CIA Destroyed Subpoenaed Torture Tapes they Denied Existed While Congress Stood By

CIA Destroyed Supoenaed Torture Tapes they Denied ExistedThe CIA destroyed at least two tapes of its operatives using “severe interrogation techniques” to obtain information from suspected terrorists, Mark Mazetti reports for the NYT. Both the 9/11 Commission and attorneys for Zacarias Moussaoui had specifically requested any such evidence and Agency officials had previously denied, under oath, that any such tapes ever existed.

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

The C.I.A. said today that the decision to destroy the tapes had been made “within the C.I.A. itself,” and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes.

The existence and subsequent destruction of the tapes are likely to reignite the debate over the use of severe interrogation techniques on terror suspects, and their destruction raises questions about whether C.I.A. officials withheld information about aspects of the program from the courts and from the Sept. 11 commission appointed by President Bush and Congress. It was not clear who within the C.I.A. authorized the destruction of the tapes, but current and former government officials said it had been approved at the highest levels of the agency.

There were tapes. The tapes were subpoenaed, their existence was denied, and they were subsequently destroyed. It’s unclear what “questions” remain to be asked on that front.

C.I.A. lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the C.I.A. did not possess recordings of interrogations sought by the judge in the case. It was unclear whether the judge had explicitly sought the videotape depicting the interrogation of Mr. Zubaydah.

The CIA’s entirely plausible explanation is that they destroyed the tapes for security reasons rather than to subvert the legal process. That doesn’t, of course, mean that they didn’t subvert the legal process in so doing; indeed, it’s rather obvious that they did.

General Hayden’s statement said that the tapes posed a “serious security risk,” and that if they were to become public they would have exposed C.I.A. officials “and their families to retaliation from Al Qaeda and its sympathizers.” “What matters here is that it was done in line with the law,” he said. He said in his statement that he was informing agency employees because “the press has learned” about the destruction of the tapes.

General Hayden said in a statement that leaders of Congressional oversight committees were fully briefed on the matter, but some Congressional officials said notification to Congress had not been adequate. “This is a matter that should have been briefed to the full Intelligence Committee at the time,” an official with the House Intelligence Committee said. “This does not appear to have been done. There may be a very logical reason for destroying records that are no longer needed; however, this requires a more complete explanation.”

The destruction took place a year before Hayden came to the CIA, so he’s certainly not covering his own behind here. He’s right that, “What matters here is that it was done in line with the law;” it’s virtually inconceivable, though, that it was.

Staff members of the Sept. 11 commission, which completed its work in 2004, expressed surprise when they were told that interrogation videotapes existed until 2005. “The commission did formally request material of this kind from all relevant agencies, and the commission was assured that we had received all the material responsive to our request,” said Philip D. Zelikow, who served as executive director of the Sept. 11 commission and later as a senior counselor to Secretary of State Condoleezza Rice. “No tapes were acknowledged or turned over, nor was the commission provided with any transcript prepared from recordings,” he said.

Zelikow was a bit more circumspect in an interview on NPR this morning. Given that the Commission had no reason to think tapes existed, they didn’t specifically request tapes. But they issued a blanket order for materials that would certainly have covered these tapes.

Daniel Marcus, a law professor at American University who served as general counsel for the Sept. 11 commission and was involved in the discussions about interviews with Al Qaeda leaders, said he had heard nothing about any tapes being destroyed. If tapes were destroyed, he said, “it’s a big deal, it’s a very big deal,” because it could amount to obstruction of justice to withhold evidence being sought in criminal or fact-finding investigations.

People have gone to jail for obstruction of justice for actions much, much less brazen than this.

General Hayden said the tapes were originally made to ensure that agency employees acted in accordance with “established legal and policy guidelines.” General Hayden said the agency stopped videotaping interrogations in 2002. “The tapes were meant chiefly as an additional, internal check on the program in its early stages,” his statement read.

This raises an interesting sidebar: What were the results of the taping of these interrogations in that regard? Did Agency leaders decide they were witnessing torture and change their policies? Or did they decide that they were witnessing torture and decide to stop videotaping it?

