The Story Behind CIA Tapes' Destruction

Official Had Implicit Approval, Lawyer Says

Jose A. Rodriguez Jr. is a key figure in the CIA tape case. (AP)

The Washington Post reports:

In late 2005, the retiring CIA station chief in Bangkok sent a classified cable to his superiors in Langley asking if he could destroy videotapes recorded at a secret CIA prison in Thailand that in part portrayed intelligence officers using simulated drowning to extract information from suspected al-Qaeda members.

The tapes had been sitting in the station chief's safe, in the U.S. Embassy compound, for nearly three years. Although those involved in the interrogations had pushed for the tapes' destruction in those years and a secret debate about it had twice reached the White House, CIA officials had not acted on those requests. This time was different.

The CIA had a new director and an acting general counsel, neither of whom sought to block the destruction of the tapes, according to agency officials. The station chief was insistent because he was retiring and wanted to resolve the matter before he left, the officials said. And in November 2005, a published report that detailed a secret CIA prison system provoked an international outcry.

Those three circumstances pushed the CIA's then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved. Rodriguez consulted CIA lawyers and officials, who told him that he had the legal right to order the destruction. In his view, he received their implicit support to do so, according to his attorney, Robert S. Bennett.

In a classified response to the station chief, Rodriguez ordered the tapes' destruction, CIA officials say. The Justice Department and the House intelligence committee are now investigating whether that deed constituted a violation of law or an obstruction of justice. John A. Rizzo, the CIA's acting general counsel, is scheduled to discuss the matter in a closed House intelligence committee hearing scheduled for today.

According to interviews with more than two dozen current and former U.S. officials familiar with the debate, the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee's death.

The principal motive for the tapes' destruction was the clandestine operations division's worry that the tapes' fate could be snatched out of their hands, the officials said. They feared that the agency could be publicly shamed and that those involved in waterboarding and other extreme interrogation techniques would be hauled before a grand jury or a congressional inquiry -- a circumstance now partly unfolding anyway.

"The professionals said that we must destroy the tapes because they didn't want to see the pictures all over television, and they knew they eventually would leak," said a former agency official who took part in the discussions before the tapes were pulverized. The presence of the tapes in Bangkok and the CIA's communications with the station chief there were described by current and former officials.

Congressional investigators have turned up no evidence that anyone in the Bush administration openly advocated the tapes' destruction, according to officials familiar with a set of classified documents forwarded to Capitol Hill. "It was an agency decision -- you can take it to the bank," CIA Director Michael V. Hayden said in an interview on Friday. "Other speculations that it may have been made in other compounds, in other parts of the capital region, are simply wrong."

Many of those involved recalled conversations in which senior CIA and White House officials advised against destroying the tapes, but without expressly prohibiting it, leaving an odd vacuum of specific instructions on a such a politically sensitive matter. They said that Rodriguez then interpreted this silence -- the absence of a decision to order the tapes' preservation -- as a tacit approval of their destruction.

"Jose could not get any specific direction out of his leadership" in 2005, one senior official said. Word of the resulting destruction, one former official said, was greeted by widespread relief among clandestine officers, and Rodriguez was neither penalized nor reprimanded, publicly or privately, by then-CIA Director Porter J. Goss, according to two officials briefed on exchanges between the two men.

"Frankly, there were more important issues that needed to be focused on, such as trying to preserve a critical [interrogation] program and salvage relationships that had been damaged because of the leaks" about the existence of the secret prisons, said a former agency official familiar with Goss's position at the time.

Rodriguez, whom the CIA honored with a medal in August for "Extraordinary Fidelity and Essential Service," declined requests for an interview. But his attorney said he acted in the belief that he was carrying out the agency's stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA's intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover."

Recorded on the tapes was the coercive questioning of two senior al-Qaeda suspects: Zayn al-Abidin Muhammed Hussein, known as Abu Zubaida, and Abd al-Rahim al-Nashiri, who were captured by U.S. forces in 2002. They show Zubaida undergoing waterboarding, which involved strapping him to a board and pouring water over his nose and mouth, creating the sensation of imminent drowning. Nashiri later also underwent the same treatment.

Some CIA officials say the agency's use of waterboarding helped extract information that led to the capture of other key al-Qaeda members and prevented attacks. But others, including former CIA, FBI and military officials, say the practice constitutes torture.

The destruction of the tapes was not the first occasion in which Rodriguez got in trouble for taking a provocative action to help a colleague. While serving as the CIA's Latin America division chief in 1996, he appealed to local Dominican Republic authorities to prevent a childhood friend, and CIA contractor, who had been arrested in a drug investigation, from being beaten up, according to a former CIA official familiar with the episode.

Such an intervention was forbidden by CIA rules, and so Rodriguez was stripped of his management post and reprimanded in an inspector general's report. But shortly after the reprimand, he was named station chief in Mexico City and, after the Sept. 11, 2001, terrorist attacks, was promoted to deputy director of the fast-expanding counterterrorism center. He served under the center's director then, J. Cofer Black, who had been his subordinate in the Latin America division.

