CIA Tapes 2012: More on CIA Attorneys & Destroyed Records

Following my recent post on the destroyed CIA tapes, I received some inquiries from readers on what I called the "McPherson Connection" in the ACLU FOIA case (see also this post by Emptywheel).  I therefore wanted to follow-up briefly and lay out some other crucial details of that story for greater context.

To set the scene: after the CIA's 2007 public disclosure of the existence and destruction of the tapes and its disclosure that the CIA's Office of Inspector General (OIG) had viewed them, the ACLU quickly moved for contempt sanctions against the CIA arguing that the tapes were responsive to Judge Hellerstein's earlier orders in the case. Hellerstein had ordered that, while the CIA did not need to search its sensitive operational files themselves, the CIA did have to search and identify operational records "that have already been identified and produced to, or otherwise collected by, the CIA's Office of Inspector General."

The CIA's opposition to the contempt motion (which included the important Rea declaration) confirmed that the CIA OIG reviewed the tapes in May 2003 but that, in the CIA's view, Hellerstein's orders only applied to operational records that were physically placed in the OIG's files.  Because the OIG did not take possession of the 92 tapes or copies after viewing them, therefore, the CIA did not consider the tapes responsive to Hellerstein's orders.

At the initial oral argument (transcript here), Judge Hellerstein was incredulous that the CIA would have interpreted his orders so narrowly.  For a taste, here's Hellerstein and Peter Skinner, the DOJ lawyer with the unenviable task of representing the CIA on that day:

MR. SKINNER: The mere fact that the tapes were viewed by members of the office of Inspector General during the course of a special review does not mean the tapes were collected by the OIG and included within its files. As Ms. Rea explained --

THE COURT: I disagree. You'll have to say more about it. But that's what people do when they do a review or an investigation. . . .

MR. SKINNER: When people conduct an investigation --

THE COURT: . . . if there's a videotape, they run it and they watch it and they may take a note or two. But they watch it, they look at it. And that's what they do.

MR. SKINNER: And then they make a determination about whether that videotape that they reviewed is relevant to the review that they are doing.

THE COURT: No, they've already collected it.

MR. SKINNER: If they view --

THE COURT: They've already collected it. That's collection.

If you read through the transcript, you'll see that what Hellerstein appeared to be most concerned about was not whether the tapes were covered by his orders - he was certain they were - but whether the CIA had intentionally or knowingly excluded the undeniably significant tapes when interpreting and responding to his orders.

Skinner suggested, for example, that the CIA's actions to comply with the orders were straightforward and mechanically applied by CIA FOIA personnel, stating that, in the CIA's view, Hellerstein had meant:

You only have to search what has been produced to or collected by the OIG. And we said, Okay, we'll go back and we'll do what the Court's told us. And when we searched and reviewed documents collected by the OIG, when the FOIA personnel did that, they didn't have any videotapes because the videotapes weren't there.

To which Hellerstein responded in an elevating and intensifying voice (to which I can personally attest as I was in the audience):

THE COURT: If your client was aware that that representation to me masked information that was important to the OIG, it was not put into the OIG files, I hesitate to state the inference I would take from that, Mr. Skinner.

MR. SKINNER: Your Honor, I certainly don't --

THE COURT: It seems to me that you were gulled and the Court was gulled.

Hellerstein's verbal contempt in this exchange illustrates the central significance of the John L. McPherson connection. Given that McPherson was reportedly the attorney that viewed the 92 tapes for the Office of General Counsel (OGC) in Nov. 2002 and was later interviewed by the OIG about them, the fact that he was the person that responded to the ACLU about the OIG records in April 2005 confirms Hellerstein's suspicions. The response was not from FOIA personnel having mechanically applied the CIA's interpretation of Hellerstein's order without any knowledge of the tapes existence as Skinner's characterization suggested.  The response instead came from a senior CIA attorney who had viewed every minute of the 92 tapes, was fully aware of their importance to the OIG's investigation and, likely, the extensive discussions about the tapes throughout the legislative and executive branches.

But that's not all.

Hellerstein also could not fathom how the OIG could not have included copies (or at least file "markers" representing copies) of the tapes in its files in the first place given their significance and he was concerned about the larger implications of that decision, especially when combined with the CIA's narrow interpretations of his orders:

if the videotapes were not put into the OIG files and no markers were put into the OIG files, both of which I find it very hard to understand, that's just that many other kinds of documents were looked at by inspectors general or the staffs and not referenced. It makes a sham out of this whole case.

