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Comments on Criminal Issues
January 18, 2008
DESTRUCTION OF THE CIA INTERROGATION TAPES:
A SAGA OF OFFICIAL ABUSE OF POWER
Criminal Defense Attorney John Floyd Discusses Whether Destruction of CIA Torture Tapes Could Lead to Criminal Culpability for the President or his Crew
The terrorist attack on September 11, 2001 on the New York World Trade Center’s Twin Towers not only inflicted a terrible human tragedy on America but set into motion reactionary forces within our government that would undermine this nation’s fundamental moral, ethical, and legal obligations to the international community.
These forces were led by none other than the President of the United States. On September 17, 2001 President George W. Bush who, by executive fiat, co-opted the CIA as his own “private militia” (as described by The Village Voice’s Nat Hentoff, 12/26/07) to arrest, kidnap, interrogate, and torture anyone suspected of being remotely connected to al Qaeda.
The CIA responded to the president’s directive by setting up “secret prisons” in at least ten European countries where arrested or kidnapped “terrorist suspects” were interrogated by internationally recognized methods of torture. In September 2006 Bush described the CIA’s secret interrogations methods as an “alternate set of interrogation procedures.” This presidential admission came in response to international criticism. The president proudly told Americans that the CIA’s “interrogations” of 14 top Al Qaeda suspects, including Abu Zubaydah, Khalid Sheikh Mohammed (the mastermind of the 9/11 attacks), and Ramsi Bin al-Shibh, uncovered and prevented terrorist attacks in the United States.
Bush said that Zubaydah and Mohammed did not cooperate with the CIA until these “alternative set of interrogation procedures” were employed. He said Zubaydah then gave up other terrorist suspects and “KSM … provided information that helped us stop another planned attack on the United States” after the more physically aggressive interrogation procedures were employed.
“This [secret] program has been and remains one of the most vital tools in our war against terrorists,” the president said, casually dismissing the international reports of torture.
The president’s reasoning mirrors that of famed constitutional attorney Alan Dershowitz who said torture is justified in order to find a terrorist’s “ticking bomb.” (Los Angeles Times, 11/08/01). Dershowitz proposed that courts be allowed to issue “torture warrants” to compel the location of a “ticking bomb” to prevent the slaughter of innocent lives.
“[In the United States] any interrogation technique, including the use of truth serum or even torture, is not prohibited,” Dershowitz was quoted as saying by Sam Vaknin in a June 2006 article (“The Argument for Torture) published on GoingLegal.com. “All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used. But the evidence could be used against that suspect in a non-criminal case – such as a deportation hearing – or against someone else.”
Vaknin espoused the same utilitarian pro-torture philosophy under the premise of “the right to save one’s own life.” In his article “The Argument for Torture,” Vaknin endorsed Dershowitz’s notions about torture:
“One has a right to save one’s life by exercising self-defense or otherwise, by taking actions, or by avoiding them. Judaism – as well as other religious, moral, and legal systems – accepts that one has the right to kill a pursuer who knowingly and intentionally is bent on taking one’s life. Hunting down Osama bin Laden in the wilds of Afghanistan is, therefore, morally acceptable (though not morally mandatory). So is torturing his minions.
“When there is a clash between equally potent rights – for instance, the conflicting rights to life of two people – we can decide among them randomly (by flipping a coin, or casting dice). Alternatively, we can add and subtract in a somewhat macabre arithmetic. The right to life definitely prevails over the right to comfort, bodily integrity, absence of pain and so on. Where life is at stake, non-lethal torture is justified by any ethical calculus.”
This kind of moral and ethical scotch-hopping was given legal credence in 1996 by the Supreme Court of Israel when it held that that country’s internal security forces could use “moderate physical pressure” while interrogating terrorist suspects. President Bush adopted essentially the same position by authorizing the CIA’s “alternate set of interrogation procedures” which involves six escalating steps that ends with a process called “water boarding” during which the suspect is made to feel like he’s drowning. Human rights groups have called this procedure torture.
“The United States does not torture,” the president said, disagreeing with those groups. “It’s against our laws, and it’s against our values. I have not authorized it, and I will not authorize.”
Torture, therefore, lies in subjective definitions. But it is an undeniable fact that in 2002 the Office of Legal Counsel for the United States Justice Department issued a “memo” authorizing interrogation techniques like water boarding in CIA interrogation of terrorist suspects – an interrogation technique America called “torture” after World War II in Japanese “war crimes” trials. The New York Times (12-19-07) revealed that the CIA videotaped at least two of these interrogation sessions involving the water boarding of Abu Zubaydah and Abd al-Rahim al Nashiri (another high level al Qaeda operative).
