an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Real CIA Tapes Scandal That Everyone is Ignoring
As recent reports demonstrate, the broad outlines of the CIA tapes destruction story is becoming increasingly clear. If yesterday’s story in the Washington Post is any indication, it’s a tale the CIA itself appears eager to promulgate. The gist of it is this:
The CIA realized that the tapes depicted governmental conduct that was at the very least horrifying, and that most observers would likely consider criminal. They were afraid that if those tapes ever saw the light of day, the CIA interrogation program would come in for severe public rebuke, with the possibility of criminal prosecution to the extent any interrogators went beyond the broad permissive authorizations provided by OLC. So they were eager to destroy the tapes. They sought approval for such destruction from the White House and the Justice Department, but the lawyers there persistently "advised" the CIA not to destroy the tapes. As long as the 9/11 Commission was operating, the CIA could not destroy the tapes because such destruction would then be clearly unlawful. But when the Commission closed up shop, mid-level CIA lawyers Steven Hermes and Robert Eatinger told Jose Rodriguez that the destruction would then be lawful. (This advice was probably equivocal and might well have been mistaken. In light of the potential breadth of the broadly worded federal obstruction statutes, and the warnings that had been repeatedly given to the CIA not to destroy the tapes, it is unlikely that good lawyers could have advised Rodriguez that the coast was clear with any degree of confidence.) Rodriguez knew that if he asked anyone else, he might get conflicting legal advice, or even a directive not to destroy. And if Rodriguez didn’t ask for a direct order one way or the other, no one was eager to give him one. According to one congressional official who spoke to Pam Hess, "if you look at the documents, you get very close to a direct order (not to destroy the tapes) without it being, 'Jose, you're not going to do this.'" CIA General Counsel John Rizzo "advised" against the destruction. And then-CIA Director Porter Goss "recommended" against it. These are the verbs of officials who hope their advice goes unheeded: Notably, no one actually instructed Rodriguez not to destroy the tapes, or that it would be illegal to do so. Rodriguez therefore interpreted the repeated failure of his superiors to require retention of the tapes as an implicit green light to destroy—and he may well have been right about that, as a practical (if not a legal) matter. ("Well, we advise against it, but it’s your call -– nudge nudge; wink, wink.") So he went ahead and ordered the tapes destroyed.
I imagine this is the basic story that the congressional committees will uncover. (They are holding their hearings in secret, which seems to me to be indefensible and likely a huge mistake. But that’s another story.) Thus, I suspect that nothing much new of any importance will be revealed in those hearings—but who knows? (Did Hermes and Eatinger tell Rizzo of their advice to Gonzales? If not, what’s the possible explanation for the failure to do so?)
Whether the DOJ investigation reveals any criminal wrongdoing is, of course, another matter entirely, and may well depend on what advice Rodriguez received, and what his mens rea was. (Personally, I think it would be unfortunate to point the finger exclusively at Rodriguez and others at his level and below. The obvious wrongdoers were those in the CIA and White House who implicitly or expressly condoned the destruction by repeatedly failing to say "no." But it is, of course, much more difficult to establish criminal culpability for such willful blindness. As many at the CIA feared all along, the political folks who pushed for the program have left the career officials holding the bag.)
These investigations are important. But they are obscuring the much larger scandal here. Of course, the largest scandal of all—one that John Durham apparently is not investigating—is that the interrogations themselves were part of a concerted CIA program in violation of the criminal prohibition against torture, and in breach of the Geneva and Torture Conventions, a program sanctioned at the highest levels of government, and approved by countless professional lawyers, doctors, government officials, and psychologists. That’s why the tapes were destroyed—because they were stark evidence of wrongdoing, perhaps even of war crimes.
But even sticking to the tapes themselves, the greater scandal is not that these tapes were destroyed, but instead that the CIA did not create tapes of all its high-level interrogations. That is to say, the real outrage was the orders from the CIA to stop taping. No one is talking about this. (Well, perhaps no one except Spencer Ackerman, over at the new and promising Washington Independent.) But it is really rather remarkable that the CIA decided not to videotape its investigations of high-level al Qaeda officials. This is an enemy bent on committing horrifying terrorist acts. Our intelligence about that enemy is minimal, and therefore any information we obtain from these interrogations could be of critical importance. (That was, recall, the justification for the “enhanced” techniques in the first place.) We have not used these techniques in the past, and we are uncertain how effective they will be. It’s a learning process. Moreover, the information gleaned from these interrogations, presumably in a foreign language not known to most of the officials dealing with the terrorist threat, might be quite difficult to interpret. It may be very hard at first to understand just which responses from the detainees are important and which are not, and how their responses fit into the broader intelligence-gathering efforts of the intelligence agencies. Under the government’s frequently invoked “mosaic” theory of intelligence gathering, one might not know the true value of particular intelligence for some time, until it can be viewed in a broader context, alongside a great deal of other intelligence collected before and after. More than likely, the information can best be understood and appreciated only by officials not present during the investigations. According to the Post story, Rodriguez himself told several colleagues that the taping was necessary “so that experts, such as psychologists not present during interrogations, could view Zubaida’s physical reactions to questions.”