Skinner attempted to argue, in contrast, that the decision not to include copies of the tapes (or even "markers" of them) as part of the OIG files could not have had any improper motive because of the timing, stating:

when they made the determination in May of '03 of whether or not to include these videotapes as part of the actual OIG special review file, it was before a FOIA request was filed, it was before the Court's orders were in effect. How could they have made a determination to try and hide something from someone?

The short answer to Skinner's question is that, at the time, the CIA was in fact desperately trying to avoid any actions that would destroy its carefully constructed legal fiction that the tapes were not "records," which was designed to evade the preservation requirements of the federal records laws. This purpose intersected, and was closely intertwined with, the subsequent FOIA analysis.

Where's the evidence for this?

McPherson's review of the tapes for the OGC in Nov. 2002 was itself part of the CIA's argument that the live videotapes were not records because they were the equivalent of superfluous copies of the written records of the interrogations. This was illustrated in the briefing given to Sen. Roberts on Feb. 4, 2003 in which the CIA's then GC Scott Muller described the tapes as simply an "aide to the interrogations" and that the OGC's review had found that the "match" between the videos and the "cables describing the same interrogations" was "perfect."

The argument was made even more explicit the next day, Feb. 5, 2003, in a briefing to Rep. Jane Harman who pushed back in a letter the next week noting that the CIA had informed her that it was already planning to destroy the tapes after the OIG "finishes his inquiry" and arguing "Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate" (emphasis added).

Two days later, on Feb. 7, 2003 the OGC's predetermined plan to destroy the "nonrecord" tapes after the OIG review appears to have met the with the very complication Judge Hellerstein couldn't believe didn't happen - the OIG requested copies of the tapes. See this email within the CIA entitled "Request of tape copies" discussing "how best to accommodate a request for review of videotapes, without complicating security issues" and another the same day entitled "Tapes" concerning "IGs anticipated tape review."

Since January 2003, the CIA OGC had been circulating emails (see, e.g., here, here, here, here) discussing "what actions will make the videotapes an official record" and "informing and reminding CIA officers of the question, what actions make the videotapes an official record." It was therefore imperative that CIA attorneys ensured that the OIG did not receive copies of the tapes or include copy equivalents such as "markers" in the OIG's files precisely because that simple act would have undermined all of the OGC's work by making the tape copies OIG "records" that would have to be preserved pursuant to the federal records laws.

Moreover, they would have been not simply records, but almost assuredly permanent (as in "you can never destroy them") records pursuant to this CIA records schedule (for true conspiracy theorists, note that this CIA schedule used to be on the website of the National Archives, but was "temporarily" removed more than a year ago and has not returned).  This would have meant that the tapes would have been preserved irrespective of their relevance to later FOIA requests or litigation.

While the content of the discussion between the OGC and the OIG is unavailable, in the end the OIG reviewed the tapes on-site, took no copies, and included no "markers" in their file.

In sum, while Skinner hung his hat on the fact that the CIA could not have decided not to place tape copies in the OIG files in clairvoyant anticipation of the ACLU's future FOIA request, the CIA knowingly and deliberately avoided putting copies (or the equivalent of copies) in the OIG's files to avoid giving them the status of federal records.  As I mentioned in my last post, the federal records laws are so intertwined with FOIA, that Hellerstein's subsequent determination that the tapes were records responsive to his orders, undermined both the CIA's FOIA analysis and its Federal Records Act analysis. See, e.g., CREW v. U.S. Dep't Homeland Sec., 592 F. Supp. 2d 111, 124 (D.D.C. 2009) ("It follows, then, that the records at issue here - having been found by this Court to be subject to FOIA - are 'federal records' subject to the FRA").

The CIA did not make a mistake or inadvertently overlook something in a good faith attempt to comply with Hellerstein's orders - instead, its lawyers expertly gamed the system and got away with a slap on the wrist.  It is an unfortunate conclusion to a story that began with Hellerstein's high-flying Sept. 2004 Opinion and Order:

Ours is a government of laws, laws duly promulgated and laws duly observed. No one is above the law: not the executive, not the Congress, and not the judiciary. . . . One of our laws is the Freedom of Information Act (FOIA). That law, no less than any other, must be duly observed.

