Eric Holder

WaPo: Holder To Name Torture Prosecutor

Zachary Roth | August 24, 2009, 2:56PM

The Washington Post is reporting that Eric Holder has decided to name a special prosecutor to probe -- though only up to a point -- instances of torture under the Bush administration.

According to the paper's sources, Holder will name John Durham, a career prosecutor with a reputation for independence and impartiality, who led the investigation into the destruction of CIA interrogation tapes. Read more about Durham here.

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Topics: CIA, CIA Tapes, Eric Holder, John Durham, Justice Department, Torture

Barack Obama

Holder May Investigate Torture -- But Several Probes Are Already Underway

Zachary Roth | July 13, 2009, 2:34PM

The pendulum appears to have swung back in the other direction on the issue of criminal investigations into Bush-era torture. It had looked for a while like President Obama's stated desire to look forward not back had carried the day. But now it appears that Attorney General Eric Holder -- independent of his boss's political concerns, which is how things should work -- is leaning back towards initiating a probe. The news was first reported over the weekend by Newsweek, then picked up today by the New York Times and Washington Post.

But whatever Holder ultimately decides, there are already several ongoing government efforts to investigate torture, which figure to substantially fill out our still patchwork understanding of the issue. So as we wait for official word from the Justice Department on a criminal inquiry, it's worth being clear about what those efforts are, and how they relate to each other.

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Topics: Barack Obama, CIA, CIA Tapes, DOJ Office of Professional Responsibility, Dick Cheney, Eric Holder, Jay Bybee, John Yoo, Justice Department, Steven Bradbury, Torture

Barack Obama

CIA Stance On Torture Tape Docs Suggests Obama's New Open Government Era Won't Materialize

Zachary Roth | June 9, 2009, 1:49PM

It's looking more and more like Barack Obama's pledge to usher in a new era of openness in government may well go unfulfilled.

Yesterday, administration lawyers cited national security concerns to argue that Bush-era documents detailing the videotaped interrogations of detainees should not be released. And in the wake of that news, open-government advocates are reluctantly acknowledging that, despite Obama's campaign promises, his approach to secrecy on issues of national security will likely not depart significantly from that of George Bush.

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Topics: Barack Obama, CIA, CIA Tapes, George Bush, State Secrets, Torture, Wiretapping

CIA

Panetta: Too Dangerous To Release Torture Tape Docs

Zachary Roth | June 9, 2009, 9:58AM

Do we have yet another case of the Obama administration mimicking its predecessor's notorious penchant for government secrecy?

The CIA argued yesterday that Bush-era documents detailing the videotaped interrogations of detainees should not be released, citing national security concerns, reports the Washington Post.

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Topics: CIA, CIA Tapes, Leon Panetta, State Secrets, Torture, Wiretapping

CIA

Some Destroyed CIA Tapes Showed "Enhanced Interrogation Techniques"

Zachary Roth | March 6, 2009, 6:24PM

In new court documents filed today, the Justice Department acknowledged that twelve of the destroyed CIA interrogation tapes depict "enhanced interrogation techniques" -- what most people call torture -- the ACLU announced in a press release.

The government also said it would provide a list of summaries, transcripts, and memoranda related to the destroyed tapes, though the ACLU noted that a previous list was almost entirely redacted.

The CIA admitted earlier this week that it had destroyed 92 interrogation tapes. The destruction was ordered by then operations chief Jose Rodriguez.

In an earlier Freedom of Information Act request, the ACLU asked for information on the treatment and interrogation of detainees in U.S. custody. It filed a motion in December 2007 to hold the CIA in contempt for its destruction of the tapes, which it argued violated a court order requiring the agency to produce or identify all the records it was asking for.

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Topics: CIA, CIA Tapes, Torture

CIA Tapes

NYT: Destroying CIA Torture Tapes Hamstrung Cases

Paul Kiel | March 28, 2008, 1:03PM

From The New York Times:

When officers from the Central Intelligence Agency destroyed hundreds of hours of videotapes documenting harsh interrogations in 2005, they may have believed they were freeing the government and themselves from potentially serious legal trouble.

But nearly four months after the disclosure that the tapes were destroyed, the list of legal entanglements for the C.I.A., the Defense Department and other agencies is only growing longer. In addition to criminal and Congressional investigations of the tapes’ destruction, the government is fighting off challenges in several major terrorism cases and a raft of prisoners’ legal claims that it may have destroyed evidence.

“They thought they were saving themselves from legal scrutiny, as well as possible danger from Al Qaeda if the tapes became public,” said Frederick P. Hitz, a former C.I.A. officer and the agency’s inspector general from 1990 to 1998, speaking of agency officials who favored eliminating the tapes. “Unknowingly, perhaps, they may have created even more problems for themselves.”...

Despite all the legal complications, those in the C.I.A. who got rid of the videotapes may have achieved one of their presumed goals: preventing a torture prosecution, said Deborah Colson, a senior associate at Human Rights First.

“It may be impossible to reconstruct any criminal conduct that was caught on the tapes,” Ms. Colson said.

You win some, you lose some.

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Topics: CIA Tapes, Torture

CIA Tapes

Today's Must Read

Paul Kiel | February 20, 2008, 9:47AM

You remember former CIA official Jose Rodriguez. He's the guy at the center of the criminal investigation into the destruction of the CIA's torture tapes. The videotapes, you'll remember, documented interrogation techniques authorized by Justice Department lawyers and the White House on two detainees. CIA interrogators (and possibly contractors) waterboarded the two detainees and possibly exposed them to a range of other techniques, such as inducing hypothermia. The investigation is not focusing on the use of those techniques, though. The focus is the destruction of the tapes.

