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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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.

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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From Roll Call (sub. req.):

Following hours of intense talks that ended in a standoff, Senate Majority Leader Harry Reid (D-Nev.) decided late Wednesday to move several dozen nominees but still keep the Senate in business over the monthlong holiday break to block President Bush from making any controversial recess appointments while Senators are out of town....

But the two sides didn’t see completely eye to eye, as Bush pushed to include in the deal Steven Bradbury’s nomination to be assistant counsel to the attorney general. Bradbury is unpopular with Democrats for his controversial role in formulating the administration’s position on torture.

“I tried very hard to work with the president but he indicated he would still use the recess ... to appoint objectionable nominees,” Reid said on the Senate floor Wednesday night. “My only solution is to end this and call a pro forma session again.”

For a refresher on who Steve Bradbury is, and why the administration would want him in office so badly, see our earlier rundown here.

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.

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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Abu Zubaydah was:

A) A high-ranking Al Qaeda operative who largely confounded U.S. interrogators with his literary and tactical genius until they submitted him to waterboarding and other forms of torture. After that, he provided key information that likely preempted future attacks.

B) A low-ranking and mentally ill Al Qaeda operative who provided valuable information under gentle questioning, but whose confessions made under torture were useless. Much of the threat information he provided was "crap."

A is the CIA's version (and the President's). B is the FBI's. And in today's Washington Post, Dan Eggen and Walter Pincus walk through the competing profiles. Zubaydah, remember, was one of the two detainees whose interrogations appeared on the destroyed CIA tapes.

It's clear off the bat that the version of events provided by John Kiriakou, the former CIA agent who launched something like a PR blitz last week, is not quite right. In his telling, Zubaydah held out until waterboarded; after only 35 seconds of that, he gave in and "from that day on, he answered every question."

By contrast, both CIA and FBI agents tell the Post that he provided valuable information before he was waterboarded. And there wasn't just one session: "Instead, [other former and current officials] said, harsh tactics used on him at a secret detention facility in Thailand went on for weeks or, depending on the account, even months."

And then you get to the real discrepancies.

A CIA agent says that Zubaydah was a "wily adversary" under questioning who seemed "very selective in what he protected and what he gave up."

Retired FBI agent Daniel Coleman, "who led an examination of documents after Abu Zubaida's capture in early 2002 and worked on the case," responded that Zubaydah was talking before he was waterboarded, but the CIA agents couldn't believe that he knew so little.

Coleman, in fact, emerges as an effective foil to Kiriakou (who, incidentally, participated in the capture of Zubaydah but wasn't present during the torture) in the piece. Coleman says that Zubaydah was a "safehouse keeper" for Al Qaeda who had suffered a serious head injury years earlier.

Zubaydah's mental instability was manifest in his diary, Coleman says, which was "written in three distinct personalities -- one younger, one older and one the same age as Abu Zubaida. The book was full of flowery and philosophical meanderings, and made little mention of terrorism or al-Qaeda."

Former CIA Director George Tenet, by contrast, writes in his book that Zubaydah used a "sophisticated literary device to express himself" in the diary.

And you get the impression that Tenet's reading is typical of the way the CIA agents tended to see Zubaydah:

Coleman said reports of Abu Zubaida's statements during his early, traditional interrogation were "consistent with who he was and what he would possibly know." He and other officials said that materials seized from Abu Zubaida's house and other locations, including names, telephone numbers and computer laptops, provided crucial information about al-Qaeda and its network.

But, Coleman and other law enforcement officials said, CIA officials concluded to the contrary that Abu Zubaida was a major player, and they saw any lack of information as evidence that he was resisting interrogation. Much of the threat information provided by Abu Zubaida, Coleman said, "was crap."

"There's an agency mind-set that there was always some sort of golden apple out there, but there just isn't, especially with guys like him," Coleman said.

Note: This tidbit reported by Newsweek last week seems worth noting here:

[The interrogation of Zubaydah] sparked an internal battle within the U.S. intelligence community after FBI agents angrily protested the aggressive methods that were used. In addition to waterboarding, Zubaydah was subjected to sleep deprivation and bombarded with blaring rock music by the Red Hot Chili Peppers. One agent was so offended he threatened to arrest the CIA interrogators, according to two former government officials directly familiar with the dispute.

Update: Here's Ron Suskind, the author of The One Percent Doctrine and who first reported what FBI agents were saying about Zubaydah, talking to Salon last year.

Add another name to the wall of fame. Newsweek reports that John Negroponte -- Mike McConnell's predecessor as director of national intelligence -- told then-CIA Director Porter Goss not to destroy the torture tapes. That instruction, apparently documented, is going to be crucial: advocates for Jose Rodriguez, the CIA official who destroyed the tapes in 2005, have said that they did not receive clear instructions from their superiors firmly telling them to preserve the recordings.

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they'll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar's office declined to comment, citing ongoing investigations.

Tally it up. Advising against destruction were: Rep. Jane Harman (D-CA) with Nancy Pelosi "concurring," Goss as both a congressman and CIA director, Harriet Miers, anonymous DOJ officials, and Negroponte. Those with an appetite for destruction were, of course, Rodriguez and, reportedly, lawyers within the CIA's operations directorate.

As Paul noted in the Must Read, the leaders of the House intelligence committee aren't exactly impressed by the Justice Department's attempt to halt their investigation of the destruction of the CIA's torture tapes. Reading the letter that Assistant Attorney General Kenneth Wainstein and CIA Inspector General John Helgerson sent to the committee, it's not hard to see why.

We've added the Wainstein-Helgerson letter to our document collection, and you can read it in its entirety here.

On Friday, Wainstein and Helgerson asked the House to shut down its probe. Their rationale? Avoiding needless duplication that would complicate the Justice/CIA IG "preliminary" inquiry into the tape destruction:

Based upon our review of the Committee's requests to date, we believe our inquiry will encompass the same documents and witnesses. Our ability to obtain the most reliable and complete information would likely be jeopardized if the CIA undertakes the steps necessary to respond to your requests in a comprehensive fashion at this time. This includes requests for interviews with [Inspector General's office employees], which the DOJ has determined to be problematic because they are potential witnesses in the matter under our inquiry.

What's missing from that explanation? Oh yeah -- an explanation of how the House inquiry would actually jeopardize the DOJ/CIA IG probe.

Just when you thought the GOP couldn't back torture any more. From the AP:

Senate Republicans blocked a bill Friday that would restrict the interrogation methods the CIA can use against terrorism suspects.

The legislation, part of a measure authorizing the government's intelligence activities for 2008, had been approved a day earlier by the House and sent to the Senate for what was supposed to be final action. The bill would require the CIA to adhere to the Army's field manual on interrogation, which bans waterboarding, mock executions and other harsh interrogation methods.

