Disentangling Torture TapeGate
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By Larry Johnson | bio
After querying former intelligence officers and reviewing the letter from the U.S. Attorney's in Richmond, Virginia, I can clarify some issues surrounding what's what with respect to the question of the "destruction" of interrogation tapes and speculate on others.
The bottom line is: Jose Rodriguez, the recently retired Deputy Director of Operations, has been fingered as acting unilaterally, but that is not true. He did check with both the IG and the DO's assigned Assistant General Counsel before destroying the DO's copies of the tapes. Although Jose is a lawyer, he made the mistake of trusting fellow lawyers, and now is likely to get chopped up in the political meat grinder while trying to clear his name and reputation. (UPDATE: See today's NY Times piece by Scott Shane and Mark Mazzetti confirming Jose got a legal opinion before destroying the tapes.)
Why destroy the tapes?
It appears that the June 2005 decision of the Italian judge to issue arrest warrants for C.I.A. officers and contractors involved in the kidnapping of Hassan Mustafa Osama Nasr in 2003 may have been the precipitating incident convincing Jose Rodriguez that Agency must destroy video tapes of terrorist interrogations. That operation was conducted with the full knowledge and approval of the Italians. If the Italians could flip on us that meant anyone could.
Let's follow the timeline:
March 2002-Abu Zubaydah is captured in Pakistan. George Bush is briefed regularly by George Tenet on the details of Zubaydah's interrogation (see p. 22, State of War by James Risen). Cofer Black is in charge of the CIA's Counterterrorism Center and oversees the CIA's hunt for the terrorists. Zubaydah is interrogated in Thailand, where the sessions were filmed. He was waterboarded sometime in the May-June 2002 time frame. Enhanced interrogation methods were used and approval for them came from Jim Pavitt (see p. 21 of ABC News interview of former CIA case officer, John Kiriakou). Pavitt was the DDO (i.e., Deputy Director of Operations). Stephen Kappes, who currently serves as the Deputy Director of the CIA, was named Assistant Deputy Director of Operations in June 2002. Ron Suskind confirms Risen's report that the President and his National Security team were regularly briefed on the results of Zubaydah's torture sessions (see The One Percent Doctrine, pp. 111-115).
What we know for certain is that the CIA was keeping the President and his National Security team fully briefed on the methods and results of interrogating Abu Zubaydah. In fact, it is highly likely that George Tenet showed part of the videotape of the interrogation to the President.
November-December 2002-Cofer Black leaves the C.I.A. and is sworn in as the Coordinator for Counterterrorism at the Department of State. Jose A. Rodriguez takes over the helm of the C.I.A.'s Counterterrorism Center.
9 May 2003-C.I.A. declares in sworn statement to Judge Leonie Brinkema that it was not recording interrogations of terrorist suspects in any format (see p. 4 of letter to Federal Judges by U.S. attorneys Novak and Raskin).
June 2004-George Tenet resigns as Director of the C.I.A. James Pavitt retires. Stephen Kappes replaces Pavitt as DDO.
September 2004-Porter Goss sworn in as Director of the C.I.A.
November 2004-Stephen Kappes resigns from the C.I.A. in a dispute with Porter Goss and the his aides. Jose Rodriguez takes over as the DDO.
late June 2005-An Italian judge issued arrest warrants for 13 U.S. CIA agents accused of kidnapping imam Hassan Mustafa Osama Nasr in Italy in 2003, and sending him to Egypt for questioning regarding possible terrorist activities.
14 November 2005-In response to an order of the U.S. District Court for the C.I.A. to confirm or deny that it has video or audio tapes of interrogations of C.I.A. subjects, the C.I.A. the "U.S. Government does not have any video or audio tapes of the interrogations of (two terrorist suspects whose names are blacked out)" (see p. 4 of U.S. Attorney letter).
June 2006-Michael Hayden takes over as Director of the C.I.A. and Stephen Kappes returns as the Deputy Director of the C.I.A.
