CIA Destroyed Interrogation Tapes

The New York Times has learned the CIA destroyed interrogation tapes of two al-Qaeda detainees.

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.

Both the Judge in the Moussaoui case and the 9/11 Commission had requested the tapes:

The recordings were not provided to a federal court hearing the case of the terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the C.I.A. for transcripts and any other documentary evidence taken from interrogations of agency prisoners.

The C.I.A. confirmed the destruction today when the Times informed the agency it would be publishing an article about the tapes tomorrow.

The CIA defends its actions but destruction of evidence and withholding information about the existence of evidence is a serious no-no. This could be a significant story. [More...]

The ACLU said in a press release today (no link yet, received by e-mail):
“The destruction of these tapes suggests an utter disregard for the rule of law. It was plainly a deliberate attempt to destroy evidence that could have been used to hold CIA agents accountable for the torture of prisoners. Both Congress and the courts have repeatedly demanded that this evidence be turned over, but apparently the CIA believes that its agents are above the law.”
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    About To Hit The Fan (5.00 / 1) (#1)
    by john horse on Thu Dec 06, 2007 at 08:40:26 PM EST
    I agree with Jeralyn that this could be a significant story.  

    According to TPM:

    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.

    I'm not a lawyer but it seems to me if you are destroying a videotape because you fear the exposure of that videotape would expose you to a "greater risk of legal jeopardy" then you are breaking the law. People with nothing to hide don't destroy evidence.

    McCormick's Treatise on Evidence (5.00 / 1) (#9)
    by Molly Bloom on Fri Dec 07, 2007 at 09:10:40 AM EST
    uses the example of flight as evidence of a guilty mind.

    I should clarify as with most evidence (none / 0) (#12)
    by Molly Bloom on Fri Dec 07, 2007 at 09:48:54 AM EST
    it is subject to rebuttal by whatever reasonable explanation the defendant can show.

    An African American fleeing Philadelphia Mississippi in 1964 is as likely evidence of reasonable fear of being lynched before getting a "fair" trial as it is of a guilty mind.

    Can't wait to hear the full explanation of the destruction of tapes.  


    CIA operatives (5.00 / 1) (#13)
    by Edger on Fri Dec 07, 2007 at 09:55:04 AM EST
    are afraid of being lynched by the Bush Administration?

    But that would never happen. Would it?


    War crimes (5.00 / 1) (#3)
    by Andreas on Fri Dec 07, 2007 at 03:11:43 AM EST
    It is possible that those who participated in the destruction of this evidence might have committed a war crime.

    Another possible motive (5.00 / 1) (#10)
    by seagoon on Fri Dec 07, 2007 at 09:36:34 AM EST
    Along with the legal but-covering, I think they also wanted to cover up the fact that they didn't get any actual intelligence from all this interrogation.

    See here
    for details.

    danger to agents - bogus (5.00 / 1) (#22)
    by txpublicdefender on Fri Dec 07, 2007 at 05:46:40 PM EST
    Yeah, the argument that the CIA needed to destroy the tapes because they could, if leaked, pose a risk to the agents involved is ludicrous.  The CIA keeps millions of documents, recordings, photographs, records, etc. that could, if leaked, pose a danger to the people involved.  That is why they are classified.  They destroyed them for one reason and one reason only--to protect the interrogators and their superiors from criminal prosecution.  That is obstruction of justice, plain and simple.

    On top of that, while the tapes were in existence, the CIA filed false affidavits with a federal judge asserting that no such tapes exist.  That is perjury and obstruction of justice.  It would not be the first time the CIA committed perjury and obstruction of justice by submitting false affidavits/declarations in a criminal case either.  Just look at the history of the Edwin Wilson case in Houston. ( http://www.chron.com/CDA/archives/archive.mpl?id=2004_3733246 )

    the CIA filed, the CIA committed (none / 0) (#23)
    by Edger on Fri Dec 07, 2007 at 07:12:14 PM EST
    That is perjury and obstruction of justice. And it was done on the orders of "someone".

    I'm no lawyer but I don't think "the CIA" is the defendant here, is it?


    On The Right Track (none / 0) (#25)
    by john horse on Sat Dec 08, 2007 at 06:21:11 AM EST
    I think you are on the right track.  Per TPM
    When the truth comes out I think we are likely to discover the people doing the questioning were contractors, not undercover Agency officers. . .