Senate opponents of that provision, however, discovered a potentially fatal parliamentary flaw: The ban on harsh questioning tactics had not been in the original versions of the intelligence bill passed by the House and Senate. Instead, it was a last-minute addition during negotiations between the two sides to write a compromise bill, a move that could violate Senate rules. The rule is intended to protect legislation from last-minute amendments that neither house of Congress has had time to fully consider.

The culprit? One-time torture opponent Sen. Lindsey Graham (R-SC). Graham: "I think quite frankly applying the Army field manual to the CIA would be ill-advised and would destroy a program that I think is lawful and helps the country." So torture is counterproductive for the military but valuable for the CIA?

Update: Yeah, yeah, I misspelled Lindsey Graham's name initially. Sorry, senator.

Let it be known: House Democrats oppose waterboarding -- the process of drowning a detainee that's so severe even those who think it "works" don't think we should do it -- and House Republicans support it. The House yesterday voted to restrict CIA interrogation methods to the Geneva Conventions-compliant provisions outlined in the Army's field manual on interrogation. The bill passed on a nearly party-line vote. President Bush, a self-described Christian, promises a veto.

The military commissions at Guantanamo Bay have plenty of critics. But here are two in particular worth mentioning.

Earlier this week, the former chief prosecutor at the tribunals, Col. Morris Davis blasted the system in an op-ed, calling the system "deeply politicized" (that same day, the administration arbitrarily barred him from testifying to Congress).

And today The New York Times has this:

Back in 2002, a master’s degree candidate at the Naval War College wrote a paper on the Bush administration’s plan to use military commissions to try Guantánamo suspects, concluding that “even a good military tribunal is a bad idea.”

It drew little notice at the time, but the paper has gained a second life because of its author’s big promotion: Col. Ralph H. Kohlmann of the Marines is now the chief judge of the military commissions at the naval base in Guantánamo Bay, Cuba.

The system, Judge Kohlmann wrote in 2002, would face criticism for the “apparent lack of independence” of military judges and would have “credibility problems,” the very argument made by Guantánamo’s critics.

He said it would be better to try terrorism suspects in federal courts in the United States. “Unnecessary use of military tribunals in the face of reasonable international criticism,” he wrote, “is an ill-advised move.”...

Prior terrorism and organized crime cases, he wrote, showed that “the existing United States criminal justice system does not have to be put aside simply because the potential defendants have scary friends.”

Kohlmann appears to have taken the attitude that it's better to work to fix the system from the inside than criticize it from outside. He hasn't disavowed the paper, the Times reports, though he's changed his original opinion that "President Bush’s original order establishing military commissions 'essentially states' that fundamental fairness would not be a part of commission trials." Comforting.

Although Jose Rodriguez might have felt he had good reason to destroy the CIA's 2002 interrogation tapes, the destruction threatens to break the agency's surprisingly sterling record of escaping prosecution for torture, so not many people would defend it as a wise move. But surely an even dumber move is the 2002 decision to videotape the interrogations in the first place.

Various explanations abound, but none of them are definitive -- least of all CIA Director Mike Hayden's.

Very little is known, and none of it for certain, about why the tapes ever existed. It's astonishing that in 2002, CIA officials wouldn't have realized the tapes were evidence of potential criminal conduct. Clearly they realized shortly thereafter, since the CIA spent years trying, and failing, to get outside legal authority to destroy them.

Last Thursday, Hayden ventured an explanation to CIA employees. Via Marty Lederman:

The tapes were meant chiefly as an additional, internal check on the program in its early stages. At one point, it was thought the tapes could serve as a backstop to guarantee that other methods of documenting the interrogations---and the crucial information they produce--were accurate and complete. The Agency soon determined that its documentary reporting was full and exacting, removing any need for tapes.

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When it comes to torture, it's the system.

Today's New York Times carries a valuable analysis by Scott Shane running through how the revelation of the destroyed CIA torture tapes underscores the agency's fears of having the administration turn on it. That is, after manipulating the law to justify ordering the CIA's torture of Abu Zubaydah, Khalid Shaikh Mohammed and other al-Qaeda detainees, the Bush administration might finally prosecute someone low on the CIA food chain for doing what they ordered him or her to do. The agency watched Donald Rumsfeld, William Haynes and Ricardo Sanchez walk while Lynndie England and Charles Graner took the fall for Abu Ghraib. No one wants to be the Lynndie England of the Black Sites.

The administration hasn't gone down this road yet. But, from the CIA's perspective, the destruction of the tapes might bring it dangerously close. After all, if the Justice Department-CIA probe finds that Jose Rodriguez committed a crime by destroying evidence when he had the tapes junked, it raises the question of what those tapes contained evidence of. There are reams of evidence -- legal guidance from John Yoo, for instance, some still classified -- of what the underlying crime is.

So how does the CIA get out of it? Why, blame the system. Consider this passage from Shane:

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Since we're talking about destroying tapes of interrogations, why limit it to those made in secret CIA prisons? The Chicago Tribune reports today that Abu Omar, a suspected terrorist abducted in Italy and flown to Egypt by the CIA, says that "his captors made audiotapes of his extensive interrogations in an Egyptian prison that recorded 'the sounds of my torture and my cries.'"

That raises several questions, says Sen. Dick Durbin (D-IL), and he asked them in a flurry of letters today.

In a letter to Secretary of State Condoleezza Rice, he asks whether she knows if interrogations of detainees rendered by the United States to foreign countries were recorded, and if so, whether any have been reviewed "to verify compliance with diplomatic assurances not to torture detainees?"

In his letter to CIA Director Michael Hayden, he asks whether he knows of any such recordings and whether the CIA has any -- and whether, well, they've already destroyed them.

And his letter to Attorney General Michael Mukasey requests that the Justice Department's investigation into the destruction of the tapes include possible tapes of interrogations of rendered detainees -- and they're possible destruction.

What a difference a scandal makes. Coming out of his briefing to the House intelligence committee today, CIA Director Michael Hayden was penitent: "particularly at the time of the destruction we could have done an awful lot better at keeping the committee alerted and informed."

It's a markedly different tone from the one he took last week. Then, he released a statement about the tapes' destruction and claimed that the intelligence committees had received ample notification of the intention to destroy the tapes and then their actual destruction. Both committees said that wasn't true. Now he apparently agrees.

Today was the second of Hayden's initial briefings on the scandal. Yesterday's was to the Senate intelligence committee, where he said that even though he's in charge at the CIA, he's not really the guy to be talking to: "Other people in the agency know about this far better than I." Hayden says he learned of the tapes' destruction as far back as last year, when he was the principal deputy director of national intelligence and before he took over at the CIA in May of 2006.