13 September 2007-C.I.A. notifies the U.S. Attorneys in Richmond, Virginia that it had discovered the videotape of the interrogation of terrorists whose names are blacked out in the declassified letter (see. p. 2 of the letter).
19 September 2007-The U.S. Attorneys view the video tape. Attorneys direct the C.I.A. to search its files again for relevant material.
18 October 2007-C.I.A. provides the U.S. Attorneys with an additional video tape and an audio tape of an interrogation. The U.S. Attorneys compare the video tapes with the operational cables (i.e., written reports) reporting the results of the interrogations. They determined that the reports accurately reported what was viewed on the video tape.
This is an important point-the substance of what transpired during those interrogations was given to the Moussaoui defense team.
So. Who did what?
Jose Rodriguez has the advantage of being a lawyer. I am fairly certain that he can document who he talked to and the guidance he received before taking the step of destroying the tapes. Another thing that might save him a bit is that he and Congressman Reyes are buddies, which is what Congressman Reyes may have meant when he told the NYT today that he (Reyes) "was not looking for scapegoats."
This isn't the first time that Jose has had his tit in a ringer. During Iran-Contra, he and another C.I.A. officer were summoned to DC for questioning by the FBI. He could prove that he had asked for, and never received, DCI confirmation through cable command channels that Ollie North's orders were legit, and thus diplomatically told Felix Rodriguez to pound sand. However, when it was thought that he was going to be called to testify on the Hill, the DCI's office told him that, despite what the regulations said, OGC would not provide him legal support for acting within his authority and the law. Then C.I.A. Director told Jose thru a friend that Iran-Contra was "political, get your own lawyer."
Jose Rodriguez did not consult beforehand with Kyle "Dusty" Foggo. However, Jose did inform Dusty subsequently of the advice he received from the OGC's counsel. Jose may not be in as much trouble as some imagined. If he destroyed the tapes before November 14, 2005 then the C.I.A. told the truth to the judge. The May 2003 date puts the onus on Jim Pavitt and George Tenet rather than Jose Rodriguez. They knew about the tapes and the C.I.A. General Counsel lied to a Federal Judge. Who told whom what then? That's going to be the interesting question.
And last but not least. The top two Democrats and Republicans on the House and Senate Intelligence Committees-the so-called "gang of eight"-were fully briefed in interrogation techniques several times during 2002-3. They concurred unanimously that the interrogation techniques were OK. This means that Democrats as well as Republicans backed this process.
All for now boys and girls. Stay tuned.
TPM's Timeline of the CIA's Torture Tapes
By Spencer Ackerman and Paul Kiel - December 11, 2007, 4:18PM
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.
February - December 2002: The Senate and House intelligence committees conduct a joint review into the intelligence preceding the 9/11 attacks. Jointly chaired by Sens. Graham and Richard Shelby (R-AL) and Reps. Goss and Pelosi, it is not told by the CIA of any recorded interrogations.
November 27, 2002: President Bush signs into law a bill creating the 9/11 Commission.
February, 2003: CIA General Counsel Scott Muller briefs the House Permanent Select Committee on Intelligence about interrogation techniques now in use by CIA. According to then-ranking member Jane Harman (D-CA), the briefing raised "serious concerns." Muller also gave some indication that there were videotapes of some al-Qaeda detainees and reason to believe that the tapes might be in danger of destruction. Harman writes a classified letter to the CIA general counsel's office, warning "against destruction of any videotapes." Reportedly, Porter Goss (R-FL), the committee chairman and future CIA director, warns against destroying the tapes as well.
May 7, 2003: Judge Leonie Brinkema, presiding over the trial of admitted al-Qaeda member Zacharias Moussaoui, requests that the government turn over any recordings of al-Qaeda captives potentially relevant to the case.
May 9, 2003: The Justice Department and CIA reply to Brinkema by asserting that no such recordings exist.
