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