Politics & Policy

No Destruction Obstruction

When news broke that the CIA had destroyed tape recordings from interrogations of War on Terror detainees, it was entirely predictable that the ACLU Left would see a scandal. But a scandal this is not — at least not yet. We don’t know everything about the tapes’ destruction, but what we do know gives us no reason to suspect a government cover-up of anything. As the Justice Department’s investigation moves forward — and as the rhetoric from the left heats up — here is a bit of context to keep in mind.

Shortly after 9/11, the CIA began a special interrogation program for high-value detainees captured in the War on Terror. This program made use of aggressive tactics, including waterboarding. As the Washington Post has recently reported, the program had the support of top congressional leaders — Republicans and Democrats, including one Nancy Pelosi — who were briefed on it some 30 times beginning in 2002.

Mystifyingly, the CIA decided to tape-record some early interrogation sessions involving two notorious terrorists: “Abu Zubaydah” (real name: Zein al-Abideen Mohamed Hussein), a close associate of Osama bin Laden; and Abd al-Rahim al-Nashiri, the mastermind of the 2000 bombing that killed 17 Navy personnel aboard the U.S.S. Cole. The CIA was under no legal obligation to make the recordings. It has explained that the tapes’ purpose was to ensure compliance with “established legal and policy guidelines,” but there are many ways of doing that without making tapes. Indeed, it is standard practice at the FBI and other federal agencies not to electronically record interrogations.

Predictably, the existence of the recordings became a severe problem for the CIA. If the tapes were leaked, they would give the enemy valuable information about our interrogation methods (al-Qaeda trains its operatives to resist known tactics) and the state of our intelligence on terrorist operations. They would expose and potentially endanger CIA officers who carried out interrogations under orders from their superiors, relying on legal guidance from the Justice Department. Worst of all, they might become a powerful propaganda tool in the hands of Islamists.

For all these reasons, the CIA destroyed the tapes in 2005. The destruction was ordered by Jose A. Rodriguez Jr., then the director of the agency’s clandestine service. (He has since retired.) Rodriguez acted on written advice from at least two mid-level CIA lawyers, but apparently without the approval of either the CIA’s general counsel, John Rizzo, or its then-director, Porter Goss. According to press reports, both Goss and his predecessor, George Tenet (who was CIA director when the interrogation program began), had previously denied requests to destroy the tapes. There had been other admonitions. Goss says that in his former role as chairman of the House Intelligence Committee, he warned against destroying any tapes. So did Rep. Jane Harman, at the time the ranking Democrat on the committee. There are also indications that lawyers at the Justice Department and the White House counseled against spoliation.

That is what we now know, or at least think we know. What’s needed now is a thorough investigation to determine exactly what happened and whether any laws were broken. Such an investigation is already underway, led by the Justice Department in conjunction with the CIA’s inspector-general. Attorney general Michael Mukasey should ensure that this investigation moves swiftly. But his department should be given a reasonable amount of time to get to the bottom of things without undue interference from Congress and the courts.

The destruction by government officials of information pertinent to a disputed issue is obviously cause for concern. It raises the specter of obstruction of justice. Let’s be clear, though, about what is at stake. There is no indication that the substance of any detainee interrogation was lost. Notes or transcriptions of the debriefings were surely preserved, and the detainees are still available. Moreover, the tapes would not add anything significant to our knowledge of the CIA’s interrogation methods. It has long been known that the detainee program made use of tough tactics such as waterboarding (which, for all the controversy, was apparently used on only three detainees, most recently four years ago). High-ranking members of Congress from both parties knew about these tactics from the very beginning — and their principal concern, according to press accounts, was whether the CIA was being tough enough.

Not surprisingly, the administration’s detractors have been quick to speculate that the tapes’ destruction may have obstructed the 9/11 Commission’s investigation. They also allege that it may have influenced the outcome of Zacarias Moussaoui’s trial. Clearly the Justice Department must determine whether those tribunals heard deliberate misrepresentations about what information the government possessed. But we should remember that neither the investigation nor the trial was a probe of interrogation tactics. The 9/11 Commission was looking into intelligence lapses — and long after the use of waterboarding had prompted allegations of torture, it was content to review mere summaries of detainee interviews. As for Moussaoui, al Qaeda detainees were potentially relevant to his defense only because they might have had exculpatory information about his role in the 9/11 plot. Again, interrogation tactics were not at issue, and there is no reason to believe that the detainees who appeared in the destroyed tapes knew anything that would have helped Moussaoui. (After all, he pled guilty.)

Congress was debating interrogation tactics when the tapes were destroyed in 2005, and the result was the McCain Amendment. But it is far from clear that debate would have benefited from tapes of something Congress and the public already knew was happening.

At the time of the tapes’ destruction, there was also a case before a federal court in Washington that concerned alleged prisoner abuse at Guantanamo Bay. The government had been ordered to preserve any evidence of abuse there, but none of the destroyed tapes involved Gitmo detainees. Could they nonetheless have been relevant to the Gitmo case? That is something the Justice Department should evaluate — and without interference from the case’s presiding judge, who has ordered a hearing about the tapes for later this week.

Congress, the courts, and the public will benefit most from a competent and independent investigation of the tapes’ destruction. Members of Congress who called for independent leadership at the Justice Department following Alberto Gonzales’s resignation should be willing to give Attorney General Mukasey the breathing room he needs to show such leadership now. In the interim, let’s suspend judgment, and bear in mind that the criminal-justice system must coexist with the demands of national security.


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