More Torture Tapes

I think these things are starting to reproduce like spores:

Would it surprise you to know that the government just admitted to another torture tape, this one of Mohammed al-Qahtani's treatment? The Obama Administration has continued the Bush Administration's attempts to stonewall on release of this material.

The government never disclosed the existence of these tapes as exculpatory information in Mr. al Qahtani’s habeas case. CCR had filed a motion in February 2009 to compel the government to turn over exculpatory evidence in their client’s case and to hold the government in contempt for it’s “flagrant violation” of a judge’s November 2008 order to do so [...] The videotapes the government is required to produce will reveal the time period at the end of three months of intensive solitary confinement and isolation that immediately preceded the implementation of the “First Special Interrogation Plan,” a regime of systematic torture techniques approved by former Secretary of Defense Donald Rumsfeld for use against Mr. al Qahtani. In a letter to his superiors reporting possible abuse of men in U.S. custody, T.J. Harrington, Deputy Assistant Director, Counterterrorism Division, FBI described Mr. al Qahtani during this time as “evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reportedly hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).”

The lawyers will receive these tapes, based on the judge's order. Qahtani is the man Susan Crawford, who helped run Gitmo for the Bush Administration, admitted was tortured by the US government.

The Obama Administration will never be able to suppress all this evidence forever. They might as well come clean about the past.

No Immunity, No Way, Jose

Jose Rodriguez wants the full Goodling:

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

Rodriguez, the former head of the CIA's National Clandestine Service, ordered the tapes destroyed in 2005. Rodriguez was scheduled to testify before the House Intelligence Committee at a Jan. 16 hearing.

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

Now, the only potential outside review was basically scuttled yesterday, as a federal judge refused to inquire into the destruction of the tapes. Which leads emptywheel to say:

So, let's see. No Rodriguez testimony before Congress (hopefully, that is ... did you know that Non CIA Rat is almost an anagram for Iran-Contra?), no Kennedy inquiry into the terror tapes. That DOJ investigation into the torture tapes is looking like a pretty good way to bury any discussion of the torture tapes for a good little while, isn't it? Maybe even long enough for Bush to start pardoning people wildly in about a year, huh?

I believe Mukasey is Albanian for "stonewall".

A Hiccup At The CIA?

I'm still not convinced that any prosecutor who remains under the chain of command of George Bush's Justice Department is going to be able to carry out a legitimate investigation, no matter how tough and nonpartisan John Durham is. In addition, the fact that the sole focus of the investigation is the destruction of the torture tapes, and not what was on them, seems to be to presage something less than a legitimate probe. But that's not the way it's being received at Langley:

“A lot of people are worried,” says one former CIA official, who asked not to be identified talking about sensitive matters. “Whenever you have the bureau running around the building, it’s going to turn up some heads. This could turn into a witch hunt.” Justice officials say Durham was assigned to investigate the 2005 decision to destroy the tapes—not the activities recorded on them, including the use of waterboarding on Al Qaeda suspects. But at this point, Durham has no formal mandate on the probe's scope, giving him the freedom to expand it if he chooses. "We're going to follow this wherever it leads," says one Justice official, who asked not to be identified discussing an ongoing probe.

One key figure, Jose Rodriguez, the former CIA chief of clandestine services who gave the order to destroy the videotapes, has retained Robert Bennett, a renowned defense lawyer who represented Bill Clinton in the Paula Jones lawsuit. Another potential witness, 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.

I think the CIA is worried for a different reason. The Bushies have been all too ready to lay all of their problems at the feet of the intelligence community. They twisted the intel on Iraq, and when it turned out to be wrong, blamed the CIA for bad intel. In addition there have been the evidence that CIA agents are at war with Cheney because they aren't willing to go into the abyss toward endless war around the globe. As long as this inquiry is limited to the destruction of the tapes, the DoJ, under the firm gaze of Cheney, can use this investigation to get back at a lot of political enemies at Langley, while also shielding Fourthbranch from his ultimate role in the entire mess:

But with anything related to torture, it's pretty clear the CIA took its orders from Cheney -- via Addington. And how plausible is it that, in his exchanges with the CIA, Addington advised against the tapes' destruction? Or that the CIA would have done it if he had told them not to? Isn't it more likely that he supported the idea, either overtly or with a nod and a wink?