Accordingly, Senate intelligence committee Chair Jay Rockefeller (D-WV) says that former CIA General Counsel John Rizzo and current General Counsel John Helgerson will testify in the next week. Jose Rodriguez, who decided to destroy the tapes, will also be up.

The same people will likely appear before the House committee. Chairman Silvestre Reyes (D-TX) says that Hayden's testimony today was "just the first step in what we feel is going to be a long-term investigation." So there's plenty of apologizing left to do.

Here's a court order that appears not to have an easy out.

From a press release just out from the ACLU:

The American Civil Liberties Union today filed a motion asking a federal judge to hold the Central Intelligence Agency (CIA) in contempt, charging that the agency flouted a court order when it destroyed at least two videotapes documenting the harsh interrogation of prisoners in its custody. In response to Freedom of Information Act (FOIA) requests filed by the ACLU and other organizations in October 2003 and May 2004, the United States District Court for the Southern District of New York ordered the CIA to produce or identify all records pertaining to the treatment of detainees in its custody. Despite the court’s ruling, the CIA never produced the tapes or even acknowledged their existence.

Here's another data point for the timeline. From the AP: "The Bush administration was under court order not to discard evidence of detainee torture and abuse months before the CIA destroyed videotapes that revealed some of its harshest interrogation tactics." But the CIA has an "out": the videotapes and the detainees were being held at the CIA's black sites, which were not revealed until November of 2005.

Consider the timeline.

In June of 2005, the AP reports, "U.S. District Judge Henry H. Kennedy Jr. had ordered the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

But both Abu Zubaydah and Abd al-Rahim al-Nashiri, the Al-Qaeda members whose brutal interrogations were videotaped in 2002, were being held by the CIA overseas. The tapes, which were also kept overseas, were reportedly destroyed the same month The Washington Post broke the black sites story, November of 2005. In September of 2006, President Bush announced that fourteen high value detainees were being transferred to Guantanamo Bay; both Zubaydah and Nashiri were among them.

That may mean that the tapes were "beyond the scope of the court's order," the AP reports, adding "CIA director Michael Hayden told the agency in an e-mail this week that internal reviewers found the tapes were not relevant to any court case." Neat trick.

Maybe it was all a big misunderstanding.

Yesterday, The New York Times reported that the White House and Justice Department had advised against destroying the interrogation videotapes of -- but CIA officials said that advice was less than direct (of the "probably wouldn't be a good idea" variety). As Newsweek reports, that seems to have been the pattern for CIA, White House, and Justice Department officials who failed to unequivocally direct that the tapes be preserved. (For those who haven't already, check out our monster timeline telling the tale of the tapes.)

Thankfully for investigators, "an extensive paper—or e-mail—trail exists documenting the contacts between [the CIA's] Clandestine Service officials and top agency managers and between the CIA and the White House regarding what to do about the tapes." Both directors of the CIA during that time, George Tenet and Porter Goss, were no more explicit, only indicating "that they believed it would be unwise to destroy the tapes." The CIA's general counsel is characterized as "never comfortable with the idea of the tapes being destroyed."

The discussions about the comfortability and wisdom of destroying the tapes unfolded in "fits and starts" between 2003 and late 2005, the mag reports, when Jose Rodriguez of the Clandestine Service made the clear and irrevocable decision that the tapes should be destroyed. That move came after a lawyer in the Clandestine Service advised that "there is no explicit legal reason why the Clandestine Service had to preserve the tapes." But a source whispers to Newsweek that the advice did not "directly authorize the tapes' destruction or offer advice on the wisdom or folly of such a course of action." I guess the joke's on Rodriguez.

Newsweek provides a little more detail about the tapes. For the entirety of their existence, they were kept in a secret location overseas, where they were eventually destroyed. At one point "portions... were electronically transmitted to CIA headquarters," but those traces have likely been rubbed out. Finally, there's a "detailed written transcript of the tapes' contents," which apparently still exists.

All of this, of course, doesn't do anything to explain why the tapes -- or their descriptions -- were kept from those seeking them, including the 9/11 commission and a federal judge.

The administration didn't let Col. Morris Davis, the former chief war crimes prosecutor, testify before the Senate Judiciary Committee today. But they did send Brig. Gen. Thomas Hartmann, a legal advisor to the officials who oversee the military commissions, to defend the military tribunals at Guantanamo Bay.

Sen. Dick Durbin (D-IL) took advantage of the opportunity, asking Hartmann what he thought about the fact that after six years and 775 detainees, the commissions had only produced one conviction. "I cannot explain that," replied Hartmann, citing "various legal delays," adding "I'm as disappointed in that as you are."

But when Durbin pressed, asking whether Hartmann ever thought that maybe this wasn't the best way to do things, he demurred. The military commissions are an "honor to the American justice system," he said, of which Americans should be "very proud."

For years, the CIA denied recording any interrogations of al-Qaeda detainees. For years, the Bush administration denied issuing any legal authorization for torture. And for years, members of Congress claimed ignorance of what the CIA and the Bush administration had in store for detained members of al-Qaeda. All of these denials have proven false.

There's a tremendous amount that remains unknown about CIA interrogations of al-Qaeda, the recording of those interrogations, and the destruction of those recordings. Determining just what is known is confusing, as is sorting out when crucial developments occurred. To provide a measure of clarity, TPMmuckraker has compiled a timeline of relevant events over the past five years. Since the core of the current controversy isn't about the destruction of the tapes but the interrogation methods those tapes captured -- which is of course unknown -- we included milestones on the administration's road to developing interrogation policy.

Invaluable research assistance was provided by Adrianne Jeffries, Peter Sheehy, and Andrew Berger. Mistakes in compiling this information are entirely our own, and we hope you'll alert us in comments to any errors we've made.

February 7, 2002: President Bush signs an executive order that says Article 3 of the Geneva Conventions does not apply to al-Qaeda detainees.

2002: Al-Qaeda members Abu Zubaydah and Abd al-Rahim al-Nashiri are captured and interrogated in secret CIA prisons. At least some of the interrogations are videotaped.

The precise date of the interrogations that were taped is not known. However, there are some clues. As early as the spring of 2002, the CIA began using "harsh interrogation methods" on Zubaydah, including waterboarding. As for Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole, he was not captured until the fall, as late as November. He told a military tribunal in March of this year that "from the time I was arrested... they have been torturing me," and that he'd made up stories in order to get interrogators to stop.