But back to Rodriguez. The line from White House and senior CIA officials has been that they repeatedly advised against destroying the tapes. Rodriguez (via his lawyer) says that advice was never unequivocal. The New York Times has a story today exploring that breach between Rodriguez, who ran the CIA's clandestine service, and the leadership.

The story goes something like this: Porter Goss, then the director of the CIA, was viewed as something of a buffoon by the career officers. They didn't like the crew he brought in (like his #3 Dusty Foggo, who was subsequently indicted for taking bribes from Brent Wilkes), and they didn't like the way he ran the place. So Rodriguez pretty much ran things the way he thought they ought to be run in his division. And when the issue of whether to destroy those tapes arose again in late 2005, he did what he thought was right. He saw the tapes as "a sort of time bomb that, if leaked, threatened irreparable damage to the United States’ image in the Muslim world, his friends say, and posed physical and legal risks to C.I.A. officers on them."

And Goss... did nothing. The Times reports that there is "no record of any reprimand or punishment" in Rodriguez's personnel file at the agency. Because:

People close to Mr. Goss, who knew from his Congressional years how explosive accusations of cover-up could be, insist he told Mr. Rodriguez the tapes should be preserved.

But if Mr. Goss believed Mr. Rodriguez had disobeyed him, why did he not punish the clandestine service chief? One former C.I.A. official said White House officials had complained about the news media firestorm that accompanied the departure of [two CIA officials who'd resigned] a year earlier, and Mr. Goss felt he could not risk another blowup.

And of course the administration kept the whole thing quiet for more than two years until the Times blew the whistle. Too bad there's never a convenient time for "another blowup."

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Topics: CIA Tapes, Must Read

CIA Tapes

Negroponte: Destroyed Torture Tapes? I Don't Remember

Paul Kiel | February 14, 2008, 12:24PM

Late last year, Newsweek added a significant wrinkle to the CIA's destroyed torture tapes scandal. Then-Director of National Intelligence John Negroponte had apparently "strongly advised against" destroying the tapes in a memo, "the only known documentation that a senior intel official warned that the tapes should not be destroyed." That potentially meant trouble for Jose Rodriguez, the former CIA official who ordered the tapes destroyed.

But, during an interview with WNYC's Brian Lehrer yesterday, Negroponte said that he'd totally forgotten about that whole destroyed tapes thing before the scandal blew up in December of last year. He doesn't dispute having written the reported memo, but seems to be baffled that the tapes have become such an issue:

Until this issue was written about I had frankly forgotten that this issue might have existed in any way, shape or form. And apparently what these emails suggest is that somebody had suggested to me that these tapes first of all existed and secondly that they be destroyed, and apparently the emails suggest that I objected to that, that I said I didn’t think that would be a good idea. Now some people will say “how can you possibly not vividly remember something like this?” And the fact of the matter is that one handles and deals with so many different issues in any given day or time, I just didn’t happen to recall this situation.

Apparently Negroponte was immune from the anxiety at the CIA that the agency "could be publicly shamed and that those involved in waterboarding and other extreme interrogation techniques would be hauled before a grand jury or a congressional inquiry."

You can listen to the interview here and a transcript is below:

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Topics: CIA Tapes

CIA Tapes

Investigation Focused on Tapes, Not Torture

Paul Kiel | February 11, 2008, 2:13PM

John Durham, the prosecutor tapped by Attorney General Michael Mukasey to probe the destruction of the CIA’s videotapes of interrogations, finally laid out in detail the purview of his investigation last week. And it’s clear that his focus is on the tapes themselves – not what they might show.

Given Mukasey’s refusal to investigate the use of waterboarding, that’s not much of a surprise. Mukasey had also allowed that Durham could look at the possible use of torture “if it leads to showing motive” for the destruction. Durham’s summary of his investigation jibes with that -- showing that it’s all about the tapes, but that why someone might have destroyed the tapes will also be key to his investigation:

The questions under active review in this investigation focus on whether any federal criminal offenses were committed in connection with the destruction of the…videotapes. More specifically, the investigation team is actively reviewing whether any person or persons obstructed justice, made false statements, or acted in contempt of court or Congress in connection with the destruction of the videotapes. With respect to potential obstruction of justice offenses, we are investigating whether the destruction of the videotapes violated any order issued by any federal judicial officer, and, if so, what the persons’ knowledge, motive, and/or intent was in destroying the tapes or causing their destruction….

Central questions for this investigation include: who within the federal government knew of the existence of the videotaped interrogations at issue; who was aware of the various orders that might have required the preservation of the videotapes; and who was involved, in any way, in the decision and/or directive to destroy the videotapes.

In other words, whether any of this will lead to an examination of the interrogation techniques that were used on the two detainees whose interrogations were videotaped is unclear.

Durham made the disclosure, which was first reported by The New York Times this weekend, as part of the government’s bid to convince a federal judge to withdraw an order to explain the tapes’ destruction. You can read it here.

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Topics: CIA Tapes, Torture

CIA Tapes

NYT: Judge Was Seeking Info Related to CIA Tapes

Paul Kiel | February 7, 2008, 11:16AM

From The New York Times:

At the time that the Central Intelligence Agency destroyed videotapes of the interrogations of operatives of Al Qaeda, a federal judge was still seeking information from Bush administration lawyers about the interrogation of one of those operatives, Abu Zubaydah, according to court documents made public on Wednesday.

