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.

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."

Judgment in UK Civil Case Involving Captured Libyan Documents

There is a judgment (hat tip Just Security) in the civil lawsuit against portions of the U.K. government brought by Abdul-Hakim Belhaj and his wife Fatima Boudchar relating to their detention, rendition, and mistreatment (previously discussed here).  In a lengthy opinion the High Court held "with hesitation" that the claims were barred by the act of state doctrine. The Court noted that its "hesitation" at its own conclusion arises from:

a residual concern that (on the basis of the Particulars of Claim) what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extra-ordinary rendition of the Claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to, and a decision by, the Court.

And specifically in relation to the application of the act of state doctrine, the Court noted:

Although the act of state doctrine is well-established, its potential effect is to preclude the right to a remedy against the potential misuse of executive power and in respect of breaches of fundamental rights, and on a basis which defies precise definition. It is a doctrine with a long shadow but whose structure is uncertain.

Of particular interest to this blog is the High Court's discussion of the unique fact that certain allegations in the lawsuit are based on evidence from the "Tripoli files" found by journalists and members of Human Rights Watch in an abandoned military intelligence headquarters during the fall of the Qaddafi regime in 2011.  The documents (previously discussed here, here, and here) include C.I.A. and MI-6 documents related to the rendition of Belhaj (referred to in the documents as Abu Abdullah Al-Sadiq) and his wife, who was pregnant at the time.

While it is unclear whether the U.K. government defendants would have ultimately challenged the authenticity of the documents were the proceedings to have continued, the High Court notes at para. 4 the unique nature of the evidence:

Although many of the facts relied on by the Claimants are neither admitted nor denied by the Defendants, unusually, some appear to be supported by documents which have come into the Claimants' hands as a result of the change in political fortunes in Libya.

The High Court cites them repeatedly in its recitation of the "factual assertions forming the basis of the claim":

On 1 March 2004 the 3rd Defendant (MI6) sent a fax to the Libyan intelligence services informing them that the Claimants had been detained in Malaysia and identifying the place where they were held.

[snip]

On 6 March 2004 the US authorities sent two further faxes to the Libyan authorities informing them that the Claimants were due to be placed on a commercial flight from Kuala Lumpur to Bangkok, that the abduction and rendition would take place in Bangkok and that they would be placed on a US aircraft for a flight to Libya.

[snip]

A more detailed "Schedule for the Rendition of [the First Claimant] to the Libyan authorities" was faxed later that day: the Claimants would be abducted in Bangkok, flown to Diego Garcia (a British Indian Ocean Territory) for refuelling of the aircraft, and then on to Tripoli.

The "Schedule" the Hight Court referenced is pictured below.

Despite the High Court's conclusion that the claims were barred, the lawsuit, along with the captured records, has nevertheless helped to document the rendition of the two individuals and the involvement of the U.S. and U.K. governments.

Conflict Records Research Center in the FY 2014 NDAA

The compromise FY 2014 National Defense Authorization Act (NDAA) draft released yesterday (available here) includes an important new statutory provision (see § 1071) related to the Conflict Records Research Center (CRRC), which has been providing access to an impressive collection of captured records from Saddam's Iraq and Afghanistan.  An earlier post discussed the CRRC's funding crisis, which was due, in part, to the delay in the consideration of the NDAA in Congress.  According to its last update, the CRRC has subsequently been operating with bridge funding and one employee.

Section 1071 of the FY 2014 NDAA draft is entitled "Enhancement of the capacity of the United States Government to analyze captured records." It includes a provision that will become, if passed, 10 U.S.C. § 426 called "Conflict Records Research Center" that authorizes the Secretary of Defense to establish the CRRC.  This may seem odd given that the CRRC of course already exists within the National Defense University, but providing an explicit statutory basis for the CRRC may place it on more firm footing going forward.

Moreover, the other substantive provisions appear to be designed to broaden the CRRC's ability to obtain funding.  According to the "Joint Explanatory Statement" the "additional statutory authorization would allow the [CRRC] to be funded collectively by the Department of Defense, the Office of the Director of National Intelligence, and other departments and agencies, rather than rely on discrete partner funding for each activity."  The provision "would also allow the [CRRC] to receive funding from other agencies, states, or other foreign and domestic entities, including academic and philanthropic organizations, to support important research in international relations, counterterrorism, conventional warfare and unconventional warfare."

Other noteworthy detail includes the statutory "purposes" of the CRRC:

(1) To establish a digital research database, including translations, and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States, with rigid adherence to academic freedom and integrity. 

(2) Consistent with the protection of national security information, personally identifiable information, and intelligence sources and methods, to make a significant portion of these records available to researchers as quickly and responsibly as possible while taking into account the integrity of the academic process and risks to innocents or third parties. 

(3) To conduct and disseminate research and analysis to increase the understanding of factors related to international relations, counterterrorism, and conventional and unconventional warfare and, ultimately, enhance national security. 

(4) To collaborate with members of academic and broad national security communities, both domestic and international, on research, conferences, seminars, and other information exchanges to identify topics of importance for the leadership of the United States Government and the scholarly community.

Finally, the draft includes a statutory definition of "captured record:"

The term "captured record" means a document, audio file, video file, or other material captured during combat operations from countries, organizations, or individuals, now or once hostile to the United States.

Voting on the FY 2014 NDAA could begin later this week.

Is DOJ National Security Division Complying with Federal Records Act?

In the new Shane Harris piece on Foreign Policy "White House v. Holder: The fight over the government's top national security lawyer" about the controversial nomination of John Carlin as the head of the DOJ's National Security Division (NSD), there is a passage (h/t Patrice McDermott) that raises some serious questions about how Carlin, currently acting head of the NSD, is (or is not) complying with the federal records laws:

Two former officials, citing conversations with current Justice Department employees, said that Carlin is avoiding taking documented positions before his Senate confirmation hearing. Instead, Carlin has requested that colleagues not copy him on emails about sensitive policy issues. Many of Carlin's communications are taking place by phone, former officials said. A date for a confirmation hearing hasn't been set. 

Contrary to what frequently appears to be popular "wisdom" within the government, face-to-face meetings and telephone calls do not exempt agency activities from the federal record keeping laws. As the DOJ is unquestionably aware, the federal records laws are not simply about preserving records that have been created; they also impose an affirmative obligation to make records "containing adequate and property documentation" of the "policies, decisions, procedures," etc. of federal agencies that are "designed to furnish the information necessary to protect the legal" rights of the Government "and of persons directly affected by the agency's activities."  44 U.S.C. § 3101.  Whatever might be the practices of Carlin's compatriots who work within the National Security Council, the activities of a senior agency official such as Carlin requires documentation.

As in the case of the missing John Yoo emails, wherein Yoo apparently considered only one email he sent to be a federal record during his entire tenure at the DOJ Office of Legal Counsel (see here footnote 1), or in the case of the June 2005 GTMO court filing in which the DOJ represented that the U.S. government defendants were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation" a few months ahead of the November 2005 destruction of relevant videotapes, the DOJ has unfortunately not provided a lot of confidence that federal record keeping obligations are a high priority.  Moreover, such actions are particularly disturbing within the DOJ who is ultimately tasked with enforcing possible violations.  Cf. Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 41 (D.C. Cir. 1983) (noting "allegedly illegal destruction" of records that was "attributed to the very agencies in charge of filing suit to protect the records)."

Hopefully as part of his nomination hearings, the Senate will take up this issue and inquire into whether John Carlin has in fact attempted to avoid creating documentation of his activities in violation of the spirit and/or letter of the federal records laws.  The last thing the government needs is another national security official with accountability problems.