New Morsels on the Destruction of the Tapes

Originally posted on The Torture Report.

New materials released last week in the ACLU’s ongoing FOIA proceedings seeking documents on the destruction of the torture videotapes add some details to the narrative in Chapter 3.

The materials are Vaughn indexes containing brief descriptions of 165 internal CIA electronic communications relating to the reasons behind the destruction of the tapes. The CIA continues to withhold the documents themselves, but descriptions of several of the documents are illuminating.

A few of the things we learn:

1. The conversation about destroying the tapes began during the torture of Abu Zubaydah. Two cables sent from the black site to CIA headquarters on August 19, 2002 discuss “lessons for the future based on CIA experience” and an August 20, 2002 cable discusses “a proposed policy regarding the use of videotapes in interrogations.”
2. There were extensive conversations about destroying the videotapes in December 2002, right after a CIA lawyer had traveled to the Thai black site to review the tapes and just as the CIA’s inspector general was beginning his special review of the CIA’s RDI program. This conversation, carried out in numerous cables between December 19 and the end of the month, included “proposals on how to handle the possible destruction of the videotapes” and culminated in a memo to CIA Director George Tenet on “the disposition of the videotapes.”
3. Chapter 3 suggested that, after the July 38, 2003 Principals meeting, the question of the tapes “seemed settled” until the publication of the Abu Ghraib photos in April 2004. In fact, the Vaughn index shows the conversation continuing even during this period, with a sequence of emails around September 22, 2008 “concerning a draft memo on the destruction of the videotapes” and a February 19, 2004 email with attachment “concerning the legalities as to whether the CIA is legally required to retain the videotapes.”
4. There are numerous emails in the days leading up to destruction of the videotapes on November 8, 2005, just after the Washington Post published Dana Priest’s front-page exposé of CIA secret prisons and the day before The New York Times published a story on the CIA inspector general’s damning report. The CIA is clearly bracing for these leaks: on October 31, there is a 13-page email chain “discussing whether to publically acknowledge the counterterrorism program” and on November 1, an email with attachment “that discusses the Agency’s detention and interrogation program from a legal standpoint.” There are communications orchestrating how the agency will talk about the destruction of the tapes—a November 4 email “that contains proposed language regarding the disposition of the tapes,” and a November 10 email with the subject “Language for tapes” that discusses “communication between CIA officers relating to the tapes.” Finally, there are destruction orders themselves: a one-page cable on November 8 from the black site to headquarters “requesting permission to destroy the videotapes” and a two-page cable that same day, under the subject “Approval to destroy videotapes,” “discussing a proposal and granting permission to destroy.”

Interestingly, in a related affidavit summarizing the agency’s reasons for continuing to withhold these communications, the CIA says it was willing to release parts of thirteen of the documents.

Prior to releasing the documents, however, the Agency was informed by the Department of Justice that Special Prosecutor John Durham was asserting Freedom of Information Act (FOIA) Exemption (b)(7)(a) over the proposed-for-release portions of 10 of the 13 documents that the CIA was prepared to release in part. The other three documents the CIA proposed for partial release have Congressional equities that require consultation with Congress before a final determination can be made. Therefore, all of the documents are currently withheld in full.

The three documents being withheld pending consultation with Congress relate to the February 2003 briefings of two members each of the House and Senate Intelligence Committees—the briefings that prompted Jane Harman’s letter counseling against destroying the tapes.

The 10 documents that Durham is apparently blocking from release, on the grounds that their release would interfere with an ongoing criminal investigation, are:

1. a 11/9/05 email with embedded cable “confirming the destruction of the videotapes that were stored at a field location”;
2. an 10/25/02 cable from CIA Headquarters to the field “discussing a proposal to destroy the videotapes”;
3. a 10/27/02 document consisting of “excerpts of two cables discussing the use of the videotapes”;
4. a 12/02/02 cable with the subject “Destruction of classified materials” that contains “excerpts from two cables discussing a proposal to destroy the videotapes;
5. a 12/03/02 cable with the same subject line “discussing the proposed destruction of classified material”;
6. the 11/08/05 cable requesting permission to destroy the videotapes;
7. the 11/08/05 cable granting permission to destroy the videotapes;
8. an undated memo that is a “two-page timeline” “regarding the destruction of the AZ tapes;
9. an undated three-page memo with the subject line “Interview Questions” that is a “list of questions regarding the CIA’s RDI program”; and
10. an undated document with the subject “CIA Interrogation Techniques” that is a “thirteen-page memo with handwritten marginalia discussing the CIA’s interrogation of Abu Zubaydah.”

We know from these most recent Vaughn indices, which follow similar indices of documents relating to the tapes’ destruction that the CIA has forwarded to the ACLU in recent months, that there is a substantial paper trail surrounding the destruction of the videotapes. We know Durham has been down that trail. Where is his investigation going?