Destruction of CIA Tapes Could Threaten Prosecutions

The CIA's destruction of hundreds of hours of videotapes of detainee interrogations could put several prosecutions at risk.

Officials acknowledged on Friday that the destruction of evidence like videotaped interrogations could raise questions about whether the Central Intelligence Agency was seeking to hide evidence of coercion. A review of records in military tribunals indicates that five lower-level detainees at Guantánamo were initially charged with offenses based on information that was provided by or related to Mr. [Abu]Zubaydah. Lawyers for these detainees could argue that they needed the tapes to determine what, if anything, Mr. Zubaydah had said about them.

Think: Khalid Sheik Mohammed and Ramzi Binalshibh. I'm wondering whether it could also result in reversals of the convictions of Zacarias Moussaoui and Jose Padilla.

The known detainees whose interrogation videos were destroyed are Abu Zubaydah and Abd al-Rahim al-Nashiri. Undoubtedly, more will come to light as the investigation proceeds. I won't be surprised if interrogation tapes of Khalid Sheikh Mohammed and Ramzi Binalshibh were also destroyed. In that case, they might be deprived not only of potentially exculapatory information by Zubayah but of their own statements for use at their upcoming military commission trials.


Abu Zubayah was arrested in March, 2002. He was interrogated under "harsh techniques" including waterboarding. He gave up Khalid Sheik Mohammad and identified and provided incriminating information about Jose Padilla.

In his early F.B.I. interviews, Mr. Zubaydah, who had been badly wounded during his capture, identified Khalid Shaikh Mohammed as the chief planner of the Sept. 11 attacks. He also identified Jose Padilla, an American who was convicted in a Miami federal court in August on terrorism-related charges, as a low-ranking follower of Al Qaeda.

Government officials said that during Mr. Zubaydah’s interrogation sessions, his C.I.A. questioners used a number of tactics: noise, stress positions, freezing temperatures, isolation and waterboarding, in which a subject is made to believe he is being drowned. Mr. Zubaydah is the first person known to be subjected to waterboarding by the United States after the Sept. 11 attacks.

Human Rights Watch, in its report on secret detentions, wrote this about Zubayah:

Zubayda was reportedly in U.S. custody in Pakistan under CIA control, as of June 2002.

According to Time magazine, a “well-placed American military official” said that the U.S. had initially looked for an ally to conduct an interrogation. “Someone is going to squeeze him…We’ve been out of that business for so long that it's best handled by others. …It's not pulling out fingernails, but it's pretty brutal.” However, confirming his capture on April 3, 2002, Defense Secretary Donald H. Rumsfeld said, “We have him. He is under U.S. control at the present time. We are responsible for him…. He is receiving medical care, and we intend to get every single thing out of him to try to prevent terrorist acts in the future.”

Both the Washington Post and the New York Times, however, reported that U.S. officials initially withheld painkillers from Zubayda, who was shot during his capture, as an interrogation device.

When Zubayda was captured, the debate between the CIA and FBI over interrogation tactics reportedly re-heated (after the al-Libi case, above). This time, FBI Director Robert S. Mueller III reportedly decided to hold back FBI involvement. “Once the CIA was given the green light . . . they had the lead role,” a senior FBI counterterrorism official told the Washington Post.

U.S. officials say that Zubayda has provided intelligence on al-Qaeda’s efforts to build a “dirty bomb” and that his information helped lead to the arrest of Jose Padilla, the American allegedly plotting to use such a weapon in the United States. U.S. intelligence and national security officials told the Washington Post that Zubayda’s information led to the apprehension of other al-Qaeda members, including Ramzi Binalshibh, Omar Faruq, Rahim al-Nashiri, and Muhammad al-Darbi. All four remain under CIA control. The 9/11 Commission report refers to the intelligence reports of seven interrogation sessions with Zubayda, dating from February 2002 to April 2004.

One interesting aside: According to a report at the time, during his interrogations, Zubayah said Osama bin Laden refused to work with Saddam Hussein. Khalid Sheik Mohammed said the same thing.

Abu Zubaydah, a Qaeda planner and recruiter until his capture in March 2002, told his questioners last year that the idea of working with Mr. Hussein's government had been discussed among Qaeda leaders, but that Osama bin Laden had rejected such proposals, according to an official who has read the Central Intelligence Agency's classified report on the interrogation. In his debriefing, Mr. Zubaydah said Mr. bin Laden had vetoed the idea because he did not want to be beholden to Mr. Hussein, the official said.

Separately, Khalid Sheikh Mohammed, the Qaeda chief of operations until his capture on March 1 in Pakistan, has also told interrogators that the group did not work with Mr. Hussein, officials said.

The Bush administration has not made these statements public, though it frequently highlighted intelligence reports that supported its assertions of links between Iraq and Al Qaeda as it made its case for war against Iraq.

Maybe that's another reason they wanted the tapes destroyed -- the contents detracted from Bush and Cheney's unfounded claims that Osama and Saddam were in cahoots which was partially used to justify the war in Iraq.

Or, perhaps they wanted to destroy the tapes because of an investigation into the deaths of three of the secret detainees:

The C.I.A.'s inspector general has begun an investigation into the deaths of three lower-level detainees held by the C.I.A in Iraq and Afghanistan. The Justice Department is also examining the deaths.

The secret detention system houses a group of 12 to 20 prisoners, government officials said, some under direct American control, others ostensibly under the supervision of foreign governments.

And before anyone gives Bush a pass because he didn't personally know about the tapes destruction, consider this, from the same article:

Regarding American anti-torture laws, one administration figure involved in discussions about the memorandums said: ''The criminal statutes only apply to American officials. The question is how involved are the American officials.''

