Comey said, on May 31, 2005 to Rosenberg: "I mentioned that I had heard there was a video of an early session, which would come out eventually." Who did he mention this to; and what legal obligations did that person have?

Froomkin: "But the video he mentioned was one of many that the CIA conveniently destroyed less than six months later."

We don't have information from the email which "early" session this was; however, once DOJ OLC mentions in an email that it has knowledge of the video, there should have been an effort to secure that video.

It's unclear from the DOJ OLC email the source of Comey's statement about the video: Through indirect communications with someone involved; or reported in the media.

The same email also mentions Philbin who, in different memos, raised the prospect that there could be foreign prosecution over these issues: A foreseeable requirement - at least as early as May 2005 -- that the video should be retained, not later destroyed as the CIA said occurred.

Comey's email appears to be a written record of a telephone call. This is important because it suggests the email memorialized a meeting; and that Comey was making a point of memorializing something because he intended that memo to be relied upon later during a review.

Immunity: Rejected Prospectively

What's more puzzling is the question of how long they've known about the legal issues. Shane, NYT writes the concerns were raised in 2002; and immunity was rejected. Yet, on a separte issue - FISA - Congress, retroactively granted immunity:

Shane, NYT: C.I.A. officials had been nervous about the legality of their proposed methods from the start in 2002. They had asked Michael Chertoff, then head of the Justice Department's criminal division, to grant interrogators immunity in advance from prosecution for torture. Mr. Chertoff refused . . .

Why is Congress exercising judicial power by giving immunity on FISA violations for ongoing litigation; but on a different issue of POW abuse, where immunity was rejected, we have separate calls to "not investigate"?

It makes no sense for the Bush Administration officials to have rejected immunity; but for Cheney to now argue it was lawful. Cheney cannot explain why Chertoff refused to grant immunity; nor why we should believe Cheney in 2009 when Chertoff rejected these arguments in 2002.

What Lawyers Said Inconsistent With What They Permitted

What's puzzling is why the lawyers would memorialize one sentiment -- concerns about the legality of the methods -- yet not change all the documents to ensure there were not violations of Geneva prohibiting POW abuse.

Shane, NYT: "In addition, in a previously undisclosed letter to the agency, Mr. Goldsmith put a temporary halt to waterboarding. But he left intact a secret companion memorandum from 2002 that actually authorized the harsh methods, leaving the C.I.A. free to use all its methods except waterboarding, including wall-slamming, face-slapping, stress positions and more."

This suggests that Comey and others knew or should have known that DOJ OPR and DOJ IG would likely have an interest in these legal issues; and that when he wrote these memos he knew or should have known that outside auditors and others familiar with the laws of war would review the progress of the lawyer's conversations.