August 1, 2002: Jay Bybee, the chief of the Justice Department's Office of Legal Counsel, issues a memo that restricts the definition of torture to physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." A still-classified memo from roughly the same time period, known as the Second Bybee Memo, reportedly gets specific about the legality of certain prospective CIA interrogation techniques.

September, 2002: The leaders of the House and Senate intelligence committees receive a CIA briefing on interrogation techniques considered for al-Qaeda detainees. The content of that briefing is highly disputed. Both Rep. Nancy Pelosi (D-CA) and ex-Sen. Bob Graham (D-FL) say they were not briefed on actual interrogation techniques in use by the CIA. Ex-Rep. Porter Goss (R-FL) says otherwise. The briefing or briefings do not mention any interrogations being recorded. There is no known protest from any member of Congress present.

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From ABC:

In an exclusive interview with ABC News President Bush said Tuesday he did not know about the destruction of CIA videotapes of detainee interrogations.

The President said he was told just a few days ago.

"My first recollection of whether the tapes existed or whether they were destroyed was when [CIA Director] Michael Hayden briefed me," Bush said.

So Bush didn't know about the tapes' existence until last week, even though his bestest buddy Harriet Miers knew in 2003?

When Col. Morris Davis stepped down as the Pentagon's chief war crimes prosecutor in October, the reason given seemed to be a somewhat bureaucratic one. He stepped down, it was reported, "in a dispute over whether Air Force Brig. Gen. Thomas Hartmann, legal advisor to the administrator overseeing the trials, has the power to supervise aspects of the prosecution."

But in an op-ed in today's Los Angeles Times, Davis is crystal clear. "I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly," he writes.

It's a taste of what he would have said had he been allowed to testify before the Senate Judiciary Committee this morning, during its hearing on the rights of Guantanamo Bay detainees. But Sen. Dianne Feinstein (D-CA) announced at the beginning of the hearing that the committee had invited Davis to testify, but that "the Defense Department has ordered him not to appear."

Update: Here's video of Feinstein's comments:

"We assured the administration that Colonel Davis would not be asked about open and pending cases," Feinstein said. "But we were told simply that Colonel Davis was active duty military, and because he was active duty military, they could issue an order he had to follow." Calling it a shame, she added, "I wish the administration would allow him to appear. Unfortunately, I have to conclude that by prohibiting Col. Davis from testifying, the administration is trying to stop a fair and open discussion about the legal rights of detainees at Guantanamo."

In Davis' op-ed, he gives three reasons for his resignation, all deriving from a complaint that control of the military commissions at Gitmo had been taken from the military and given to political appointees. He targets Susan Crawford, who oversees the commissions, and William Haynes, the Pentagon's general counsel, in particular. The system was rigged, he complains, in order for the appointees to micro-manage the trials which they insisted take place behind closed doors, another decision he disagreed with.

And then there's the issue of torture:

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One more thing from today's must-read New York Times piece. Mazzetti and Shane also report that a former CIA detainee claims to have seen cameras in his interrogation chamber. Although CIA Director Mike Hayden said "videotaping stopped in 2002" in his Thursday message to the CIA, the ex-detainee, Muhammad Bashmilah, was in CIA custody from 2004 to 2005.

The former prisoner who reported seeing cameras, Muhammad Bashmilah of Yemen, was seized by Jordanian intelligence agents in 2003 and turned over to the C.I.A., according to an investigation by Amnesty International, the human rights advocacy organization. He was flown from Jordan to Afghanistan in October 2003 and held there until April 2004, when he was flown by plane and helicopter to a C.I.A. jail in an unidentified country, Amnesty found. Mr. Bashmilah and two other Yemeni men held with him were flown to Yemen in May 2005 and later released.

Meg Satterthwaite, a director of the International Human Rights Clinic at New York University who is representing Mr. Bashmilah in a lawsuit, said Mr. Bashmilah described cameras both in his cells and in interrogation rooms, some on tripods and some on the wall. She said his descriptions of his imprisonment, in hours of conversation in Yemen and by phone this year, were lucid and detailed.

Maybe Bashmilah is lying. Maybe he's misremembering. But, to be blunt, why believe Hayden? The CIA lied for years about the existence of videotaped interrogations, so there's no reason to credit Hayden's account of when the recordings ceased.

What's more, there's sworn evidence to the contrary: in an October 25th court filing (pdf), U.S. attorneys Chuck Rosenberg, David Raskin and David Novak acknowledge recently learning of two currently-existing CIA interrogation tapes. Their letter is heavily redacted, so it's unclear whether the tapes the attorneys viewed and listened to were made in 2002 but survived the 2005 destruction or were made sometime after 2002 -- or even after 2005 -- contrary to Hayden's statement. What is clear is that we shouldn't assume the CIA has accounted for every videotaped interrogation.

You didn't think there'd be a scandal involving the destruction of potential evidence of torture without Pat Leahy and Arlen Specter getting involved, did you?

Leahy and Specter, the leaders of the Senate Judiciary Committee, wrote yesterday to Attorney General Michael Mukasey requesting a thorough understanding of the Justice Department's inquiry into the CIA's destruction of secret interrogation tapes. If Mukasey ever had a honeymoon at DoJ, it's already a distant memory.

The Dyspeptic Duo demand to know what the Justice Department knew about the tapes before their destruction -- after all, DoJ warned against junking them, so someone at DoJ knew they existed. And in a press release accompanying the letter, they threaten to turn next week's confirmation hearing for Mukasey's would-be deputy, Mark Filip, into "a public forum for Senators to query Filip about the Department of Justice’s reported investigation."

Full text of the letter follows the jump.

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And now there's a paper trail in the saga of the CIA's destroyed interrogation videotapes. A former senior intelligence official tells The New York Times's Mark Mazzetti and Scott Shane that lawyers within the agency's clandestine wing advised Jose Rodriguez Jr. in 2005 that junking the tapes was legal. For the investigations opening into Rodriguez's actions by the House and Senate intelligence committee, that written advice will be key -- if it hasn't already been shredded.

It's unclear exactly which attorney from the Directorate of Operations (now called the National Clandestine Service) gave Rodriguez the go-ahead. A bevy of administration and intelligence officials have acknowledged that attorneys from the White House (including Harriet Miers), the Justice Department, and the CIA's general counsel advised against destroying the tapes. Interestingly, a clearly pro-Rodriguez ex-CIA official tells the Times that such advice was less than ironclad:

“They never told us, ‘Hell, no,’” he said. “If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.”

