CIA Admits It Destroyed Tapes Of Interrogations

Justice Dept.: Back off on CIA tapes

http://news.yahoo.com/s/ap/20071215/ap_on_go_pr_wh/cia_videotapes

By MATT APUZZO, Associated Press Writer Sat Dec 15, 6:25 PM ET

WASHINGTON - The controversy over destroyed CIA interrogation tapes is shaping up as a turf battle involving the courts, Congress and the White House, with the Bush administration telling its constitutional coequals to stay out of the investigation.

The Justice Department says it needs time and the freedom to probe the destruction of hundreds of hours of recordings of two suspected terrorists. After Attorney General Michael Mukasey refused congressional demands for information Friday, the Justice Department filed late-night court documents urging a federal judge not to begin his own inquiry.

The administration argued it was not obligated to preserve the videotapes and told U.S. District Judge Henry H. Kennedy that demanding information about them "could potentially complicate the ongoing efforts to arrive at a full factual understanding of the matter."

The documents represent the first time the government has addressed the issue in court. In the papers, acting Assistant Attorney General Jeffrey S. Bucholtz said Kennedy lacked jurisdiction and he expressed concern that the judge might order CIA officials to testify.

Congressional inquiries and criminal investigations frequently overlap and it is not uncommon for the Justice Department to ask lawmakers to ease off. The request for the court to stand down is more unusual. Judges take seriously even the suggestion that evidence was destroyed, but they also are reluctant to wade into political debates.

Legal experts say it will be up to Mukasey, a former judge who was only recently took over as the nation's chief law enforcer, to reassure Congress and the courts during his first high-profile test.

"We're going to find out if the trust Congress put in Attorney General Mukasey was well placed," said Pepperdine Law professor Douglas W. Kmiec, who served in the Justice Department during the Reagan administration. "It's hard to know on the surface whether this is obstruction or an advancement of a legitimate inquiry."

Kennedy ordered the administration in June 2005 to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos, which involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Bucholtz argued that the tapes were not covered by Kennedy's court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

Lawmakers had reacted angrily to Mukasey's refusal Friday to give Congress details of the administration's investigation. He explained that doing so could raise questions about whether the inquiry was vulnerable to political pressure and said his department generally does not release information on pending cases.

"It's clear that there's more to this story than we have been told, and it is unfortunate that we are being prevented from learning the facts. The executive branch can't be trusted to oversee itself," according to a statement by the leaders of the House Intelligence Committee, Reps. Silvestre Reyes, D-Texas, and Pete Hoekstra, R-Mich.

They said "parallel investigations occur all of the time, and there is no basis upon which the attorney general can stand in the way of our work." Mukasey's decision, lawmakers said, blocks congressional oversight of his department.

David Remes, a lawyer who represents a Yemeni national and other detainees, has called for a court hearing. He says the government was required to keep the tapes and he wants to be sure other evidence is not being destroyed.

Even if Kennedy agrees that the government did not violate his order, he still could schedule a hearing. He could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."

Those are serious matters, but Kennedy does not necessarily have to hold a hearing right away, said K. Lee Blalack, a Washington defense lawyer and former counsel to a Senate investigative committee.

"If the department takes six months on this and reports back, nothing prevents the judge from taking up the issue then," Blalack said.

Kmiec said much will depend on how much confidence Kennedy has in the Justice Department. The judge also might order a private hearing to protect national security, Kmiec said.

Zubaydah was the first high-value detainee taken by the CIA in 2002. He told his interrogators about alleged Sept. 11 accomplice Ramzi Binalshibh, and the two men's confessions also led to the capture of Khalid Sheikh Mohammed, who the U.S. government said was the mastermind behind the terrorist attacks.

Al-Nashiri is the alleged coordinator of the 2000 suicide attack on the USS Cole in Yemen, which killed 17 sailors. Like Zubaydah, he is now at Guantanamo.
 
AHA!