John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 and is now a professor at William Mitchell College of Law, said the destruction of the tapes could carry serious legal penalties. “If anybody at the C.I.A. hid anything important from the Justice Department, he or she should be prosecuted under the false statement statute,” he said.

You’d think. Somehow, I doubt that’ll happen, though.

A former intelligence official who was briefed on the issue said the videotaping was ordered as a way of assuring “quality control” at remote sites following reports of unauthorized interrogation techniques. He said the tapes, along with still photographs of interrogations, were destroyed after photographs of abuse of prisoners at Abu Ghraib became public in May 2004 and C.I.A. officers became concerned about a possible leak of the videos and photos. He said the worries about the impact a leak of the tapes might have in the Muslim world were real.

It has been widely reported that Mr. Zubaydah was subjected to several tough physical tactics, including waterboarding, which involves near-suffocation. But C.I.A. officers judged that the release of photos or videos would nonetheless provoke a strong reaction. “People know what happened, but to see it in living color would have far greater power,” the official said.

Not much doubt about that. It doesn’t alleviate the requirement to comply with legitimate subpoenas, though.

Representative Rush Holt of New Jersey, a Democratic member of the House Intelligence Committee, has been pushing legislation in Congress to have all detainee interrogations videotaped so officials can refer to the tapes multiple times to glean better information. Mr. Holt said he had been told many times that the C.I.A. does not record the interrogation of detainees. “When I would ask them whether they had reviewed the tapes to better understand the intelligence, they said ‘What tapes?’,” he said.

Human rights groups contend that obstruction charges are the tip of the iceberg, as Jonathan Karl and Maddy Sauer detail for ABC News.

“If these videos were leaked, people would be horrified by them,” said Tom Malinowski of Human Rights Watch, “and they would begin to ask the obvious question — does this amount to criminal behavior?”

[…]

President Bush revealed to the public the existence of the CIA’s secret prisons last year, but he would not reveal the details of the agency’s interrogation procedures. But CIA officers have told ABC News they involve six escalating steps, ending in what’s known as waterboarding, in which prisoners are made to feel they are drowning. Human rights groups call it torture, but the president has insisted that the United States “does not torture.” The CIA has since banned waterboarding.

Human rights advocates say that if the CIA destroyed videos of suspects being waterboarded, they have destroyed evidence of torture. “Even some Republican senators believe that waterboarding is a form of torture,” said Malinowski. “It is a serious offense to destroy evidence of what may have been a crime scene.”

That strikes me as a bit silly. Regardless of whether we come to see waterboarding as torture under the law, there are no cases pending in that score now. Surely, the CIA isn’t obligated to hold on to anything that might conceivably be considered evidence of a crime in some future universe.

Andrew Sullivan goes even further down the path, officially proclaiming the United States “a Banana Republic.”

What defines such a republic? How about an executive that ignores the rule of law, commits war-crimes and then destroys the actual evidence? Today’s bombshell is that the CIA has done just that with respect to tapes made recording the torture of enemy combatants. Read the whole story. We live in a country where the government can detain indefinitely, torture in secret, and then secretly destroy the tapes of torture sessions to protect its own staff . . . . This was a deliberate act to destroy evidence of war-crimes and to protect war criminals from facing the rule of law.

We’re in agreement about the dangers of concentrating that sort of power in the hands of an executive. Certainly, it puts us on the slippery slope toward something other than a free society. But this ain’t exactly Cuba. And no competent international tribunal has indicted anyone for war crimes.

There’s really no reason to believe that the CIA destroyed the tapes for anything other than their stated reason, combined with perhaps some good old fashioned bureaucratic ass covering and an arrogant sense that they could get away with it because they’re the CIA. That’s bad enough, of course, and somebody should almost certainly go to jail. But we can probably stop short of grand conspiracy theories.

