CIA Interrogation Tapes: “Bad” is Hardly the Word — Call it Criminal

Below is today’s column in Roll Call on the potential basis for criminal prosecution in the destruction of CIA interrogation tapes.

Bad Is Hardly the Word For Destruction of CIA Tapes: Call It Criminal

I had wrapped up testifying before the House Judiciary Committee last week when a Republican Member caught me in the hall to say that yet another torture story was about to break. “It’s bad,” he grumbled. Bad is hardly the word to describe the disclosure that the Bush administration had ordered the destruction of tapes of the interrogation of al-Qaeda leader Abu Zubaydah — it’s criminal.

The admissions made by CIA Director Michael Hayden now establish an impressive array of alleged crimes — allegations that would easily justify a grand jury investigation in any other case. It is equally clear that some of these alleged criminal acts involved President Bush directly (most obviously, the ordering of the torture of suspects) and a variety of high-ranking administration officials.

At issue are tapes of the interrogation of Zubaydah and Abd al-Rahim al-Nashiri (the alleged mastermind of the 2000 attack on the USS Cole), which reportedly involved the use of waterboarding. Invented during the Spanish Inquisition, waterboarding has been defined as a federal crime and a war crime by both U.S. courts and international law. The tapes were made in 2002. That date is important because the use of torture was already in the news and many, including myself, were charging that anyone ordering or engaging in such torture could be prosecuted. More importantly, both the 9/11 Commission (acting under Congressional authority) and federal courts had demanded interrogation tapes but were told that they did not exist.

In 2005, the Senate Intelligence Committee repeatedly tried to determine if CIA interrogators were complying with interrogation guidelines. The CIA refused twice in 2005 to provide the committee with its general counsel’s report on the tapes.

Not only were these tapes relevant to pending cases, but it was clearly relevant to these two suspects who would seek the evidence in any future proceeding. Now, it appears that the administration not only lied to Congress and the courts but also destroyed evidence. The CIA maintains that no specific demand was made for these specific tapes and that absent knowledge of a pending or likely future proceeding, it was not obstruction to destroy the tape. That is precisely the argument repeatedly rejected by the Justice Department in past criminal cases.

Hayden told CIA employees that the agency destroyed all copies of the video in 2005. Hayden said that one of the motivations was to guarantee that the identity of those doing the interrogation would never be made public. Thus, while courts and Congress and defense counsel were all being told that no such tapes existed, copies of the tapes and still pictures were being methodically collected and destroyed. Hayden’s rationale is a virtual admission of obstruction of both Congress and the courts.

In what may be as disturbing for some voters, Hayden pointedly implicated Democrats in the controversy, stating that the CIA told oversight committees of its intention to destroy the evidence. Two Democrats have now admitted that they knew of the plan: Sen. Jay Rockefeller (W.Va.) and Rep. Jane Harman (Calif.). They insist that they did not know whether the plan was carried out — but they did nothing to stop it.

Moreover, it now appears that Democrats and Republicans knew of the use of torture for years. According to The Washington Post, various leaders were briefed on the use of waterboarding in 2002, including now-Speaker Nancy Pelosi (D-Calif.).

Recently, the White House admitted that former White House counsel Harriet Miers was also informed of the plan to destroy the tapes. The White House insists (as do the Democratic Members) that she strongly encouraged the CIA not to carry out the plan. Once again, this is obviously insufficient. Miers was counsel to the president who could have ordered the preservation of the tapes. She was aware of a plan that was presumptively unlawful and did nothing apparently but object.

The man most at risk in this scandal is Jose Rodriguez, who retired as head of the CIA’s clandestine directorate of operations in August. It was Rodriguez who reportedly ordered the tapes destroyed.

However, Rodriguez is not alone as a possible target. Then-CIA Director Porter Goss insists that he did not know that the tapes were destroyed. However, he promoted Rodriguez and was the head of the House Intelligence Committee when it was informed of the plan to destroy the tapes. According to new reports, Goss was informed of the tapes’ destruction “a couple of days” after it happened, but decided to do nothing. He never informed Congress, the courts or counsel. Once again, he can best claim nonfeasance — and a degree of incompetence — as a defense.

Then there is the general counsel of the CIA during this period, Scott Muller. Muller was the one who informed Congress and thus knew of the plan. As an attorney, he is subject to bar rules concerning unlawful and unethical conduct. He could face an investigation on whether he should be disciplined or even disbarred for his role.

There are at least a dozen individuals who should be retaining private counsel in this matter. However, it is still not clear that either Republicans or Democrats truly want an independent investigation. Notably, Democrats have largely called for investigations by the Justice Department, which guarantees that the investigation would move at a glacial pace and remain under the control of the administration. It is obvious at this point that the Justice Department should not conduct an investigation that could threaten high-ranking officials, including the president himself.

We are now at a crossroad in history. On just the admissions made by Hayden, there appear to be at least six indictable offenses against at least a dozen individuals, including the president. That number of offenses and offenders is likely to increase in the coming week, but clearly include obstruction of justice, obstruction of Congress, false statements to Congress, false statements to federal courts, conspiracy and, of course, torture. The question is not the clarity of the crimes, but the will of Congress to finally act and guarantee an independent investigation.

Despite the embarrassment to some Democrats, there is no way to continue to ignore a pattern of criminality that extends to the highest office in his country. These were crimes committed in our name and it is time for the disclosure of the truth — wherever it may lead.

