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DESTRUCTION OF THE CIA INTERROGATION TAPES:

A SAGA OF OFFICIAL ABUSE OF POWER

Criminal Defense Attorney John Floyd Discusses Whether Destruction


of CIA Torture Tapes Could Lead to Criminal Culpability for the
President or his Crew

The terrorist attack on September 11, 2001 on the New York World Trade
Center’s Twin Towers not only inflicted a terrible human tragedy on
America but set into motion reactionary forces within our government that
would undermine this nation’s fundamental moral, ethical, and legal
obligations to the international community.

These forces were led by none other than the President of the United States.
On September 17, 2001 President George W. Bush who, by executive fiat,
co-opted the CIA as his own “private militia” (as described by The Village
Voice’s Nat Hentoff, 12/26/07) to arrest, kidnap, interrogate, and torture
anyone suspected of being remotely connected to al Qaeda.

The CIA responded to the president’s directive by setting up “secret prisons”


in at least ten European countries where arrested or kidnapped “terrorist
suspects” were interrogated by internationally recognized methods of
torture. In September 2006 Bush described the CIA’s secret interrogations
methods as an “alternate set of interrogation procedures.” This presidential
admission came in response to international criticism. The president proudly
told Americans that the CIA’s “interrogations” of 14 top Al Qaeda suspects,
including Abu Zubaydah, Khalid Sheikh Mohammed (the mastermind of the
9/11 attacks), and Ramsi Bin al-Shibh, uncovered and prevented terrorist
attacks in the United States.

Bush said that Zubaydah and Mohammed did not cooperate with the CIA
until these “alternative set of interrogation procedures” were employed. He
said Zubaydah then gave up other terrorist suspects and “KSM … provided
information that helped us stop another planned attack on the United States”
after the more physically aggressive interrogation procedures were
employed.
“This [secret] program has been and remains one of the most vital tools in
our war against terrorists,” the president said, casually dismissing the
international reports of torture.

The president’s reasoning mirrors that of famed constitutional attorney Alan


Dershowitz who said torture is justified in order to find a terrorist’s “ticking
bomb.” (Los Angeles Times, 11/08/01). Dershowitz proposed that courts be
allowed to issue “torture warrants” to compel the location of a “ticking
bomb” to prevent the slaughter of innocent lives.

“[In the United States] any interrogation technique, including the use of truth
serum or even torture, is not prohibited,” Dershowitz was quoted as saying
by Sam Vaknin in a June 2006 article (“The Argument for Torture)
published on GoingLegal.com. “All that is prohibited is the introduction into
evidence of the fruits of such techniques in a criminal trial against the person
on whom the techniques were used. But the evidence could be used against
that suspect in a non-criminal case – such as a deportation hearing – or
against someone else.”

Vaknin espoused the same utilitarian pro-torture philosophy under the


premise of “the right to save one’s own life.” In his article “The Argument
for Torture,” Vaknin endorsed Dershowitz’s notions about torture:

“One has a right to save one’s life by exercising self-defense or otherwise,


by taking actions, or by avoiding them. Judaism – as well as other religious,
moral, and legal systems – accepts that one has the right to kill a pursuer
who knowingly and intentionally is bent on taking one’s life. Hunting down
Osama bin Laden in the wilds of Afghanistan is, therefore, morally
acceptable (though not morally mandatory). So is torturing his minions.

“When there is a clash between equally potent rights – for instance, the
conflicting rights to life of two people – we can decide among them
randomly (by flipping a coin, or casting dice). Alternatively, we can add and
subtract in a somewhat macabre arithmetic. The right to life definitely
prevails over the right to comfort, bodily integrity, absence of pain and so
on. Where life is at stake, non-lethal torture is justified by any ethical
calculus.”

This kind of moral and ethical scotch-hopping was given legal credence in
1996 by the Supreme Court of Israel when it held that that country’s internal
security forces could use “moderate physical pressure” while interrogating
terrorist suspects. President Bush adopted essentially the same position by
authorizing the CIA’s “alternate set of interrogation procedures” which
involves six escalating steps that ends with a process called “water
boarding” during which the suspect is made to feel like he’s drowning.
Human rights groups have called this procedure torture.

“The United States does not torture,” the president said, disagreeing with
those groups. “It’s against our laws, and it’s against our values. I have not
authorized it, and I will not authorize.”

Torture, therefore, lies in subjective definitions. But it is an undeniable fact


that in 2002 the Office of Legal Counsel for the United States Justice
Department issued a “memo” authorizing interrogation techniques like water
boarding in CIA interrogation of terrorist suspects – an interrogation
technique America called “torture” after World War II in Japanese “war
crimes” trials. The New York Times (12-19-07) revealed that the CIA
videotaped at least two of these interrogation sessions involving the water
boarding of Abu Zubaydah and Abd al-Rahim al Nashiri (another high level
al Qaeda operative).