2003-2004: CIA General Counsel Muller solicits opinions about potential destruction of videotaped interrogations from White House and Justice Department lawyers. Harriet Miers is the only lawyer whom the press has so far identified as discussing the potential destruction with Muller. It is not known who from the Justice Department participated. Reportedly, all advise against destruction, though it is unclear how strongly they express those views, or what opinions they commit to paper. Senior CIA leadership concurs.
July 22, 2004: The 9/11 Commission issues its final report. Despite "formally request[ing] material of this kind from all relevant agencies," in the words of staff director Philip Zelikow, the 9/11 Commission does not learn of the existence of the tapes. The commission did not specifically request taped interviews, however.
September 22, 2004: Porter Goss becomes Director of Central Intelligence. It is believed that Goss again objected to the destruction of the tapes. Goss begins a purge of the CIA, which the Bush administration suspects of undermining its agenda. In the fall, Jose Rodriguez Jr. becomes head of the Directorate of Operations, subsequently renamed the National Clandestine Service. Rodriguez is no fan of Goss's, but reportedly takes the position to preempt the appointment of a Goss loyalist.
December 30, 2004: The Office of Legal Counsel formally repudiates the August 1, 2002 torture memo. However, the new memo's eighth footnote reassures the CIA that interrogators would not face prosecution, saying that "we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum."
February 2005: The New York Times reports "growing unease" within the CIA that interrogators may someday face prosecution for carrying out interrogations in accordance with guidelines approved by the Bush administration.
Spring 2005: Steve Bradbury, the new head of the OLC, reportedly issues secret legal opinions amounting to "an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency," including "head-slapping, simulated drowning and frigid temperatures." The document remains classified.
2005: Though the exact date is unknown -- ABC News places it in November -- Jose Rodriguez orders videotapes of the interrogations of Abu Zubaydah and al-Nashiri destroyed. He reportedly has the backing of an attorney from the agency's Directorate of Operations, though he does not inform CIA General Counsel John Rizzo of the decision. His motivations, according to former colleagues, are to protect his interrogators from potential prosecution. Goss is reportedly not advised before the destruction either. It is unclear whether all videotapes of CIA interrogations are destroyed, or even all of the videos of Abu Zubaydah's and al-Nashiri's interrogations.
May 2005: Sen. Jay Rockefeller (D-WV), ranking Democrat on the Senate intelligence committee, apparently writes to CIA Inspector General John Helgerson, asking for "over a hundred documents" about CIA detentions and interrogations. Among them is a CIA General Counsel assessment of whether the interrogations shown on the tapes were "were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation." He gets no reply.
September, 2005: Rockefeller, having received no reply from Helgerson, redirects his request to Goss. He again receives no reply.
November 3, 2005: For the sentencing phase of Moussaoui's trial, Judge Brinkema again requests the government to disclose whether it had recorded any interrogations of al-Qaeda detainees relevant to Moussaoui's trial.
November 14, 2005: The government again tells Brinkema it has no such recordings.
May 5, 2006: Moussaoui is sentenced to life in prison.
May 30, 2006: General Michael Hayden becomes CIA Director, replacing Goss.
March 14, 2007: In response to a question at a briefing to the House intelligence committee, Hayden makes what lawmakers later describe as an "offhand comment" about destruction of videotaped interrogations.
April 19, 2007: Hayden again "briefly mentions" the destruction of the tapes in a letter to a member of the House intelligence committee.
October 25, 2007: U.S. Attorneys Chuck Rosenberg, David Novak and David Raskin file court papers informing Brinkema and Fourth Circuit Court Judge Karen Williams that they have discovered and personally viewed two videotapes and one audiotape of interrogations of al-Qaeda detainees. It is unclear which detainees the tapes show, when they were made, and how they survived Rodriguez's destruction order. The lawyers state that the tapes do not change the outcome of the Moussaoui trial. Explanations for why the government told the court that no such recordings existed are redacted from the public filing.