Senior Thesis on WWII Archives & Intelligence Efforts

A quick congratulations to Lisa Cant from Columbia University whose very interesting Senior Thesis "How the Preservation of Archives During WWII Led to a Radical Reformation of Strategic Intelligence Efforts" (available for download here) was awarded the 2012 Herbert H. Lehman Prize for Excellence in History. Cant's thesis makes extensive and excellent use of the AGAR-S Pomerenze Collection documents within RG 242.  Abstract follows:

In 1943, in the midst of World War Two, the Allies established what was perhaps the most unusual and unexpected army unit of the war: the Monuments, Fine Arts and Archives army unit (MFA&A), created not so much to further the war effort but specifically to address the fate of culturally significant objects. The unit placed archivists and art specialists within advancing American and British army units. Drawn from existing army divisions, these volunteers had as their mission the safeguarding of works of art, monumental buildings, and—more significantly for this study—archives, for the preserved archives ultimately produced intelligence that was valuable both to the ongoing war effort and for the post-war administration of Allied occupied Germany. Although the MFA&A division was initially created to find looted objects and protect culturally relevant material including archives, the Military Intelligence Research Section (MIRS), a joint British and American program, recognized the possible intelligence benefits that could be gained through the exploitation of captured German archives. This agency pioneered strategic intelligence, as up to this point the use of a large quantity of enemy records to develop studies quickly enough for application in then-current large-scale military operations was an untried military technique. Although a wealth of literature about fascist Germany and World War Two exists—at least some measurable part of it relying on information contained in German archives and documents captured by the Allied Forces during and after the war—the story of the archives themselves has received scant attention. This story hinges on the actions of two wartime agencies, MFA&A and MIRS. Neither of these two programs had clearly formulated missions that encapsulated their later responsibilities; both programs developed over time. These two programs changed the way the United States came to use intelligence during wartime, and the country has taken advantage of this system of exploitation of information in subsequent conflicts.

IFLA Principles on Library Activities in Armed Conflict & Crisis

I haven't yet had a chance to review them closely, but the International Federation of Library Associations and Institutions (IFLA) has issued "IFLA Principles of Engagement in library-related activities of disaster risk reduction and in times of conflict, crisis or natural disaster" available here (thanks to Chuck Jones on IraqCrisisList).  The IFLA notes:

The recent turmoil in Syria and Mali, the earthquake in Haiti or the earthquake followed by a tsunami in Japan, IFLA is deeply concerned by the great loss of cultural heritage in recent years due to armed conflicts, crises and natural disasters. The principles aim to encourage safeguarding and respect for cultural property especially by raising awareness and promoting disaster risk management and to strengthen cooperation and participation in cultural heritage activities through UNESCO, the libraries, archives, museums, heritage buildings and sites group and the International Committee of the Blue Shield initiatives and activities.

Judge Wants U.S. Gov't Views on Sanctions Against Russia over Jewish Archives

Following up on an earlier post "Possible Contempt Sanctions Against Russia over Jewish Archives" (read that for the full background and see also this post on related negotiations) Judge Lamberth has now entered a new order in the Chabad v. Russian Federation case inviting the U.S. government to submit its views on possible sanctions against Russia.

Judge Lamberth's order recites the relevant facts that on July 30, 2010 he ordered the Russian Federation to "surrender to the United States Embassy in Moscow or to the duly appointed representatives of plaintiff Agudas Chasidei Chabad of the United States the complete collection of religious books, manuscripts, documents and things that comprise the 'Library' and the 'Archive' presently being held by the defendants at the Russian State Library and the Russian State Military Archives" and that, as yesterday's date, "both the Library and Archive remain in defendants' possession, and the record provides no hint of evidence that defendants are attempting to comply with the Court's order."

Lamberth notes that Chabad has asked him "to impose civil sanctions against defendants based on their non-compliance with the judgment," but states that "[b]ecause of the serious impact such an order could have on the foreign policy interests of the United States, this Court finds that it would be helpful to obtain the views of the United States prior to acting on the motion for sanctions."

Lamberth therefore orders that "within 20 days the United States is invited to file a brief stating its views on plaintiff's motion for sanctions."  We will be waiting.

New CTC Sentinel Articles on Released Bin Laden Docs

Just a quick note that the May 2012 issue of the CTC Sentinel is out and available here.  It contains several articles on the released Bin Laden documents including "The Abbottabad Documents: Bin Ladin's Security Measures" by Liam Collins, "The Abbottabad Documents: Bin Ladin's Cautious Strategy in Yemen" by Gabriel Koehler-Derrick, and "The Abbottabad Documents: The Quiet Ascent of Adam Gadahn" by Brian Dodwell.

Iraqi Foreign Minister on the Missing Kuwait Archives

Several news outlets are reporting new statements by Iraqi Foreign Minister Hoshyar Zebari reaffirming Iraq's commitment to honoring its international obligations to Kuwait - including the return of Kuwaiti national archives seized in Saddam's 1990 invasion - in the context of a visit by the U.N. high-level Coordinator overseeing the issue, Ambassador Gennady Tarasov.