    Jose Rodriguez (chief of Operations Division) will not be the only one walking the public plank on this issue. In fact, he did not undertake this mission without the permission or direction from higher ups.

    I doubt that Jose Rodriguez will be a willing scapegoat. In fact, I would not be surprised if he kept some information back that would help exonerate him just in case this very contingency arose.

    The first rule of government employees is CYA - cover your *ss.  Just speculatin' but we may see an awful lot of pardons from Bush between the end of the election next year and the inauguration of the new President, especially if she or he is a Democrat.


    How Will This Effect Existing Cases? (none / 0) (#24)
    by john horse on Sat Dec 08, 2007 at 06:11:19 AM EST
    On top of that, while the tapes were in existence, the CIA filed false affidavits with a federal judge asserting that no such tapes exist.  That is perjury and obstruction of justice.  

    I just wanted to follow up on some of your remarks.  Can't prosecution cases can be blown because the police screwed up the interrogation or because the police committed perjury to cover up inappropriate interrogation techniques?  How is this any different?  



    WSWS on complicity of Democrats (5.00 / 1) (#26)
    by Andreas on Sat Dec 08, 2007 at 11:41:07 AM EST
    The WSWS writes:

    Harman, and therefore the Democratic Party, knew of the tapes in 2003, but decided not to inform the American people or do anything to expose the government's policy of torture. This knowledge was withheld from the American people throughout the Abu Ghraib scandal, which began in 2004. The tapes' existence was known by leading Democrats two years before the American people were first made aware that the US government had used water-boarding.

    The AP goes on to report, "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 went through with the plan." It reports that Rockefeller "only learned of the tapes' destruction in November 2006."

    Even if one were to accept this account as true, it means that the Democrats have known for over a year that these tapes were destroyed but decided to say nothing about it.

    In September 2006, Rockefeller voted, along with 11 other Democrats in the Senate, for the Military Commissions Act. Both that act and the Detainee Treatment Act, passed in December 2005, included provisions shielding CIA operatives and Bush administration officials from prosecution for torture and other war crimes.

    CIA destroyed torture tapes
    By Joe Kay, 8 December 2007

    Amazed (1.00 / 0) (#20)
    by Abdul Abulbul Amir on Fri Dec 07, 2007 at 03:44:13 PM EST

    I am somewhat amazed these tapes were kept for any period of time at all.  If leakage would have put the lives of CIA employees and their families at risk, and provided CIA method to enemies, they should have been destroyed almost immediately.

    Tortured logic (5.00 / 0) (#21)
    by Repack Rider on Fri Dec 07, 2007 at 04:29:27 PM EST
    If leakage would have put the lives of CIA employees and their families at risk, and provided CIA method to enemies, they should have been destroyed almost immediately.

    Ask Valerie Plame about that.  No one cares if CIA agents have their identities or their cover companies exposed, so that is a non-starter.

    What if "leakage" showed that our government used torture methods that had resulted in war crimes convictions when these same methods were used by our wartime opponents?

    If these tapes (almost certainly DVDs, actually) show crimes against humanity being committed by Americans, are you in favor of their being released so the guilty could be punished?

    Why not?

    BTW, I suspect they will eventually turn up on some torture-philes hard drive.  Whoever did this had too much fun to destroy the party tapes.


    Why? (none / 0) (#27)
    by Abdul Abulbul Amir on Sun Dec 09, 2007 at 03:26:20 PM EST
    If these tapes (almost certainly DVDs, actually) show crimes against humanity being committed by Americans, are you in favor of their being released so the guilty could be punished?

    Why would punishing the guilty require release?


    It's not that significant (none / 0) (#2)
    by NMvoiceofreason on Fri Dec 07, 2007 at 12:31:57 AM EST
    There is no one who will prosecute these crimes. AUSA's will not do it and no one else has jurisdiction. The best we can hope for is a PO'ed federal judge to order the people involved in the case forward to show cause why they should not be held in criminal contempt of court. And since only right wingers get to the bench... not much chance of that either.

    There is no "memory" left in media. It is the sound bite of the second, and nothing more.

    Just try to get anybody to connect the dots between the Guamgate (Abramoff, Delay, Bush, Rove) and NSAgate (Gonzales and Bush), and USAgate (Rove, Gonzales and Bush). Obstruction of justice in every case.

    Its not that significant. Its standard operating procedure.

    Oh, and the Democrats won't do anything about it either.

