New York Times
December 22, 2007
9/11 Panel Study Finds That C.I.A. Withheld Tapes
By MARK MAZZETTI
WASHINGTON — A review of classified documents by former members of the Sept. 11 commission shows that the panel made repeated and detailed requests to the Central Intelligence Agency in 2003 and 2004 for documents and other information about the interrogation of operatives of Al Qaeda, and were told by a top C.I.A. official that the agency had “produced or made available for review” everything that had been requested.
The review was conducted earlier this month after the disclosure that in November 2005, the C.I.A. destroyed videotapes documenting the interrogations of two Qaeda operatives.
A seven-page memorandum prepared by Philip D. Zelikow, the panel’s former executive director, concluded that “further investigation is needed” to determine whether the C.I.A.’s withholding of the tapes from the commission violated federal law.
In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.
Mr. Kean said the panel would provide the memorandum to the federal prosecutors and congressional investigators who are trying to determine whether the destruction of the tapes or withholding them from the courts and the commission was improper.
A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes, but that commission staff members never specifically asked for interrogation videos.
The review by Mr. Zelikow does not assert that the commission specifically asked for videotapes, but it quotes from formal requests by the commission to the C.I.A. that sought “documents,” “reports” and “information” related to the interrogations.
Mr. Kean, a Republican and a former governor of New Jersey, said of the agency’s decision not to disclose the existence of the videotapes, “I don’t know whether that’s illegal or not, but it’s certainly wrong.” Mr. Hamilton, a former Democratic congressman from Indiana, said that the C.I.A. “clearly obstructed” the commission’s investigation.
A copy of the memorandum, dated Dec. 13, was obtained by The New York Times.
Among the statements that the memorandum suggests were misleading was an assertion made on June 29, 2004, by John E. McLaughlin, the deputy director of central intelligence, that the C.I.A. “has taken and completed all reasonable steps necessary to find the documents in its possession, custody or control responsive” to formal requests by the commission and “has produced or made available for review” all such documents.
Both Mr. Kean and Mr. Hamilton expressed anger after it was revealed this month that the tapes had been destroyed. However, the report by Mr. Zelikow gives them new evidence to buttress their views about the C.I.A.’s actions and is likely to put new pressure on the Bush administration over its handling of the matter. Mr. Zelikow served as counselor to Secretary of State Condoleezza Rice from 2005 to the end of 2006.
In an interview on Friday, Mr. McLaughlin said that agency officials had always been candid with the commission, and that information from the C.I.A. proved central to their work.
“We weren’t playing games with them, and we weren’t holding anything back,” he said. The memorandum recounts a December 2003 meeting between Mr. Kean, Mr. Hamilton and George J. Tenet, then the director of central intelligence. At the meeting, it says, Mr. Hamilton told Mr. Tenet that the C.I.A. should provide all relevant documents “even if the commission had not specifically asked for them.”
According to the memorandum, Mr. Tenet responded by alluding to several documents that he thought would be helpful to the commission, but made no mention of existing videotapes of interrogations.
The memorandum does not draw any conclusions about whether the withholding of the videotapes was unlawful, but it notes that federal law penalizes anyone who “knowingly and willfully” withholds or “covers up” a “material fact” from a federal inquiry or makes “any materially false statement” to investigators.
Mark Mansfield, the C.I.A. spokesman, said that the agency had gone to “great lengths” to meet the commission’s requests, and that commission members had been provided with detailed information obtained from interrogations of agency detainees.
“Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active,” Mr. Mansfield said.
Intelligence officials have said the tapes that were destroyed documented hundreds of hours of interrogations during 2002 of Abu Zubaydah and Abd al Rahim al-Nashiri, two Qaeda suspects who were taken into C.I.A. custody that year.
According to the memorandum from Mr. Zelikow, the commission’s interest in obtaining accounts from Qaeda detainees in C.I.A. custody grew out of its attempt to reconstruct the events leading up to the Sept. 11 attacks in the United States.