The court documents, filed in the case of Zacarias Moussaoui, appear to contradict a statement last December by Gen. Michael V. Hayden, the C.I.A. director, that when the tapes were destroyed in November 2005 they had no relevance to any court proceeding, including Mr. Moussaoui’s criminal trial.

Whether this will result in any ramifications is unclear. One of the difficult things about the issue of whether the concealment of the tapes and then their destruction violated any court orders is that judges didn't know that they existed and so couldn't ask for them. So far, government lawyers have successfully run the gauntlet, but it's not over yet.

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Topics: CIA Tapes

CIA Tapes

Judge Orders Bush Admininistration to Explain Destruction of CIA Tapes

Paul Kiel | January 25, 2008, 11:47AM

From the AP:

A federal judge said Thursday that CIA interrogation videotapes may have been relevant to his court case, and he gave the Bush administration three weeks to explain why they were destroyed in 2005 and say whether other evidence was destroyed.

Several judges are considering wading into the dispute over the videos, but U.S. District Judge Richard W. Roberts was the first to order the administration to provide a written report on the matter. The decision is a legal setback for the Bush administration, which has urged courts not to get involved.

The AP also has a helpful rundown on where things stand with the other courts that have looked into the matter:

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Topics: CIA Tapes

CIA Tapes

More Tapes?

Paul Kiel | January 21, 2008, 5:55PM

From The New York Times:

Lawyers for Majid Khan, a detainee at Guantánamo Bay, Cuba, have challenged the Central Intelligence Agency’s assertion that videotaping of interrogations stopped in 2002, saying that Mr. Khan’s interrogations after that time were recorded on videotape.

This isn't the first time there's been a hint of this. As we noted here, another detainee has claimed to have seen cameras in the interrogation rooms, and prosecutors have indicated in a filing that there are two currently existing videotapes of interrogations.

Also, here's our rundown of Khan's case.

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Topics: CIA Tapes

CIA Tapes

Bush Administration Brings Big Biz to Liability Insurer

Paul Kiel | January 21, 2008, 5:22PM

Just part of the Bush administration economic stimulus plan: big business for companies insuring federal workers. From The New York Times:

When Al Qaeda attacked the United States in 2001, Wright & Company was insuring about 17,000 federal employees against the legal hazards of their work. Today, that total has nearly doubled to 32,000, Wright executives say, spurred in part by a spate of lawsuits, investigations and criminal prosecutions related to mistreatment of detainees from Iraq to Guantánamo Bay, an immigration crackdown and other aftershocks of 9/11. The insurance is popular with F.B.I. agents, Secret Service officers, and Immigration and Customs Enforcement workers as well as C.I.A. officers.

“The things that help us are any negative events related to the federal government, and there have been plenty,” said Bryan B. Lewis, Wright’s president and chief executive, who holds a security clearance that allows him to discuss his clients’ secret business.

Yes, times are good.

One of the latest to draw on his policy is Jose Rodriguez, the former CIA official who ordered the destruction of the torture tapes. He's used it to pay for heavy-hitter Bob Bennett, the Times reports, though how long that's going to last him, nobody knows (Bennett charges up to $900 per hour). He's covered for up to $200,000 in fees to represent him against Congress' probe, and $100,000 in fees for the criminal probe.

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Topics: CIA Tapes

CIA Tapes

"It Boggles The Mind"

Paul Kiel | January 17, 2008, 4:31PM

There are good days in court, and there are bad days in court. From The New York Times:

A federal judge said Thursday that he was “disappointed” about how investigators from the Central Intelligence Agency handled videotapes documenting the harsh interrogation of Al Qaeda detainees, and that he was considering questioning agency officials who watched the tapes about why they made no record of them in their files.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

Actually things could have gone worse. The judge denied the ACLU's request to hold the CIA in contempt. But apparently he's not content to let the matter drop.

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Topics: CIA Tapes

CIA Tapes

CIA Lawyer Points Finger at Rodriguez

Paul Kiel | January 17, 2008, 2:12PM

Not only did operations chief Jose Rodriguez order the CIA's torture tapes destroyed without authority from top CIA officials, but he then kept it quiet from Congress. That, at least, is the story that CIA's acting general counsel John Rizzo told the House intelligence committee yesterday, according to the AP.

Most of Rizzo's account doesn't really contradict what we know from prior media reports. From 2003 through 2005, White House and Justice Department lawyers (with a couple key exceptions) and top CIA officials all advised that the tapes should not be destroyed. But nobody gave an order to that effect. So when the issue arose again in November, 2005 after The Washington Post broke the CIA black sites story, Rodriguez asked again. Two CIA lawyers found that the agency had no obligation to preserve them.

But Rizzo, who's been acting general counsel since 2004, says that even after that, he advised against destroying them. And he told the committee that then-CIA Director Porter Goss "also recommended" the same. Rodriguez went ahead and ordered the tapes destroyed anyway.

Here's how "a congressional official," who's seen the some 300 pages of documentation that the CIA has so far turned over, described it to the AP:

"If you look at the documents, you get very close to a direct order (not to destroy the tapes) without it being, 'Jose, you're not going to do this,'" the official said....

The...official said the committee will try to determine whether any CIA officials suggested "with a wink and a nod" that the tapes should be destroyed, and whether Rodriguez was being forced to take the blame.

And remember that The Washington Post reported yesterday that "Rodriguez was neither penalized nor reprimanded, publicly or privately" after he ordered the tapes destroyed. Update: Now Rodriguez's lawyer is reiterating this -- and saying that Goss never objected before he ordered the tapes, either.