The official said the legal opinions say restrictions on procedures would not apply if the detainee could be deemed to be in the custody of a different country, even though American officials were getting the benefit of the interrogation. ''It would be the responsibility of the other country,'' the official said. ''It depends on the level of involvement.''

There will be an investigation. Then- Deputy White House chief of staff Harriet Miers and DOJ officials advised the CIA in 2003 not to destroy the tapes. Nonetheless, in November, 2005, the CIA chief ordered them destroyed without informing the agency's lawyer, John Rizzo, who reportedly was angry when he found out.

Congress didn't learn of the tapes' destruction until a year later.

The first notification to Congress by the C.I.A. about the videotapes was delivered to a small group of senior lawmakers in February 2003 by Scott W. Muller, then the agency’s general counsel. Government officials said that Mr. Muller had told the lawmakers that the C.I.A. intended to destroy the interrogation tapes, arguing that they were no longer of any intelligence value and that the interrogations they showed put agency operatives who appeared in the tapes at risk.

The lawmakers, including Jane Harman, objected. Then,

According to two government officials, Mr. Muller then raised the idea of destroying the tapes during discussions in 2003 with Justice Department lawyers and with Harriet E. Miers, who was then a deputy White House chief of staff. Ms. Miers became White House counsel in early 2005.

The officials said that Ms. Miers and the Justice Department lawyers had advised against destroying the tapes, but that it was not clear what the basis for their advice had been.

There will be multiple investigations over the tapes destruction. The Senate Intelligence Committee has said it will open one. Also today, the Justice Department and CIA announced they will conduct a joint investigation.

Why is the CIA getting to investigate itself?

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  • Display: Sort:
    because it can! (none / 0) (#1)
    by cpinva on Sat Dec 08, 2007 at 08:17:38 PM EST
    Why is the CIA getting to investigate itself?

    black is white, up is down. welcome to wonderland alice. one pill makes you larger, one pill makes you small. the ones that mother gives you don't do anything at all!

    in the united states of america, the intentional destruction, by the state, of potentially exculpatory evidence, would almost automatically result in the dismissal of charges. in the united states of america.

    here in bushco, such is not the case. as we have seen already, the supreme court is not averse to declaring anything the present administration does to be legal, the constitution be damned. hey, what do a bunch of dead, white, rich guys know, anyway?

    so no, i have no reason to expect this latest event to in any way compromise the continued prosecution of anyone.

    Apply balancing test (none / 0) (#2)
    by NMvoiceofreason on Sun Dec 09, 2007 at 11:39:35 AM EST
    reject appeal as being without merit.

    Supreme Court of the Republican party.

    Thinking This Through (none / 0) (#3)
    by john horse on Sun Dec 09, 2007 at 08:04:59 PM EST
    The problem with the Bush administration is that I don't think they ever thought through their use of torture and violations of habeus of detainees.

    The use of torture and the denial of habeus and other unfair practices may produce useful information but any short term gain in information is negated in the long run by our inability to obtain justice in the courts.  This bending and breaking of the rule of law has also resulted in a legal mess with long delays in getting these cases resolved.  

    Torturing and denying habeus to people suspected of terrorism may satisfy people's need for revenge but it also results in much weaker cases and cases which are unable to be resolved expeditiously.

    More (none / 0) (#4)
    by squeaky on Wed Dec 12, 2007 at 05:14:11 PM EST
    The reason CIA officials involved the White House and Justice Department in discussions about the disposition of the tapes was that CIA officials viewed the CIA's terrorist interrogation and detention program--including the use of "enhanced" interrogation techniques--as having been imposed on the agency by the White House. "It was a political issue," said the former official, and therefore CIA officials believed that the decision as to what to do with the tapes should be made at a political level, by Miers--a former personal lawyer to President Bush and later White House staff secretary and counsel--or someone else directly representing the president.

    Newsweek via Laura Rozen

    FELONY violation - U.S.A. Patriot Act (none / 0) (#5)
    by Pat Jack on Tue Dec 25, 2007 at 09:08:42 PM EST
    Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.

    You just read the words that begin with the letters Patriot Act.

    Destruction of evidence in a terrorist investigation by the government is a FELONY VIOLATION of the USA Patriot Act.

    The C.I.A. dEsTroYed the American people's INCREDIBLY EXPENSIVE evidence in the investigation of terrorism.

    Americans spend HUNDREDS OF BILLIONS of dollars every year on this war on terrorism and then your own government DESTROYS the EVIDENCE.

    You Americans are looking like BIG SUCKERS, I am very dissappointed with all of you.

    The C.I.A. has been given carte blance by the United States citizenry to blatantly commit FELONY VIOLATIONS of the USA Patriot Act.

    Why are you Americans allowing your President to make Patriot Act laws and then break the laws when it is to the benifit of his policy.

    Are you people blind? Can't you find the tools to unseat your corporate-revolving door-fascist government ?

    It's right in front of your noses but you are so incredibly terrified of this law, your own government has rendered you impudent, unable to enforce the Patriot Act itself on the most egregious violation, the treasonous destruction of vital and key evidence in MASSIVE GLOBAL terrorism plots.

    How can all of your American lawyers be so stupid, or are they afraid if they prosecute with the Patriot Act here, that they will have their lives taken from them just as the Iraqis and Afghanis have been slaughtered.

    Use the Patriot Act to prosecute the makers, or be further and completely enslaved by additional legislation in the years to come, and oh, yeah ... Happy New Year.

    Interrogation videos (none / 0) (#6)
    by henrymaddy on Wed Feb 20, 2008 at 03:31:23 AM EST