December 6, 2007: Preempting a New York Times story, Hayden tells CIA employees that the CIA recorded interrogations of two detainees in 2002 and destroyed those tapes in 2005. Hayden says that the CIA's general counsel reviewed the tapes and found the interrogations shown to have been legal and that the tapes were destroyed in order to protect interrogators shown on the tapes from al-Qaeda reprisal should the tapes ever be released. Both intelligence committees, he says, have been told that the tapes were destroyed. He adds that "videotaping stopped in 2002."
December 7, 2007: Chairman Rockefeller says that the Senate intelligence committee will look into the destruction of the tapes as part of "its thorough examination of the CIA's detention, interrogation and rendition program." He adds that his committee was not told that the tapes had been destroyed.
House intelligence committee leaders Silvestre Reyes (D-TX) and Peter Hoekstra (R-MI) complain that Hayden's earlier mentions of the tapes' destruction were not "sufficient notification." And they say that Hayden's claim that they were told about the tapes' destruction "simply is not true."
December 8, 2007: The Justice Department and CIA Inspector General announce a joint inquiry into the destruction of the tapes.
December 10, 2007: Reyes and Hoekstra announce /a> an inquiry into the destruction of the tapes.
In fact, dear friends at AP who claim without any sourcing whatsoever that Zubaydah was a "major" Al Qaeda official, he was a low-level official and categorically insane. As Joe wrote the other day, here's how the Washington Post's review of Suskind's book describes him:
Quote:Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."
Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.
Citing Destruction of Torture Tapes, ACLU Asks Court to Hold CIA in Contempt (12/12/2007)
NEW YORK - 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. Last week, in anticipation of media reports concerning the tapes, CIA Director Michael Hayden publicly acknowledged that the CIA had made the tapes in 2002 but destroyed them in 2005.
"The CIA's secret destruction of these tapes displays a flagrant disregard for the rule of law," said Amrit Singh, a staff attorney with the ACLU's Immigrants' Rights Project. "It must be sanctioned for violating the court's order and the obligation to preserve records that fell within the scope of our Freedom of Information Act requests."
The tapes, which showed CIA operatives subjecting suspects to extremely harsh interrogation methods, should have been identified and processed for the ACLU in response to its FOIA request demanding information on the treatment and interrogation of detainees in U.S. custody. The tapes were also withheld from the 9/11 Commission, appointed by President Bush and Congress, which had formally requested that the CIA hand over transcripts and recordings documenting the interrogation of CIA prisoners.
"These tapes were clearly responsive to the Freedom of Information Act requests that we filed in 2003 and 2004, and accordingly the CIA was under a legal obligation to produce the tapes to us or to provide a legal justification for withholding them," said Jameel Jaffer, Director of the ACLU's National Security Project. "By destroying these tapes, the CIA violated the statute as well as an order of the court. In the circumstances, it would be entirely appropriate for the court to hold the agency in contempt."
The motion filed today relates to a lawsuit that was filed in 2004 to enforce a FOIA request for records concerning the treatment of prisoners in U.S. custody abroad. The ACLU brought the FOIA lawsuit with the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace.
The motion filed today asks the court to hold the CIA in contempt; to require the CIA to produce a complete list of all records that fall within the scope of the FOIA requests that have been destroyed (including tapes); and to require the CIA to file with the court a detailed written description of the substance of the destroyed tapes.
"The interrogation techniques employed by our government raise fundamental questions of human rights and decency," said Arthur Eisenberg, New York Civil Liberties Union Legal Director. "The CIA cannot avoid those questions by simply destroying the evidence."
The ACLU brief and related legal documents are available online at: www.aclu.org/torturefoia
Many of these documents are also contained and summarized in Administration of Torture, a recently published book by Jaffer and Singh. More information is available online at:
www.aclu.org/administrationoftorture
Attorneys in the FOIA case are Lawrence S. Lustberg and Melanca D. Clark of the New Jersey-based law firm Gibbons P.C.; Jaffer, Singh and Judy Rabinovitz of the ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union; and Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.
What I dont understand is why so mant people are so upset about the fact that some tapes were destroyed.
The job of the cIA is to keep secrets, and thats what they did.