Behold another pivot point for the joint DOJ-CIA Inspector General inquiry and the Congressional probes: how clearly did the Bush administration warn the CIA against destroying the tapes? Did Rodriguez, faced with widespread administration opposition to the destruction of the tapes, simply keep asking for guidance until he found the legal advice he wanted? Or did the administration, including the CIA's own acting general counsel, John Rizzo, give equivocal, I-don't-want-to-know guidance?

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Friday, Senate intelligence committee Chairman Jay Rockefeller (D-WV) said that his committee had already begun looking into the tapes' destruction. Over the weekend, the Justice Department and the CIA's inspector general announced a joint investigation. And today, House intelligence committee Chair Silvestre Reyes (D-TX) and ranking member Pete Hoekstra (R-MI) announced a full committee investigation.

The investigation "will review issues surrounding the destruction of videos, the CIA’s failure to notify Congress of this important matter, and related questions concerning the CIA’s interrogation program," according to a release. It kicks off Wednesday when CIA Director Michael Hayden will meet with the committee in a "closed, on-the-record briefing."

So far, the view on Capitol Hill seems to be that the two Congressional investigations and joint DoJ-CIA inquiry are enough -- with the notable exception of Sen. Joe Biden (D-DE), who's called for a special prosecutor.

Paging Michael Mukasey. The leader of the CIA interrogation team that handled Abu Zubaydah, head of al-Qaeda's military committee, says he had Abu Zubaydah waterboarded -- which was torture, and, he says, necessary to prevent "maybe dozens of attacks." ABC has the bombshell interview:

In the first public comment by any CIA officer involved in handling high-value al Qaeda targets, John Kiriakou, now retired, said the technique broke Zubaydah in less than 35 seconds.

"The next day, he told his interrogator that Allah had visited him in his cell during the night and told him to cooperate," said Kiriakou in an interview to be broadcast tonight on ABC News' "World News With Charles Gibson" and "Nightline."

"From that day on, he answered every question," Kiriakou said. "The threat information he provided disrupted a number of attacks, maybe dozens of attacks."

Kiriakou is now the first official to acknowledge the use of waterboarding on any detainee in CIA custody. But his account of Abu Zubaydah's intelligence value contradicts Ron Suskind's 2006 book The One Percent Doctrine, which reported that Abu Zubaydah was borderline retarded and didn't have more than minor, tactical information about al-Qaeda. Needless to say, Kiriakou is also the first official to say unequivocally that Abu Zubaydah or any other detainee was tortured.

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As we noted earlier, House Speaker Nancy Pelosi's (D-CA) statement yesterday about a briefing on CIA interrogation techniques left a couple things unclear. A Pelosi aide, responding to our queries, walked us through.

According to the aide, the briefing Pelosi received in September 2002 -- when she was the ranking Democrat on the House intelligence committee -- did not cover any interrogation techniques then in use by the CIA. Administration officials "said these were possible techniques they might use in future but [were] not being used yet," says the aide. The aide doesn't know "if the term 'waterboarding' was used" by the briefer.

No objection was raised at the time by Pelosi to what she was told were "possible techniques." But the aide is unsure if Pelosi left the briefing clear on what those possible techniques actually entailed: "Her briefing [was] not as extensive as the Post story implies."

Rep. Jane Harman (D-CA) took Pelosi's spot on the committee in 2003. It was only then that the administration told the committee chiefs that the techniques listed in the 2002 briefing "were actually being used." Harman, and not Pelosi, was briefed at the time. "Harman objected, which Pelosi thought was the right thing to do and would have done if she had been ranker," the aide says. Pelosi, however, did not sign her name to a letter Harman sent to the CIA that Harman sent that February after receiving the briefing. Harman has asked the CIA to declassify the letter, which she has described as expressing concern over the interrogation techniques put into place and warning the CIA against destroying any interrogation recordings. "Harman told her she was sending it and Pelosi agreed with that decision," the Pelosi aide says.

"Pelosi and Harman [are] on same page on this," the aide adds, contradicting my earlier read on Pelosi's statement.

There remains a dispute about what exactly that September 2002 briefing detailed. The Washington Post quoted former House intelligence committee chairman Porter Goss as saying, "among those being briefed, there was a pretty full understanding of what the CIA was doing," which implies that the briefing discussed techniques then in use. But the then-Democratic chairman of the Senate intelligence committee, Bob Graham, told the Post that he didn't know, despite the briefings, what the CIA was up to. "Personally, I was unaware of it, so I couldn't object," Graham said. How much of this is buck-passing and ass-covering and how much is true -- and who's engaged in which -- isn't at this moment clear.

Attempts to find out what Congress actually knew about the 2002 torture of detainees held by the CIA are running right into the brick wall of classification. Only this time, it's not just CIA stonewalling that's keeping the facts concealed. Members of Congress are quick to put the classification muzzle on themselves.

In February 2003, Rep. Jane Harman (D-CA) wrote a letter to the CIA cautioning "against destruction of any videotapes" of al-Qaeda interrogations. It's not clear whether she objected to any actual interrogation techniques in the letter, and she says that because the letter is classified, she was "not free to mention this subject publicly until Director Hayden disclosed it yesterday." Harman is seeking to have the CIA declassify the letter.

Similarly, Jay Rockefeller said he wrote to the CIA in May and September 2005 to seek clarification about interrogation techniques. Unfortunately, those letters are also classified, and neither Harman nor Rockefeller appear inclined to release them.

But wait: neither Harman nor Rockefeller are CIA employees. How could letters they send to the CIA be classified? When would they become classified? If Harman and Rockefeller kept the letters in a drawer and never mailed them, would they still be classified?

I asked the country's preeminent classification expert, Steve Aftergood of the Federation of American Scientists, to enlighten me on this. Whenever an official receives information known to be classified -- as Harman and Rockefeller did through their perches on the intelligence committees -- "they are obliged to protect that document and to treat it as classified," Aftergood says. "Even if it is never circulated."

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Just in time for the Justice Department probe into the destruction of videotapes of CIA interrogations, Sen. Russ Feingold (D-WI) is cutting to the heart of the issue.

Feingold today sent a letter to Attorney General Michael Mukasey asking for his analysis of the legality of the CIA's detention and interrogation program. At his confirmation hearings, Mukasey pleaded ignorance as to whether waterboarding is torture, saying he needed to be confirmed as attorney general before he could venture an opinion on the subject.

Feingold writes:

It is my hope that, under your leadership, the Department of Justice will take a fresh look at the CIA’s program, and that you will urge the President not to veto legislation that would end the use of so-called “alternative interrogation techniques.” I request that you provide current and any past Department legal analyses to Congress, and that you provide your views on the program to Congress at the earliest possible date.

There's legislation pending that would restrict CIA interrogation techniques to the Geneva Conventions-compliant provisions of the Army Field Manual on interrogation, a measure that the White House opposes.

