Balkinization  

Thursday, December 06, 2007

Where's Rose Mary Woods When You Need Her?

Marty Lederman

Think they couldn't top the Ashcroft hospital encounter? The waterboarding and removal of Daniel Levin?

Well, how about a good, ol'-fashioned case of obstruction of justice?

Truly remarkable. When the Times told the CIA that it was going to run this story, Mike Hayden quickly sent out a letter to the CIA, reprinted below. (Hat tip to John Sifton for the letter.) Hayden's explanation for the destruction was the need to protect the identity of CIA agents. As though the CIA destroys all its documents that contain identifying information about its agents. Unfortunately for Hayden, but not surprisingly, the Times reports that the tapes were destroyed "in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy." Says who? Says several officials.

There is a lot to parse in that letter, but unfortunately I can't this evening, other than to briefly annotate the letter itself.

Except that one thing should be emphasized: According to Hayden, "the leaders of our oversight committees in Congress were informed of the videos years ago [they didn't ask to see them?!] and of the Agency's intention to dispose of the material. In a news release that he put out this evening, Jay Rockefeller claims that the Intel Committees were not "consulted" on the use of the tapes "nor the decision to destroy the tapes." But he does not deny that he was informed of the agency's intent to dispose of the tapes, and he acknowledges that he learned of the destruction one year ago, in November 2006. And this is the first time he has said anything about it. Jay Rockefeller is constantly learning of legally dubious (at best) CIA intelligence activities, and then saying nothing about them publicly until they are leaked to the press, at which point he expresses outrage and incredulity -- but reveals nothing. Really, isn't it about time the Democrats select an effective Chair of the Senate Intelligence Committee, one who will treat this scandal with the seriousness it deserves, and who will shed much-needed light on the CIA program of torture, cruel treatment and obstruction of evidence?

[UPDATE: Pam Hess reports that Jane Harman also knew of the intention to destroy the tapes, and she at least "urged" the CIA in writing not to do it. (Where were her colleagues?) But when she found out the CIA had destroyed the tapes, where was Harman's press conference? Where were the congressional hearings?]


Message from the Director: Taping of Early Detainee Interrogations


The press has learned that back in 2002, during the initial stage of our terrorist detention program, CIA videotaped interrogations, and destroyed the tapes in 2005. I understand that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries--including the trial of Zacarias Moussaoui. [What about the 9/11 Commission? What about the failure to tell the Moussaoui judge about these tapes? What about the obvious future legislative and judicial inquiries? (Note that the destruction likely occurred just after Dana Priest broke the story of the CIA black sites in 2005.)] The decision to destroy the tapes was made within CIA itself. The leaders of our oversight committees in Congress were informed of the videos years ago and of the Agency's intention to dispose of the material. [Yes, and what did they say about that?]/ Our oversight committees also have been told that the videos were, in fact, destroyed.

If past public commentary on the Agency's detention program is any guide, we may see misinterpretations of the facts in the days ahead.

With that in mind, I want you to have some background now.

CIA's terrorist detention and interrogation program began after the capture of Abu Zubaydah in March 2002. Zubaydah, who had extensive knowledge of al-Qa'ida personnel and operations, had been seriously wounded in a firefight. When President Bush officially acknowledged in September 2006 the existence of CIA's counter-terror initiative, he talked about Zubaydah, noting that this terrorist survived solely because of medical treatment arranged by CIA. Under normal questioning, Zubaydah became defiant and evasive. It was clear, in the President's words, that "Zubaydah had more information that could save innocent lives, but he stopped talking."

That made imperative the use of other means to obtain the information-means that were lawful, safe, and effective. To meet that need, CIA designed specific, appropriate interrogation procedures.

Before they were used, they were reviewed and approved by the Department of Justice and by other elements of the Executive Branch [why other "elements" of the Executive branch? Which ones? And doesn't this confirm that OLC approved the CIA techniques -- probably orally -- even before the 08/01/02 Torture memo was promulgated?] Even with the great care taken and detailed preparations made, the fact remains that this effort was new, and the Agency was determined that it proceed in accord with established legal and policy guidelines. So, on its own, CIA began to videotape interrogations.

