Cross posted from The Nation
In November 2005 the CIA destroyed videotapes of interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, two early detainees in the Bush Administration’s “war on terror.” Two years later, the news breaks and the Administration assures us that the tapes from 2002 had nothing much of interest on them and that their destruction was nothing out of the ordinary.
Don’t be so sure.
Even the limited facts at hand make clear that the CIA ran through every legal and procedural red light within the government to prevent criminal conduct or its cover-up. And it seems that the Justice Department and even the White House are sufficiently implicated in both the underlying conduct and the cover-up to require an independent investigation. The manifest corruption of oversight mechanisms means that Senator Joe Biden is correct to call for a Special Counsel to conduct an independent criminal investigation.
Readers of The Nation already know about the Bush Administration’s grim and persistent addiction to torture. But CIA director Gen. Michael Hayden wants to set aside this record and persuade the public that the destruction of interrogation tapes indicates nothing sinister. “…other methods of documenting the interrogations—and the crucial information they produced—were accurate and complete. The Agency soon determined that its documentary reporting was full and exacting, removing any need for tapes,” he said, adding that preserving the tapes would have endangered CIA officials and their families.
Even if there were no evidence of the Bush Administration’s record of torture, Hayden’s explanation would not ring true. The notion that a record of an interrogation can be reduced to writing, with no further use for videotape, is belied by a basic premise of our judicial system: the credibility of a statement can only be judged by seeing a witness in the flesh. (We even protect this right in the Sixth Amendment’s Confrontation Clause). It is beyond bizarre for Hayden to claim that reducing a videotaped interrogation to a printed transcript can remove “the need for tapes.”
Further, Hayden’s claim that the tapes’ destruction was necessary to protect CIA employees is not credible. If that were the case, most of the CIA’s files would have to be routinely destroyed, since they refer to the identity of agents. And former agents would be shunted into witness-protection programs.
Hayden’s justifications also obscure the fact that the tapes’ destruction was very probably illegal by November 2005. While early news reports have suggested that the tapes might have been relevant to the prosecution of Abu Zubaydah, it seems almost certain that preservation of the tapes was legally required by the Jose Padilla prosecution.
The government had cited Zubaydah as one of the sources for information about Padilla, immediately after Padilla’s arrest on a material witness warrant in May 2002. On November 17, 2005, after three years’ detention as an “enemy combatant,” Padilla was indicted in a Miami federal court.
Given the Administration’s reliance on Zubaydah’s statements as evidence of Padilla’s guilt, tapes of Zubaydah’s interrogation were clearly relevant to the Padilla trial—and yet they were destroyed in the same month as Padilla’s indictment. A federal criminal statute prevents the destruction of any record for a foreseeable proceeding, even if the evidence is not admissible.
Not only were the tapes destroyed but CIA officials seemingly ignored the safeguards that should have prevented criminal action: According to General Hayden, the CIA’s general counsel determined that the tapes showed only lawful conduct. The agency’s inspector general also viewed the tapes. Neither part of the agency stopped their destruction. And some agency lawyers signed off on the evisceration of evidence that was clearly tied to an ongoing criminal proceeding. The Justice Department and the White House were also consulted, and while officials there “advised” against the tapes’ destruction, they apparently did nothing to prevent it from happening.
The lack of muscle in internal oversight mechanisms is disappointing and all too predictable. More troubling is the failure of members of Congress to meaningfully respond when they were told of the tapes’ destruction. Apparently, some lawmakers were informed but did nothing. And since Congressional oversight committees have proven to be persistently ineffectual in limiting or pushing back against the Administration’s detention, surveillance and interrogation policies since 2001, this latest failure is not all that surprising.
These failures of oversight should eliminate any doubt about the need for a Special Counsel, who can be appointed under Justice Department regulations specifically intended for cases in which the department labors under a conflict of interest. The Justice Department has already promised an investigation; but without an independent Special Counsel, such an investigation cannot be credible. After all, the current Attorney General, Michael Mukasey, was the judge who issued the material witness warrant in the Padilla case, which raises questions about his impartiality. And the fact that the Justice Department was consulted about the possibility of the documents’ destruction triggers serious ethical questions about their failure to speak up once the Padilla trial began.
The failure of oversight mechanisms in the CIA, the Justice Department and Congress itself should also sound a broader alarm: internal and legislative constraints are designed to ensure that our government officials follow the law, even when they’re not in the public eye. In this case, they have abjectly failed. These constraints need to be radically rethought from the ground up.
From early reports, it seems the Administration is already circling in on a fall guy, Jose Rodriguez Jr., head of the CIA’s Directorate of Operations. But Rodriguez cannot be made to take a blame that should be spread across whole institutions.
The appointment of a Special Counsel should not lead us to think that a single individual, whether Rodriquez or another, is to blame here. The destruction of the torture tapes illustrates a failure of institutions designed to keep us safe—institutions that, regrettably, have become tools for the obstruction of justice.