More pertinently, given the interrogation-tapes controversy, Mukasey is in a real bind on the torture question. If he finds the techniques used by the CIA to have been torture, which he said is illegal, then he will come under tremendous pressure to prosecute the interrogators and possibly even the administration officials who approved the illegal behavior. If he doesn't conclude that they're torture, he'll be embracing a politically convenient and euphemistic definition of the law. Expect Mukasey to send a big fruitcake to John Yoo and David Addington this Christmas for bringing him to this point.

Feingolds's full letter is after the jump.

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Top-tier intelligence reporter Siobhan Gorman, now at the Wall Street Journal, profiles Jose Rodriguez, the outgoing CIA operations chief who in 2005 reportedly ordered the destruction of the CIA's interrogation videotapes. In doing so, she talked to a number of former intelligence officials familiar with Rodriguez. To raise the curtain for you, dear reader, oftentimes active-duty CIA officials use their retired colleagues on the outside to communicate information to reporters that their active status prevents them from discussing. I obviously can't know if that's at play in this case. But here's how some former officials explained Rodriguez's motivations in destroying the tapes:

Mr. Rodriguez had long been concerned that the CIA lacked a long-term plan for handling interrogations, they say. He also worried, given the response to Abu Ghraib prison in Baghdad, and an earlier agency scandal involving the shooting-down of a plane that turned out to be carrying Peruvian missionaries, that lower-level officers would take the fall if the videos became public, the former colleagues said.

One former official said interrogators' faces were visible on at least one video, as were those of more senior officers who happened to be visiting. He said Mr. Rodriguez was concerned that "they were carrying out the direction from higher-ups in the administration, yet the people who would end up getting in trouble are going to be some GS-12s," referring to a midlevel rank in the federal bureaucracy.

"Jose was concerned about how all this would end," another former senior intelligence official said. "He wasn't getting instructions from anybody."

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Here's House Speaker Nancy Pelosi's (D-CA) statement about what she knew about CIA's treatment of detainees from her time on the House intelligence committee:

"On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

"I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred."

So, couple things here.

One: Pelosi isn't saying that she knew how detainees were interrogated. She's saying she was told that all techniques used in those interrogations were considered legal. So did she know what those techniques were, and what they entailed? We'll find out, or get stonewalled trying.

Two: Never mind the brief mention of Jane Harman's protest. Pelosi just threw Harman under the bus. It's no secret that the two Californians don't get along. But she didn't need to put the blame on her committee successor in her statement on this controversy.

Add this to our list of legislators who knew about the CIA's recording of interrogations of al-Qaeda detainees: in September 2002 and again in 2003, the leaders of the House and Senate intelligence committees were briefed on what goes on in those interrogations. That means ex-Sen. Bob Graham (D-FL), Sen. Pat Roberts (R-KS), Sen. Richard Shelby, Sen. Jay Rockefeller (D-WV), Rep. Nancy Pelosi (D-CA), Rep. Jane Harman (D-CA), and ex-Rep. Porter Goss (R-FL) knew about waterboarding prisoners like Abu Zubaydah, leader of al-Qaeda's military committee. Publicly, The Washington Post reports, they said nothing, because privately, they didn't object -- until waterboarding became public knowledge, and some of the lawmakers expressed outrage. But some are disputing that account, though they're not giving specifics. From the Post:

Individual lawmakers' recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. "And the reaction in the room was not just approval, but encouragement."

Congressional officials say the groups' ability to challenge the practices was hampered by strict rules of secrecy that prohibited them from being able to take notes or consult legal experts or members of their own staffs. And while various officials have described the briefings as detailed and graphic, it is unclear precisely what members were told about waterboarding and how it is conducted. Several officials familiar with the briefings also recalled that the meetings were marked by an atmosphere of deep concern about the possibility of an imminent terrorist attack.

"In fairness, the environment was different then because we were closer to Sept. 11 and people were still in a panic," said one U.S. official present during the early briefings. "But there was no objecting, no hand-wringing. The attitude was, 'We don't care what you do to those guys as long as you get the information you need to protect the American people.' "

That U.S. official is clearly engaging in pushback. The revelation that the CIA videotaped interrogations in 2002 and then destroyed their recordings in 2005 threatens to lead to the agency's nightmare scenario: prosecution for potential war crimes. On Saturday, the Justice Department, along with the CIA's inspector general, opened an investigation into the destruction. The agency wants to make clear that it thought it had legal cover from the White House and Justice Department in 2002 to torture detainees -- and political cover from the relevant leaders of the intelligence committees in Congress. On the former point, President Bush, Vice President Cheney, then-White House Counsel Alberto Gonzales and then-Justice Department official John Yoo made sure of it. And on that latter point, it's clear from the Washington Post story that Congress did indeed sign on. As the investigations proceed, the agency will argue that they were not in this alone.

Bob Graham, who left the Senate in 2005, has said he has no recollection of the briefings. So that's one denial. Porter Goss, who became CIA Director in 2004, says all involved knew about the interrogations. Jay Rockefeller's story is complicated -- he began public objection to waterboarding in 2005 -- and is liable to change. Jane Harman says she won't discuss anything classified: a cynic might say that at least she's consistent. Pat Roberts didn't return my Friday phone call.

So what did Pelosi know? From the Post:

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Take two! Senate intelligence committee chairman Jay Rockefeller (D-WV) had said yesterday that the CIA told him about its destruction of videotaped interrogations in "November 2006." But oops -- in a new statement just released to the press, he says he spoke too soon. It turns out he knew about the tapes' existence in 2003, but only found out about their destruction yesterday. Rocky:

"Last night, the CIA informed me that it believes that the leadership of the Senate Intelligence Committee was told of the decision to destroy the tapes in February 2003 but was not told of their actual destruction until a closed committee hearing held in November 2006.

"The committee has located no record of either being informed of the 2003 CIA decision or being notified late last year of the tapes having being destroyed. A review of the November 2006 hearing transcript finds no mention of tapes being destroyed.

"While the existence of the videotapes was known to me in 2003 in my capacity as then-Vice Chairman of the committee, I was not told of the CIA’s decision to destroy the tapes and I was not aware of their destruction until yesterday’s press reports."

The CIA shares so much information with Rockefeller, he must have just been confused. Who can keep it straight? In any event, Rockefeller knew since 2003 that some interrogations were videotaped, and he kept his mouth shut. Here's what he said he did.

"In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005."

Let's see the release of these letters. And more than that: Rockefeller is pledging a full investigation in the Senate intelligence committee. Once again, Matt has it right. Rockefeller needs to start snitching.

