CIA's destruction of tapes likely to spur lawsuits
US detainees who had challenged the agency's harsh interrogations may claim obstruction of justice, attorneys say.
The Central Intelligence Agency's admission that it destroyed at least two videotapes of harsh interrogations of terror suspects has caused an uproar in Washington and seems almost certain to lead to legal challenges to the agency's actions.
The chairman of the Senate Intelligence Committee called for a full investigation of the matter, while the American Civil Liberties Union charged that the shredding of the tapes was more evidence of the Bush administration's long-term pattern of shielding government officials from criminal prosecution for torture and abuse.
"The destruction of these tapes suggests an utter disregard for the rule of law," said Jameel Jaffer, director of the ACLU's National Security Project.
News of the tapes broke at a time when the treatment of terror suspects was already a priority item on the US national agenda. House and Senate negotiators on Thursday reached agreement on legislation that would ban the use of waterboarding and other harsh techniques by CIA interrogators.
The ban, included in a spending authorization bill for US intelligence agencies, must still be passed in its final form by both chambers of Congress. The Bush administration has in the past threatened to veto similar legislation.
In addition, the US Supreme Court earlier this week heard arguments in a case dealing with the legal rights of detainees at the Guantánamo Bay prison camp in Cuba. At issue is whether the detainees have the right to challenge their imprisonment under the right of habeas corpus.
The startling news about the tapes became public on Thursday after The New York Times told the CIA it was preparing a story on the subject and CIA Director Michael Hayden sent a message to agency workers to prepare them for its publication.
The CIA destroyed two videos of suspect interrogations made in 2002 because it was afraid that keeping them "posed a security risk", Director Hayden wrote. "Were they ever to leak, they would permit identification of your CIA colleagues who had served in the [interrogation] program, exposing them and their families to retaliation from al-Qa'ida and its sympathizers."
Destruction of the tapes took place in 2005, said Hayden. According to the Washington Post, the move was ordered by Jose Rodriguez, who then headed the CIA's clandestine operations branch.
One of the taped detainees was identified as Abu Zubaydah, a close associate of Osama bin Laden who was captured in March 2002 in Faisalabad, Pakistan, following a firefight in which he was wounded three times. News reports have indicated that Mr. Zubaydah is one of the three detainees thought to have been subjected to the harsh technique known as waterboarding.
The tapes were made as an internal check on the interrogation program in its early stages, and a "backstop" to other methods of recording the information obtained, according to Hayden. House and Senate intelligence committee leaders were informed of the existence of the tapes and the CIA's intention to destroy them, said the CIA director.
Senate Intelligence Chairman John Rockefeller (D) of West Virginia said in a statement that he had been provided with "very limited" information about the tapes, and that he did not learn about their destruction until after it had occurred. He called for a full inquiry into the matter.
In a statement, Rep. Jane Harman (D) of California, who was the senior Democrat on the House Intelligence Committee when informed of the tapes' existence in 2003, said: "I told the CIA that destroying videotapes of interrogations was a bad idea and urged them in writing not to do it."
In a letter to Attorney General Michael Mukasey, Senate Democratic Whip Dick Durbin of Illinois also urged an investigation into whether the tapes' destruction constituted an act of obstruction of justice. "Due to the gravity of this matter, I request that you respond as soon as possible, and in no case later than Wednesday, December 12," wrote Senator Durbin.
Meanwhile, in remarks on the Senate floor, Sen. Edward Kennedy (D) of Massachusetts accused the CIA of a coverup and reached back into the past, to the days of Watergate, for a comparison. "We haven't seen anything like this since the eighteen-and-a-half minute gap in the tapes of President Richard Nixon," he said.
Whether the destruction of the tapes was illegal might hinge on exactly when it occurred. If any legal actions challenging the interrogation practices had already started, then withholding the tapes, much less destroying them, might be counted an obstruction of justice.
And at least one such effort may, indeed, have been under way: Beginning in 2003, attorneys for Al Qaeda conspirator Zacarias Moussaoui began seeking video- and audiotapes of interrogations they thought might prove their client was innocent of planning the 9/11 attacks.
•Associated Press material was used in this report.