By 2005 the Bush administration was facing growing international criticism because of the CIA’s “secret prisons” program, the agency’s unlawful kidnapping of terrorist suspects on foreign soil, and use of “torture” by both the CIA and military authorities on suspects designated as “enemy combatants.” The situation became so dire that by 2006 CIA agents were under indictment in Italy for kidnapping an Italian citizen who was subsequently tortured at one of the agency’s secret prisons, and former Defense Secretary Donald Rumsfeld was forced to avoid a NATO conference in Germany and compelled to flee France to avoid being arrested and charged in both countries under international “war crimes” statutes.
In this country attorneys representing detainees at the United States Naval Base in Guantanamo Bay, Cuba complained that their clients were being routinely tortured, mistreated and abused. They requested and secured a “document preservation order” on June 10, 2005 from U.S. District Court Judge Henry H. Kennedy, Jr. instructing government officials to “preserve and maintain all evidence and information, regarding the torture, mistreatment, and abuse of detainees …” Mahmoad Abdah, et al. v. George W. Bush, et al., CA No. 04-01254 (U.S.D.C.).
There was obviously reason to believe that government and military officials would destroy “evidence” of torture. That reasoning was justified. The December 2007 New York Times report said that sometime between 2003 and 2005 the CIA interrogation videotapes vanished. The Times reported that at least four White House lawyers were at least involved in discussions about whether those tapes should be destroyed: former White House counsel and attorney general Alberto Gonzales; John Bellinger, then with the National Security Council; David Addington, former counsel to Vice President Dick Cheney and now chief of staff; and Harriett Miers, one of Bush’s closest former daily advisers.
Official sources cited in other media reports said Gonzales opposed destruction of the tapes and that Bellinger told colleagues that the administration lawyers had come to a consensus the tapes should not be destroyed.
In a February 10, 2003 letter to then-CIA general counsel Scott Muller, Rep. Jane Harmon, D-Calif., warned against destruction of the tapes: “Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the agency.”
In the wake of the New York Times disclosures, current CIA Director Michael Hayden informed Congress and the media that the interrogation tapes were nonetheless destroyed in 2005. He said the tapes were destroyed because agency officials feared that the identities of the interrogators would be revealed if the tapes were somehow disclosed to either Congress or the media. He said the tapes had been made to provide the interrogators with an additional layer of legal protection for implementing the “alternate set of interrogation procedures” authorized by President Bush.
The co-chairmen of the 9/11 Commission, Tom Kean and Lee Hamilton, have been highly critical of this official explanation. During the commission’s investigation of the 9/11 plot, they requested that the CIA provide them with “all” evidence relevant to the terrorist attacks on the Twin Towers. In an Op-Ed piece published in the New York Times on January 2, 2008, the two men leveled serious accusations against both the White House and the CIA.
“’[T]he recent revelations that the CIA destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests about the 9/11 plot,” they wrote. “Those who knew about those videotapes – and did not tell us about them – obstructed our investigation.”
The two men explicitly charged that the White House was involved in what they believe is crime.
“There could have been absolutely no doubt in the mind of anyone at the CIA – or the White House – of the commission’s interest in any and all information related to Al Qaeda detainees involved in the 9/11 plot,” they charged. “Yet no one in the administration ever told the commission of the existence of detainee interrogation … What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the [sic] tragedies to confront this country. We call that obstruction.”
The day before the Kean/Hamilton Op-Ed piece appeared in the Times, Attorney General Michael Mukasey – who is still trying to figure out whether water boarding is “torture” – appointed a veteran Connecticut Assistant U.S. Attorney named John Durham to oversee a criminal investigation by the Justice Department into the destruction of the CIA tapes.
On the day Durham was appointed constitutional law expert Jonathan Turley appeared on the MSNBC news program “Countdown” and told its host Keith Olbermann that as many as six criminal charges – including obstruction of Congress, obstruction of justice, perjury and conspiracy – could be implicated in the 9/11 Commission investigation alone by the destruction of the tapes.
Turley said that in addition of these criminal charges the tapes documented government officials involvement in the “crime” of torture.
“It is still, even after the last seven years, a crime to torture suspects,” Turley told Olbermann.
Turley accused the Washington legal and political establishment of reluctance “to pry into an underlying crime which is potentially far more serious than the burglary which was the start of Watergate.”
Olbermann pointedly asked if such an investigation “could still lead to criminal culpability for the president.”
“Most certainly it can,” Turley responded. “That original crime [torture] could only have been ordered by the president and it leads directly to his office.”