That's not all that Rizzo pinned on Rodriguez.

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Topics: CIA Tapes

Must Read

Today's Must Read

Paul Kiel | January 16, 2008, 9:52AM

We've heard CIA Director Michael Hayden's confusing and risible explanation for why the CIA's torture tapes were destroyed. And there have been a number of media accounts citing dozens of unanimous government officials that haven't managed to shed much light. But today's Washington Post provides about as clear of a narrative as we're likely to get on why the tapes were made, when they were made, and why they were destroyed.

Here's what they came up with: "the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee's death." CIA officials have also said that videotapes of the interrogations would have been very useful for reviewing what the detainees had said.

And here's why they were destroyed, according to the Post. The Post broke news of the CIA's black sites in November of 2005. That made CIA officials even more nervous that "the agency could be publicly shamed and that those involved in waterboarding and other extreme interrogation techniques would be hauled before a grand jury or a congressional inquiry." At the same time, the station chief in Bangkok, who'd had the tapes in a safe in the U.S. Embassy compound there for three years, was retiring and "wanted to resolve the matter before he left." So he sent a cable to CIA headquarters asking if he could destroy them.

The rest we know. Then-operations chief Jose Rodriguez checked with two CIA lawyers who said that the agency was not required to preserve them. Since no one in the administration had directly forbidden the destruction of the tapes, he went ahead and gave the station chief the go-ahead.

And no one seemed to be very upset after the deed was done: "Word of the resulting destruction, one former official said, was greeted by widespread relief among clandestine officers, and Rodriguez was neither penalized nor reprimanded, publicly or privately, by then-CIA Director Porter J. Goss, according to two officials briefed on exchanges between the two men."

The Post also has more details on the Justice Department and White House discussions about the tapes:

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

And can you tell who's missing in this tally?

Those known to have counseled against the tapes' destruction include John B. Bellinger III, while serving as the National Security Council's top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA's general counsel; and John D. Negroponte, while serving as director of national intelligence.

If you said David Addington, Dick Cheney's chief of staff, you were right. Alberto Gonzales is another notable exception. Although The New York Times has reported that Addington, who's done so much to shape the administration's torture policy, took part in discussions about the tapes, he somehow didn't make the list here. The Times also cited a "former senior intelligence official" as saying that "there had been “vigorous sentiment” among some top White House officials to destroy the tapes." But the official wouldn't specify who that was. I think we might have our winners.

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Topics: CIA Tapes, Must Read

CIA Tapes

Conyers Requests Special Prosecutor for CIA Tapes Probe

Paul Kiel | January 15, 2008, 5:52PM

House Judiciary Committee Chair John Conyers (D-MI) thinks it's nice that the Justice Department has launched a criminal investigation of the CIA's destruction of its torture tapes, but it's not good enough. John Durham may be a tough, unimpeachable prosecutor, but he'll still be reporting up the chain to Attorney General Michael Mukasey.

Arguing that the Department has a "clear conflict of interest" because "high Administration officials" are necessarily implicated -- they approved the interrogation methods documented on the tapes and were involved in the discussions about whether to destroy them -- Conyers wrote Mukasey today to formally request that he appoint a special counsel. 18 Democratic members of the committee also signed on. Conyers has consistently called for a special prosecutor to be appointed.

The letter is posted in full below. A judiciary subcommittee will be holding a hearing to hear from experts on the subject this Thursday.

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Topics: CIA Tapes

CIA Tapes

House Panel Delays Rodriguez Testimony

Paul Kiel | January 15, 2008, 11:21AM

The House intelligence committee had a choice: Hear what the CIA official who actually ordered the destruction of the torture tapes has to say -- inevitably compromising the ongoing criminal investigation? Or kick the can down the road.

The House intelligence committee will deal with this later:

Jose A. Rodriguez Jr., the former Central Intelligence Agency official who ordered the destruction of interrogation videotapes in 2005, will not be required to appear on Wednesday at a closed Congressional hearing on the matter but may be called to testify later, an official briefed on the inquiry said Monday.

The House's probe goes on, though, even without its star witness. The CIA's general counsel John Rizzo will testify tomorrow, the Times reports.

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Topics: CIA Tapes

CIA Tapes

Rodriguez Says No Immunity, No Testimony

Paul Kiel | January 10, 2008, 10:39AM

With a full-blown criminal investigation in the works, Jose Rodriguez, the CIA official who ordered the destruction of the torture tapes, says, via his lawyer Bob Bennett, that he's not testifying about it to Congress without immunity. He'd been scheduled to speak to the House intelligence committee next week as part of their investigation.

If the committee did give him immunity, it could potentially compromise the criminal investigation. If they didn't, he'd probably spend most of his time pleading the Fifth. Bennett first signaled this course last month, when he warned that Rodriguez wouldn't cooperate with a "witch hunt."

The Washington Post adds that criminal investigators haven't given him access to records about the destruction and that "most defense attorneys would advise a client against testifying or cooperating with a congressional investigation without access to such documents."

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Topics: CIA Tapes

CIA Tapes

Breaking: Court Won't Probe Destruction of CIA Tapes

Paul Kiel | January 9, 2008, 5:56PM

One less thing for the administration to worry about. From the AP:

A federal judge refused on Wednesday to delve into the destruction of CIA interrogation videos, saying there was no evidence the Bush administration violated a court order and the Justice Department deserved time to conduct its own investigation.