    Videotape? Literally analog videotape? (none / 0) (#4)
    by Aaron on Fri Dec 07, 2007 at 07:12:45 AM EST
    I'm wondering about the medium that was used, it says videotape, are they literally talking about videotape, analog videotape, or possibly digital videotape, or some other form of digital medium?

      It seems unlikely that the CIA would be using analog videotape at this point in time, and if it was a digital medium, which is much more easily copied, then I suspect there are still copies in existence somewhere.  I have no doubt that the CIA made multiple copies, and once something is in digital format, the ease and speed with which it can be copied and stored usually means that it's very hard to get rid of completely.

    Perhaps the CIA did use analog video in these cases specifically to avoid the possibility of losing control of copies, but if it was transferred or originally created in digital format, I imagine someone still has copies, perhaps on a hard drive and they might not even know they've got them.  Perhaps it's time to start confiscating their computers.

    There is only one reason (none / 0) (#5)
    by Edger on Fri Dec 07, 2007 at 08:06:53 AM EST
    that anyone in possession of potential evidence of crimes committed by themselves would destroy that evidence.

    We all know what that reason is.

    Even the dumbest people among us, the 24 percenters who, through wilfull suspension of their own critical faculties and indifference to the truth, still support George Bush, know what that reason is.

    And I'm sure we'll see them deny it today and in future.

    I suspect that would never happen, (none / 0) (#8)
    by Edger on Fri Dec 07, 2007 at 08:41:41 AM EST
    for the same reason I suspect that Pelosi is determined to keep impeachment "off the table".

    Doing either might expose too much impeachable and/or convictable criminal complicity in too many arenas over the past few years for many of the democratic leadership to survive.

    Another brick from the facade: (none / 0) (#11)
    by scribe on Fri Dec 07, 2007 at 09:41:04 AM EST
    It just now comes out that Jello-spine Rockefeller and Jane Harman, then the ranking Dems on the respective Intelligence Committees, had some awareness of the existence of the tapes and of the CIA's intent to destroy them.

    Harman claims to have written a letter to CIA urging against destruction of the tapes.  

    CIA, apparently, didn't tell them of actually destroying the tapes until some months after it happened.  This, despite having expressed the intent to do so about 2 years prior to actually destroying them. (NB:  taking 2 years - or even 2 weeks - between expressing an intent to do something wrong, being warned against it, and then doing it, puts big, red stamps of "GUILTY KNOWLEDGE" and "INTENTIONAL CONDUCT" all over the CIA's actions here.

    I surmise, from the story as presented, that these two (and their Republican counterparts on the respective intel committees) were briefed on the existence of the tapes as a part of the "oversight" responsibilities of the respective committees.

    The linked article expresses some outrage that Harman and Rockefeller did not go public with their knowledge either (A) when they found out about the tapes' existence, (B) when CIA expressed their intent to destroy them, or (C) when they found out about the actual destruction.  I'm not going to be so harsh on their non-disclosure, though I would have been tempted to make a disclosure were I in their shoes.  The fundamental problem these two faced was that to do so would have violated their security oaths and likely driven the CIA and other intel services to avoid oversight and not disclose what they were doing.  It's a close question, but I understand how they resolved it.  Moreover, it needs be remembered they were both in the minority at the times of all three events, and I'm sure that had some effect on the calculus.

    The one nice thing about this is, the bricks are coming off the facade a whole lot more quickly than previously.  

    Other remedies (none / 0) (#14)
    by atlanta lawyer on Fri Dec 07, 2007 at 10:06:00 AM EST
    seems like there would have been lots of other options other than "going public". Seems like the judge in the Moussaoui case could have been notified ex parte, or the ADA, or someone at justice with enough security clearance. Something could have been done.

    Other remedies (none / 0) (#15)
    by atlanta lawyer on Fri Dec 07, 2007 at 10:10:08 AM EST
    Sorry, I meant the AUSA, not the ADA.  (I'm a state court practioner. )

    All those "remedies" would have required (5.00 / 2) (#16)
    by scribe on Fri Dec 07, 2007 at 10:31:00 AM EST
    breaking the security oath, and violating their clearance - like their SF-312.  Not appealing prospects and criminal, too.  After all, that's a big portion of the underlying wrongs of Deadeye and Scooter in the Libby case.

    So, just going on the QT to the judge, prosecution or defense in the Moussaoui case would have likely resulted in their prosecution.  Remember, the JAG officer prosecuted by the military for leaking the names of Gitmo prisoners to the lawyers at the CCR - his case just recently concluded.  It was the CCR lawyers who informed the judge of the leak and turned the material over to the Court.