The tapes were meant chiefly as an additional, internal check on the program in its early stages. At one point, it was thought the tapes could serve as a backstop to guarantee that 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. [Can you imagine? No need for actual video and audio recordings of this vital gathering of "crucial information." No need for future trials, future investigations, future training, future investigations, etc.] Indeed, videotaping stopped in 2002.

As part of the rigorous review that has defined the detention program, the Office of General Counsel examined the tapes and determined that they showed lawful methods of questioning. The Office of Inspector General also examined the tapes in 2003 as part of its look at the Agency's detention and interrogation practices. [And it "determined," what, exactly? Did the IG say?: "Yeah, sure, go ahead and destroy the only primary evidence of my investigation."] Beyond their lack of intelligence value-as the interrogation sessions had already been exhaustively detailed in written channels [think about that -- the U.S. government claiming that video "lacks value" once it is described in detail in a written version. Let's just hope that's not business-as-usual at the CIA. Yup, Jim, I've written down what was in those photos; you can throw them out now."]-and the absence of any legal or internal reason to keep them [hmm . . . legal or internal . . . interesting use of adjectives], the tapes posed a serious security risk. Were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from al-Qa'ida and its sympathizers. [Surely such identities could be redacted or hidden, no? Is it SOP for the CIA to destroy all its records containing agents' identification, because of the prospect that they might one day be leaked?]

These decisions were made years ago. [Note the passive voice.] But it is my responsibility, as Director today, to explain to you what was done, and why. What matters here is that it was done in line with the law. [And where, exactly, is that law explaining how an agency can destroy evidence of possible wrongdoing?] Over the course of its life, the Agency's interrogation program has been of great value to our country. It has helped disrupt terrorist operations and save lives. It was built on a solid foundation of legal review. [Oh, so that's what they call the August 2002 OLC torture memo.] It has been conducted with careful supervision. If the story of these tapes is told fairly, it will underscore those facts.

Mike Hayden

Comments:

Like crack dealers flushing the evidence down the toilet. A crime was committeed in the torture and in the coverup. I do not for one minute believe this was just an inside the CIA decision as this went to the Senate Intelligence Committee. That means this all went through Justice, Defense and the White House. That's the conspiracy to obstruct justice and it goes up to the President. It is the torture! It is the torture! It is the torture!
Best,
Ben
 

Normally, I don't get around to reading this blog until after a certain fellow makes some ridiculous comments: this time I'm going to try to beat him to it.

1. Those CIA must have their identities protected. If they didn't the whole world could fall apart and the terrorists might win?

2. Let me ask you: do you want the terrorists to win? Yes or no.

3. The terrorists could get a hold of that tape, and pretty soon they would know how to resist all the sophisticated CIA torture techniques. This is so clearly true no argument has to be made.

4. Seriously, do you want the terrorists who are going to kill Americans to learn about the torture techniques? That would put American lives on the line.

5. Let's be practical, we need to do what it takes to win the war on terror.

That feels kind of good. I hope Bart DePalma will back me up on this.
 

Peter: Please -- the comments section is not intended for such internecine barbs and personal attacks. Thanks
 

Nothing that this Administration does surprises me anymore - the culture of criminality is pervasive. That Democratic Senators were accessories to it is, however, disappointing.
 

Peter, the logic of the CIA's position does not stack up.

First it displays lack of confidence in the CIA's ability to keep 2 videos from falling into the wrong hands. If that is the case it is a frightening admission by the CIA as to its own poor security.

Secondly, if the reason for destroying the tapes was to protect the identity of CIA operatives in the event the recording's were leaked, then on the same logic the CIA should destroy every internal document that could identify a CIA agent (unless of course the outing of a CIA agent is appproved at the highest level to undermine the credibility of a media critic of the war on terror).

Third, it is rubbish to say that the tapes have no evidentiary value. The CIA continuously claims that the Al Qaeda manual tells captives to allege they were tortured, that it never tortures and such allegations are lies. If the two interrogated persons allege that any admissions or statements were the result of illegal methods, then the videos should be produced as evidence.