Update: It looks like the long-held secrecy of the black sites and the existence of the video tapes may have saved the administration here. From Judge Henry Kennedy's decision (read it here):

The 2005 Order prohibits [the administration] from destroying evidence regarding any torture, mistreatment, or abuse of detainees that occurred at Guantánamo Bay. Petitioners do not assert that the destroyed tapes depict interrogations that occurred at Guantánamo Bay and respondents have represented to the court that the interrogations depicted on the tapes did not occur there. To the contrary, the videotapes were recorded in their entirety in 2002 before either of the suspected Al Quaeda operatives shown on the tapes had been at Guantánamo Bay.... Therefore, petitioners’ motion will be denied.

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Topics: CIA Tapes

CIA Tapes

Tenet Lawyers Up

Paul Kiel | January 7, 2008, 11:49AM

From Newsweek:

George Tenet, who was CIA director when the tapes were made, will be represented by former FBI general counsel Howard Shapiro. Roy Krieger, a Washington lawyer who has represented about 100 CIA employees, says that two agency officers have approached him about representation, though neither has retained him yet.

For the CIA spooks involved, cost is a serious issue. Krieger says legal expenses for each employee could reach "hundreds of thousands" of dollars; the CIA will not foot the bill. In anticipation of just such a scenario, however, the agency some years ago began encouraging its employees to purchase special liability-insurance policies from Wright & Co., a Virginia firm that specializes in coverage for government investigators. A Wright spokesman had no response to questions about whether claims have been filed for legal fees in connection with the tapes inquiry.

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Topics: CIA Tapes

CIA Tapes

Harman Warned against Destroying Tapes in 2003

Paul Kiel | January 3, 2008, 2:53PM

The CIA's initial defense for destroying the videotapes showing interrogations of Al Qaeda detainees was that they'd briefed members of Congress about their intention to do this long ago.

To which, Rep. Jane Harman (D-CA), the former chair of the House intelligence committee responded: yes, we were told, and I told them not to do it. She said that she'd made that explicit in a letter to the CIA's general counsel in February of 2003, but that the letter was classified. She asked the CIA to declassify it.

Well, the CIA declassified the letter and today she released it (I've posted it below in full). Here's the relevant excerpt:

You discussed [in a briefing the previous week] 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.

The reply from the CIA's General Counsel Scott Muller later that month, also posted below, did not address this issue.

You can see a scan of Harman's letter here (pdf).

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CIA Tapes

The Second Coming

Paul Kiel | January 3, 2008, 11:12AM

The papers take a look at John Durham, the prosecutor Attorney General Michael Mukasey tapped to investigate whether anyone broke any laws by keeping secret and then destroying the CIA's torture tapes, and find that even if he doesn't have the same independence as Patrick Fitzgerald, he's made from the same stuff.

From The Los Angeles Times:

"Think of him as the second coming of Patrick Fitzgerald," said Jeffrey Meyer, a professor at Quinnipiac University law school in Hamden, Conn., who worked alongside Durham as a federal prosecutor for many years. "So far as I could tell, he does not have a political bone in his body. He is nothing but thorough and dogged in the way he pursues cases."

From The Washington Post:

Four friends said they could not recall him losing a case in more than 30 years as a prosecutor, almost all of it spent fighting organized crime and gang violence in Connecticut....

"He's Fitzgerald with a sense of humor," said Hugh O'Keefe, a Connecticut criminal defense lawyer who has known Durham for 20 years.

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Topics: CIA Tapes, Michael Mukasey

CIA Tapes

Pols Vow to Continue Tape Probes

Paul Kiel | January 2, 2008, 6:03PM

Congress and the Justice Department didn't play together very nice last year. And there may be more of that to come.

For the record, just because Michael Mukasey has ordered a criminal investigation into the CIA's torture tapes, lawmakers want everyone to know that Congress isn't backing down.

That's the word from Senate Intelligence Committee Chairman Jay Rockefeller (D-WV), who says in a statement:

"We... have an obligation to continue our own congressional investigation and that is exactly what we will do.

“Our negotiations with the CIA and DOJ over the scope of our investigation are ongoing. I fully expect their continued cooperation, including relevant testimony and documents, so that the Committee can thoroughly review and publicly report on all actions related to the destruction of the tapes.”

And House intel chairman Silvestre Reyes (D-TX), whose probe has been much more aggressive, says the same:

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Topics: CIA Tapes

CIA Tapes

Conyers "Disappointed" Mukasey Didn't Appoint Special Counsel for Tapes Probe

Paul Kiel | January 2, 2008, 5:13PM

A statement just out from House Judiciary Committee Chairman John Conyers (D-MI) hits on Mukasey's decision not to tap Durham as a special counsel:

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. Because of this action, the Congress and the American people will be denied – as they were in the Valerie Plame matter – any final report on the investigation.

Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations.

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the Administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.

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Topics: CIA Tapes, Michael Mukasey

Michael Mukasey

Mukasey Statement on CIA Tape Probe

Paul Kiel | January 2, 2008, 3:24PM

Michael Mukasey's statement on opening a full-blown criminal investigation of the CIA tapes probe is below.

Interestingly, Durham has not been tapped as a special counsel (like Patrick Fitzgerald (pdf) was) -- rather, because the U.S. attorney from the Eastern District of Virginia recused his office from the probe, Durham will be serving as Acting United States Attorney for the Eastern District of Virginia.

Update: What this means, as Marty Lederman puts it, is that Durham is neither an "outside," nor "special," nor "independent" prosecutor. "Durham will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey."

