Democrats Call for
Inquiry in Destruction
of Tapes by C.I.A.
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Doug Mills/The New York Times
Thomas H. Kean, left, and Lee H. Hamilton releasing
the Sept. 11 commission's report on July 22, 2004. |
By MARK MAZZETTI,
nytimes.com on the Web, December 7, 2007
WASHINGTON -- Angry Democratic
lawmakers called for investigations today into the Central Intelligence Agency’s
destruction in 2005 of at least two videotapes documenting the interrogation of
two Qaeda operatives in the agency’s custody.
Senator Edward M. Kennedy of Massachusetts accused the C.I.A. of “a cover-up,”
while Senator Richard J. Durbin of Illinois said it was possible that people at
the agency had engaged in obstruction of justice. Both called on Attorney
General Michael Mukasey to investigate.
“We haven’t seen anything like this since the 18½ -minute gap on the tapes of
Richard Nixon,” Mr. Kennedy said in a speech on the Senate floor, as reaction to
the disclosure about the videotapes seemed to intensify minute by minute.
Mr. Durbin, the Democratic whip, said he had written Mr. Mukasey to ask for an
inquiry into “whether C.I.A. officials who destroyed these videotapes and
withheld information about their existence from official proceedings violated
the law.”
The speeches by Mr. Kennedy and Mr. Durbin followed an angry statement by
Representative Jane Harman of California, head of the Homeland Security
subcommittee on intelligence and terrorism risk assessment. Ms. Harman,
who was the ranking Democrat on the House Intelligence Committee in early 2003,
said she cautioned C.I.A. officials then not to destroy any videotapes
pertaining to interrogation practices.
“To my knowledge, the Intelligence Committee was never informed that any
videotapes had been destroyed,” Ms. Harman said. “Surely I was not.”
Democrats on the House Judiciary Committee wrote to Mr. Mukasey and the C.I.A.
director, Gen. Michael V. Hayden, today asking whether the Justice Department
advised the C.I.A. on the destruction of the videotapes, and whether the
department was now contemplating an investigation into possible obstruction of
justice.
Late Thursday, Senator John D. Rockefeller 4th, the West Virginia Democrat who
heads the Senate Intelligence Committee, said he committee “must review the full
history and chronology of the tapes, how they were used, and the reasons for
destroying them.” At least one Republican lawmaker has also expressed
dismay over the destruction of the tapes.
The C.I.A.’s destruction of the tapes came in the midst of Congressional and
legal scrutiny about its secret detention program, according to current and
former government officials.
President Bush “has no recollection of being made aware of the tapes or their
destruction before yesterday,” the chief White House spokeswoman, Dana Perino,
said today.
As to whether there would be investigation by the Justice Department, Ms. Perino
said: “I know that the C.I.A. Director is gathering facts and our White
House Counsel’s Office is supporting them in that. Whether or not there is
going to be an investigation to that scale will have to be determined by
others.”
She said President Bush has “complete confidence” in General Hayden.
The videotapes showed agency operatives in 2002 subjecting terrorism suspects —
including Abu Zubaydah, the first detainee in C.I.A. custody — to severe
interrogation techniques. The tapes were destroyed in part because
officers were concerned that video showing harsh interrogation methods could
expose agency officials to legal risks, several officials said.
“But that excuse won’t wash,” Senator Kennedy said today. “Does the
director believe the C.I.A.’s buildings are not secure? Would it be beyond
the agency’s technical expertise to preserve the tapes while hiding the identity
of its employees? Does the director believe that the C.I.A.’s employees
cannot be trusted not to leak materials that might harm the agency?
“Or does he know that the interrogation techniques are so abhorrent that they
could not remain unknown much longer?”
Another prominent Democrat, Senator Carl Levin of Michigan, weighed in with
similar remarks. Mr. Levin called the C.I.A. explanation “a pathetic
excuse.”
“You’d have to burn every document at the C.I.A. that has the identity of an
agent on it under that theory,” Mr. Levin, chairman of the Senate Armed Services
Committee, said at a Capitol Hill news conference.