    So, anything outside Speech and Debate would, especially in the time-context of 2004, likely have gotten them prosecuted or, worse, given Rove a "Democrats=terrist helpers" angle.

    Arguably, either of them could have pulled a Mike Gravel, as in Gravel v. United States, by reading things into the Congressional Record or making a speech on the floors of their respective houses.  Remember, the Gravel case involved him and his staff holding late-night subcommittee hearings and receiving testimony and reading into the Congressional Record lengthy excerpts from The Pentagon Papers.  But, to do that Gravel was exercising his prerogatives as chairman of a subcommittee and could do that as his party was in the majority.  Being in the minority - these two couldn't schedule or hold any hearings and would get stomped on the floor the minute they opened their mouths.  

    Moreover, in Gravel the Supreme Court expressly did not decide whether the Speech and Debate Clause extended to protect against allegedly criminal acts, and Gravel and his congressional amici did not argue that it did.  It was an undecided issue.  While the recent Jefferson ($90k in the freezer) case might show the Speech and Debate Clause to extend to arguably criminal acts (like, "the bribe I'm taking is from a lobbyist and I'm considering legislation while taking it, so it's protected under Speech and Debate") - that hadn't even happend until 2006, i.e., likely after the tapes had already been destroyed.

    So, I don't know how they could have come out without really endangering themselves and likely thwarting future oversight.  Likely the existence of torture tapes has been known - to some degree - by the press from leaks for some time, but there was either no need to print it, or no knowledge there was another paper working the story (competition driving the news...).  

    Now, particularly in light of Clement's arguments in the S.Ct. earlier this week, it would come out.  Had it come out before, he could have adjusted his arguments and his partisans on the Court - Scalia, Roberts, Alito and Thomas - their questions, particularly to Waxman.  So, the press punked the government's lawyers by letting them make fools of themselves in their S.Ct. arguments, when contrary facts come out the next day.  Again.

    The Abu Ghraib pictures came out a day or so after the SolGen argued "We Don't Ever Torture" in, IIRC, either Hamdi, Rasul or Hamdan (I forget which, now).  Don't forget that timing, though.


    ALL those remedies? (none / 0) (#17)
    by atlanta lawyer on Fri Dec 07, 2007 at 12:55:54 PM EST
    I'm certainly no expert, but revealing that information to a federal judge with the same/similar security clearances would have violated the law?  Or to an upper level person at DOJ who also has security clearances?

    You're misapprehending the way the system works (5.00 / 1) (#18)
    by scribe on Fri Dec 07, 2007 at 01:47:58 PM EST
    There are two basic aspects to the classification:  "security clearance" and "need to know".
    "Security clearance" is sort of a qualification exercise:  the government investigates you, and decides whether your character and past are such that they can trust you with classified information.  The level of clearance one receives is directly related to the depth of the investigation they conduct.  The investigation for a "confidential" clearance is much less rigorous than the investigation one receives for a "top secret" clearance.

    Having received a clearance to a particular level one is qualified, but not authorized, to access classified information up to and including that level.

    A person needs to receive authority to access classified information.  This authority is granted because of the person's need to know that information to perform their job for the government, i.e., if they didn't have access to that information, they could not perform their job.

    Thus, for example, if a person is cleared to access "secret" information, and information "X" is classified "secret" but that person does not need to know "X" to do his job, he is not entitled to access "X".

    Since all of this material is doubtless highly classified and disseminated on an extremely limited basis, even if the judge was cleared to the level this information was classified at, if the government decided she did not need to know it, there is no way the judge should have had access to it.

    Regardless of the "right" or "wrong" of the disclosure.



    Thanks for all your dissection of this, Scribe... (none / 0) (#19)
    by Edger on Fri Dec 07, 2007 at 01:49:29 PM EST
    This should be a good fiction story (none / 0) (#28)
    by Edger on Sun Dec 09, 2007 at 03:47:19 PM EST
    Inquiry Begins Into Tapes' Destruction
    By Mark Mazetti and David Johnston
    The New York Times, Sunday 09 December 2007
    Washington - The Justice Department and the Central Intelligence Agency's internal watchdog on Saturday began a joint preliminary inquiry into the spy agency's destruction of hundreds of hours of videotapes showing interrogations of top operatives of Al Qaeda.