The story doesn’t stop here, though. Contrary to the impression given in Mazetti’s otherwise superb report, it appears that the CIA did in fact tell key members of intelligence committees about the tapes and their intention to destroy them. Pam Hess reports for the AP:

Rep. Jane Harman of California, then the senior Democrat on the House Intelligence Committee, was one of only four members of Congress in 2003 informed of the tapes’ existence and the CIA’s intention to ultimately destroy them.

“I told the CIA that destroying videotapes of interrogations was a bad idea and urged them in writing not to do it,” Harman said. While key lawmakers were briefed on the CIA’s intention to destroy the tapes, they were not notified two years later when the spy agency actually carried out the plan. Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., said the committee only learned of the tapes’ destruction in November 2006.

So, during the time the information was under subpoena, two key Democrats on the intelligence committee knew of the tapes’ existence (along, of course, with at least two Republicans). At least one, Harmon, though destroying them was “a bad idea” — but did not actually order the CIA not to destroy them. Or even pass on their objections to the president.

As Marty Lederman observes,

According to Hayden, “the leaders of our oversight committees in Congress were informed of the videos years ago [they didn’t ask to see them?!] and of the Agency’s intention to dispose of the material. In a news release that he put out this evening, Jay Rockefeller claims that the Intel Committees were not “consulted” on the use of the tapes “nor the decision to destroy the tapes.” But he does not deny that he was informed of the agency’s intent to dispose of the tapes, and he acknowledges that he learned of the destruction one year ago, in November 2006. And this is the first time he has said anything about it. Jay Rockefeller is constantly learning of legally dubious (at best) CIA intelligence activities, and then saying nothing about them publicly until they are leaked to the press, at which point he expresses outrage and incredulity — but reveals nothing. Really, isn’t it about time the Democrats select an effective Chair of the Senate Intelligence Committee, one who will treat this scandal with the seriousness it deserves, and who will shed much-needed light on the CIA program of torture, cruel treatment and obstruction of evidence? [emphases original]

One of the chief complaints of critics such as Sullivan and myself has been the lack of checks and balances in these incredibly important matters. Yet, in this case at least, it seems that Congress was informed and yet did nothing. Granting the possibility that the Bush administration might well have come up with a rationale for doing what it wanted regardless of Congressional input, that’s quite troubling.

Image source: ABC News

UPDATE: There seems to be an overwhelming consensus on this one, which is heartening. As one would expect, Bush administration critics are all over this. But so are plenty of conservative bloggers — like Ed Morrissey, Michelle Malkin, and Rich Moran — who generally support the president and his approach to the war on terrorism.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. SavageView says:

    One of the chief complaints of critics such as Sullivan and myself has been the lack of checks and balances in these incredibly important matters.

    Um… since when have you been a critic? ‘Tis to laugh. How many people live inside your head?

  2. James Joyner says:

    Um… since when have you been a critic?

    Perhaps a site search of the word “torture” might be a place to start. You’ll find 19 pages of results (with some false positives).

    The first such post, TORTURING TERRORISTS, was written on March 19, 2003, about six weeks into my blogging career:

    Richard Cohen discusses the merits of this in his WaPo column today. I think it’s a horrible idea. Not because it’s morally unjustifiable but because it won’t work. For one thing, information obtained under torture is virtually worthless, since people will say anything to stop the pain. For another, we’ve learned from our experiences with prisoners of war that people are a hell of a lot more likely to surrender to you if they know they’ll be treated humanely.

  3. 186 says:

    Perhaps the tapes were destroyed out of concern that they may be leaked to CNN or MSNBC and shown, then used by the terrorists as a “practice” tool if ever caught and interrogated they (the terrorists) would know what to expect.

    I don’t see malice right off the top.

  4. Dave Schuler says:

    IMO those involved should be prosecuted to the full extent of the law, up the ladder as far as actual knowledge of the crime can be determined. That would, presumably, include Rep. Harman as an accessory.

    Do I have any confidence this will actually happen? No.

  5. Hal says:

    Rockefeller has been proven to be a consistent tool throughout the last seven years. He’s the poster child for the whole “grow a spine” campaign. Seriously. He’s a throwback to hundreds of millions of years of evolution.