The interesting, and slightly ambiguous, aspect of the statement is that Zebari reportedly noted that "Iraq sent several trucks to Kuwait containing national archives and properties, and would continue exerting efforts to locating the rest of the property." Another account describes the same statement as that "Iraq handed to Kuwait, in the presence of the UN Coordinator, batches of the Kuwaiti archive and possessions." 

It is unclear which return of Kuwaiti archives Zebari is referencing.  If, however, Zebari means the Oct. 2002 return of 425 boxes and 1,158 bags of documents and archives to Kuwait (which I discussed here at #4 and which is described in extensive detail in this U.N. Secretary General report at paras. 36-75) it would be an interesting development in Iraq's advocacy on the issue, which has not relied on the Saddam-era return.  Kuwait earlier dismissed the 2002 return as containing simply "routine papers."

The other possibility is that Zebari could be referring to a far more recent, but far less significant, return of Kuwaiti property. Earlier this month, the U.N. Security Council circulated a new letter from Iraq's U.N. delegation noting that Iraq recently returned Kuwaiti currency, keys to the Central Bank of Kuwait, and "15 microfilm cassettes containing the archives of Al Anba newspaper" (which could be added to the 136 microfilm cassettes of the official archive of Kuwait Today returned late last year).

UNESCO Mission to Mali & the Timbuktu Manuscripts

A very quick update on an earlier post regarding what UNESCO's role is, and should be, in protecting ancient manuscripts in Timbuktu, Mali from the effects of the internal conflict. Voice of America reports (thanks Gary Nurkin) that "UNESCO sent a mission to Mali's capital, Bamako, on Thursday to look into the situation further."

New Details on the Destroyed CIA Tapes

Having written an article last year called "Burn after Viewing" that examined the CIA's destruction of the interrogation tapes from the perspective of the federal records laws, I was disappointed to read initial suggestions by WashPo and AP that former CIA officer Jose Rodriguez's new book "Hard Measures" gave very few new details about the destruction of the CIA tapes. Having now read it, Rodriguez's account, in my view, actually provides crucial new information, further confirms facts that have been largely ignored, and highlights troubling - and still unresolved - questions about the CIA's treatment of the tapes.

The publication of the book has also unfortunately resurrected a tired debate between those who argue Rodriguez is a clearly a criminal for ordering the tape destruction (see, e.g., Scott Horton and, predictably, Glenn Greenwald) and those who think Rodriguez is a courageous hero for doing so (see, e.g., Rodriguez and his lawyer). The book illustrates that neither narrative is accurate.


The "Other" Golden Shield

The most significant problem with the fixation on the lack of criminal charges against Rodriguez is that - perhaps counter-intuitively - it underestimates the significance of the issue of the destroyed tapes, which is not confined to 92 videos and one criminal act. The real issue is systemic and institutional and relates to the CIA's questionable and ongoing legal interpretations.

As Rodriguez documents in greater detail than has previously been disclosed, on no less than five occasions (Dec. 2002, Sept. 2003, Jan. 2004, Apr. 2004, and Nov. 2005), CIA attorneys concluded there was no legal obligation to retain the interrogation tapes.  In fact, Rodriguez may be undercounting as he omits this Sept. 2002 meeting:

While Rodriguez's focus on the CIA's legal advice may be self-serving, that doesn't make it inaccurate. Corroboration is provided by a long string of public statements and court filings in which CIA attorneys took sometimes breathtakingly aggressive positions to justify the conclusions on which Rodriguez relied.  A brief montage . . .

According to the CIA, the tapes: "were not federal records as defined by the Federal Records Act" which meant the most basic preservation requirements of the federal records laws did not apply; were "not responsive" to any of the ACLU's FOIA requests; were not covered by any of the 9/11 Commission's requests; were "no longer at issue" in the Moussaoui case; were "irrelevant" to Abu Zubaydah's foreseeable habeas case, etc., etc., etc.  In short, in the CIA's view, the destruction was completely "in line with the law."

Of course, Rodriguez was nevertheless ordered not to destroy the tapes. Yet based on the CIA's legal advice, Rodriguez's act was precisely (and solely) what the CIA reprimanded him for in Dec. 2011 -- an act of administrative insubordination. Despite widespread public incredulity, DOJ prosecutor John Durham's inability to prove criminal intent is completely unsurprising.

Following the disclosure of the destruction, however, courts have had little difficulty identifying legal obligations to retain the tapes that CIA lawyers were repeatedly unable, or unwilling, to recognize (see, e.g., Judge Roberts finding that a GTMO detainee made a "sufficient showing" that the tapes were subject to a 2005 preservation order or Judge Hellerstein holding that the tapes were records subject to the ACLU's FOIA requests).