So one has to wonder what will happen if Addington is hauled in front of a grand jury to testify not just about his relevant conversations with the CIA, but about his conversations with Cheney.

"Did you, Mr. Addington, indicate in any way to the CIA that destroying the tapes would be acceptable, or even preferable? Did you do so based on instructions from your boss, the vice president?"

Wouldn't it be interesting to hear Addington answer those questions under oath?

Not likely to happen as long as anyone under the thumb of the executive branch is doing the investigating. But the intelligence agents have reason to be worried. Just ask Mary McCarthy.

Well, It Certainly Sounds Like An Independent Investigation

Michael Mukasey taps a career prosecutor to investigate the destruction of the torture tapes:

The CIA acknowledged last month that it destroyed videos of officers using tough interrogation methods while questioning two al-Qaida suspects. The acknowledgment sparked a congressional inquiry and a preliminary investigation by Justice.

"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 apparently went up against the FBI and sent a bunch of public officials in Connecticut to prison, so he's not afraid of taking on the government. He's basically acting as the US Attorney for eastern Virginia because that USA, who would normally have jurisdiction over the CIA, recused himself. And the head of the CIA, Michael Hayden, has also recused himself, along with John Helgerson, the CIA Inspector General.

This has all the earmarks of a legitimate independent investigation, but with the Bush Administration nothing is assured.

UPDATE: It's interesting that this is coming out on a day when 9/11 Commission co-chairs Tom Kean and Lee Hamilton reiterated in the New York Times that the CIA stonewalled their investigation and lied to their commission.

UPDATE II: Conyers seems unhappy, wanted a special counsel and thinks the scope of the investigation is too limited. I have to agree to an extent that the Justice Department has defaulted on its ability to independently investigate the White House. So the Congress should engage in a parallel probe.

How Fourthbranch Works

Newsweek's Michael Isikoff has posted a fascinating interview with J.William Leonard, the head of the National Archives' Information Security Oversight Office (ISOO), which deals with classified documents from the executive branch. He was the major figure in the fight by Dick Cheney to define his office as a fourth branch of government existing outside executive branch accountability. I've been calling him "Fourthbranch" ever since (like the Taco Bell ad: "think outside the Constitution"). In the interview, Leonard details just how uniquely Cheney and his minions see their responsibilities to other government agencies.

NEWSWEEK: Explain how all this happened.

Leonard: Up until 2002, OVP was just like any other agency. Subsequent to that, they stopped reporting to us…At first, I took that to be, 'we're too busy.' Then we routinely attempted to do a review of the OVP and it was at that point in time it was articulated back to me that: 'well they weren't really subject to our reviews.' I didn't agree with it. But you know, there is a big fence around the White House. I didn't know how I could get in there if somebody didn't want me to.

So how did matters escalate?

The challenge arose last year when the Chicago Tribune was looking at [ISOO's annual report] and saw the asterisk [reporting that it contained no information from OVP] and decided to follow up. And that's when the spokesperson from the OVP made public this idea that because they have both legislative and executive functions, that requirement doesn't apply to them.…They were saying the basic rules didn't apply to them. I thought that was a rather remarkable position. So I wrote my letter to the Attorney General [asking for a ruling that Cheney's office had to comply.] Then it was shortly after that there were [email] recommendations [from OVP to a National Security Council task force] to change the executive order that would effectively abolish [my] office.

Who wrote the emails?

It was David Addington.

No explanation was offered?

No. It was strike this, strike that. Anyplace you saw the words, "the director of ISOO" or "ISOO" it was struck.

Here we have the Fourthbranch way. Assume the laws don't apply to you; when pressed, threaten to abolish the law or the agency that attempts to execute it. And since Cheney is not a lawyer, his appointed henchman in these matters is now David Addington. There's always one degree of separation for Fourthbranch, be it Libby or Addington or whoever. And the new firewall may get torched by the ongoing torture tape investigation.

The House Intelligence Committee has scheduled a hearing on January 16 (pdf) regarding the destruction of CIA interrogation videotapes of two al Qaeda suspects held in secret overseas prisons, Abu Zubaydah and Abd al-Rahim al-Nashiri.