What I dont understand is why so mant people are so upset about the fact that some tapes were destroyed.
The job of the cIA is to keep secrets, and thats what they did.
The videotapes, made in 2002, showed the questioning of two high-level Qaeda detainees, including logistics chief Abu Zubaydah, whose interrogation at a secret cell in Thailand 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.
WASHINGTON (AFP) - Congress and President George W. Bush were headed for confrontation Saturday as US lawmakers accused the Justice Department of blocking their probe into whether the CIA tried to cover up torture by destroying interrogation tapes.
Lawmakers from both parties expressed outrage after Bush's Attorney General Michael Mukasey asked a congressional panel to postpone its investigation of the destroyed videotapes on grounds it could jeopardize the Justice Department's own inquiry into the affair.
"Earlier today, our staff was notified that the Department of Justice has advised CIA not cooperate with our investigation," said a statement Friday from the Democratic chair of the House intelligence committee, Silvestre Reyes, and the ranking Republican, Pete Hoekstra.
"We are stunned that the Justice Department would move to block our investigation. Parallel investigations occur all the time, and there is no basis upon which the attorney general can stand in the way of our work," the statement said.
"It is clear that there's more to this story than we have been told, and it is unfortunate that we are being prevented from learning the facts," it added.
The two lawmakers threatened to issue subpoenas to obtain relevant information and to force Central Intelligence Agency officials to testify if the Justice Department refused to back down.
Democrats and human rights groups have charged the spy agency of disposing of the videotapes showing harsh interrogations of two Al-Qaeda operatives to hide evidence of torture -- a charge the CIA denies.
The tapes reportedly show the operatives undergoing waterboarding, a technique widely regarded as torture. But Mukasey himself refused to brand the technique torture in Congressional hearings in October on his nomination to become attorney general.
Lawmakers in the Senate and House of Representatives have demanded all cables, memorandums and e-mails related to the tapes from top CIA officials, but in his letter Friday Mukasey asked the House intelligence committee to put off any probe to allow the Justice Department and an internal CIA watchdog to complete a preliminary inquiry.
Mukasey, who became the country's top law enforcement official in November, said in his letter that responding to lawmakers' requests for key documents and testimony "would present significant risks to our preliminary inquiry."
"Consequently, we respectfully request that the committee defer its investigation of this matter at this time," Mukasey wrote.
"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," he added.
The revelation that the CIA taped harsh interrogations of at least two Al-Qaeda suspects after the September 11 attacks in 2001 has renewed allegations the Bush administration has allowed abuse and torture of detainees.
Hayden revealed last week that the tapes were made in 2002 and destroyed in 2005, just as Congress was investigating allegations of US abuse of "war on terror" detainees.
Hayden has denied the use of torture and said the tapes, intended as an internal check on how interrogations were carried out, were destroyed to prevent any leak that could identify and endanger CIA agents.
Meanwhile, Congressional attempts to force the CIA to adhere to military prohibitions on severe interrogation methods hit a barrier Friday when Senate Republicans blocked a bill late Friday, according to the New York Times.
While the House of Representatives had already passed the addition to the 2008 intelligence budget applying the military's rules on interrogation to civilians, including the CIA, the Senate stripped the provision, on the grounds that its addition to the bill broke Senate rules.
Republican Senator Lindsey Graham said earlier he would fight the measure.
"It would be a colossal mistake for us to apply the Army Field Manual to the operations of the CIA," Graham said in a statement Friday. "I believe in flexibility for the CIA program within the boundaries of current law," he said.
We are not supposed to be torturing people; our country is not supposed to torture people and then destroy evidence of that torture.
This is the kind of stuff we used to accuse autocratic countries of. Now we have no moral high ground...
and no protest in the streets to boot it all off so it seems as if everyone just accepts it when I don't think they do.
but as a tool for information where thousands of lives might be in danger it seems pretty risky because you can never be sure what they are telling is just what you want to hear to get you to stop or telling you misinformation.
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