Tim has cracked the case! Truth be known, I'm much more afraid of New England than I am of al CIAda. Did you see what the Pats did to my Steelers? Shameful.

Some people say that the undefeated New England Patriots have ties to al Qaeda. Just like that elusive, wily, evil OBL. [paragraph Faux News parody/sarcasm meter sez: TILT! TILT!]
 
Hoekstra defies Bush administration, pledges investigation into destroyed CIA tapes

http://www.kmeg14.com/Global/story.asp?S=7504671&nav=menu609_2_1

Associated Press - December 16, 2007 8:13 PM ET

WASHINGTON (AP) - The top Republican on the House Intelligence Committee is defying the Bush administration and promising to investigate the destruction of CIA interrogation tapes.

The Justice Department has urged Congress not to look into the matter and advised intelligence officials not to cooperate with a legislative inquiry.

Speaking on "Fox News Sunday," Congressman Peter Hoekstra (HUK'-struh) said he thinks Congress will issue subpoenas. He lambasted the intelligence community as "incompetent," "arrogant" and "political."

The CIA says it destroyed videos showing the harsh interrogation of top al-Qaida suspects. The CIA's director says the 2002 videos were destroyed in 2005 for fear the tapes would leak and reveal the identities of interrogators.

The Bush administration has asked Congress to postpone its review until it's clear where the government's preliminary inquiry will lead. They say they don't know how long that will take.
 
Judge Orders Hearing On CIA Interrogation Tapes

http://cbs4.com/national/CIA.tapes.hearing.2.613415.html

12/18/2007

WASHINGTON (CBS) ― A federal judge has ordered a hearing on whether the Bush administration violated a court order by destroying CIA interrogation videos of two Al Qaeda suspects.

U.S. District Judge Henry H. Kennedy rejected calls from the Justice Department to stay out of the matter. He ordered lawyers to appear before him Friday morning.

In June 2005, Kennedy ordered the administration to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department argued that the videos weren't covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.

David Remes, a lawyer who represents Yemeni detainees at Guantanamo Bay, asked for the court hearing. He said the government was obligated to keep the tapes and he wants to be sure other evidence is not being destroyed.

"We want more than just the government's assurances. The government has given these assurances in the past and they've proven unreliable," Remes said. "The recent revelation of the CIA tape destruction indicates that the government cannot be trusted to preserve evidence."

Kennedy did not say why he was ordering the hearing or what he planned to ask. Even if the judge accepts the argument that government did not violate his order, he still could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."

The Justice Department did not immediately comment. Its lawyers are working with the CIA to investigate the destruction of the tapes and had urged Kennedy to give them time to investigate.

Remes urged Kennedy not to comply.

"Plainly the government wants only foxes guarding this henhouse," Remes wrote in court documents this week.

The Bush administration has taken a similar strategy in its dealings with Congress on the issue. Last week, the Justice Department urged lawmakers to hold off on questioning witnesses and demanding documents because that evidence is part of the joint CIA-Justice Department investigation.

However, Rep. Peter Hoekstra of Michigan, the top Republican on the House Intelligence Committee, defied the Bush administration Sunday and pledged to investigate the destruction of CIA interrogation tapes.

Attorney General Michael Mukasey, on the other hand, refused to give Congress details of the government's investigation into the matter Friday, saying doing so could raise questions about whether the inquiry was vulnerable to political pressure.
 
Mohammed al-Kaboom: Okay okay, I'll admit it, we were protected by the ISI and CIA.

XYZ: .........what the hell are we going to do now?.....This is being recorded....

ABC: ......mmmm......good question.....
 
What is Probably in the Missing Tapes

http://www.911truth.org/article.php?story=20071214165538365

By Naomi Wolf, Monday, December 13, 2007*

To judge from firsthand documents obtained by the ACLU through a FOIA lawsuit, we can guess what is probably on the missing CIA interrogation tapes -- as well as understand why those implicated are spinning so hard to pretend the tapes do not document a series of evident crimes. According to the little-noticed but extraordinarily important book Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Jameel Jaffer and Amrit Singh, Columbia University Press, New York 2007), which presents dozens of original formerly secret documents - FBI emails and memos, letters and interrogator "wish lists," raw proof of the systemic illegal torture of detainees in various US-held prisons -- the typical "harsh interrogation" of a suspect in US custody reads like an account of abuses in archives at Yad Vashem.