Ms. Harman, now head of the Homeland Security subcommittee on intelligence and
terrorism risk assessment, said, “This matter must be promptly and fully
investigated.” She noted that in early 2003 she received “a highly
classified briefing” on C.I.A. interrogation practices from the agency’s general
counsel, and that she had expressed “serious concerns” in a letter to the lawyer
afterward.
“I call for my letter of February 2003, which was never responded to and has
been in the C.I.A.’s files ever since, to be declassified,” the Congresswoman
said.
In a statement to employees on Thursday, Gen. Michael V. Hayden, the C.I.A.
director, said that the decision to destroy the tapes was made “within the C.I.A.”
and that they were destroyed to protect the safety of undercover officers and
because they no longer had intelligence value.
The destruction of the tapes raises questions about whether agency officials
withheld information from Congress, the courts and the Sept. 11 commission about
aspects of the program.
The recordings were not provided to a federal court hearing the case of the
terrorism suspect Zacarias Moussaoui or to the Sept. 11 commission, which was
appointed by President Bush and Congress, and which had made formal requests to
the C.I.A. for transcripts and other documentary evidence taken from
interrogations of agency prisoners.
The disclosures about the tapes are reigniting the debate over laws that allow
the C.I.A. to use interrogation practices more severe than those allowed to
other agencies. A Congressional conference committee voted late Wednesday
to outlaw those interrogation practices, but the measure has yet to pass the
full House and Senate and is likely to face a veto from Mr. Bush.
The New York Times informed the intelligence agency on Wednesday evening that it
was preparing to publish an article about the destruction of the tapes. In
his statement to employees on Thursday, General Hayden said that the agency had
acted “in line with the law” and that he was informing C.I.A. employees because
“the press has learned” about the matter.
General Hayden’s statement said that the tapes posed a “serious security risk”
and that if they had become public they would have exposed C.I.A. officials “and
their families to retaliation from Al Qaeda and its sympathizers.”
Current and former intelligence officials said that the decision to destroy the
tapes was made by Jose A. Rodriguez Jr., who was the head of the Directorate of
Operations, the agency’s clandestine service. Mr. Rodriguez could not be reached
Thursday for comment.
Two former intelligence officials said that Porter J. Goss, the director of the
agency at the time, was not told that the tapes would be destroyed and was
angered to learn that they had been.
Through a spokeswoman, Mr. Goss declined to comment on the matter.
In his statement, General Hayden said leaders of Congressional oversight
committees had been fully briefed about the existence of the tapes and told in
advance of the decision to destroy them. But the two top members of the
House Intelligence Committee in 2005 said Thursday that they had not been
notified in advance of the decision to destroy the tapes.
A spokesman for Representative Peter Hoekstra, Republican of Michigan, who was
the committee’s chairman between 2004 and 2006, said that Mr. Hoekstra was
“never briefed or advised that these tapes existed, or that they were going to
be destroyed.”
The spokesman, Jamal Ware, also said that Mr. Hoekstra “absolutely believes that
the full committee should have been informed and consulted before the C.I.A. did
anything with the tapes.”
Representative Harman, the top Democrat on the committee between 2002 and 2006,
said that she told C.I.A. officials several years ago that destroying any
interrogation tapes would be a “bad idea.”
“How in the world could the C.I.A. claim that these tapes were not relevant to a
legislative inquiry?” she said Thursday. “This episode reinforces my view
that the C.I.A. should not be conducting a separate interrogations program.”
In both 2003 and 2005 C.I.A. lawyers told prosecutors in the Moussaoui case that
the C.I.A. did not possess recordings of interrogations sought by the judge.
Mr. Moussaoui’s lawyers had hoped that records of the interrogations might
provide exculpatory evidence for Mr. Moussaoui, showing that the Qaeda detainees
did not know Mr. Moussaoui and clearing him of involvement in the Sept. 11,
2001, plot.