Its requests for documents from the C.I.A. began in June 2003, when it first sought intelligence reports describing information obtained from prisoner interrogations, the memorandum said. It later made specific requests for documents, reports and information related to the interrogations of specific prisoners, including Abu Zubaydah and Mr. Nashiri.
In December 2003, the commission staff sought permission to interview the prisoners themselves, but was permitted instead to give questions to C.I.A. interrogators, who then posed the questions to the detainees. The commission concluded its work in June 2004, and in its final report, it praised several agencies, including the C.I.A., for their assistance.
Abbe D. Lowell, a veteran Washington lawyer who has defended clients accused of making false statements and of contempt of Congress, said the question of whether the agency had broken the law by omitting mention of the videotapes was “pretty complex,” but said he “wouldn’t rule it out.”
Because the requests were not subpoenas issued by a court or Congress, C.I.A. officials could not be held in contempt for failing to respond fully, Mr. Lowell said. Apart from that, however, it is a crime to make a false statement "in any matter within the jurisdiction of the executive, legislative or judicial branch."
The Sept. 11 commission received its authority from both the White House and Congress.
On Friday, the leaders of the Senate Judiciary Committee sent a letter to Attorney General Michael B. Mukasey and to Mike McConnell, the director of national intelligence, asking them to preserve and produce to the committee all remaining video and audio recordings of “enhanced interrogations” of detainees in American custody.
Signed by Senator Patrick Leahy, Democrat of Vermont, and Senator Arlen Specter, Republican of Pennsylvania, the letter asked for an extensive search of the White House, C.I.A. and other intelligence agencies to determine whether any other recordings existed of interrogation techniques “including but not limited to waterboarding.”
Government officials have said that the videos destroyed in 2005 were the only recordings of interrogations made by C.I.A. operatives, although in September government lawyers notified a federal judge in Virginia that the agency had recently found three audio and video recordings of detainees.
Intelligence officials have said that those tapes were not made by the C.I.A., but by foreign intelligence services.
http://www.nytimes.com/2007/12/22/washington/22intel.html?hp
Torturegate
Good call, OG.
The Nation
Torture Tapes: Failure at All Levels
by AZIZ HUQ
[posted online on December 11, 2007]
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.
http://www.thenation.com/doc/20071224/huq
The Nation
Torture Tapes: Failure at All Levels
by AZIZ HUQ
[posted online on December 11, 2007]
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.
http://www.thenation.com/doc/20071224/huq
-
OscarGuy
- Site Admin
- Posts: 13668
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I'm surprised this topic hasn't been started yet, but here goes...
CIA destroyed tapes despite court orders
By MATT APUZZO, Associated Press Writer 48 minutes ago
WASHINGTON - The Bush administration was under court order not to discard evidence of detainee torture and abuse months before the CIA destroyed videotapes that revealed some of its harshest interrogation tactics.
Normally, that would force the government to defend itself against obstruction allegations. But the CIA may have an out: its clandestine network of overseas prisons.
While judges focused on the detention center in Guantanamo Bay, Cuba, and tried to guarantee that any evidence of detainee abuse would be preserved, the CIA was performing its toughest questioning half a world away. And by the time President Bush publicly acknowledged the secret prison system, interrogation videotapes of two terrorism suspects had been destroyed.
The CIA destroyed the tapes in November 2005. That June, U.S. District Judge Henry H. Kennedy Jr. had ordered the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."
U.S. District Judge Gladys Kessler issued a nearly identical order that July.
At the time, that seemed to cover all detainees in U.S. custody. But Abu Zubaydah and Abd al-Rahim al-Nashiri, the terrorism suspects whose interrogations were videotaped and then destroyed, weren't at Guantanamo Bay. They were prisoners that existed off the books — and apparently beyond the scope of the court's order.
Attorneys say that might not matter. David H. Remes, a lawyer for Yemeni citizen Mahmoad Abdah and others, asked Kennedy this week to schedule a hearing on the issue.
Though Remes acknowledged the tapes might not be covered by Kennedy's order, he said, "It is still unlawful for the government to destroy evidence, and it had every reason to believe that these interrogation records would be relevant to pending litigation concerning our client."