The order to destroy the tapes allegedly was given by Jose Rodriguez who at that time was head of the CIA’s clandestine service. Rodriguez, who has hired lawyer Robert Bennett to represent him, has no intention of being the scapegoat.

The TimesonLine reports Rodriguez is seeking immunity for his testimony. Who might he give up?

Four names in the White House have surfaced so far. My money is on Cheney lawyer (now his Chief of Staff) David Addington.

Reports have cited four White House and OVP staffers as having discussed the tapes with the CIA, and have gone out of their way to assure that three of them advised against destruction. Only Addington is left hanging out to dry. And of course, the CIA ignored the advice of everyone but Addington.

It's hard to understate the level to which Fourthbranch runs this government without being subject to regular government scrutiny. Just this week he's been implicated in denying a waiver to California to set their own greenhouse gas emissions targets. You can add that to the secret energy meetings, enabling the Enron energy blackouts in California in 2001, the Plame leak, official secrecy including making up a classification for his own documents, the tax cuts ("This is our due!"), war in Iraq, the looming threat of war in Iran, environmental policy, and well, everything in the Angler series.

The Office of the Vice President is a relic of the compromise that forged the Constitution, almost wholly unnecessary in the function of a 21st-century state. While it seemed a useless honorific only given meaning when a President died in office (and there are plenty of other ways to create a line of succession), it lingered because nobody could fathom anything bad arising from it.

They never met Fourthbranch.

Torture Tape Update

So after belligerently trying to shut down the House Intelligence Committee investigation over the detroyed torture tapes, and faced with imminent subpoenas which would have bipartisan support, the CIA and the Justice Department relented, offering documents and allowing the CIA's top lawyer, John Rizzo, to testify to the committee. Whether or not they'll allow Jose Rodriguez, who is the prime subject for a committee subpoena, to testify is an open question. It's a minor victory for the separation of powers, but I stress minor. And so far, based not only on the documents given to the committee but also testimony from Michael Hayden, it looks like Abu Gonzales and John Bellinger advised against destroying the tapes, adding to other accounts that Harriet Miers advised against destruction as well. Only one lawyer known to have been present at the discussions is left out: David Addington, Cheney's lawyer. It was obvious that Addington would be the figure most likely to argue for their destruction, seeing as he's bathed in the light of Fourthbranch and believes himself to be not bound by any laws, a Javier Bardem-in-No Country For Old Men kind of person, if you will.

Additionally, a CIA lawyer has put to rest Hayden's ridiculous concern that the tapes were destroyed to protect the identities of the agents involved. There are ample ways to blur out faces or obscure identities, he said, plus they were in the hands of the CIA the entire time, and "If a tape is not safe in the CIA, we’re in trouble."

The 9/11 Commission is weighing in as well, claiming that the tapes were withheld from them prior to their destruction. This is almost the harmonic convergence of Bush Administration secrecy, because so many different groups, including Congress, independent panels like the 9/11 Commission with the force of law, and even the courts have been stonewalled. In the case of the 9/11 panel, the administrators are looking to see whether the CIA violated federal law.

A seven-page memorandum prepared by Philip D. Zelikow, the panel’s former executive director, concluded that “further investigation is needed” to determine whether the C.I.A.’s withholding of the tapes from the commission violated federal law.

In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.

What may not pan out is the court case that some thought would pry open more documents into further view.

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.

Can I answer that? Because they're hopelessly partisan and implicated in the investigation at the highest levels?

It's very unclear where all of this is going. My goal would be to see Addington forced out of the shadows.

The War on Subheadlines

Honestly, this just makes the White House look worse because it implicitly legitimizes the story even more.

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

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

They're claiming that they never said they had a minimal role in the destruction of the tapes; the statement is "We have not described — neither to highlight, nor to minimize — the role or deliberations of White House officials in this matter.”

Doesn't that mean they're conceding some sort of role?

UPDATE: The White House is trying to have it both ways on this one. They've made plenty of comments on background about their role in the tape destruction.

The right will just see the White House attacking the New York Times and have a beer, but this is actually an admission.

