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

Posted 9:08 PM by Marty Lederman [link]