    Pretty sickening to think that but for the lack of a spine in one or two men, a lot of this crap might have had a fair probability of being stopped.

  6. glasnost says:

    Give me a break. Democratic Representatives had no power to give any kind of order with any form of legal authority when Republicans controlled the commission. Write this article coherently: put in the names of Dennis Hastert, Bill Frist, and the REPUBLICAN heads of the intel commmittees. Think they weren’t informed? They were the ones with the power to *do* something about this.

    Or, hey, blame a Democrat. Why tire yourself out with accuracy?

  7. Anderson says:

    Good post, but allow me to take issue with one point:

    There’s really no reason to believe that the CIA destroyed the tapes for anything other than their stated reason.

    See the 2d graf of the NYT article you quote:

    They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

    In other words, one reason for destroying the tapes was to prevent their use in a criminal trial of the torturers in question. Forgive me if I infer that the “part” of the motivation here was in the 90% range.

    Thanks “in part” to Bush’s encouragement to them to ignore the law, the CIA has clearly gone out of control. I doubt anyone in this administration has the will or the wish to rein them in.

    (Spencer Ackerman points out that we’re about to what kind of man Michael Mukasey *really* is. I predict “lapdog,” but I’ll be happy to be proved wrong.)

  8. Cernig says:

    As to the interrogators being identified or uproar in the Muslim world were the videos released, an old adage applies: “if you can’t do the time, don’t do the crime.”

    The easiest way to prevent either eventuality was not to torture. The people in these videos and the people who gave them orders all made their choices. As a reason for destroying these videos such claims amount to an emotional appeal to “my country right or wrong”.

    Regards, C

  9. Anderson says:

    Also, note the obvious expedient of digitally scrambling the torturers’ faces on any copy released to the public.

    Hayden’s not nearly a good enough liar for his job.

  10. James Joyner says:

    Democratic Representatives had no power to give any kind of order with any form of legal authority when Republicans controlled the commission. Write this article coherently: put in the names of Dennis Hastert, Bill Frist, and the REPUBLICAN heads of the intel commmittees.

    The commission was bipartisan, with a Democratic co-chair. The post included the parenthetical “(along, of course, with at least two Republicans).” I cite the Democrats, not to shift blame, but because they were the ones who had the most political incentive to do something but they didn’t.

    They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.

    In other words, one reason for destroying the tapes was to prevent their use in a criminal trial of the torturers in question. Forgive me if I infer that the “part” of the motivation here was in the 90% range.

    More likely, “legal jeopardy” refers to civil litigation. There’s almost no conceivable scenario where they would face criminal charges. Being subpoenaed in a civil matter is much more plausible.

    The people in these videos and the people who gave them orders all made their choices. As a reason for destroying these videos such claims amount to an emotional appeal to “my country right or wrong”.

    Well, no. I’ve held from the beginning that torture was a horrible idea. But, surely, there are prudent and legal measures one might take in interrogating terrorist suspects that one wouldn’t want broadcast on al Jazeera.

    Also, note the obvious expedient of digitally scrambling the torturers’ faces on any copy released to the public.

    I’m sure the worry was the tape “getting into the wrong hands” rather than an intentional public release. The latter was almost surely not contemplated.

  11. Hal says:

    But, surely, there are prudent and legal measures one might take in interrogating terrorist suspects that one wouldn’t want broadcast on al Jazeera.

    They prevented horrific film shot in Abu G (boys being raped) from being shown on US or Arab TV, so I’m pretty sure the same could be done here. This is obviously just a ruse and not any serious explanation.

  12. Anderson says:

    I’m sure the worry was the tape “getting into the wrong hands” rather than an intentional public release. The latter was almost surely not contemplated.

    But that runs into the obvious objection already pointed out, that the CIA has tons (literally) of documents that would be dangerous in the wrong hands, but doesn’t feel the need to destroy them.

