Wednesday, January 29, 2014

Chabad Moves for $14.75 Million Judgment Against Russia over Jewish Archives

In a new development in the Chabad v. Russian Federation case over the return of the historical Jewish library and archive that remains in Russia (previously coverage here, here, and here), Chabad has filed a motion for an entry of "interim judgment" in the amount of $14,750,000 against the Russian Federation.  The figure reflects the $50,000 per day sanctions that have accrued from January 2013 to January 2014 for Russia's failure to transfer custody of the library and archive as the court ordered in 2010.

The motion states that Russia has "demonstrated a consistent lack of interest in resolving this matter in contemptuous disregard of this Court's jurisdiction and rulings and in flagrant disregard of well-established international law prohibiting the plunder and looting of cultural and religious objects in time of war and upheaval."

Moreover, the motion notes that in December 2013:
Russian President Vladimir Putin personally decided to take matters into his own hands by announcing the placement of a small portion of the Library within a special department of the Russian State Library at the Jewish Museum and Tolerance Center in Moscow -- rather than, as this Court directed, returning the entire Library and Archives to Chabad's duly authorized representative.
The motion ends by arguing:
While money cannot remedy the continued theft of Chabad's sacred religious texts, a clear sign from this Court regarding the significance of this litigation and the consequences of Russia's ongoing disregard of the Court's orders may help to speed the timing of their return.

Tuesday, January 7, 2014

John Rizzo's Tape Destruction Revisionism

Former acting CIA General Counsel John Rizzo's new book "Company Man" makes the story of the creation and destruction of the interrogation tapes the main lead-in.  While the publisher's description states that the book "provides the most comprehensive account ever written of the 'torture tape' fiasco" Rizzo's account is demonstrably misleading, incomplete, and puzzling.  A few points:

First, Rizzo grossly misrepresents the findings of the CIA Office of Inspector General's (OIG) investigation relating to the tapes.  As you'll recall, the OIG found that the interrogators were waterboarding detainees in a manner very different than described in the DOJ OLC opinion on which the CIA purported to be relying. "The difference," the CIA OIG stated, was "in the manner in which the detainee's breathing was obstructed." In the DOJ opinion,
the subject's airflow is disrupted by the firm application of a damp cloth over the air passages: the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator [redacted] continuously applied large volumes of water to a cloth that covered the detainee's mouth and nose.
One of the "psychologists/interrogators" even acknowledged the discrepancy to the OIG and "explained that the Agency's technique is different because it is 'for real' and is more poignant and convincing."

In Rizzo's retelling these crucial findings by the OIG are inexplicably converted into:
In its report on the interrogation program issued in May 2004, the Office of Inspector General (OIG) made a number of references to the tapes. It noted that it had looked at the tapes and, apart from questioning the CTC's numbers on how many waterboarding sessions were conducted, did not find any unauthorized techniques were used on Zubayadah.
Second, Rizzo's book provides now-final confirmation that John McPherson was the CIA attorney who viewed the tapes in late December 2002 and who was interviewed about them by the OIG in 2003.  The full significance of this is explained in my earlier posts here and here, but in brief, McPherson is the secret, overlooked linchpin in the ACLU FOIA case.  After holding that the CIA had violated his orders by failing to identify the tapes as records of the OIG's investigation that were responsive to the ACLU's FOIA request, Judge Hellerstein nevertheless stayed his hand in holding the CIA in contempt based on the erroneous view that the "evidence suggests that the individuals responsible for processing and responding to plaintiffs' FOIA requests may not have been aware of the videotapes' existence before they were destroyed."  This is demonstrably inaccurate given that the individual who responded to the ACLU in relation to the OIG's files in April 2005 was none other than John McPherson, the person who knew more about the tapes than anyone else.  Rizzo further confirms that, in fact, McPherson "was the CIA lawyer who was responsible for tracking the ongoing court cases where the tapes could be potentially implicated."

Judge Hellerstein's information was incorrect based, in part, on statements made by the DOJ lawyer representing the CIA at oral argument, Peter Skinner, who represented that CIA FOIA personnel had mechanically searched the OIG files 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.
Hellerstein responded:
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.
Rizzo's book provides the final proof: Judge Hellerstein, you were gulled by the CIA.

Finally, more broadly, Rizzo's book attempts to make the tapes simply a story about Jose Rodriguez insubordinately going behind his back to destroy them, but fails to acknowledge that the destruction would not have occurred but for the troubling and incorrect legal interpretations of Rizzo (and his subordinates) which repeatedly advised Rodriguez (including just before Rodriguez ordered the destruction) that there was no legal obligation to retain the tapes.  Rizzo fails to mention that his faulty legal interpretations that the tapes were not "records" and that they were not legally required to be retained as relevant to ongoing or foreseeable litigation have been rejected by every court that has considered them on the merits. See, e.g., Abdullah v. Bush, 534 F. Supp. 2d 22 (D.D.C. 2008) (finding that a GTMO detainee made a "sufficient showing" that the tapes were subject to a 2005 preservation order); ACLU v. DOD, 04-cv-4151 (D.D.C. Oct. 5, 2011) (holding that the tapes were records subject to the ACLU's FOIA requests).  Indeed the National Archives inquiry into whether the destruction was an unauthorized destruction of federal records is still not closed.

To the extent Rizzo mentions the legal status of the tapes at all, his account is conflicted and inconsistent.  When he first hears about the tapes (which he states was not until October 2002), he recognized that destroying them "was fraught with enormous risk" as any "minimally competent attorney" would. He also acknowledges "the certainty" that the program and the tapes "would be implicated in prosecutions of captured Al Qaeda terrorists in the years to come" and yet nowhere does Rizzo explain how or why he came to the conclusion that there was nevertheless no legal obligation to retain the tapes and that "the question" was instead "not whether to destroy the tapes, but when."

The closest Rizzo comes is when - to his credit - Rizzo admits that the CIA avoided telling the 9/11 Commission about the tapes by "parsing literally every word in each of the commission's requests" which he acknowledges was a "mistake."