Jonathan Turley is a law professor at George Washington University and lead defense counsel in pending terrorism cases.

Roll Call December 11, 2007

21 thoughts on “CIA Interrogation Tapes: “Bad” is Hardly the Word — Call it Criminal

  1. Wonderful post. Lying to Congress on the part of this administration is beginning to appear a commonplace. Henry Waxman’s Oversight Committee just released their report on Executive branch manipulation of climate science, and there is a small but significant section in it concerning the manipulation and distortion of testimony presented to Congress.

    This Administration is so criminal, so debased, that it is going to pull down both enabling Parties with it.

  2. And what of Congress’s “man” in the CIA, John Helgerson, the Inspector General of that agency?

    It is looking more and more that Michael Hayden’s investigation of Helgerson was on the order of a pre-emptive strike.

  3. Unmentioned as of yet by many is the fact that also in attendance at the meeting Harriet Miers attended were DOJ folks.

    Would this be the very same DOJ that was ordered by Judge Leonie Brinkema to respond as to the existence of any tapes?

    One could very easily ask the question of just how is it that the DOJ can respond negatively to Judge Leonie Brinkema’s question while the very same DOJ sat in a CIA briefing by by CIA General Counsel Scott W. Muller where the existence of such tapes were not only confirmed, but that the CIA had expressed the desire/intent to destroy said tapes.

    And now the DOJ is going to “investigate” whether laws have been broken?

  4. Another brilliant appearance today on Countdown by Professor Turley.

    Keith Olberman strayed a little bit toward the end of the interview, but overall the viewer was left with the impression that crimes had been committed and something needed to be done.

  5. An interesting document for any interested is found at the DOJ, Office of Legal Counsel’s log of opinions and memorandums. In December 2004, they provided the WH with a detailed memorandum on torture.

    Note the citation to the 9th Circuit’s finding in the 1996 Hilao v Estate of Marcos, where a practice recognizable as waterboarding is described and categorized as torture.

  6. I am reminded of some lines from an old poem:

    There is a power whose care
    Teaches thy way along that pathless coast,-
    The desert and illimitable air,-
    Lone wandering but not lost.

    Sometime the mightiest redoubts, proof against all assaults, weaken invisibly and subtly lose cohesion of their constituent parts.

    So one spring day, at the slightest wind, the whole tyranny collapses of a sudden and what we had thought invincible and beyond our powers to effect, lies in rubble at our feet.

  7. Great citation, Deeply Worried!

    I love the idea of using THE TRUTH, posted on DOJ’s own website, as a blunt instrument, of sorts, over which to hit the proverbial head
    and nail it, so to speak.

  8. Do you notice that the lefties who constantly complain of the harsh performance by the police, never join the force and become a gentle policeman.

    Come on Turley, bright and early in the morning, I want to see you in line applying for a job as a interrogator. If you don’t get the information and have the criminal executed, then it’s your turn.

  9. Two things, Tom:

    First, what an idiotic defense of lawbreaking. “You’ve never been a CEO, so how can you complain about Enron?” is basically where you’re going with that line of argument.

    Second, “Do you notice that the lefties who constantly complain of the harsh performance by the police, never join the force and become a gentle policeman” is in itself a dumb question, since you’d never hear about them if they did–when was the last time a gentle policeman made the news? The great majority of left-leaning Americans don’t think that all CIA agents are evil (hell, how much time has the left spent defending Valerie Plame, Larry Johnson and Ray McGovern?), but aren’t blithely willing to ignore flagrant law-breaking and inhumane practices. Your willingness to not only excuse both, but to attack those who would object to them, is disgusting.

  10. All that is at issue is the laws of the land and whether they are being broken. That is all.

    There is a secular religion to which I imagine Professor Turley belongs. It is a love of country, often called “patriotism”. Part of that lifelong passion is a love and respect for the Law and our system of Constitutional government. You might call it a form of patriotic fundamentalism and it is patriotism’s strongest form.

    Where the problem is that the current Administration is undoubtedly patriotic, but only in the weak sense. They don’t love the deep order of laws and powers that are the very bones of America and because of this lack, they have wittingly damaged the country they undoubtedly love, but also undoubtedly do not truely understand.

  11. How things might work themselves out:

    1. DOJ announces that the tapes were not necessarily destroyed.

    2. DOJ refuses to release such tapes as they may have: defining them as sensitive prosecutorial documents for ongoing DOJ investigation(s)and subject to executive privilege. They have precedent for this tack at least in respect to a congressional subpoena.

    3. Depending how determined the Dems are, the case goes to SCOTUS and the SG argues for the DOJ; 6-3 majority upholding privilege.

  12. Unclear how the Supreme Court is going to prevent all 50 State AGs from enforcing their oath against US government officials in re alleged war crimes.

  13. any request for tapes, reports, or other testimony will most likely be blocked.

    Please note the Administration’s response to the Intelligence Authorization Act for Fiscal Year 2002, Sec 305. on reports tendered to congressional committees.

    It prompted a signing statement from the WH:

    “Violates the President’s constitutional authority to withhold information, the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive or the performance of the Executive’s constitutional duty.”

    Now signing statements are of dubious force, but they do indicate how the legal thinking goes at the WH.

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