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CIA Tapes

Mukasey Taps 30-Year Vet Prosecutor for Tapes Probe

Paul Kiel | January 2, 2008, 3:12PM

The man Michael Mukasey chose to lead the CIA tapes probe is John Durham. Who is John Durham? Well, the short answer is a 30-year veteran prosecutor with some serious experience with tough prosecutions.

We've posted his work experience below, as passed along by the U.S. attorney's office in Connecticut, where Durham serves as the deputy.

As the AP puts it, "Durham has a reputation as one of the nation's most relentless prosecutors. He served as an outside prosecutor overseeing an investigation into the FBI's use of mob informants in Boston and helped send several Connecticut public officials to prison."

Update: From The Washington Post:

Durham is well known in New England legal circles as a tough, publicity-averse prosecutor who has specialized in organized crime cases. Former attorney general Janet Reno named Durham as a special prosecutor to investigate allegations that FBI agents and police officers in Boston had ties to mafia informants. He is a registered Republican, according to Connecticut voter records.

The Boston probe led to the 2002 racketeering conviction of retired FBI agent John J. Connolly Jr., who was the handler for gangster James "Whitey" Bulger, a former FBI informant who is now a fugitive.

Durham's history is below.

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Topics: CIA Tapes, Michael Mukasey

CIA Tapes

Breaking: Mukasey Opens Criminal Probe into CIA Tapes' Destruction

Paul Kiel | January 2, 2008, 2:54PM

Breaking from the AP:

The Justice Department opened a criminal investigation into the destruction of CIA interrogation videotapes and Attorney General Michael B. Mukasey appointed an outside prosecutor to oversee the case....

"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.

Durham is the deputy U.S. attorney in Connecticut, where he worked with Kevin O'Connor, who's currently the acting #3 at the department. We'll have more on him in a second.

Update: The AP doesn't have this quite right. Durham is not an "outside counsel."

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Topics: CIA Tapes, Michael Mukasey

CIA Tapes

9/11 Comissioners Wag Finger at CIA

Paul Kiel | January 2, 2008, 12:27PM

There really wasn't much doubt about what members of the 9/11 commission thought about the CIA's failure to tell them about the videotapes of agents interrogating Abu Zubaydah and Abd al Rahim al-Nashiri.

But in today's New York Times, the commission's chairman, former New Jersey governor Thomas Kean (R), and its vice chairman, Lee Hamilton (D), make the bottom line clear. The op-ed runs under the title, "Stonewalled by the C.I.A."

The commission never explicitly asked for videotapes of interrogations of Al Qaeda detainees, they write, but "the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot" was crystal clear. When they felt unsatisfied with the information the CIA had provided about the interrogations of Zubaydah and others, the commission even sought to interview the detainees directly. After extensive back and forth, the administration denied that request -- but didn't mention that videotapes of the interrogations existed.

One of the things the Justice Department inquiry of the tapes' destruction will (or should) be looking at is whether the failure to produce the tapes to the 9/11 commission constitutes a crime. Kean and Hamilton, for their part, make a point of using the "O" word in their conclusion:

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

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Topics: CIA Tapes

Torture

The Tale of The Tapes

Paul Kiel | December 31, 2007, 10:20AM

Why did the CIA choose to videotape its interrogations of the first Al Qaeda detainees?

The short answer provided by The New York Times piece this weekend, based on "interviews with two dozen current and former officials," proves misleading. And there are a host of competing theories to sort through. But in the end, it´s really not so complicated.

The story's straightforward headline, "Tapes by C.I.A. Lived and Died to Save Image," is based on the idea that the videotaping was "prompted in part by worry about how [the agency´s interrogation methods] might be perceived — by Congress, by prosecutors, by the American public and by Muslims worldwide," as the Times puts it. According to this theory, the CIA was trying to cover its ass by showing that it was keeping to authorized techniques. That same fear was behind the drive to destroy the tapes.

But the bulk of the reporting of the piece tends towards a very different interpretation. There were plenty of reasons to want to videotape the interrogations, and one simple reason to want them destroyed. Buzzy Krongard (yep, that Buzzy) -- one of the very few CIA officials who spoke to the Times on the record -- puts it best:

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Topics: CIA Tapes, Torture

CIA Tapes

CIA Wraps Up Probe of Its Own Inspector-General

Spencer Ackerman | December 24, 2007, 12:14PM

It was one of the high points of recent CIA history, and that's saying a lot: CIA Director Mike Hayden ordered an investigation of CIA Inspector General John Helgerson. On top of ordering a scathing review of the CIA's pre-9/11 counterterrorism performance, Helgerson -- legally tasked with being an independent internal watchdog -- stuck his nose into the agency's detentions, interrogations and renditions programs, angering many inside the agency. Hayden struck back.

Now the probe is over, the Los Angeles Times' Greg Miller reported yesterday, and the IG's relationship to the agency has changed in some nebulous fashion. The CIA isn't releasing what's changed, exactly, but Miller reports that agency officials -- including, presumably, those under investigation -- now have "a greater ability to defend their actions and present their views."

The investigation was criticized on Capitol Hill and by former agency officials as an attack on the independence of the inspector general.

The senior intelligence official disagreed with that characterization: "We have no interest in trampling upon the independence of the I.G. It's not our interest, not our goal." ...

"This has always been a straightforward management review," said CIA spokesman Mark Mansfield. "The aim has been to make the office even more efficient and effective as well as making its procedures more transparent and understandable to employees."