This just in from Rep. Jane Harman (D-CA). She says her letter to the CIA warning it against destroying the interrogation tapes is classified and can't be released:

CIA Director Hayden's public statement yesterday, that some members of Congress were informed about the existence of videotaped interrogations of high value detainees, prompts me to respond.

In early 2003, in my capacity at Ranking Member of the House Intelligence Committee, I received a highly classified briefing on CIA interrogation practices from the agency’s General Counsel. The briefing raised a number of serious concerns and led me to send a letter to the General Counsel. Both the briefing and my letter are classified so I cannot reveal specifics, but I did caution against destruction of any videotapes.

Given the nature of the classification, I was not free to mention this subject publicly until Director Hayden disclosed it yesterday. To my knowledge, the Intelligence Committee was never informed that any videotapes had been destroyed. Surely I was not.

This matter must be promptly and fully investigated and I call for my letter of February 2003, which was never responded to and has been in the CIA’s files ever since, to be declassified.

So Harman had, in early 2003, at least generic knowledge of the tapes' existence and at least some indication that the CIA might have destroyed them. She felt restricted by classification from saying anything about this publicly, and now what she warned against has come to pass. There's every reason to suspect that the CIA has recorded more interrogations than we currently know of, and has destroyed even more evidence of such than we're presently aware.

Perhaps Harman can shed even more light here. The CIA may not look too kindly on her request to declassify the 2003 letter. As Matt Yglesias writes, it's time for Harman to start snitching. Dare the agency to seek prosecution.

The irony is getting out of control. For years, the Bush administration has sought to assure the interrogators who implemented its torture policy that they won't be prosecuted. But with the revelation that operations chief Jose Rodriguez destroyed recorded evidence of potentially-illegal interrogations, the CIA may have boxed even the Bush Justice Department into a corner. Sen. Dick Durbin (D-IL), the number-two Democrat in the Senate, is calling on DOJ to open an obstruction-of-justice investigation. You can read Durbin's letter to Attorney General Michael Mukasey here.

So far, it's not clear what DOJ will do. "We have received and are reviewing Senator Durbin's letter," says Dean Boyd, spokesman for DOJ's national-security division. More as it develops.

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What about Hayden's boss, Director of National Intelligence Michael McConnell? McConnell's been DNI since February. When did he learn about the CIA destroying videotaped interrogations of al-Qaeda detainees? How many tapes did the CIA tell him it destroyed? Does he believe what he's been told? What action, if any, will he now take?

Sigh. That's for McConnell to know and you not to find out. "We're not commenting on that at all," says DNI spokeswoman Vanee Vines.

What did Congress know about the CIA's 2002 torture tapes and their 2005 destruction of same? Senate intelligence committee chairman Jay Rockefeller (D-WV):

While we were provided with very limited information about the existence of the tapes, we were not consulted on their usage nor the decision to destroy the tapes. And, we did not learn until much later, November 2006 -- 2 months after the full committee was briefed on the program -- that the tapes had in fact been destroyed in 2005.

Rep. Jane Harman (D-CA), then-ranking Democrat on the House intelligence committee, isn't clear about what or when she knew of either the tapes or their destruction. But she says she warned CIA against getting rid of the evidence.

Rep. Jane Harman of California, then the senior Democrat on the House Intelligence Committee, was one of only four members of Congress in 2003 informed of the tapes' existence and the CIA's intention to ultimately destroy them.

"I told the CIA that destroying videotapes of interrogations was a bad idea and urged them in writing not to do it," Harman said. While key lawmakers were briefed on the CIA's intention to destroy the tapes, they were not notified two years later when the spy agency actually carried out the plan. Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., said the committee only learned of the tapes' destruction in November 2006.

It seems as if the "four" congressional leaders Harman refers to as knowing about the tapes were the chairs and ranking members of the intelligence committees: Sen. Pat Roberts (R-KS), Sen. Jay Rockefeller (D-WV), Rep. Porter Goss (R-FL), and Rep. Jane Harman (D-CA). Rep. Pete Hoekstra (R-MI) took Goss' spot as chairman of the House intelligence committee that year when Goss became CIA director. Hoekstra told the AP that he didn't know a thing about either the tapes or their destruction. I'm calling Harman to ask her for her letter to the CIA about the tapes, and will bring it to you if and when I have it.

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Usually, what nails you in Washington malfeasance is the cover-up, not the crime. With the revelation that the CIA in 2005 destroyed videotapes of interrogations of senior al-Qaeda detainees, it'll be both.

Start with the facts as they're currently understood. In 2002, the CIA videotaped interrogations of Abu Zubaydah, the chief of al-Qaeda's military committee, and an as-yet-unknown colleague. (My guess is that Detainee #2 is Ramzi bin al-Shibh, who, following his capture that September in Pakistan, was the second most important detainee then in custody.) During that time, the tapes remained a closely-held secret, despite requests for information on interrogations from the 9/11 Commission, a 2002 joint Congressional inquiry into 9/11, and Judge Leonie Brinkema, who presided over the Zacharias Moussaoui trial. In 2005, then operations chief Jose Rodriguez ordered the tapes destroyed, without disclosing their existence to anyone who didn't already know. This week, The New York Times prepared a story about the tapes. To get out in front of it, Director Michael Hayden released a statement about both the tapes and their destruction.

Hayden makes not a single plausible claim about the tapes and why they were destroyed. He said in an internal message to CIA employees that the release of the tapes -- whether to the judge or to the inquiries or to, ultimately, the press -- would have allowed al-Qaeda to identify CIA interrogators and then target them for retribution. The appropriate response to that is: LOL. The CIA has the capacity to move its operatives around the world, including to places where there aren't any al-Qaeda "assassins" -- like, say, northern Virginia. To say otherwise, as Hayden does, is to tacitly concede that CIA is too incompetent to protect its people.

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The New York Times has a big one this afternoon: in 2002, the CIA videotaped the interrogations of at least two Al Qaeda operatives -- interrogations that likely involved waterboarding and similar techniques. But no one who asked for videotapes of CIA interrogations -- including the 9/11 commission and a federal judge -- was told about it. The tapes were ultimately destroyed in 2005.

In a nutshell:

Daniel Marcus, a law professor at American University who served as general counsel for the Sept. 11 commission and was involved in the discussions about interviews with Al Qaeda leaders, said he had heard nothing about any tapes being destroyed.

If tapes were destroyed, he said, “it’s a big deal, it’s a very big deal,” because it could amount to obstruction of justice to withhold evidence being sought in criminal or fact-finding investigations.