They Destroyed The Tapes To Cover Up The Crime

Not only have federal courts ordered preservation of all relevant documents AFTER the revelation of the destroyed CIA torture tapes, apparently the same orders were in place before.

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.

Normally, that would force the government to defend itself against obstruction allegations. But the CIA may have an out: its clandestine network of overseas prisons.

While judges focused on the detention center in Guantanamo Bay, Cuba, and tried to guarantee that any evidence of detainee abuse would be preserved, the CIA was performing its toughest questioning half a world away. And by the time President Bush publicly acknowledged the secret prison system, interrogation videotapes of two terrorism suspects had been destroyed.

That certainly fits with the torture timeline of the tapes being destroyed soon after Dana Priest uncovered the CIA black sites on the pages of the Washington Post. Now the ACLU is asking that the CIA be held in contempt for destroying the tapes. I'm not sure what that means (are you going to throw the whole CIA in jail), but clearly this controversy is spinning out of control. And more and more detainees and suspects are revealing that their interrogations were videotaped and audiotaped, long after the CIA claims it ended the practice. Michael Hayden has now admitted that the agency failed to disclose to Congress what the hell was going on. This all points to the failure of intelligence oversight, which has been going on more some time (although I don't think David Ignatius has a clue about what to do about that). Destruction of evidence and lack of disclosure is a persistent problem, not a brand new thing. We have to determine a way to oversee the intelligence collection meaningfully and with due haste. Part of that comes from getting leaders in those oversight committees who are committed to the rule of law. The other part may come in the form of legal liability, which always tends to button things up for a while.

Torture Tapes: Plenty Of Cooks Here

Lawyers for the clandestine service of the CIA approved the destruction of tapes revealing the torture of terror suspects in custody in secret prisons. That means there's a paper trail. One that must be handed over to any investigative body, and really that should be a special prosecutor, not the ethically compromised executive branch or Congressional Intelligence Committees.

The story hasn't been straight from the beginning. There's no way that a mid-level official within the CIA acted on his own to destroy evidence that he would obviously have understood to be politically radioactive. They're trying to push a "well, nobody ever said DON'T destroy them" kind of game, which makes sense, actually, for reasons of plausible deniability. But there is no way on Earth that this began and ended inside the CIA.

This part is interesting, too:

The C.I.A. has said that the two interrogations shown in the videotapes occurred in 2002, and that the taping of interrogations stopped that year. On Monday, however, a lawyer representing a former prisoner who said he was held by the C.I.A. said the prisoner saw cameras in interrogation rooms after 2002.

If America wakes up and flips on YouTube one day and sees Abu Zubaydah... I mean, doesn't it make sense to acknowledge that nothing can be kept secret forever, and so if other interrogation tapes exist, it's time to release them now, without delay?

UPDATE: John Kiriakou - who's very chatty - says that torture was approved at the highest levels. Not that there was a question, but this is confirmation.

Department of Unsurprising Things Dept.

Hey, so remember how, during the campaign, that audio of Gov. Schwarzenegger talking about Bonnie Garcia and her "hot Latin blood" was leaked, and Arnold's campaign started claiming that their site was hacked, and launched a criminal investigation into the Angelides staffers who did it?

Funny story....

Some five months after Gov. Arnold Schwarzenegger's office kicked off a high profile criminal investigation of alleged computer hacking to determine how his private conversations ended up leaked to the press, a California Highway Patrol report has effectively cleared the campaign of Democrat Phil Angelides saying that there was no crime involved.

The 38-page CHP report, just released, says that the digital files of the governor's conversations were placed on a website that was "accessed by backwards browsing ... which does not constitute a crime."

Of course, we all knew that erasing the end of an URL and finding the parent directory was not hacking, but it took the CHP 5 months. Still, it seems like every time one of these things comes up, it turns into absolutely nothing several months down the road. Remember the Joe Lieberman site hack?

This wasn't a crucial part of the governor's race, but it actually was kind of a big deal, and the Schwarzenegger team was being righteously indignant the whole time, vowing to "get to the bottom of this larceny," etc. Once again, they were just blustering to cover up their own ineptitude. And they were directing police investigations for political purposes, and perhaps even delaying those investigations to avoid embarrassment. How typical.