By 2005 the Bush administration was facing growing international criticism


because of the CIA’s “secret prisons” program, the agency’s unlawful
kidnapping of terrorist suspects on foreign soil, and use of “torture” by both
the CIA and military authorities on suspects designated as “enemy
combatants.” The situation became so dire that by 2006 CIA agents were
under indictment in Italy for kidnapping an Italian citizen who was
subsequently tortured at one of the agency’s secret prisons, and former
Defense Secretary Donald Rumsfeld was forced to avoid a NATO
conference in Germany and compelled to flee France to avoid being
arrested and charged in both countries under international “war crimes”
statutes.

In this country attorneys representing detainees at the United States Naval


Base in Guantanamo Bay, Cuba complained that their clients were being
routinely tortured, mistreated and abused. They requested and secured a
“document preservation order” on June 10, 2005 from U.S. District Court
Judge Henry H. Kennedy, Jr. instructing government officials to “preserve
and maintain all evidence and information, regarding the torture,
mistreatment, and abuse of detainees …” Mahmoad Abdah, et al. v. George
W. Bush, et al., CA No. 04-01254 (U.S.D.C.).
There was obviously reason to believe that government and military officials
would destroy “evidence” of torture. That reasoning was justified. The
December 2007 New York Times report said that sometime between 2003
and 2005 the CIA interrogation videotapes vanished. The Times reported
that at least four White House lawyers were at least involved in discussions
about whether those tapes should be destroyed: former White House counsel
and attorney general Alberto Gonzales; John Bellinger, then with the
National Security Council; David Addington, former counsel to Vice
President Dick Cheney and now chief of staff; and Harriett Miers, one of
Bush’s closest former daily advisers.

Official sources cited in other media reports said Gonzales opposed


destruction of the tapes and that Bellinger told colleagues that the
administration lawyers had come to a consensus the tapes should not be
destroyed.

In a February 10, 2003 letter to then-CIA general counsel Scott Muller, Rep.
Jane Harmon, D-Calif., warned against destruction of the tapes: “Even if the
videotape does not constitute an official record that must be preserved under
the law, the videotape would be the best proof that the written record is
accurate, if such record is called into question in the future. The fact of
destruction would reflect badly on the agency.”

In the wake of the New York Times disclosures, current CIA Director
Michael Hayden informed Congress and the media that the interrogation
tapes were nonetheless destroyed in 2005. He said the tapes were destroyed
because agency officials feared that the identities of the interrogators would
be revealed if the tapes were somehow disclosed to either Congress or the
media. He said the tapes had been made to provide the interrogators with an
additional layer of legal protection for implementing the “alternate set of
interrogation procedures” authorized by President Bush.

The co-chairmen of the 9/11 Commission, Tom Kean and Lee Hamilton,
have been highly critical of this official explanation. During the
commission’s investigation of the 9/11 plot, they requested that the CIA
provide them with “all” evidence relevant to the terrorist attacks on the Twin
Towers. In an Op-Ed piece published in the New York Times on January 2,
2008, the two men leveled serious accusations against both the White House
and the CIA.
“’[T]he recent revelations that the CIA destroyed videotaped interrogations
of Qaeda operatives leads us to conclude that the agency failed to respond to
our lawful requests about the 9/11 plot,” they wrote. “Those who knew
about those videotapes – and did not tell us about them – obstructed our
investigation.”

The two men explicitly charged that the White House was involved in what
they believe is crime.

“There could have been absolutely no doubt in the mind of anyone at the
CIA – or the White House – of the commission’s interest in any and all
information related to Al Qaeda detainees involved in the 9/11 plot,” they
charged. “Yet no one in the administration ever told the commission of the
existence of detainee interrogation … What we do know is that government
officials decided not to inform a lawfully constituted body, created by
Congress and the president, to investigate one the [sic] tragedies to confront
this country. We call that obstruction.”

The day before the Kean/Hamilton Op-Ed piece appeared in the Times,
Attorney General Michael Mukasey – who is still trying to figure out
whether water boarding is “torture” – appointed a veteran Connecticut
Assistant U.S. Attorney named John Durham to oversee a criminal
investigation by the Justice Department into the destruction of the CIA
tapes.

On the day Durham was appointed constitutional law expert Jonathan Turley
appeared on the MSNBC news program “Countdown” and told its host
Keith Olbermann that as many as six criminal charges – including
obstruction of Congress, obstruction of justice, perjury and conspiracy –
could be implicated in the 9/11 Commission investigation alone by the
destruction of the tapes.

Turley said that in addition of these criminal charges the tapes documented
government officials involvement in the “crime” of torture.

“It is still, even after the last seven years, a crime to torture suspects,” Turley
told Olbermann.

Turley accused the Washington legal and political establishment of


reluctance “to pry into an underlying crime which is potentially far more
serious than the burglary which was the start of Watergate.”
Olbermann pointedly asked if such an investigation “could still lead to
criminal culpability for the president.”