More is still being hidden as of this writing -- as those in Congress now considering whether a special prosecutor is needed in this case should be urgently aware: "Through the FOIA lawsuit," write the authors, "we learned of the existence of multiple records relating to prisoner abuse that still have not been released by the administration; credible media reports identify others. As this book goes to print, the Bush administration is still withholding, among many other records, a September 2001 presidential directive authorizing the CIA to set up secret detention centers overseas; an August 2002 Justice Department memorandum advising the CIA about the lawfulness of waterboarding [Italics mine; nota bene, Mr. Mukasey] and other aggressive interrogation methods; documents describing interrogation methods used by special operations forces in Iraq and Afghanistan; investigative files concerning the deaths of prisoners in U.S. custody; and numerous photographs depicting the abuse of prisoners at detention facilities other than Abu Ghraib.'

What we are likely to see if the tapes documenting the interrogation of Abu Zubaydah and Abd Al-Rahim Al-Nashiri are ever recovered is that the "confessions" of the prisoners upon which the White House has built its entire case for subverting the Constitution and suspending civil liberties in this country was obtained through methods such as electrocution, beating to the point of organ failure, hanging prisoners from the wrists from a ceiling, suffocation, and threats against family members ("I am going to find your mother and I am going to fuck her" is one direct quote from a US interrogator). On the missing tapes, we would likely see responses from the prisoners that would be obvious to us as confessions to anything at all in order to end the violence. In other words, if we could witness the drama of manufacturing by torture the many violently coerced "confessions" upon which the whole house of cards of this White House and its hyped "war on terror" rests, it would likely cause us to reopen every investigation, including the most serious ones (remember, even the 9/11 committee did not receive copies of the tapes); shut down the corrupt, Stalinesque Military Commissions System; turn over prisoners, the guilty and the innocent, into a working, accountable justice system operating in accordance with American values; and direct our legal scrutiny to the torturers themselves -- right up to the office of the Vice President and the President if that is where the investigations would lead.

By the way: "The prohibition against torture [in the law] is considered to be a jus cogens norm, meaning that no derogation is permitted from it under any circumstances."

This is what the FOIA documents report, belying White House soundbites that "we don't torture" and explaining the intent pursuit on the part of the CIA and the White House of the current apparent obstruction of justice:

Late 2002 -- the FBI objects to the illegality of abuses being put into place by the Defense Department in its "special interrogation plan" to use isolation, sleep deprivation and menacing with dogs against prisoners.

Dec 2, 2002 -- Defense Secretary Rumsfeld personally issues a directive authorizing the use of stress positions, hooding, removal of clothing, and the terrorizing of inmates at Guantanamo with dogs.

Dec 3, 2002 -- at Baghram, interrogators kill an Afghan prisoner "by shackling him by his wrists to the wire ceiling above his cell and repeatedly beating his legs. A postmortem report finds abrasions and contusions on the prisoner's face, head, neck, arms and legs and determines that the death was a "homicide" caused by "blunt force injuries."

April 16, 2003 -- Rumsfeld approves yet another directive for abusive interrogation.

This directive for Afghanistan restores to the interrogators' arsenal many forms of torture that had been resisted by the FBI. [Notably, the FBI had resisted complying with the direct commission of torture since as early as 2002 because, as its Behavioral Analysis Unit complained to the Defense Department at that time in an internal email, "not only are these tactics at odds with legally permissible interviewing techniques [italics mine: in other words, all concerned know these are apparent war crimes]...but they are being employed by personnel in GTMO who have little, if any, experience eliciting information for judicial purposes." In other words, as any trained interrogator knows, the abuses are both doubtless illegal and certainly ineffective for getting real intelligence. [Jaffer and Singh, Timeline of Key Events, pp. 45-65,op. cit.]