The "Other" Decider

Rodriguez also provides a graphic, if unintentional, illustration of why the decision of CIA attorneys to deny the tapes even the basic status of a federal record was so consequential and why the federal records laws are designed to take crucial decisions about preserving government records out of the interested hands of agency officers.

As compelling as his justifications for destroying the tapes may appear to him, Rodriguez's account shows his decision to be transparently shortsighted and unsupported. Rodriguez argues, for example, that destroying the tapes was necessary to protect the CIA officers depicted, while apparently failing to consider, among other things, that the destruction could have just as easily harmed those same officers by denying them evidence of good faith attempts to conduct the interrogations in line with DOJ guidance.

More broadly, Rodriguez's disgust at criticisms focused on CIA interrogators comes without any apparent self-awareness that his tape destruction made those criticisms worse by predictably bringing heightened scrutiny to the interrogation program and foreseeably giving the impression that the tapes were inculpatory rather than exculpatory. Rodriguez's surprise at the magnitude of the backlash over the destruction also makes little sense to the reader after he catalogs all of the many "cowardly" senior government officials who told him it was a bad idea.

Finally, the book itself provides details that undermine Rodriguez's fears about the tapes falling into the wrong hands. Several passages juxtapose and highlight crucial changes in the custody and protection of the tapes. In one passage, for example, Rodriguez, concerned that the location of the facility where the tapes were made, reportedly in Thailand, "was about to leak," issued "an order that the facility be closed in ninety-six hours." CIA officers quickly began destroying anything not needed "so as to leave no reminders of what had taken place there."

This appears to correspond to early December 2002 when a flurry of cables were exchanged between the field and headquarters including one entitled "Closing of facility and destruction of classified information." Rodriguez states that an officer in the field asked that the tapes "be thrown onto a bonfire that was being lit nearby," but that headquarters instructed they should not yet be destroyed. His account does not mention a contemporaneous and rather angry cable, possibly written by Rodriguez, criticizing field officers for moving the tapes to a new location:

This cable may well connect the story to a second passage in the book almost 80 pages later, in which Rodriguez uses a full paragraph to describe the industrial-strength shredding machine "in use at U.S. government facilities" whose "five spinning and two stationary steel blades" reduced the tapes (which Rodriguez calls "[o]ur problem") into "confetti" three years later.

The contrast between the bonfire and the industrial shredder highlights the omitted fact that, at the time of their destruction in Nov. 2005, the tapes were no longer in a secret, unsecure black site facility (where the argument for hasty destruction in an emergency evacuation is more compelling), but were instead, reportedly, held in a safe in the office of the CIA station chief within the U.S. Embassy compound in Bangkok, Thailand, whose gates are guarded by U.S. Marines (and whose equipment likely includes a sophisticated shredder).

Rodriguez even notes that a suggestion that the tapes be transferred back to the U.S. for greater protection "[f]ortunately" was "dropped" because, in Rodriguez's personal opinion, it "would only ensure that the tapes would be copied, passed around, widely discussed, and most likely result in a decision on someone's part to officially release or to leak them." The accuracy of his personal pessimism, which is itself a devastating criticism of the CIA's ability to preserve secrets, is undermined by the subsequent treatment of the two most comparable sets of materials: DoD photos of detainee abuse whose court-ordered disclosure was stopped when President Obama signed the "Protected National Security Documents Act" and the pictures of dead Osama bin Laden, which also remain undisclosed.

Had CIA attorneys simply given the tapes the small dignity of being records, however, all of the discussions about whether destroying them was politically palatable or whether they were relevant to various legal proceedings would have been moot, Rodriguez would not have been advised that there was no legal obligation to retain them, and the decision to destroy them would not have been left to Rodriguez's "courageous" decision-making.

The McPherson Connection

Rodriguez's account also sheds new light on a crucial lynchpin in the ACLU FOIA case by identifing the CIA attorney from the Office of General Counsel (OGC) who viewed the videotapes in Nov. 2002 as "one of the assistant general counsels" whom Rodriguez calls "a very senior Agency officer."  The attorney was later interviewed by the CIA Office of Inspector General (OIG) about that review. Rodriguez's small, but important details corroborate earlier reporting by the AP and WashPo that the OGC attorney was John L. McPherson, who based on unrelated court filings, was an Assistant General Counsel as of 2001 and later became an Associate General Counsel.

Why is this significant? Hellerstein found the tapes subject to FOIA because they were "identified and produced to" the CIA's OIG "as part of its investigation into allegations" of unauthorized interrogations and human rights violations. Yet Hellerstein stopped short of finding the CIA in contempt in part because "the individuals responsible for processing and responding to plaintiffs' FOIA requests may not have been aware of the videotapes' existence before they were destroyed."