If your local TV station can blur a face when broadcasting film footage and mask a voice to preserve someone's identity (eg. a whistleblower) it is stunning to think the CIA would find such technological advances beyond its capability.

The CIA's rationale for destroying the videos is so patently manufactured as a cover up that its surprising it would convince anyone.

Graham (Australia)
 

Since the Reagan years has there ever been a significant cost other than political for serial lawbreakers in government? All this wonderful talk of democracy, a country of laws and the Constitution (phrases which thrill in their rightness), and what do we have? More of the same. There’s a disconnect somewhere in our system, which occasionally used to rouse itself and perform the surgery needed. Year after year, the number of criminal and impeachable crimes keeps growing, and unless we’re prepared to hold lawbreaker’s accountable, it will only get worse. I was a young man when Nixon was set for impeachment and the Church Committee did its work, and distinctly remember the wonderful disinfectant smell that filled the air because of it. Today, short of a nationally televised murder by the President—what action by the government will ever be subject to the law again? The rule of law is only as good as those who are charged with upholding it, and unenforceable law is tantamount to having no law at all. In our contemporary political system even a Rose Mary Woods wouldn’t be enough.
 

Normally, I don't get around to reading this blog until after a certain fellow makes some ridiculous comments: this time I'm going to try to beat him to it.

Let me surprise you. It has nothing to do about what you posted.

The tapes were destroyed by the CIA to keep them from being leaked to the press and published by the same heroes who leaked the existence of the program to the NYT.

There was no fear of an investigation by Congress or the IG because both were well aware of and supported the interrogation program and know what the program produced.

This is all fairly self evident, but please do go on with your conspiracy theories.
 

I could see the CIA doing this under any administration. They're not nice people, you know; Their jobs don't permit it. And the "not nice" isn't always going to be directed in the direction.

Bart, their motives for destroying the records might be understandable, but that's no defense. Civilian accountability requires that agencies like the CIA not be permitted to frustrate oversight in ways like this. There MUST be consequences.
 

Those tapes would appear to be records under the Federal Records Act of 1950:
"TITLE 44 > CHAPTER 33 > § 3301
Definition of records

As used in this chapter, “records” includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included. "


And should be preserved--I don't believe there is a section of the act empowering destruction if you tell a Congressional committee chairman you are going to do so. Furthermore, these records should have produced for the court previously. Hayden or Goss or somebody should be held accountable--this is the accountability administration, isn't it?
 

If government officials destroyed evidence sought in a criminal case and then lied to a court about the existence of such evidence, can the court exercise its inherent power to appoint a special prosecutor to investigate possible contempt charges against the government officials? I just wonder if Judge Brinkema could get the ball rolling without waiting for the Justice Department.
 

I think Judge Brinkema could issue an Order to Show Cause to the US Attorney why he should not be held in contempt of court. Beyond that, she could refer this to the DOJ for a criminal investigation. But, judges in the US don't have the authority to prosecute, much as some of them might think otherwise.
 

Regarding the earlier comment I left, I think Professor Lederman has rather unfairly characterized my intention and effect. I made a joke at the expense of one of the regular blog comment-makers. I will not do so again; certainly, I respect the etiquette that the blog operators, Lederman et al., choose for their blog. However, I think it is worth expressing my *obviously fallible opinion* that Prof. Lederman's reaction to my joke is overly sensitive, and doesn't allow for the use of humor to reveal the absurdity of someone else's position.

I also don't agree that I made a personal attack. I highlighted the rhetoric that is used by many people who are devoted supporters of some particular state, in this case the one run by American Presidential Administration.

It is my understanding from reading the comments sections, that Mr. DePalma holds these views, and I used his name as a way of making the point.

I doubt very much that my comment could end up as a source of serious conflict, but to the extent that anyone was offended, please understand it wasn't my intention of cause strife, and accept my apology.
 

"Bart" DePalma:

The tapes were destroyed by the CIA to keep them from being leaked to the press and published by the same heroes who leaked the existence of the program to the NYT....