Oct 22 2003 -- Final autopsy report relating to death of "52 y/o Iraqi Male, Civilian Detainee" held by U.S. forces in Nasiriyah, Iraq. Prisoner was found to have "died as a result of asphyxia...due to strangulation."

November 14, 2003 -- a sworn statement of a soldier stationed at Camp Red, Baghdad, states that "I saw what I think were war crimes" and that "the chain of command....allowed them to happen."

May 13, 2004 -- a sworn statement of the 302nd Military Intelligence Battalion recounts an incident in which "interrogators abused 17-year-old son of prisoner in order to 'break' the prisoner."

May 18, 2004 -- a Privacy Act statement of an Abu Ghraib sergeant notes that prisoners had been forced to stand "naked with a bag over their head, standing on MRE boxes and their hand spread out...holding a bottle in each hand."

May 24, 2004 -- Sworn statement of interrogator who arrived at Abu Ghraib in October 2003, discussing use of military dogs against juvenile prisoners.

June 16, 2004 -- Marine Corps document describing abuse cases between September 2001 and June 2004, including "substantiated" incidents in which marines electrocuted a prisoner and set another's hands on fire.

Undated: Sworn statement of screener who arrived at Abu Ghraib in September 2003, indicating that prisoners at Asamiya Palace in Baghdad had been beaten, burned and subjected to electric shocks.

Subsequent internal documents record prisoners being stripped, made to walk into walls blindfolded, punched, kicked, dragged about the room, observed to have bruises and burn marks on their backs, and having their jaws deliberately broken. Still other reports document further incidents classified by the military itself as probable murders committed by US interrogators.

The book also reveals an extraordinary original transcript of a Dept. of the Army Inspector General interview with Lieutenant General Randall Marc Schmidt. Lt. Gen. Schmidt had interfaced with MG Geoffrey Miller on the one hand -- the most brutal overseer of such abuses, the one who was sent to "Gitmo-ize" other prisons -- and the honorable JAG military lawyers on the other hand, over the abuses under investigation at that time. [Lt. Gen. Schmidt advised MG Miller of his rights under Article 31 of the Uniform Code of Military Justice at that time -- in other words, those involved know something serious is at stake, p. a-16].

The transcript of this internal document reveals Lt. Gen. Schmidt's own words that it was his understanding that the directives to commit these acts, many of which are apparently war crimes, came right from the top.

The interview was not primarily intended to be a public document:

"An Inspector General" notes the document, "is an impartial fact-finder for the Directing Authority Testimony taken by an IG and reports based on that testimony may be used for official purposes. Access is normally restricted to persons who clearly need the information to perform their official duties. [italics mine]. In some cases, disclosure to other persons may be required by law or regulation or may be directed by proper authority." As in the case, clearly, here -- though the immense implications of this privately taken testimony have not reverberated fully yet in a public forum: "I thought the Secretary of Defense in good faith was approving techniques," testified Lt. Gen. Schmidt. "In good faith after talking to him twice. I know that -- and these weren't interrogations or interviews of him. This was our hour and forty-five minutes and then another hour and fifteen kind of thing were [sic] we sat in there and had these discussions with him." [Testimony of Lt. Gen. Randall M Schmidt, Taken 24 August 2005 at Davis Mountain Air Force Base, Arizona, Dept. of the Army Inspector General, Investigations Division, pp. a-30 to a-53, Jaffer and Singh, op. cit].

So what should Congress know as it decides what is to be done?

We torture, illegally, by directive; the directives come from the top; those who torture know it is probably criminal; when we torture prisoners, the guilty and the innocent, they will tell us anything they think we want to hear -- including implicate themselves falsely, as many reports from Human Rights Watch and other rights organizations testify to -- to make the torture stop; and the White House routinely uses that faked or coerced unverifiable "intelligence" to buttress its wholesale assault on our liberties.

