Jane Harman, the ranking Democrat on the House Intelligence Committee warned then-CIA general counsel Scott Muller in a 2003 letter that destroying videotapes of terrorist interrogations would put the CIA under a cloud of suspicion. However, what is as remarkable as the decision of the CIA to go ahead with the destruction is the failure of the Democrats to do nothing more than discourage what was a presumptively criminal destruction of evidence. Moreover, there is no mention of the crime of torture — only that it would “reflect badly on the agency.”
Harman asked for the letter to be declassified. It certainly shows an agency intent on destroying evidence of its own criminal acts. However, the letter also confirms how weak the oversight over the intelligence agencies has become. The letter reads more like some friendly concerns and did not include the three most obvious responses: (1) a demand that the CIA assure the Committee that the evidence would be preserve, (2) a demand for a copy of the tapes, and (3) a statement that torture is a crime and a demand for a referral to the Justice Department for prosecution.
Harman says in the Feb. 10, 2003 letter that “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.”
Notably, the CIA simply ignored warnings even from within the Administration not to destroy the tapes, including the CIA director himself. Reportedly, Alberto Gonzales, who served as White House counsel and then attorney general, advised against destroying the videotapes as did John Bellinger, then a lawyer at the National Security Council and others. Yet, none of these lawyers, including Muller, addressed the crime of torture or destruction of evidence with any other than rhetoric. It is not enough to object to criminal conduct and then remain silent.
It was Jose Rodriguez, the former head of the CIA’s National Clandestine Service who ordered the tapes destroyed. However, these meetings and Harman’s letter show that no real action was taken. Classification laws do not protect criminal acts like lying to Congress, lying to the court, destruction of evidence, and of course torture. With their knowledge and silence, these officials allowed some crimes to continue (torture) and other (lying and destruction) to occur.
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