And what a coincidence! The changes come just in time for Helgerson's joint probe with the Justice Department into the 2005 destruction of the CIA's interrogation videotapes!

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Topics: CIA Tapes

CIA Tapes

Judge Might Leave CIA Tape Scandal Alone After All

Spencer Ackerman | December 21, 2007, 1:14PM

Just out from the AP:

A federal judge appeared reluctant Friday to investigate the destruction of CIA interrogation videotapes while the Justice Department is conducting its own inquiry.

U.S. District Judge Henry H. Kennedy is considering whether to delve into the matter and, if so, how deeply. The Bush administration is urging him to back off while it investigates.

"Why should the court not permit the Department of Justice to do just that?" Kennedy asked at a court hearing.

The hearing marked the first time that administration lawyers spoke in public and under oath about the matter since the CIA disclosed this month it destroyed the tapes of officers using tough interrogation methods while questioning two al-Qaida suspects.

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Topics: CIA Tapes, Torture

CIA Tapes

Kiriakou Attorney Sues to Get Torture-Tape Destruction Docs

Spencer Ackerman | December 21, 2007, 12:20PM

Now here's an interesting development in the CIA tapes case. Yesterday, the James Madison Project -- a good-government, anti-secrecy non-profit -- filed suit in federal court to get the CIA to disclose documents related to the 2005 destruction of the interrogation videotapes. Apparently the JMP recently filed a Freedom of Information Act request for the documents, and the lawsuit is to expedite the processing of that FOIA.

Here's a statement from JMP's executive director:

The public deserves to know the truth underlying the CIA’s questionable conduct in destroying the interrogation videotapes of terrorist suspects, and that those responsible are held accountable for any improper or unlawful activities.

Par for the course from a goo-goo lawyer, right? Well, here's the interesting thing. JMP's executive director is Mark Zaid. Zaid is the attorney for John Kiriakou, who led the 2002 interrogation of Abu Zubaydah, and who also told ABC News that Abu Zubaydah was tortured by his interrogators. Kiriakou is currently under criminal investigation by the Justice Department to determine whether he illegally disclosed classified information in his ABC News interview. So if the CIA ends up executing the FOIA in any expeditious way, it might be handing those documents over to the lawyer for a man it sought to have prosecuted -- though, if they suggest illegality in the actual interrogation, they might prove problematic down the road for Kiriakou.

However, Zaid tells us, the lawsuit has nothing to do with his representation of Kiriakou. He filed the FOIA before Kiriakou retained him, he says.

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Topics: CIA Tapes

Must Read

Today's Must Read

Spencer Ackerman | December 21, 2007, 9:03AM

A lot of people want to talk to John Kiriakou. After the leader of the team that interrogated senior al-Qaeda operative Abu Zubaydah in 2002 -- one of the detainees whose interrogation was secretly recorded -- went public, a lot of confusion remained. Did Abu Zubaydah really break after 35 seconds of waterboarding, as Kiriakou said? Or, as the FBI's Dan Coleman and others have said, did Abu Zubaydah's interrogation yield the best information through non-coercive techniques? Very few people are sure of the answer. Many want to ask Kiriakou more questions.

Not least of whom: the Justice Department.

Jonathan Landay of McClatchy reports that the CIA has referred Kiriakou's case to the Justice Department. No, the department isn't investigating whether Kiriakou's role in Abu Zubaydah's interrogation was potentially illegal. That would be an admission that the torture apparatus established after 9/11 is illegal, and you know that Michael Mukasey and Mark Filip can't make up their minds about that. Rather, the FBI wants to know if Kiriakou criminally disclosed classified information by speaking to ABC News about the interrogation.

What's more, Kiriakou's former employer, the CIA -- which surely wasn't happy about seeing Kiriakou confirm on TV that his team waterboarded Abu Zubaydah and then call waterboarding torture -- won't confirm that it dimed him out.

A CIA spokesman declined to comment when asked if the agency had sought a criminal probe of Kiriakou. But the spokesman, George Little, added, "Separate and apart from any specific instance, when the agency has reason to believe there has been a possible violation of the law, such as the unauthorized disclosure of classified information, it has an obligation to refer the matter to the Department of Justice."

Quoth Kiriakou's attorney, Mark Zaid -- your go-to lawyer if you're a CIA official in legal jeopardy: "it wouldn't surprise me and I wouldn't find it unusual" if the CIA turned around and got Justice to open a criminal investigation into Kiriakou for the disclosure. None dare call it retaliation.

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Topics: CIA Tapes, Must Read, Torture

CIA Tapes

Achtung Baby

Paul Kiel | December 20, 2007, 10:26AM

We've had some fun keeping track of the various muddled descriptions of the advice that White House lawyers gave the CIA about the torture tapes.

But The Washington Post has the clearest description yet of the unclear counsel:

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.

But: "other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed." To be sure, all of-the-above could be true.

Meanwhile, there's this:

[CIA Director Michael] Hayden's message to lawmakers last week was that the White House officials neither advocated destroying the tapes nor counseled against their destruction.

Why so much confusion?

"People are trying to recall stuff that happened four or five years ago," said [one former senior attorney for the CIA]. "They are trying to speak with honesty and candor, but they are also having to get 'lawyered' up themselves -- they have to protect themselves."

To be sure, their lawyers are "urging caution."

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Topics: CIA Tapes

Must Read

Today's Must Read

Paul Kiel | December 20, 2007, 9:28AM

We all can get along. At least for the time being.