CIA chief Mike Hayden announced the destruction of the tapes today in order to get ahead of the Times story, which was due to break tomorrow morning. "The tapes posed a serious security risk," he explains. However, he doesn't attempt to justify the decision to lie to investigators about their existence before they were destroyed.

As for why the tapes were destroyed:

A former intelligence official who was briefed on the issue said the videotaping was ordered as a way of assuring “quality control” at remote sites following reports of unauthorized interrogation techniques. He said the tapes, along with still photographs of interrogations, were destroyed after photographs of abuse of prisoners at Abu Ghraib became public in May 2004 and C.I.A. officers became concerned about a possible leak of the videos and photos.

Presidential veto, here we come.

The intelligence bill passed today includes, as anticipated, a measure (sponsored by Sens. Dianne Feinstein (D-CA), Chuck Hagel (R-NE), Sheldon Whitehouse (D-RI), and Russ Feingold (D-WI)) that would effectively ban waterboarding. That's because it would limit CIA interrogators to using techniques approved by the Army Field Manual.

If President Bush signs the bill, says Sen. Feinstein in a statement, "all U.S. government interrogations – military and civilian – would be conducted under the same rules and regulations, and eight specific techniques, including waterboarding, would be prohibited."

But the White House has said that he will veto it. So then it becomes a question of whether Congress has the votes to override it.

Here's the measure's language:

“No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.”

We've been down this road before, first with the 2005 Detainee Treatment Act and then with this summer's executive order on interrogations. And, like water seeking its own level, each time the Bush administration faces some kind of legal obstacle to torturing terrorism detainees, it finds a way to circumvent it. Even so, Congress is prepared to pass yet another ban on CIA torture techniques, the AP reports.

House and Senate negotiators working on an intelligence bill have agreed to limit CIA interrogators to techniques approved by the military, which would effectively bar them from using such harsh methods as waterboarding, congressional aides said Wednesday.

Members of the House and Senate intelligence committees decided to include the ban while working out differences in their respective bills authorizing 2008 spending for intelligence programs, according to the aides, who spoke anonymously because the negotiations were private. Details of the bill are to be made public Thursday.

That will set the stage for another veto fight with President Bush, who last summer issued an executive ordered allowing the CIA to use "enhanced interrogation techniques" that go beyond what's allowed in the 2006 Army Field Manual.

The Army field manual is compliant with the Geneva Conventions, the Constitution, and the laws of the United States of America. Waterboarding and the other potentially-banned tortures are not. Three guesses on which the Bush administration will choose.

From a not-yet-online piece from Congressional Quarterly, the White House proclaims that torture, and only torture, can keep your children safe:

And White House spokesman Tony Fratto issued a statement saying, "if that provision is in the bill, it would make a bad bill worse. We had a veto message on a similar provision in the House's supplemental funding bill. The CIA program has provided valuable, actionable intelligence that has allowed us to find and capture terrorists and prevent attacks. Efforts to weaken this program are dangerous and misguided."

As the AP notes, CIA director Mike Hayden has (euphemistically) defended torturing detainees. Attorney General Michael Mukasey has pleaded ignorance on whether waterboarding is torture. In an interview with TPMmuckraker on Monday, Sen. Sheldon Whitehouse (D-RI) pledged to press Mukasey on the legality of waterboarding every time Mukasey testifies to the Senate Judiciary Committee. With the White House spending more energy defending its God-given right to torture than it spends, say, finding Osama bin Laden, prepare to see this sorry spectacle again and again over the next fourteen months.

Check out Dan Matthews and Julian Assange's Wikileaks analysis of the difference between the 2003 and 2004 Guantanamo Bay manuals. Matthews and Assange note that the 2004 manual restricts detainees' access to prison chaplains -- most likely in response to the case of James Yee, an Army chaplain then suspected of espionage for al-Qaeda and since cleared of all charges. The result of the Yee Affair was, apparently, a transformation of religious-comfort services into a potential intelligence-collection operation:

In March 2003, the chaplain could access detainee areas unaccompanied, and could “speak freely with detainees”, but by March 2004, the chaplain is “assigned an escort” to visit detainee holding areas – potentially a form of surveillance. And the chaplain can “speak with detainees” - but apparently not so freely as before.

Furthermore, in other parts of the manual, the chaplain is again disempowered – from making announcements on the PA system (sections 16-3 and 16-5), from providing religious items (section 16-13). And guards are no longer encouraged to seek the chaplain's advice on religious matters (section 16-14).

Matthews and Assange also note how the manual expresses hostility for the International Committee of the Red Cross:

Edits to the manual suggest that further hurdles may have been placed in the way of the Red Cross. Sction 17-2 stipulates that the Red Cross “is restricted from all buildings without prior approval... except the Detention Clinic and the Detention Hospital.” Then, the Red Cross is required to be aware of “scheduled guard feeding times” and adjust their schedule accordingly.

The Red Cross is prohibited from passing mail between detainees in both manuals. The 2003 manual stipulates in chapter 13 that “At no time should [Red Cross] reps pass any mail between detainees”.

By 2004, the military saw fit to make the stipulation, if nothing else, louder: “AT NO TIME should ICRC reps pass any mail between detainees.”

Score another one for Wikileaks. This morning -- thanks to a source known only as "Peryton" -- the open-source website for whistleblower documents published the 2004 manual for U.S. military detention operations at Guantanamo Bay. You can read it, with commentary, here.

Last month, Wikileaks published the 2003 edition of the manual. Among other controversial provisions, the manual instructed officials to hide certain detainees from the International Committee of the Red Cross, a practice that the military repeatedly denied was in existence at Guantanamo. Spokespeople for the U.S. military's Southern Command, which oversees Guantanamo Bay, said the manual was outdated and assured that some instructions that violated the Geneva Conventions were no longer in effect.

It's unclear so far what portions of the 2004 manual remain in place. (Maybe Peryton will enlighten us in the future.) The Washington Post's Josh White quotes Guantanamo Bay spokesman as saying that "things have changed dramatically" at the camp since 2004. But Wikileaks finds that, in key areas, the 2004 manual didn't change so much from 2003:

Systematic denial of Red Cross access to prisoners remains. The use of dogs remains. Segregation and isolation are still used routinely and systematically – including an initial period of at least 4 weeks "to enhance and exploit the disorientation and disorganization felt by a newly arrived detainee", only terminated at the behest of interrogators. Both manuals assert that detainees will be treated in accordance with the "spirit" of the Geneva conventions "to the degree consistent with military needs", but never assert that the conventions are actually being followed at Guantanamo. Put into practice, neither manual complies with the Geneva conventions.

So is the past prologue? We'll find out. For now, though, dig into the 2004 manual and let us know in comments what you think is most significant.