... so the Terra-ists will find out about our methods and be able to circumvent them, just as they did when that treasonous N.Y. Times gave "aid and comfort" to our Enemies by leaking our wiretapping methods.

Sounds like Peter had it spot-on. Thanks, Peter, I think you may actually have savedsome bandwidth.

Nonetheless, the claim they did it because the "CIA must have their identities protected" stretches credibility a bit too much given the the maladministration's actions in Plame affair. I doubt that even "Bart" would try and pass that laugher off.

Prof. Lederman: Sometimes laughter is the best medicine. Not even the U.S. Supreme Court attaches judicial scowls as a matter of course 24X7....

Cheers,
 

Doc Rock,

According to Bush, they already had an "accountability moment"...

"We had an accountability moment, and that's called the 2004 election." (Source: Washington Post, 01-16-05)
 

"Bart" DePalma:

There was no fear of an investigation by Congress or the IG because both were well aware of and supported the interrogation program and know what the program produced.

The IG is a different subject (being in the hands of the maladministration), but as to Congress: Congress was not "well aware" of these various things. Four selected Congresscritters doesn't a Congress make. Not to mention, it doesn't suddenly become 'legal' just because you tell a few 'in-crowd buddies'about it (even if they don't complain, however meekly and privately). It's the laws that are being violated, not the sensibilities of a couple of Congressmen.

Cheers,
 

FWIW, I heard on the radio (but have no source) that the revelation of the Iran NIE was due to high career intelligence officials threatening, even to the point of going to prison if necessary, to blow the whistle on the NIE stuff if the maladministration kept sitting on it....

Cheers,
 

(One) source for the comment on the NIE and the intelligence officers here.

Cheers,
 

I already blogged Thursday that Harman and Rockefeller were incompetent at least, immoral at most, for not leaking from the start about this.

Why would anybody who really cares about civil liberties vote Democratic any more than Republican any more?
 

"Why would anybody who really cares about civil liberties vote Democratic any more than Republican any more?"

Seriously? It depends on which civil liberties you care more about: Neither major party is at all good on civil liberties overall, but they each have particular civil liberties they're especially bad about.

Depending on how you weight those liberties, you'll find one party or the other to be the lesser evil. You're not going to think either party is actually good on civil liberties unless you're willing to dismiss some liberties as inconsequential.
 

brett said...

Bart, their motives for destroying the records might be understandable, but that's no defense. Civilian accountability requires that agencies like the CIA not be permitted to frustrate oversight in ways like this. There MUST be consequences.

Frustrating what oversight? The congressional intel committees knew about these tapes and, so far as we know, never asked to see them. Indeed, Congress was fully briefed on the coercive interrogation methods allegedly shown on the tapes from the outset.

The WP is reporting that, in 2002, the CIA briefed Nancy Pelosi (D-Calif.), Rep. Jane Harman (D-Calif.), Sen. Bob Graham (D-Fla.), Sen. John D. Rockefeller IV (D-W.Va.), Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan) on the CIA detention centers and the coercive interrogation techniques being used there, including waterboarding. None protested the coercive techniques. Instead, two wondered of they were tough enough to get the intelligence we needed.

Consequently, I can do without Dem hypocrisy on this issue. The leadership damn well knew and approved of the methods CIA was using to gain the information which helped roll up much of al Qaeda.
 

Bart DePalma, the WaPo is right on task, doing their hatchet job on this issue. It's obvious the whole event has been turned on its head in order to "blame the Dems". Who approved the torture? Who destroyed the tapes? And what were they hiding? Those are the pertinent questions. Those and why this is coming up now, just when the national conversation had been revolving instead around the NIE on Iran.
 

carolab said...

Bart DePalma, the WaPo is right on task, doing their hatchet job on this issue. It's obvious the whole event has been turned on its head in order to "blame the Dems".

No one is blaming the Dems. Nearly every oversight agency in both elected branches approved the CIA coercive interrogation. The WP story simply keeps the Dems from lying about what they approved. You may notice the deafening silence from the congressional majority.
 

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