There are so many stories floating around about video tapes found, and video tapes destroyed and who knew what and when about torture, that it is easy not only to confuse the stories, but for details to slip through the cracks.
So lets break out some of the details separately. Starting with September 13, 2007 and the "separate" CIA investigation that started this ball rolling.
The September 13th Reference.
One of the documents that has come to light relatively recently is a Dept. of Justice letter to Judge Brinkema (who hanleded the Moussaoui trial) and the Chief Judge of for the Fourth Circuit Court of Appeals. In the Moussaoui case, Judge Brinkema had asked the Bush administration, twice, to confirm that there were no videotapes of interrogations of particular "detainees" who Moussaoui's defense counsel wanted to interview as witnesses in Moussaoui's case.
The Bush Dept. of Justice (DOJ) had, twice (May of 2003 and November of 2005) certified to the Judge that no such tapes existed. However, in September of 2007, DOJ sat down and wrote an "oops" letter to Judge Brinkema. In explaining that they had lied, twice, to the court and failed to correct the record for years, DOJ offered up the explanation that it wasn't really their fault. You see, they told the Judge, we didn't know about these tapes. The only reason we know about them now is because, well, because something "unique" was happening at the CIA in September of 2007.
According to the DOJ, the CIA found itself in "unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution."(emphasis added) And somehow, in connection with those "unique" and "separate" matters, the CIA just happened to find a video tape of interrogations and those interrogations just happened to be of some of the specific detainees Judge Brinkema had ordered be produced and CIA just happened to think that DOJ might want to see the tape.
There was no intent to hide the tapes, DOJ claimed, it was just a failure of communication between the Bush right hand at CIA and the Bush sinistra hand at DOJ.
Then the DOJ lawyers involved appear to have said to each other: hey, maybe we should ask those guys at CIA if they would mind looking for more tapes? And so they did ask CIA to look (and you have to wonder how this was unlike other times, two and four years ago, when the CIA was asked to look). When CIA looked, it found more.
After learning of the existence of the first videotape, we requested the CIA to perform an exhaustive review to determine whether it was in possession of any other such recordings for any of the enemy combat witnesses at issue in this case. CIA's review, which now appears complete, uncovered the existence of a second video tape as well as a short audio tape, both of which pertained to interrogations.
[As a bit of a sidenote, you have to wonder why DOJ lawyers only asked about recordings in the "possession of" vs "in the possession of or under the direct or indirect control of" the CIA. Which makes you wonder if the Judge might not want to have DOJ tighten up its representations a bit further in the future.]
What Else Happened On September 13th?
While the CIA was handing over information to DOJ on September 13, 2007, the CIA was also receiving information from the Senate Intelligence Committee. Bush and CIA Director Hayden learned that the Senate Intelligence Committee was formally asking that the nomination of John Rizzo to be General Counsel for the Bush CIA be withdrawn
Rizzo had served as Acting General Counsel for the CIA since Scott Muller left in 2004. While his nomination had been stalled for years, everyone had been accepting of the status quo. So it came as a bit of a surprise for the committee to formally request - with no bombastic splutterings from the Republicans on the committee - that Rizzo's name be withdrawn. It came as even more of a surprise when, after such a long period of time, Rizzo and Bush quietly acquiesced in having the nomination withdrawn.
Rizzo, however, remained as Acting General Counsel and his name crops up in today's torture tapes story from the NYT. In today's story, we learn that Jose Rodriguez, retired Deputy Director of Operations, who was originally fingered as acting at his own behest in the tape destruction, instead was acting in tandem with CIA clandestine operations lawyers.
We also get more, and less, on the stories being told of the heated and years long discussions taking place at the WH, DOJ, CIA and in Congressional briefings, as to who knew and said what. The NYT's source(s) says that, despite many exchanges, no one from the WH and DOJ who discussed the tapes with the CIA ever told the CIA not to destroy the tapes (you remember, the tapes that both the CIA and DOJ as arms of the Bush administration were telling a Federal Judge did not even exist).
"They never told us, ‘Hell, no,’" he said. "If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them."
But even more interestingly, the story being currently spun is that the lawyers at CIA who signed off on the tape destruction never bothered to consult with their boss, John Rizzo:
In describing the decision to destroy the tapes, current and former officials said John A. Rizzo, the agency’s top lawyer at the time, was not asked for final approval before the tapes were destroyed, although Mr. Rizzo had been involved in discussions for two years about the tapes.
How likely is that? Well, apparently it would be "odd" to say the least.
Some former C.I.A. officials said they would be very surprised if a lawyer for the Directorate of Operations, or D.O., would give legal approval for such a controversial decision without consulting Mr. Rizzo.
And on the record, John Radsen, a former CIA lawyer, now law professor in Minnesota and admitted fan of Rizzo, says:
Mr. Radsan added, "I’d be surprised that even the chief D.O. lawyer made a decision of that magnitude without bringing the General Counsel’s front office into the loop."
And now, as stories fly back and forth, we learn the current Acting General Counsel for the CIA is involved for at least two years in disputes about videotapes that his CIA has certified to a court do not exist. Then on September 13th, while the Senate Intelligence Committee was, without grumbling from Republicans, publically asking that Rizzo's nomination be withdrawn, the CIA was involved in "unique circumstances" that resulted in someone knocking on DOJ's door with a videotape.
An interesting coincidence.
I have not seen the details on who made the representations to the Court in the Moussaoui case, but in addition to those who signed off for the CIA and DOJ, I have to think that Judge Brinkema is going to want to hear from John Rizzo.
And whether it is Rizzo or someone else, I have to wonder who will be the first lawyer to stand before a Federal Judge and explain to them the thesis of of the Bush administration, as recently described by Sheldon Whitehouse
The Department of Justice is bound by the President’s legal determinations.
Or to paraphrase: The President can decide it's "legal" to lie to the Judicial Branch.