After the House intelligence committee threatened to issue subpoenas yesterday, the Justice Department backed down. Now the CIA will begin forking over documents relating to the destruction of the torture tapes, and the committee will hear from their second witness, the CIA's general counsel John Rizzo.

The DoJ seemed keen to paint Congress' reaction to their letter last Friday as an overreaction. Spokesman Brian Roehrkasse told the New York Times that "the department has 'no desire to block any Congressional investigation' and has not advised the C.I.A. against cooperating with the committee." And the AP relays that Department officials "denied they had changed their stance on the investigation."

And indeed, if you look at their letter to the committee from last Friday, where they "respectfully request" that the committee sit on their thumbs until the DoJ probes into the tapes' destruction wraps up, they have a point. They were just askin'. But somehow the graciousness and subtlety of the letter was lost on the House intelligence committee, who pronounced themselves "stunned" that the Department would move to block their investigation and said that, indeed, they'd been "notified that the Department of Justice has advised CIA not cooperate with our investigation."

Really, if the DoJ was just asking, it should have been pretty clear off the bat that the answer was "no." But apparently the threat of subpoenas was needed to drive the point home.

Now, while The Washington Post, straightforwardly calls this a reversal on the Department's part, the Times hedges, calling it a "partial resolution." Take, for instance, Roehrkasse (take him, please!):

“The wisdom, propriety and appropriateness of the decision to destroy these tapes are worthy and compelling subjects of an oversight investigation,” Mr. Roehrkasse said. But he said officials were still concerned that a Congressional inquiry could cause “disruption of our initial witness interviews, the delay and disruption of our document collection, and the tainting of any future criminal prosecutorial action because of Congressional grants of immunity to witnesses.”

Accordingly, things will get interesting when it comes to Jose Rodriguez, the CIA official who ordered the tapes' destruction. The committee wants to talk to him in January, along with Rizzo. But, with Rodriguez's lawyer crying about witchhunts and scapegoats, that's going to be hairy:

Officials said Mr. Rodriguez’s appearance before the committee might involve complex negotiations over legal immunity at a time when the Justice Department and the intelligence agency were reviewing whether the destruction of the tapes broke any laws.

So enjoy the inter-branch comity while it lasts.

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Topics: CIA Tapes, Must Read, Torture

CIA Tapes

House Panel "Prepares Subpoenas" for CIA Officials

Paul Kiel | December 19, 2007, 3:29PM

The House intelligence committee looks ready to follow through on its threat:

In a direct challenge to President Bush, a House panel said Wednesday it has prepared subpoenas to force CIA officials to testify about the agency's secret destruction of interrogation videotapes.

The Justice Department had blocked the officials from appearing at a closed hearing before the panel this week, citing the department's ongoing investigation into the destruction of videotapes of the harsh interrogation of two al-Qaida suspects in 2002. The CIA destroyed the tapes in 2005.

The House Intelligence Committee's threat marked the second challenge to a White House attempt to shut down independent investigations into the matter, and escalates a fight over which branch of government properly has jurisdiction.

It seems they haven't issued the subpoenas yet. This is more of a last chance threat for the DoJ to back down. Ball's in your court, Mr. Mukasey.

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Topics: CIA Tapes

CIA Tapes

Deputy AG Nominee Hedges on Waterboarding, CIA Torture Tapes Probe

Paul Kiel | December 19, 2007, 3:10PM

Today, Mark Filip, the administration's nominee to be Michael Mukasey's deputy, had his confirmation hearing before the Senate Judiciary Committee. And much like his future boss did during his hearing, Filip (like Mukasey, a former federal judge) treaded lightly, seeming deferential while also proving elusive on certain key questions. Here's video:

When Sen. Ted Kennedy (D-MA ) asked whether waterboarding is torture, he punted, parroting Mukasey's answer exactly. Like Mukasey, Filip called the practice "repugnant." But stopped short, explaining that since Mukasey is conducting a review, he couldn't "get out in front of him on that question." He added: "if I am confirmed... I would view it like any other legal question and take a long hard look at it, and if I had a view other than his, I would tell him so."

Kennedy responded that after what Mukasey went through at his hearing, "We thought you'd be able to give a response."

When Sen. Arlen Specter (R-PA) pushed Filip on the Justice Department's recent stance that Congress had to sit on its thumbs until the Department finished its probe of the CIA's destruction of its torture tapes, he got pretty much the same result. To Specter, the issue is clear (see video below) that Congress has "pre-eminence over the Department of Justice on these investigations."

Specter asked if Filip agreed. He dodged: "I would hope, Senator, that I don't have to pick between the two." Some sort of agreement could be worked out with Congress, he said. When Specter tried again, all he got was "I would work very hard to find common ground."

The situation right now, to refresh your memory, is devoid of common ground. The Department has asked the CIA to refuse all Congressional requests until its probe wraps up.

But Specter said that he remains optimistic. He spoke with Mukasey the day before, he said, and hoped that conversation was just "the beginning" of more discussions.

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Topics: CIA Tapes, Torture

CIA Tapes

White House Gets Sub-Headline Correction

Paul Kiel | December 19, 2007, 1:37PM

Victory! Or not quite. The White House's public freak-out over the New York Times has won them... a correction to the Times' sub-headline:

Catherine Mathis, senior vice president of corporate communications for the newspaper, stated that the sub-headline has been changed, adding that a correction would be printed. However, Mathis also pointed out that the White House did not challenge the contents of the article.

A TPM Reader runs through how the Times might phrase that correction:

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Topics: CIA Tapes