In legal documents filed in January 2005, Assistant Attorney General Peter D. Keisler assured Kennedy that government officials were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation."
For just that reason, officials inside and outside of the CIA advised against destroying the interrogation tapes, according to a former senior intelligence official involved in the matter who spoke on condition of anonymity because it is under investigation.
Exactly who signed off on the decision is unclear, but CIA director Michael Hayden told the agency in an e-mail this week that internal reviewers found the tapes were not relevant to any court case.
Remes said that decision raises questions about whether other evidence was destroyed. Abu Zubaydah's interrogation helped lead investigators to alleged 9/11 mastermind Khalid Sheikh Mohammed and Remes said Abu Zubaydah may also have been questioned about other detainees. Such evidence might have been relevant in their court cases.
"It's logical to infer that the documents were destroyed in order to obstruct any inquiry into the means by which statements were obtained," Remes said.
He stopped short, however, of accusing the government of obstruction. That's just one of the legal issues that could come up in court. A judge could also raise questions about contempt of court or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."
Kennedy has not scheduled a hearing on the matter and the government has not filed a response to Remes' request.
CIA destroyed tapes despite court orders
By MATT APUZZO, Associated Press Writer 48 minutes ago
WASHINGTON - The Bush administration was under court order not to discard evidence of detainee torture and abuse months before the CIA destroyed videotapes that revealed some of its harshest interrogation tactics.
Normally, that would force the government to defend itself against obstruction allegations. But the CIA may have an out: its clandestine network of overseas prisons.
While judges focused on the detention center in Guantanamo Bay, Cuba, and tried to guarantee that any evidence of detainee abuse would be preserved, the CIA was performing its toughest questioning half a world away. And by the time President Bush publicly acknowledged the secret prison system, interrogation videotapes of two terrorism suspects had been destroyed.
The CIA destroyed the tapes in November 2005. That June, U.S. District Judge Henry H. Kennedy Jr. had ordered the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."
U.S. District Judge Gladys Kessler issued a nearly identical order that July.
At the time, that seemed to cover all detainees in U.S. custody. But Abu Zubaydah and Abd al-Rahim al-Nashiri, the terrorism suspects whose interrogations were videotaped and then destroyed, weren't at Guantanamo Bay. They were prisoners that existed off the books — and apparently beyond the scope of the court's order.
Attorneys say that might not matter. David H. Remes, a lawyer for Yemeni citizen Mahmoad Abdah and others, asked Kennedy this week to schedule a hearing on the issue.
Though Remes acknowledged the tapes might not be covered by Kennedy's order, he said, "It is still unlawful for the government to destroy evidence, and it had every reason to believe that these interrogation records would be relevant to pending litigation concerning our client."
In legal documents filed in January 2005, Assistant Attorney General Peter D. Keisler assured Kennedy that government officials were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation."
For just that reason, officials inside and outside of the CIA advised against destroying the interrogation tapes, according to a former senior intelligence official involved in the matter who spoke on condition of anonymity because it is under investigation.
Exactly who signed off on the decision is unclear, but CIA director Michael Hayden told the agency in an e-mail this week that internal reviewers found the tapes were not relevant to any court case.
Remes said that decision raises questions about whether other evidence was destroyed. Abu Zubaydah's interrogation helped lead investigators to alleged 9/11 mastermind Khalid Sheikh Mohammed and Remes said Abu Zubaydah may also have been questioned about other detainees. Such evidence might have been relevant in their court cases.
"It's logical to infer that the documents were destroyed in order to obstruct any inquiry into the means by which statements were obtained," Remes said.
He stopped short, however, of accusing the government of obstruction. That's just one of the legal issues that could come up in court. A judge could also raise questions about contempt of court or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."
Kennedy has not scheduled a hearing on the matter and the government has not filed a response to Remes' request.
Wesley Lovell
"Any society that would give up a little liberty to gain a little security will deserve neither and lose both." - Benjamin Franklin
"Any society that would give up a little liberty to gain a little security will deserve neither and lose both." - Benjamin Franklin