Remarkably, however, the crucial FOIA response from the CIA regarding the records of the OIG in April 2005 (ergo, 7 months prior to the destruction of the tapes) was written by none other than John L. McPherson. That is, the most important FOIA response in the case was written by the very CIA attorney who, if reporting that Rodriguez's book tends to support is true, arguably knew more about the tapes than anyone else. See for yourself here.

What did we learn, Palmer?

Finally, Rodriguez's documentation of the extensive legal reviews regarding the tapes is relevant to the CIA's troubling and ongoing interpretations of its recordkeeping responsibilities.  These were highlighted by a declaration submitted late last year by current CIA General Counsel Stephen Preston to Judge Hellerstein in a further attempt to avoid contempt sanctions in the ACLU FOIA case. Preston asserted that the CIA was, in fact, adopting "remedial measures" in order to address any "systemic issues" raised by the destruction of the tapes. The summaries the CIA later provided of its "new" policies, however, fall well short of the mark.

The central "new" policy provides simply that if the OGC "receives a proposal from a CIA component" to "destroy documents outside the existing process for routine management of CIA materials under applicable law or Agency regulations" (my emphasis) and those documents "may relate to any pending or anticipated" investigation or litigation, the OGC will advise in writing to preserve the documents pending an OGC review, consultation with other agencies, and a final decision by the GC.

Judge Hellerstein somehow, inexplicably, believed that this policy would "prevent another episode like the videotapes' destruction." While I hesitate to say this and hope that I am wrong, I find it hard to avoid concluding that Hellerstein misinterpreted both the significance of his own decisions in the case and the corresponding insignificance of the CIA's "remedial" policy.

The most glaring red flag is the CIA's limitation of its policy to requests to destroy documents "outside the existing process for routine management of CIA materials" which Preston earlier called "the routine management of Agency materials under the terms of the Federal Records Act and its implementing Records Control Schedules." The problem is that, when properly applied, that "existing process" already covers all CIA records, none of which may be destroyed unless they are covered by records schedules approved by the Archivist of the United States.

The existing process already encompasses even those temporary records that must be kept beyond their normal retention period due to FOIA or litigation. Since 1985, for example, the CIA has had an agency-wide schedule, NC1-263-85-1, that broadly covers the preservation of records relevant to "actual or impending litigation," which, according to a 1985 memorandum, was supposed to act as a general litigation hold.

Unless the CIA's "summary" of its policy is misleading, it appears limited solely to requests to destroy documents that the CIA denies are records (such as it did with the tapes) under the federal records laws (called "nonrecords"), which are "outside the existing process." If this is accurate, the submission of this policy in the ACLU FOIA case could have, and perhaps should have, been viewed as a backhanded slap to the court, given that Judge Hellerstein's determination that the tapes were "agency records" under FOIA undermines (arguably completely) the CIA's interpretation that the tapes were not records under the federal records laws.

Even under the most generous reading - that the policy is designed to provide legal reviews for the destruction of documents the CIA treats (even improperly) as nonrecords - this still does not remedy the real problem in the ACLU FOIA case.  As Rodriguez's book shows, the issue was not insufficient levels of legal review.  The problem is the CIA's legal conclusions that the tapes were not records and were subject to neither the ACLU's FOIA requests nor Hellerstein's orders, positions that the CIA has never abandoned.  Put another way, the CIA's reaction to Hellerstein is essentially equivalent to the fictional CIA after action report depicted here (Warning: graphic language).

A truly remedial, and much too simple, act would have been for current GC Preston to declare to the CIA that Hellerstein's interpretation of his own court order and the law, was correct, which he did not, and would not do, especially since Hellerstein was happy with so much less.  When the CIA's interpretations are used as a gloss, however, Preston's recent speech at Harvard called "CIA and the Rule of Law" (thanks Lawfare) - in which he proclaims: "Just as ours is a nation of laws, the CIA is an institution of laws and the rule of law is integral to Agency operations" - rings a bit hollow.

A final piece of the puzzle, however, remains. Shortly after the DOJ announced that there would be no criminal charges, the National Archives sent this letter resuming its own inquiry (initially announced in a Dec. 2007 letter) into the very question of whether the tapes, despite the CIA's public assertions, were federal records that were improperly destroyed.  Even before the tapes, the National Archives repeatedly (as in again and again) questioned the CIA's abuse of the category of "nonrecords" to avoid preservation obligations. The CIA initially indicated that it had no intention of responding anytime soon to the National Archives.  I have an outstanding FOIA request that will confirm whether any answer has been received.  Depending upon the response, a new lawsuit, this time pursuant to the Federal Records Act, may yet be forthcoming . . .