    And while you and I may be confident that criminal charges wouldn’t lie against the torturers (due to the various immunities provided by the Executive Torturer and his Republican and Democratic supporters in Congress), I can understand that the torturers themselves might not have regarded it the same way.

    Maybe they sleep better now, poor things.

  13. Bob says:

    What were the operatives thinking? Our Intel agencies leak like sieves. As soon as the tapes were leaked we could be sure some news guy would be looking to “out the operative”. Then he spends rest of his life worrying about the day he and his family get found missing body parts.

    After 9/11 we were outraged and demanded the intelligence agencies to spy and fight sadistic mass-murderers but do so only using “civilized means”. Then we’re shocked, shocked its a bit messy. The Ops guys now they see that a few years later the MSN is in a feeding frenzy to “get the tapes”. These guys know the real deal, just like the front-line troops do. The terrorists get all the rights. So some guys in CIA HQ decided to sanitize. Hat’s off to them for protecting the one’s really in the fight! (First positive thing I’ve said about CIA in years.) The politicians, the media, and all the ones watching on the sidelines can now pontificate to our hearts content as its an academic exercise.

  14. Cernig says:

    But, surely, there are prudent and legal measures one might take in interrogating terrorist suspects that one wouldn’t want broadcast on al Jazeera.

    Such as? Please, be specific.

    Please remember as you do so that the word “suspect” includes a presumption of innocence until proven guilty in a court of law.

    If the interrogators adhered to the Geneva Conventions then it would look like any other normative tape of a suspect in legal police questioning of a civilian or a legal military interrogation of a POW.

    Regards, C

  15. Anderson says:

    Then he spends rest of his life worrying about the day he and his family get found missing body parts.

    Maybe you should think of that *before* you torture somebody?

    I believe the Gestapo’s torturers had wives and children, too.

  16. rnewton says:

    “I don’t see malice right off the top.”

    Fool me once shame on you. Fool me twice shame on me. This is the SECOND time that interrogation tapes have ended up missing/destroyed. The government lost 72 hours of Jose Padilla tapes, leaving the judge and the defense incredulous.

    http://www.foxnews.com/story/0,2933,258075,00.html

    Also the allusions that the minority leader on intelligence committee, Jane Harman, should have stopped the tapes destruction is simply outrageous.

    The Republicans (Chairman Pete Hoekstra)were in charge of Congress and the intelligence committee this time. The only possible force Harman and the Democrats could have used to stopped the destruction of the tapes would be a Pentagon Paper scenario, i.e. leaking news of this issued to the media. An action for which this site and others would have raked them over the coals for leaking intelligence matters.

    This is a dark and sad day that will live in infamy and I’m not talking about Pearl Harbor.

  17. Hal says:

    Also the allusions that the minority leader on intelligence committee, Jane Harman, should have stopped the tapes destruction is simply outrageous.

    Look, I certainly agree with the point that they’re in the minority, but they weren’t defenseless. James is, as a good republican, slanting his post to blame the democrats rather than the people who were actually in charge as is his wont. But Rockefeller and Harman were simply tools throughout all of this; enablers, if nothing else. They had a podium, they could have used it. They didn’t. Doesn’t excuse the even worse sins of the republicans in this matter, and certainly doesn’t paint the democrats as “unable to provide checks and balances” as James is suggesting, but they certainly have a heavy load of crap on their doorstep.

  18. James Joyner says:

    James is, as a good republican, slanting his post to blame the democrats rather than the people who were actually in charge as is his wont. But Rockefeller and Harman were simply tools throughout all of this; enablers, if nothing else

    Well, no. I’m naming those two because they are 1) the only ones quoted in the story and 2) the ones who were most likely to cry Foul. Lamentable as it may be, it’s the opposition party, not the president’s party, that’s usually going to need to step up for something to happen.

    Either 1) they didn’t think that these tapes or their destruction was a big deal at the time or 2) they had an obligation to speak up. At the very least, they should have gone to the president and expressed their outrage. It appears they didn’t do much of anything, aside from Harmon expressing her view that maybe destroying the tapes wouldn’t be the best idea in the world.