“Most certainly it can,” Turley responded. “That original crime [torture]


could only have been ordered by the president and it leads directly to his
office.”

Turley, however, cautioned that the Justice Department’s investigation could


“narrow this, define it in a way to avoid torture … Nobody in this town
wants to talk about it because they know that there’s a lot of people in this
country that like the idea of torturing these people. And that’s just a painful
fact. But it’s also a painful fact that it’s a crime. And when the president says
that we got some useful evidence, I don’t know if that’s true or not, but it’s
immaterial. Just because it had good results or good intentions, it remains a
crime.”

U.S. District Judge Henry H. Kennedy on January 9, 2008 made it clear that
he was not going to follow in the footsteps of U.S. District Judge John Sirica
who almost single-handedly responsible for full exposure of the Nixon
Watergate scandal. In response to a recent “Emergency Motion for Inquiry”
by attorneys representing the Guantanamo Bay detainees who argued that
the CIA tape destruction had violated the judge’s June 10, 2005 “Document
Preservation Order,” Kennedy denied the motion, saying:

“The document preservation order that is the subject of the instant motion, in
pertinent part, directs respondents to ‘preserve and maintain all evidence and
information regarding torture, mistreatment, and abuse of detainees now at
the United States Naval Base at Guantanamo Bay, Cuba.’ 2005 Order 2
(emphasis supplied). Petitioners seek a judicial inquiry into whether
respondents have complied with the order following the recent revelation
that in 2005 the Central Intelligence Agency (‘CIA’) destroyed videotapes
documenting the interrogation of two suspected Al Qaeda operatives in the
CIA’s custody. Petitioners assert that this revelation ‘raises grave questions
about the government’s compliance with the preservation order … [that]
warrant the Court’s immediate attention.’

“Other than the revelation that the CIA has destroyed videotapes
documenting ‘harsh interrogation[s]’ of persons in the custody of the CIA,
petitioners offer nothing to support their assertion that a judicial inquiry
regarding this court’s 2005 Order is warranted. The 2005 Order prohibits
respondents from destroying evidence regarding any torture, mistreatment,
or abuse of detainees that occurred in Guantanamo Bay and respondents
have represented to the court that the interrogations depicted on the tapes did
not occur there. To the contrary, the videotapes were recorded in their
entirety in 2002 before either of the suspected Al Qaeda operatives shown
on the tapes had been at Guantanamo Bay. Further, following their capture,
neither suspect was in contact with any other detainee during the time when
the tapes were made. Therefore, petitioners’ motion will be denied.

“The court’s decision to deny petitioners’ motion is also influenced by the


assurances of the Department of Justice that its preliminary inquiry – now a
criminal investigation – into the destruction of videotapes by the CIA will
include the issue of whether the destruction ‘was inconsistent with or
violated any legal obligations, including those arising out of civil matters
such as [this Court’s] Order of June 2005.’ The Department of Justice also
informed the court that ‘if the National Security Division concludes that
there was a violation of this court’s order, we would so advise the court.’

“Petitioners argue that the court should not place much stock in the
assurances of the Department of Justice. There is no reason to disregard the
Department of Justice’s assurances. It is well-established that ‘in the absence
of clear evidence to the contrary, courts presume that [public officers] …
properly discharge[] their official duties.’ United States v. Mezzanatto, 513
U.S. 196, 210 (1995)(quoting United States v. Chem. Found, Inc., 272 U.S.
1, 14-15 (1926). In a matter such as this, this presumption is especially
warranted with respect to this newly-appointed Attorney General [Mukasey]
and Department of Justice lawyers. Petitioners have not presented anything
to rebut this presumption. Nor have petitioners presented anything to cause
this court to question whether the Department of Justice will follow the facts
wherever they may lead and live up to the assurances it made to this court.”

Former President Bill Clinton was forced to appear before a federal grand
jury and answer questions under oath concerning potential perjury and
obstruction of justice issues. Marc Rotenberg, executive director of the
Electronic Privacy Information Center, informed the media: “There is a
presumption against the destruction of records involving potential or alleged
government misconduct.”

It will be interesting to see if Justice Department officials will ultimately


compel President Bush to testify before a grand jury about (1) whether he
ordered interrogation procedures that could be defined as “torture” against
Abu Zubaydah and Abd al-Rahim al Nashiri and (2) whether he had prior
knowledge about the destruction of the CIA videotapes.

Bush said that no one in his administration told him anything about the
water boarding interrogation of these two al Qaeda operatives until CIA
Director Hayden told him following the New York Times disclosures. It is
conceivable, although highly improbable, that none of the four known White
House officials – Gonzales, Addington, Bellinger, or Miers – informed the
president about their discussions concerning whether or not the CIA tapes
should be destroyed.

Turley is probably right: the Washington political and legal establishment


does not have either the political will or moral courage to undertake another
Watergate-type investigation. Once again it is the reputation of America
that suffers from the hypocrisy openly demonstrated by our official’s
actions.