Russia/U.S. Cultural Exchanges and the Contested Jewish Archives

Sophia Kishkovsky has an interesting piece in the Art Newspaper called "Russia and US continue to discuss cultural stand-off," which describes ongoing Russia/U.S. negotiations over cultural exchanges.  Russia earlier suspended exhibitions of its cultural property in the United States and has linked the issue to the Chabad v. Russian Federation case, in which - as discussed in a earlier post - Russia is facing possible sanctions for failing to comply with a court order to hand over the historical Jewish archive and library.  Kishkovsky's report begins:

Mikhail Shvydkoy, the Kremlin’s international cultural envoy and Tara Sonenshine, the US’s new Under Secretary of State for Public Diplomacy and Public Affairs, have discussed the cultural stalemate between Russia and the US over sacred Jewish books. Russian state television has reported that Shvydkoy said that he and Sonenshine agreed in April that they “must reach an intergovernmental agreement as quickly as possible that would guarantee the security of Russian cultural treasures exhibited in the US”.

Shvydkoy, who was at the US state department to discuss cultural, educational, sports and media exchanges between the two countries, said that he and Sonenshine had “discussed separately those difficulties that exist in Russian-American relations as a result of the famous suit over the Schneerson collection”, according to the Rossiya television channel.

As for the Chabad case, there has thus far been no activity on the federal court docket since Chabad's March 2012 filing that invited Judge Lamberth to impose sanctions.

The Full AlSabri Opinion Released

The D.C. Circuit in Alsabri released its full opinion, available here (thanks Lawfare), late last week. It is unredacted and also unsurprising.

As revealed its the earlier one-page judgment, the Circuit upheld Judge Urbina's lower court decision that held that Alsabri was lawfully detained.  I previously discussed Judge Urbina's evaluation of the 92-page collection of captured documents, AFGP-2002-800321 (originals and translations), including his assessment of the authenticity and reliability of the documents and the importance, in my view, of separately considering the context of individual pages and the value of consulting the original documents. I ended by stating that it was "unclear what, if anything, the D.C. Circuit might make of these issues."

In its opinion, the D.C. Circuit does briefly discuss the captured documents, but largely avoids substantively examining the issues they raise in any depth by applying a highly deferential "clearly erroneous" standard to its evaluation of Judge Urbina's decision.  In a passage that seems to confirm that only English translations were consulted, the Circuit summarizes that:

the government introduced evidence that Alsabri did in fact receive weapons training. The principal evidence was an English-language translation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda records. A Defense Intelligence Agency (DIA) record, which the government submitted as a supplemental exhibit, indicates that the documents were captured by Coalition forces from the "Director of Al-Qa'ida Security Training Office," and are "similar to other materials recovered from enemy forces."

The Circuit then notes that "Alsabri contends that the district court erred in concluding that the records of scheduled and completed training refer to him." It does not engage the arguments in detail, however, but rather simply holds that "the district court did not clearly err in finding that the documents refer to Alsabri."

In a footnote the Circuit Court also notes that Alsabri specifically took issue with Judge Urbina's characterization of a list of "arriving brothers" as a "training roster" when not even the government had argued that the "arriving brothers" were necessarily "arriving" to a training camp.  On this point the Circuit commits, in my view, the same error as Judge Urbina and assumes that because the 92 pages of documents form part of AFGP-2002-800321 in the Harmony database they necessarily are related to one another rather than being, as Alsabri had argued (and the originals provide some support), a "hodgepodge of materials."  Specifically, the Circuit states that "[g]iven the context provided by the remainder of the documents" Judge Urbina's "characterization of the list is not clearly erroneous." The "context" on which the Circuit is relying here may unfortunately be nothing more than an artificial context created by the individual that chose to scan these 92 pages together as one file and assign one Harmony number (for an explanation of that process, see the Standard Operating Procedures for the Combined Media Processing Center in Qatar available here).

The Posted Bin Laden Documents

As nearly every news source has reported, West Point's Combating Terrorism Center (CTC) this morning posted 17 documents seized from the Abottabad compound.  They are numbered SOCOM-2012-0000003 to SOCOM-2012-0000019.  You can download them as zip files here or individually from the CTC's Harmony Program here and the CTC's summary of the documents is here. I have also added the SOCOM documents to the Captured Documents Index.

The small number of documents released, which the CTC's own report - "Letters from Abbottabad" - characterizes as "only a fraction" of the seized documents, is a bit disappointing.  This has led to, and will lead to more, complaints (whether accurate or not) that the released documents were carefully cherry-picked to support a certain narrative about Bin Laden and Al Qaeda.

