 be helpful to look at the chronology of the various litigations which were already ongoing or contemplated (e.g., the ACLU saying “we’re gonna sue”) at the time the work-product magic words were uttered over the document in question. By that time – summer 2002 – there was already both litigation over Jose Padilla (like, first of all, his lawyers trying to find where they’d whisked him) and possibly over the captives already having been shipped into Gitmo. Not to stretch too far, but I would not be surprised in the least if the CIA did not have someone participating in the torture of Padilla (at least as an observer), nor would their participation in proceedings at Gitmo be out of the question. So, one or more of those (or other threads) of interrogation may have been intersecting at a high level in the CIA – the methods almost surely were – leading to the direction to the CIA GC office that they get a handle on the legalities because if we’re getting sued about A’s captivity and we’re doing to B what we’re doing to A, we need to anticipate we’ll be in liigation over B’s captivity (and treatment), too.
I do agree that you have a point regarding the general usage within many CIA documents of the phrase “prepared in anticipation of litigation”, however, I also find that EW’s point resonates with me as well.
The phrasing and the timing that EW notes used in this particular instance, while giving them the “attorney work product” shelter you mention, also seems utterly pregnant with CIA foreboding.
Maybe, but go back to two things.
First, the scope of the FOIA. This document has to, by definition, pertain to something that would have appeared on the torture tapes. While a lot of this discusses, generically, torture that was also shown on the tapes (so, for example, some of this stuff is almost certainly a generic description of waterboarding), anything specific at this has to refer to either AZ or al-Nashiri, and given the date, therefore to AZ in this case.
Also, remember that Padilla and Gitmo (for the most part) weren’t CIA. Binyam MOhammed may have been, and prisons in Afghanistan were, though.
Then go onto who had this document: CIA IG. So it was of sufficient import and sufficiently relevant to CIA IG’s investigations (which included both the general investigation of the torture program which we’ve seen, albeit in redacted form, and a specific investigation of the torture tapes) that IG got it.
And while you’re right that the term “in anticipation of litigation” works like a magic wand, it is used in fairly specific form in CIA’s documents (or at least not claimed in FOIAs). While it is apparent that a number of the general torture approval documents use it (including the MOU for the first Bybee Memo meeting, and some but not all of the Legal Principles documents, which of course were written with criminal sanctions in mind), most of the others in this batch that use the term are pretty clearly in response to specific allegations (for example, the communications about specific events leading up to the IG investigation, or interviews about specific events).
So you may be right–they may be just talking about a generalized concern (which would still be interesting since it would tie to the July 13 document), or they may be talking about a specific event w/Zubaydah. But if they’re talking about a specific event, it’s most likely related to Zubaydah bc of the scope of what could be in there.
Though your point would explain why there wasn’t any obvious turbulence in the cables from the Field associated with this.
First, it is true that this may be a generalized issue, such as: “What are we going to do about the fact that that nutcase Mitchell insists on using mock burial, but that prig Ali Soufan had such a conniption fit back in May over it?” That is, it’s possible that this was still all about a future event, hypothetically Mitchell’s insistence on using techniques that were probably illegal.
Second, it does seem very likely that, whether it was a specific event, or the specific, generic, issue, the issue was about threat of death (given the focus in the July 13 memo).
Not necessarily, because lawyers and their clients can’t use the the attorney-client privilege to conceal a crime or crimes that they are committing or planning to commit.
For example, if the purpose of the discussion between the lawyers and the document they generated about that discussion were to conceal what they knew to be unlawful conduct and chart a course to effectively spin doctor the matter so as to maximize the possibility down the road for torturers and their agency bosses to claim plausible deniability, if accused of engaging in or approving acts of torture, the effort itself would constitute three crimes; namely, Conspiracy to Torture, Conspiracy to Conceal Torture, and Conspiracy to Obstruct Justice.
 They created a virtual road map of criminal conduct and destroyed it hoping to avoid prosecution.
Yeah, that July 10-17 timeline is a really “intuitive”, easy to understand narrative. You’re really putting the pieces in place. Thanks.
Echoing both you and Jason at # 3, I have to say that if that Obama, Holder, Durham et al. don’t have the stones fortitude to compile a prosecution case against the Bush/Cheney regime, EW certainly does.
Brick upon brick upon brick, EW is making the Bush/Cheney regime’s defense increasingly incredulous, laughable, and finally, impossible.
Geez, yet another instance of provable perjury. Those spooks are gonna get a sternly worded letter if they’re not careful.
Btw, I’ve changed the headline (bc I want the emphasis to be on the tie between the discussion and the fax, not necessarily the litigation issue, as scribe has noted)–but does it make sense this way?

It’s definitely an art, but temper your suckitude since the most important parts which we thoroughly appreciate are the post contents and commentary.
What’s the “issue that arose”? What’s for lunch at CIA cafeteria?
Don’t feel bad about being less-than-perfect at headlines. It’s a specialized skill.
Headlines are important if they help readers — including mainstream media — pick up and read content.
What would help assure EW’s work gets read more widely, regardless of the headline she uses, is for readers here to tweet her work if they have a Twitter account. Just use the green Tweet button under the headline; readers can even modify the headline in the Tweet before sending.
I know we’re not all adept at this social media stuff; it’s a learning curve for most of us. But if it helps get this valuable reporting out there to a wider audience and ensures the White House, USDOJ and Congress are getting the message, it’s worth the hassle.
Thanks to those of you who are already helping promote EW’s work through Twitter, Facebook, Digg, Reddit, so on.
I am not buying this empty rhetoric from the woman who coined “Sweet Judy Blew Lies”. That game alone puts you in the Headline Hall of Fame.
That headline will never go stale! Classic!
Almost as good as reminding MSNBC they spent five years on WJC’s blowjob.
Excuse please, but I don’t understand how “in contemplation of litigation” covers “a generalized issue”. Say Joe Masteroftheuniverse sets up a capital pool to go into a new business like producing cigarettes, or manufacturing a hybrid automobile, or a coal-fired power plant, or a string of payday loan outlets, or even robbing small town S&Ls; whatever. And say potential investors tell Joe M they like his track record but they’re concerned that the business might be especially exposed to litigation risks which could put their investment at risk. So Joe M goes to his lawyer with his business plan in hand and asks for an opinion on all that. Are you saying that all the lawyer needs to do is stamp “in contemplation of litigation” on the opinion and magically the opinion can never be used against the business, or Joe M, not even by the investors?
No, what he is saying is that it may be entitled to presumptive attorney client privilege, especially from discovery invasion; not that it can never be used.
Right. One of the things that gets tested when a judge is called on to determine whether the work-product privilege applies is how reasonable was the contemplation of litigation, i.e., had a lawsuit actually been threatened or was the contemplation of litigation mere conjecture. The more likely a lawsuit was, the more likely the privilege will apply, provided, of course, the subject matter of the document(s) in question relate to the subject matter of the litigation in some reasonable way.
Interestingly, when actual litigation commences, ou can’t be contemplating litigation any more, so the work-product privilege runs out of time, so to speak. Everything that was prepared before litigation can be covered, but not that stuff put together after litigation begins.
Textually speaking, *between*, and *among*, often are employed interchangeably in modern parlance; as in [between The Co attorneys, maybe several, maybe two].
Also, I could imagine a dossier with photos of the brick factory outcome. I looked in Radack*s excerpt at the Canary site, finding little textually similar except bondage and induced hypothermia