When Black -- who played a key role in setting up the secret prisons and instituting the interrogation policy -- left the CIA in December 2002, Rodriguez took his place. Colleagues recall that even in the deputy's slot, Rodriguez was aware of the videotaping of Zubaida, and that he later told several it was necessary so that experts, such as psychologists not present during interrogations, could view Zubaida's physical reactions to questions.

By December 2002, the taping was no longer needed, according to three former intelligence officials. "Zubaida's health was better, and he was providing information that we could check out," one said.

An internal probe of the interrogations by the CIA's inspector general began in early 2003 for reasons that have not been disclosed. In February of that year, then-CIA General Counsel Scott W. Muller told lawmakers that the agency planned to destroy the tapes after the completion of the investigation. That year, all waterboarding was halted; and at an undisclosed time, several of the inspector general's deputies traveled to Bangkok to view the tapes, officials said.

In May 2004, CIA operatives became concerned when a Washington Post article disclosed that the CIA had conducted its interrogations under a new, looser Bush administration definition of what legally constituted torture, several former CIA officials said. The disclosure sparked an internal Justice Department review of that definition and led to a suspension of the CIA's harsh interrogation program.

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

Those known to have counseled against the tapes' destruction include John B. Bellinger III, while serving as the National Security Council's top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA's general counsel; and John D. Negroponte, while serving as director of national intelligence.

Hayden, in an interview, said the advice expressed by administration lawyers was consistent. "To the degree this was discussed outside the agency, everyone counseled caution," he said. But he said that, in 2005, it was "the agency's view that there were no legal impediments" to the tapes' destruction. There also was "genuine concern about agency people being identified," were the tapes ever to be made public.

Hayden, who became CIA director last year, acknowledged that the questions raised about the tapes' destruction, then and now, are legitimate. "One can ask if it was a good idea, or if there was a better way to do it," he said. "We are very happy to let the facts take us where they will."

CIA Coverups and American Injustice

How the Bush administration's policies in the war on terror are coming back to haunt us.

At Salon.com, Hina Shamsi writes:

The news last week that the CIA had destroyed interrogation videotapes of two prisoners in its secret detention program had particular resonance at Guantánamo Bay, where I was attending a U.S. military tribunal hearing as a human rights observer. The destroyed tapes reportedly were evidence of the CIA's brutal treatment, in secret prisons abroad, of two alleged high-level al-Qaida operatives, Abu Zubaydah and Abd al-Rahim al-Nahsiri. Both men are now in U.S. military custody in Guantánamo, together with 13 other former CIA prisoners the government refers to as "high-value detainees."

Evidence from three of the other "high-value detainees" was a key issue in the hearing I attended, and showed how the Bush administration's authorization of illegal detention and brutal prisoner treatment has tainted all aspects of its existing framework for handling key terrorist suspects. With the administration's stubborn refusal to return to the rule of law, how can it be surprising that, in Washington, D.C., the CIA's likely crimes have led to a coverup?

More light may be shed on the CIA's destruction of evidence in the coming weeks, with congressional committees pursuing investigations. A test of new Attorney General Michael Mukasey's leadership will be whether he appoints an investigator into the CIA's wrongdoing who is independent of the Department of Justice. Not only has the DOJ been demoralized by scandal and accusations of partisanship, it was also responsible for writing legal memos that justified the CIA's unlawful interrogation and detention program.

Just last month, the government told the American Civil Liberties Union that the DOJ had three memos, written in May 2005, that relate to CIA interrogation tactics. We know from news reports that at least two of these memos authorized the CIA to use harsh treatment, including waterboarding, freezing temperatures and head slaps, with the promise of impunity for interrogators. The disclosure was part of a court filing in ACLU v. Department of Defense, a Freedom of Information Act lawsuit, seeking the government's release of the memos. A federal judge is expected to decide the issue early in 2008, but in the meantime, the CIA's destruction of the interrogation tapes falls afoul of two existing court orders in the same case.

In Guantánamo, the destruction of CIA evidence loomed large as proceedings continued in the case of Salim Ahmed Hamdan, allegedly a driver and bodyguard for Osama bin Laden. At issue in Hamdan's hearing was whether under the Military Commissions Act the government had the authority to try Hamdan as an "unlawful enemy combatant." Congress passed the law in October 2006, under pressure from the Bush administration, on the eve of the midterm elections. The law circumvents due process safeguards that are a hallmark of American justice, in both the military's own court-martial system and in the federal courts. For the more than 300 men held in Guantánamo for over six years, the Military Commissions Act stripped their right to challenge detention without charge through the ancient writ mechanism of habeas corpus. (The prisoners' challenge to this provision was before the Supreme Court last Wednesday.)