Interestingly, the CTC also posted some newly public AFGP Harmony documents that are cited in its report, which I link to below for convenience and have also added to the Captured Documents Index.

AFGP-2002-800636

AFGP-2002-600177

AFGP-2002-600046

AFGP-2002-000232

Introducing the Captured Documents Index

In advance of tomorrow's release of captured Bin Laden documents by West Point's Combating Terrorism Center (CTC), I've gone live with a Captured Documents Index that I've been compiling for while (a permanent link to it is also now on the right side of the Document Exploitation blog screen).

The Index is incomplete (many more documents to add) and it is still very much a work in progress, but the long-term intention is to provide, in one place, a list of (and, where available, links to) the wide variety of captured documents that have been released or cited publicly.  I have put it up today in the event that some of the documents (which include, among other things, copies of passports that purport to belong to Bin Laden's family, which were filed in a military commission case) might be useful in analyzing tomorrow's release of Bin Laden documents.

A few initial notes on the Index.

• Coverage is currently limited to Harmony era (largely Iraq/Afghanistan) documents and is organized by Harmony number for reference and convenience.  The fact, therefore, that Harmony AFGP documents from Afghanistan are placed between 2RAD and BIAP documents captured in Iraq should not be read as any comment on the relationship, or lack thereof, between Saddam and al Qaeda.  For more on Harmony and its numbering system see the CMPC SOP or this Army DOCEX manual.

• In most cases the Harmony number is a hyperlink that allows you to download the document itself from either its original online source or from a new link (for docs whose original source is more difficult to access). Sometimes there is both an Arabic document and an English translation, sometimes there is only one or the other, and sometimes there is simply a description of the document.  

• The documents and descriptions come from a number of places including the 2006 Iraqi Freedom Doc Dump (despite the fact the portal was shut down in Nov. 2006, many of the posted docs remain available online in, among other places, the Internet Archive), West Point's CTC's Harmony Program, Guantanamo case filings, military commission filings, the five-volume "Saddam and Terrorism" study by the Institute for Defense Analyses from 2006, and other sources. Documents and descriptions are sourced both for verification purposes and to provide full credit for the individuals or organizations that posted them.

• The Index does not (yet) include documents from the extensive collection of Iraq and Afghanistan documents at the Conflict Records Research Center (CRRC).  An index of documents in the CRRC's Saddam Hussein Collection and its Al Qaeda and Associated Movements Collection is available here and here.  The CRRC has also posted a number of documents online (see here, here and here).   

I have plans to make the Index more complete and improve it over time, but any suggestions would be gratefully received at docexblog@gmail.com.

Bin Laden Docs to be Released Thursday, May 3rd, 9AM

A quick update from West Point's Combating Terrorism Center (CTC) which announces that it will be releasing "Documents from UBL Compound" along with "a short report" by the CTC "contextualizing the documents and providing an overview of their most salient themes" on Thursday, May 3rd at 9am EST.

Al Qaeda Documents Encoded Within Seized Pornography

CNN reports today that included among digital storage devices seized from an individual by German police was a pornographic video in which "more than 100 al Qaeda documents" were encoded.  CNN explains:

On May 16 last year, a 22-year-old Austrian named Maqsood Lodin was being questioned by police in Berlin. He had recently returned from Pakistan via Budapest, Hungary, and then traveled overland to Germany. His interrogators were surprised to find that hidden in his underpants were a digital storage device and memory cards.

Buried inside them was a pornographic video called "Kick Ass" -- and a file marked "Sexy Tanja."

Several weeks later, after laborious efforts to crack a password and software to make the file almost invisible, German investigators discovered encoded inside the actual video a treasure trove of intelligence -- more than 100 al Qaeda documents that included an inside track on some of the terror group's most audacious plots and a road map for future operations.

In a recent post, I mentioned earlier assertions that "terrorists" had been communicating with each other via hidden messages encrypted in pornographic videotapes in order to make the point -- that is all the more relevant in light of today's CNN report -- that the level of sophistication attributed to "terrorists" or "jihadists" is often wildly inconsistent.  I contrasted the example of encrypted pornography with the statement in a recent article by a military intelligence officer on the exploitation of captured documents that the "true significance of DOMEX lies in the fact that terrorists, criminals, and other adversaries never expected their material to be captured."  The latter assumption, particularly in light of the former example, seems to me to be dangerous, especially if applied indiscriminately.

Some individuals who are accused of being "terrorists" are sophisticated while others are not, but I have often feared that final conclusions about the significance of seized materials are often driving the level of sophistication attributed to the "terrorist" rather than the other way around.  This presents significant dangers in both directions. Sometimes the owls are not what they seem and sometimes pornography is just pornography.