Paul Gimigliano, a C.I.A. spokesman, said that the court had sought tapes of
“specific, named terrorists whose comments might have a bearing on the Moussaoui
case” and that the videotapes destroyed were not of those individuals.
Intelligence officials identified Abu Zubaydah as one of the detainees whose
interrogation tape was destroyed, but the other detainee’s name was not
disclosed.
General Hayden has said publicly that information obtained through the C.I.A.’s
detention and interrogation program has been the best source of intelligence for
operations against Al Qaeda. In a speech last year, President Bush said
that information from Mr. Zubaydah had helped lead to the capture in 2003 of
Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks.
Staff members of the Sept. 11 commission, which completed its work in 2004,
expressed surprise when they were told that interrogation videotapes had 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.
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 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.
Mr. Gimigliano, the C.I.A. spokesman, said that the agency “went to great
lengths to meet the requests of the 9/11 commission,” and that the C.I.A. had
preserved the tapes until the commission ended its work in case members
requested the tapes.
Several current and former intelligence officials were interviewed for this
article over a period of several weeks. All requested anonymity because
information about the tapes had been classified until General Hayden issued his
statement on Thursday acknowledging that they had been destroyed.
The C.I.A. program that included the detention and interrogation of terrorism
suspects began after the capture of Mr. Zubaydah in March 2002. The C.I.A.
has said that the Justice Department and other elements of the executive branch
reviewed and approved the use of a set of harsh techniques before they were used
on any prisoners, and that the Justice Department issued a classified legal
opinion in August 2002 that provided explicit authorization for their use.
Some members of Congress have since sought to ban some of the techniques, saying
that they amounted to torture, which is prohibited under American law. But
President Bush, who revealed the existence of the C.I.A. program in September
2006, has defended the techniques as legal, and has said they have proven
beneficial in obtaining critical intelligence information.
Some of the harshest techniques, including waterboarding, which induces a
feeling of drowning and near-suffocation, were used on several of the first
Qaeda operatives captured by the C.I.A., including Abu Zubaydah. But
intelligence officials have said that waterboarding is no longer on an approved
list spelled out in a classified executive order that was issued by the White
House this year.
In his statement, General Hayden said the tapes were originally made to ensure
that agency employees acted in accordance with “established legal and policy
guidelines.” He 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,” he said. He said they were destroyed only after the
agency’s Office of the General Counsel and Office of the Inspector General had
examined them and determined that they showed lawful methods of questioning.
Tom Malinowski, Washington director of Human Rights Watch, said General Hayden’s
claim that the tapes were destroyed to protect C.I.A. officers “is not
credible.”
“Millions of documents in C.I.A. archives, if leaked, would identify C.I.A.
officers,” Mr. Malinowski said. “The only difference here is that these
tapes portray potentially criminal activity. They must have understood
that if people saw these tapes, they would consider them to show acts of
torture, which is a felony offense.”
It has been widely reported that Abu Zubaydah was subjected to several tough
physical tactics. But the current and former intelligence officials who
described the decision to destroy the videotapes said that C.I.A. officers had
judged that the release of photos or videos depicting his interrogation would
provoke a strong reaction.
In exchanges involving the Moussaoui case, the C.I.A. notified the United States
attorney’s office in Alexandria, Va., in September that it had discovered two
videotapes and one audio tape that it had not previously acknowledged to the
court, but made no mention of any tapes destroyed in 2005.
The acknowledgment was spelled out in a letter sent in October by federal
prosecutors that amended the C.I.A.’s previous declarations involving
videotapes. The letter is heavily redacted, with sentences identifying the
detainees blacked out.
Signed by the United States attorney, Chuck Rosenberg, the letter states that
the C.I.A.’s search for interrogation tapes “appears to be complete.”
Mr. Moussaoui pleaded guilty to conspiracy last year and was sentenced to life
in prison.
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. did 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.
David Stout, Eric Lichtblau and Scott Shane contributed
reporting.
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