc)

November 16, 2002: Field officer sends CIA attorneys and officers at HQ email informing HQ of “personnel concerns regarding the videotapes” (TS; atty doc)

Here’s how the 2004 CIA IG Report described the OGC review.

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters.

Here’s how CIA described the review in a FOIA declaration description of it.

The CIA OGC also conducted a legal review of the interrogation of Abu Zubaydah to ensure compliance with the relevant legal and policy guidance. This review was implemented not only to ensure that the interrogation of  Abu Zubadaydah was consistent with the law and United States policy, but also to improve the CIA’s program going forward. Document 60 contains the analysis and impressions of a CIA Attorney shortly after the Attorney’s review of subsequently destroyed videotapes, as well as the relevant cable traffic. The document reflects the CIA attorney’s view on what facts were relevant to determine whether the interrogation of Abu Zubaydah was compliant with law and policy, as well as what information would be informative to CIA management in improving the program going forward.

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John Durham’s Thirteen Documents

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As William Ockham has noted, there are thirteen documents described in the torture tapes FOIA over which John Durham has asserted a law enforcement exemption.

Of the 55 documents [in the Vaughn Declaration], the Agency determined that 13 documents could be released in part. Prior to releasing the 13 documents, however, the Agency was informed by the Department of Justice that Special Prosecutor John Durham was asserting Freedom of Information Act (FOIA) Exemption (b)(7)(A) over the portions of the 13 documents that the CIA was prepared to release.

Now, it may be that those are the only documents from this time frame that Durham sought to protect (he has said he was more concerned about documents closer to 2005), or it may be that he only reviewed the 13 that the CIA would have otherwise released.

But it seems worthwhile to pull out which of the 55 documents described in the Vaughn Index were singled out by Durham. I’ve put them below, in the likely date order.

Document 1, April 27, 2002, AZ Interrogation

This document is a one-page email from a CIA officer to another CIA officer, with several additional CIA officers and attorneys copied. The email contains information relating to the interrogation of Abu Zubaydah,

Document 15, October 25, 2002, Disposition of videotapes–security risks

This is a two-page cable from field to CIA headquarters discussing the security risks if videotapes are retained.

Document 8, December 3, 2002, Closing of facility and destruction of classified information

This document is a two-page cable from CIA Headquarters to the field discussing the destruction of videotapes and other classified material at a field facility.

Document 16, December 20, 2002, Source material on videotapes

This is a three-page memo, with a cable attached, from headquarters to field regarding the policies on tape usage and destruction.

Document 18, January 13, 2003, Guidance on retention of videotapes

This is a two-page email, with a cable attached from CIA headquarters to field, providing guidance on the procedures for retention of AZ videotapes.

Document 29, UNDATED, Meeting on disposition of AZ tapes

This is a one-page email that on scheduling a meeting to discuss the disposition of the tapes. [Neighbor emails are from February 2003 and concern the response to Jane Harman’s concerns about torture tape destruction.]

Document 6, August 4, 2003, Response to destruction of videotapes

This document is a thirteen page cable that discusses the disposition of the 92 videotapes.

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Torture Tapes and CIA Retirements

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The NYT originally broke the news of the torture tape destruction on December 6, 2007. And on October 25, 2007, the government informed Leonie Brinkema that they had found three unrelated tapes of interrogations that should have been disclosed during the Moussaoui trial. Those two events were the first we had confirmation of the scandal surrounding the CIA’s taping–and subsequent destruction–of torture tapes.

Those events followed–distantly–the retirement of Jose Rodriguez, who we know was in charge of CTC when the torture tapes were made and was later in charge of Clandestine Services when the torture tapes were destroyed. Rodriguez’s replacement was reported publicly on September 14 and he left on September 30.

The torture tape revelations also followed–distantly–the September 25 withdrawal of the nomination of John Rizzo to be CIA General Counsel, a function had he filled on an interim basis for some years. We know Rizzo was involved in the authorization of torture, though he claimed to be mysteriously out of the loop of 2005 discussions about whether or not to destroy the torture tapes.

Given the lapse of time between the Rodriguez retirement and the Rizzo withdrawal, it was unclear whether there was a connection.

And while it’s still unclear whether there’s a connection, it turns out the timing of CIA internal discussions about the torture tape destruction and Rodriguez’ retirement and Rizzo’s withdrawal is much closer than we knew.

The torture tapes FOIA reveals that the CIA was discussing the torture tape destruction on September 25 and October 5, 2007. It describes a Top Secret September 25, 2007 email “discussing the review and disposition of the tapes” and must have attached these earlier discussions (that’s why they were included in this Vaughn Index). And it describes a Secret October 5, 2007 email which appears to link to the earlier email approving of the destruction of the tapes. John Durham has claimed a law enforcement exemption over the latter of these two emails, suggesting that release of that email would interfere with whatever investigation of the torture tape destruction he is doing.

Again, not that there’s a connection, but CIA was linking to discussions that Rodriquez was involved in and Rizzo may have been involved in at precisely the time they effectively ended their CIA careers.