1 Boring Old Man

Why the CIA Would Want to Hide May 2002 from Judge Hellerstein [and the ACLU]
By: emptywheel
June 11, 2009

I’ve had a couple of really weedy posts examining the CIA’s response to the torture FOIA. And I wanted to pull back a bit, and explain what I think they might mean.

We’re getting all these documents because the CIA is trying to avoid being held in contempt for not revealing the now-destroyed torture tapes in a response to this FOIA in 2004. At that time, the CIA had to reveal the torture related documents held by its Inspector General or Office of General Counsel. When ACLU learned of the torture tape destruction, it argued that the tapes should have been included in that FOIA compliance and certainly should not have been destroyed. The CIA argued, though, that since the Inspector General had never physically had the tapes, they were not responsive to the original FOIA…

The CIA was hoping – it appears – that its narrative that the torture tapes portrayed waterboarding, and that’s the big reason they were sensitive, would distract Hellerstein and the ACLU and therefore allow them to hide a slew of other information: the success of the FBI before Abu Zubaydah’s torture started, the torture that started before the OLC opinions were written [and the White House’s intimate involvement in approving the earlier torture], the role of contractors in the torture, the quality of intelligence they got using persuasive interrogation as compared to the quality of intelligence they got using torture, whatever happened in al-Nashiri’s waterboarding that led them to stop and even admit it didn’t work with him, whatever happened to Abu Zubaydah around October 11, 2002 that led them to take a picture of him, and the Inspector General’s reconstruction of the Abu Zubaydah’s interrogation [which should have been turned over in the first FOIA]…

[big snip]

And so we get the Vaughn Index released the other day. Panetta’s declaration makes a couple of big new admissions: Contractors were present at the interrogations, and someone at NSC, rather than George Tenet, made this program a special access program. But the new materials continue to hide the following evidence that might support a contempt citation:

• Details about the interrogations from May [May overall was undersampled, particularly from May 14 through 23]
• Deliberative discussions that took place before August [which might include the approval of torture before the OLC memos]
• The degree to which torture, as practiced, exceeded the torture as authorized 
• Mistakes the CIA made about Abu Zubaydah’s identity
• The extent to which FBI interrogators got more and better intelligence than the CIA contractors
• Someone’s – perhaps the Inspector General’s – reconstruction of the timeline concerning the torture
• Interview records from both the Inspector General’s investigation or the early CIA response to revealing the torture tapes had been destroyed

Perhaps most telling, the CIA undersampled in May and did not turn over any of four timelines and six notes/outlines [which I suspect were part of the IG investigation], but included in Vaughn B two totally decontextualized descriptions of waterboarding [and mark my words–I bet the CIA will soon agree to hand those over to prove its cooperation].

SHINY OBJECT!! WATERBOARDING!!!!

The CIA still wants to pretend this is all about waterboarding. But it is increasingly clear that it is about the things CIA did in May and June, the high level authorizations for it, the success of the FBI, and the completely false claims they used to later authorize their torture. The torture tapes were destroyed not because they showed OLC-authorized waterboarding. They were destroyed [among other reasons] because they proved that the foundation of our torture program was a lie. And the CIA is still trying to hide that fact from Judge Hellerstein.

During that year to year and a half, we’ve learned that our own government misbehaved in almost any dimension you might pick. Rather than rely on our existing agencies – the C.I.A., the D.o.D., the D.o.J. – the Executive Branch took them over and directed their activities – micromanaging each from the White House – specifically, the Office of the Vice President. It was a new meaning for the term, Commander in Chief. In their defense, it was certainly a tumultuous time and I’m sure the pressures were great. But as we learn more and more about their behavior, we would’ve been better off if they’d just taken the year off and gone to their ranches for a period of spiritual renewal.

Each new revelation seems to lead to a new deceit. Over the ensuing six years of the Iraq War, we’ve learned that the intelligence that warned of the al Qaeda attack was ignored. We’ve found out that the cause for the Iraq War was a lie. We’ve learned that we jettisoned the Geneva Conventions. Now, we’re learning that the illegal torture was part of the attempt to justify the illegal war. Above all, we’ve learned that the Executive perogative of classifying information was used extensively to evade the oversight that lies at the heart of the American Constitution. Rather than keeping secrets from our enemies, the Executive Branch kept secrets from Congress and the American people. The Department of Justice became their political arm, and the C.I.A. began to resemble the K.G.B. in Russia, a direct agent of the rulers rather than the intelligence gathering agency of the government. If that weren’t enough, the domestic functions of government – things like disaster relief, responsible fiscal policy, attention to our economy and our markets – fell to the wayside and our descent into an economic black hole went unattended until it was too late to do anything about it.