According to this very important story in the L.A. Times last month, videotaping is among the current “best practices” of intelligence agencies around the globe—“an essential tool in improving the methods -- and results -- of terrorism interrogations,” not to mention an invaluable research and teaching tool in determining which techniques work. Magnus Ranstorp, a veteran counter-terrorism expert with the Swedish Defence College, goes so far as to say that if agencies don’t save and analyze tapes of their interrogations, “they have been derelict in their duty.”
All of which is to say that tapes of these interrogations would almost certainly be the holy grail of intelligence about al Qaeda. From the perspective of good government and fighting the war on terror, it is crazy not to videotape these investigations. And yet the CIA issued directives not to do so. (One can only imagine how CIA employees must have reacted when Michael Hayden wrote them last month that the tapes of the Abu Zubaydah interrogations were “not relevant to any internal . . . inquiries.” The idea that tapes of al Qaeda investigations are not relevant to the intelligence community’s efforts to understand the enemy—that written summaries of the interrogations are an adequate substitute—is risible. Hayden could not possibly believe it himself, and I suspect his audience was incredulous.)
And this is before we even get to the value of such tapes for possible criminal proceedings, and their possible value for officials in Congress or commissions (e.g., the 9/11 Commission) who are trying to understand the nature of the enemy and its threats.
There are only two explanations for this. First, the CIA knew that the tapes would depict conduct of very dubious legality. Second, and relatedly, if interrogators know they are being videotaped, they might be much more careful about staying on the legal side of the line—and the CIA wants them not to hesitate to go right up to that line, and sometimes to cross it.
In other words, the explanations for ceasing the taping are basically illegitimate.
And, as it turns out, Congress can do something about this. Perhaps it should stop focusing quite so much on what happened in the past (which one hopes Durham will cover), and instead make more efforts to ensure that it never happens again. There is a convenient vehicle for accomplishing this. Rush Holt, Chair of the House Select Intelligence Oversight Panel, has introduced H.R. 4660, which would require the President to take necessary actions to ensure the videotaping of all strategic interrogations of, and other pertinent interactions with, detainees or prisoners in the custody or control of the U.S. Congress should enact this law.
It is only a matter of time, I think, before it will be the law virtually everywhere in the U.S. that law enforcement interrogations must be videotaped (at the very least, as a condition of admissibility of evidence). Other countries, such as Great Britain and Canada, already require either audio or video recordings of interrogations. At least two states do so, as well (Alaska and Minnesota), and at least four other jurisdictions have such a requirement for at least some cases (D.C., Illinois, Maine, and Texas). There have been similar proposals in numerous other jurisdictions. The American Bar Association has unanimously accepted a resolution that urges law enforcement agencies across the country to videotape interrogations. Studies, such as this one and the one discussed here, have concluded that recording interviews with suspects is a “powerful law enforcement tool,” and the experiences of law enforcement agencies with the practice has been “uniformly positive.” There is virtually no downside.
When such requirements are first proposed, they invariably are opposed by law enforcement officials and entities. And therefore, at first one often finds legislative resistance. But when it becomes clear that such a requirement has numerous benefits, and almost no serious costs, such resistance wanes. The most notable case occurred in Illinois, where in 2003 a junior state senator sponsored a bill to require videotaping of interrogations and confessions in capital cases. At first there was strong opposition. But that senator—someone you might have heard of more recently—continued to press his colleagues, arguing that there is no compelling argument against such a requirement -- and that it is a boon to law enforcement. Eventually, thanks largely to his efforts, the bill passed unanimously in the Illinois Senate, was signed by a governor who was a former prosecutor, and is now state law in Illinois.
The Holt bill, H.R. 4660, would provide the benefits where they are even more important -- in the context of federal intelligence-based interrogations. This is legislation that deserves much more attention than it has thus far received (namely, zero). Posted
by Marty Lederman [link]