Turley, however, cautioned that the Justice Department’s investigation could “narrow this, define it in a way to avoid torture … Nobody in this town wants to talk about it because they know that there’s a lot of people in this country that like the idea of torturing these people. And that’s just a painful fact. But it’s also a painful fact that it’s a crime. And when the president says that we got some useful evidence, I don’t know if that’s true or not, but it’s immaterial. Just because it had good results or good intentions, it remains a crime.”
U.S. District Judge Henry H. Kennedy on January 9, 2008 made it clear that he was not going to follow in the footsteps of U.S. District Judge John Sirica who almost single-handedly responsible for full exposure of the Nixon Watergate scandal. In response to a recent “Emergency Motion for Inquiry” by attorneys representing the Guantanamo Bay detainees who argued that the CIA tape destruction had violated the judge’s June 10, 2005 “Document Preservation Order,” Kennedy denied the motion, saying:
“The document preservation order that is the subject of the instant motion, in pertinent part, directs respondents to ‘preserve and maintain all evidence and information regarding torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay, Cuba.’ 2005 Order 2 (emphasis supplied). Petitioners seek a judicial inquiry into whether respondents have complied with the order following the recent revelation that in 2005 the Central Intelligence Agency (‘CIA’) destroyed videotapes documenting the interrogation of two suspected Al Qaeda operatives in the CIA’s custody. Petitioners assert that this revelation ‘raises grave questions about the government’s compliance with the preservation order … [that] warrant the Court’s immediate attention.’
“Other than the revelation that the CIA has destroyed videotapes documenting ‘harsh interrogation[s]’ of persons in the custody of the CIA, petitioners offer nothing to support their assertion that a judicial inquiry regarding this court’s 2005 Order is warranted. The 2005 Order prohibits respondents from destroying evidence regarding any torture, mistreatment, or abuse of detainees that occurred in Guantanamo Bay and respondents have represented to the court that the interrogations depicted on the tapes did not occur there. To the contrary, the videotapes were recorded in their entirety in 2002 before either of the suspected Al Qaeda operatives shown on the tapes had been at Guantanamo Bay. Further, following their capture, neither suspect was in contact with any other detainee during the time when the tapes were made. Therefore, petitioners’ motion will be denied.
“The court’s decision to deny petitioners’ motion is also influenced by the assurances of the Department of Justice that its preliminary inquiry – now a criminal investigation – into the destruction of videotapes by the CIA will include the issue of whether the destruction ‘was inconsistent with or violated any legal obligations, including those arising out of civil matters such as [this Court’s] Order of June 2005.’ The Department of Justice also informed the court that ‘if the National Security Division concludes that there was a violation of this court’s order, we would so advise the court.’
“Petitioners argue that the court should not place much stock in the assurances of the Department of Justice. There is no reason to disregard the Department of Justice’s assurances. It is well-established that ‘in the absence of clear evidence to the contrary, courts presume that [public officers] … properly discharge[] their official duties.’ United States v. Mezzanatto, 513 U.S. 196, 210 (1995)(quoting United States v. Chem. Found, Inc., 272 U.S. 1, 14-15 (1926). In a matter such as this, this presumption is especially warranted with respect to this newly-appointed Attorney General [Mukasey] and Department of Justice lawyers. Petitioners have not presented anything to rebut this presumption. Nor have petitioners presented anything to cause this court to question whether the Department of Justice will follow the facts wherever they may lead and live up to the assurances it made to this court.”
Former President Bill Clinton was forced to appear before a federal grand jury and answer questions under oath concerning potential perjury and obstruction of justice issues. Marc Rotenberg, executive director of the Electronic Privacy Information Center, informed the media: “There is a presumption against the destruction of records involving potential or alleged government misconduct.”
It will be interesting to see if Justice Department officials will ultimately compel President Bush to testify before a grand jury about (1) whether he ordered interrogation procedures that could be defined as “torture” against Abu Zubaydah and Abd al-Rahim al Nashiri and (2) whether he had prior knowledge about the destruction of the CIA videotapes.
Bush said that no one in his administration told him anything about the water boarding interrogation of these two al Qaeda operatives until CIA Director Hayden told him following the New York Times disclosures. It is conceivable, although highly improbable, that none of the four known White House officials – Gonzales, Addington, Bellinger, or Miers – informed the president about their discussions concerning whether or not the CIA tapes should be destroyed.
Turley is probably right: the Washington political and legal establishment does not have either the political will or moral courage to undertake another Watergate-type investigation. Once again it is the reputation of America that suffers from the hypocrisy openly demonstrated by our official’s actions.
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