The first thing that happened when I and the other three human rights observers went through security for Hamdan's hearing was an apt metaphor for the rest of the two-day proceeding: We were forbidden from bringing the law into the courtroom. We could not bring in our copies of the Military Commissions Act, the rules of procedure, or even the military's own charges against Hamdan. Apparently the military feared that such basic but essential documents posed some sort of security risk. We were each permitted to bring in only a notepad and a pen.

Hamdan's hearing was the first time the government publicly presented evidence to support its "unlawful enemy combatant" charge, and the defense had the chance to refute the government's case. The playing field was not level, however. For example, the defense wanted to call five Guantánamo prisoners, including three "high-value detainees," Khalid Sheik Mohammed, Ramzi Bin al-Shib and Abu Faraj al-Libi, as witnesses. According to defense lawyers, these potential witnesses, and especially the "high-value detainees," could refute the government's charge that Hamdan had engaged in a conspiracy with senior members of al-Qaida to attack and murder civilians.

The judge permitted testimony from one of the detainees (and the defense and prosecution are negotiating the possible testimony of another), but refused to let the three "high-value detainees" testify, on the basis that the defense request was not timely in the proceedings. Government lawyers argued that the three were part of a highly classified special access program -- a situation of the government's own making, of course -- and that only those with top secret clearance had access to them, which took time.

On the flight back from Guantánamo on Friday night, I asked Hamdan's lead military defense lawyer, Lt. Brian Mizer, what it would take to get access. Lt. Mizer told me that, in fact, he had that top secret clearance and had been "read into" other special access programs on national security cases. It took about 20 minutes to get access, he said, but only if the government was willing. It has been widely reported that Muhammad, al-Shib, and al Libi have each been subjected to extreme cruelty, if not torture, in CIA custody. But the government takes the position that their treatment is classified and cannot be disclosed as a matter of the highest national security. But the credibility of that position has been destroyed along with the deliberate destruction of the CIA tapes.

Torture will also be an issue in any trial of any other "high-value detainees." The government has said that it intends to try at least some of these men in military commission proceedings. But this is where Bush administration policies will come back to haunt us with a vengeance: Unlike the majority of Guantánamo detainees who appear to be low-level players or even innocent, Khalid Sheik Mohammed and others did likely engage in serious and heinous crimes. If so, they should be prosecuted and sentenced -- but based on lawfully obtained evidence in full and fair proceedings that comport with the best traditions of American justice.

Instead, there's no doubt that government torture and cruelty -- and the question of what other evidence might exist or have been destroyed -- will be an issue in their trials. Given the CIA's destruction of the interrogations tapes, it will now be even harder to take government assurances of fair play and transparency at face value. There's also the danger that information obtained through torture will be introduced in the military commissions, in violation of more than 200 years of American law and values. For the first time in U.S. history, and under pressure from the Bush administration, in the Military Commissions Act, Congress explicitly authorized an American tribunal to permit evidence obtained through "cruel, inhuman and degrading treatment" as long as it was obtained before Dec. 31, 2005. Even though the Military Commissions Act prohibits evidence obtained through torture, it could still come in because of this cruel treatment loophole, combined with the other provisions that permit secret evidence and evidence from second- and third-hand sources.

After 9/11, the Bush administration created a legal black hole in the name of national security -- and six years later, we're still trying to crawl out of it. The question now is, which direction will we take? At stake is nothing less than a return to the rule of law, the heart of American justice from which we have strayed so far.

The government could still choose to pull itself out of the morass it created by using two proven systems for detention and trial: either military courts-martials or the civilian criminal justice system.

Instead, it looks as if we're on the verge of creating a different, but equally dubious approach. Over the summer, academics, policymakers and others have begun calling for another entirely new system: a national security court, with fewer procedural and substantive safeguards, to oversee the detention (possibly indefinitely, without criminal charge) and trial of terrorism suspects. Attorney General Mukasey indicated his willingness to consider such a system in a Wall Street Journal Op-Ed in August. And in June, Secretary of Defense Gates asked Congress to provide "a statutory basis for holding prisoners who should never be released and who may or may not be able to be put on trial." We face the risk that, instead of repealing the Military Commissions Act, Congress could compound its mistake and enact a new, second-tier system of secondary justice.

Among other justifications, proponents argue that our existing military or civilian criminal justice systems are too protective of individual rights. They add that regular courts could give defendants access to sensitive national security information for their own defense, and that the threshold for evidence obtained from battlefields is too high. But none of these arguments addresses specifically why, if existing laws are inadequate, the better approach is not to identify flaws and amend them, rather than create a new system designed to circumvent core protections of constitutional due process.

The United States' strength lies in its values, enshrined in the Constitution and the Bill of Rights, and in military and civilian criminal justice systems that reflect those values. It is because the Bush administration ignored and continues to ignore this that we are so far from having an effective and lawful arrangement for detaining and trying terrorism suspects.