  19. cian says:

    I don’t get the outrage. We live in a country where it is legal to torture confessions out of people and to then use those confessions to imprison them for life.

    It takes a special kind of sickness to support this kind of thing but destroy evidence of it, and that’s what we’ve had for the past seven years.

  20. Hal says:

    Lamentable as it may be, it’s the opposition party, not the president’s party, that’s usually going to need to step up for something to happen.

    Which is why I was taking them to task myself. However, you really should save an extra heaping helping for the republican congressman who actually were responsible for this oversight and did nothing. Congress is as a second branch of government responsible for oversight. This is dereliction of duty and inexcusable. You really should have mentioned this…

    It appears they didn’t do much of anything, aside from Harmon expressing her view that maybe destroying the tapes wouldn’t be the best idea in the world.

    Sure, but what did the republicans do? Less than nothing. Again, castigate Harmon and Rockefeller – they deserve it. But surely those who did have the power and the responsibility deserve it even more. Who cares if the article simply mentions the democrats? That’s a problem with the article which shouldn’t be propagated…

  21. rnewton says:

    Hal. I agree with you my post implied that Harmon and Rockefeller should be given a pass. They both certainly showed a lack of spine in their oversight duties.

    And I further agree with you that real opprobrium lies with the Republican majority that controlled the committee.

  22. Leisureguy says:

    The CIA’s entirely plausible explanation is that they destroyed the tapes for security reasons rather than to subvert the legal process.

    The explanation seems totally implausible to me. The CIA has an enormous amount of classified information that would cause problems for its agents if the information were leaked. Based on the reason given here, all that information should be destroyed. It isn’t, though, is it? I believe the tapes were destroyed because they were incontrovertible evidence of a crime being committed.

  23. one bit shy says:

    The Hill quoted Jay Rockefeller today on this subject.

    “I’m really sick of this — OK, I’m angry about it,” Rockefeller said. “It’s a manipulation of the Congress — the use of two people of the Senate, two people out of the House, because nobody else can be told, including our committee. We can’t even talk to anybody, and they say, ‘Oh, they were briefed.’ ”

    Rockefeller’s lack of spine is legion, so please don’t take this as a defense of him. But his point is no less valid for that. Effective oversight has to be severely restricted if it’s treated as a black hole to dump information where it’s not allowed out again.

    Focussing on the performance of the few people in Congress (4 I think) who knew about the tapes misses the problem of an oversight structure designed to impede effective oversight. And, on a higher level, ignores the problem with a classification system that freely uses classification as a means to avoid public embarrassment and/or conceal criminal behavior.

  24. Hal says:

    ignores the problem with a classification system that freely uses classification as a means to avoid public embarrassment and/or conceal criminal behavior

    It’s no accident that this administration is the most secretive in US history. It’s no accident that the last 7 years have seen horrors revealed – only well after the fact and usually through unauthorized leaks.

    I’m sure we’ve only seen the tip of the iceberg here and only after years of hard investigative work will we begin to realize the sludge that that’s been kept secret for this period using classification.

  25. Bob says:

    Cernig, you seem to have overlooked the pesky fact that those AQ who have been caught and imprisoned are in fact NOT covered by the Geneva Convention. They are illegal combatants (no uniforms, not fighting for a recognized beliigerent, etc) and as such, may be treated as spies. In otherwords they may be tortured, shot, etc.

    AQ detainees are different than say those soldiers in Iraqi army who surrendered in 2003. Iraqi soldiers met the GC tests as legitimate combatants.

    Its really too bad we don’t treat them as it is allowed under GC. The left insists on treating them as criminal suspects. If left wishes to treat them as POWs then we should simply place them in POW camp (Gitmo) and leave them. No need for trials. They stay till war is over. If it takes 40 years then too bad… Left can’t keep claiming they are POWs and then insist they must have trials as a criminal.

    In mean time I suspect any other tapes will be likewise sanitized

  26. Hal says:

    Wow Bob. What an amazing piece of sophistry.

    There’s a special place in hell for people who think like you, I suspect.