As the CIA tries to spin its apparent crimes and claim that its waterboarding and other forms of criminal torture "saved lives" -- while conveniently offering no evidence to back that up, and while the administration withholds evidence to the contrary from the lawyers of the detainees -- we should bear in mind that the decades of research on torture summarized in the magisterial survey "The Question of Torture" show beyond the shadow of a doubt that prisoners being tortured will indeed "say anything." When American prisoners were tortured by the North Vietnamese, their confessions were phrased in Communist cliches.

We should note too -- as the White House tries to muddy the waters by pretending that there has ever been a "debate" about such acts as these -- that the US in the past prosecuted waterboarding itself: when the Japanese had waterboarded US prisoners they were convicted with sentences of fifteen years of hard labor.

We should also bear in mind that the Bush White House has deliberately crafted its memos and laws -- such as the Bybee/Gonzales "torture memo" and the Military Commissions Act of 2006 -- with a keen eye to seeking indemnification of its own guilt regarding having committed evident crimes, because those involved know quite well that acts committed could be criminal acts. (An historical note worth mentioning, when we consider how hyperalert the Bush White House has been to the issue of seeking retroactively to protect itself and its subordinates from prosecution for war and other crimes, is that the Nuremberg Trials eventually swept up influential Nazi industrialists such as Fritz Thyssen of IG Farben -- who relied on Auschwitz slave labor -- and with whom Prescott Bush had collaborated in amassing the Bush family millions; some of the sentences given to those industrialists found guilty in the postwar trials were severe.) For a moment postwar, the legal spotlight was also about to search out and hold accountable the several prominent US investors who had partnered with Nazi industrialists (see the exhaustively documented study of US/Nazi corporate collaboration, IBM and the Holocaust.)

Prosecution for war crimes and other criminal acts, which the administration so clearly recognizes that it may well have committed -- which its legislation so clearly shows it realized it may well commit in advance of the commission -- is the only consequence the Bush team seems to be really afraid of as it attempts its multiple subversions of the rule of law. This is why the nation's grassroots call for a truly independent investigation into possible criminality is so very urgent and so necessary to restore the rule of law in our nation.

Mr. Mukasey could look up his own department's files and understand that waterboarding is a war crime; not only that, the US Military prosecuted waterboarding as a war crime itself in 1902 -- it had been used against prisoners in the Phillipines -- and those Americans who had committed it received convictions from the military. It is hopeless to rely on the Justice Department.

An independent special prosecutor must be appointed. The people who are found guilty, in America, must face justice.

Let the investigations begin.
 
Bush Lawyers Discussed Fate of C.I.A.Tapes

http://www.nytimes.com/2007/12/19/washington/19intel.html?_r=1&ref=us&oref=slogin

By MARK MAZZETTI and SCOTT SHANE
Published: December 19, 2007

WASHINGTON — At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

The accounts indicate that the involvement of White House officials in the discussions before the destruction of the tapes in November 2005 was more extensive than Bush administration officials have acknowledged.

Those who took part, the officials said, included Alberto R. Gonzales, who served as White House counsel until early 2005; David S. Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John B. Bellinger III, who until January 2005 was the senior lawyer at the National Security Council; and Harriet E. Miers, who succeeded Mr. Gonzales as White House counsel.

It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.

The destruction of the tapes is being investigated by the Justice Department, and the officials would not agree to be quoted by name while that inquiry is under way.

Spokesmen for the White House, the vice president’s office and the C.I.A. declined to comment for this article, also citing the inquiry.

The new information came to light as a federal judge on Tuesday ordered a hearing into whether the tapes’ destruction violated an order to preserve evidence in a lawsuit brought on behalf of 16 prisoners at Guantánamo Bay, Cuba. The tapes documented harsh interrogation methods used in 2002 on Abu Zubaydah and Abd al-Rahim al-Nashiri, two Qaeda suspects in C.I.A. custody.

The current and former officials also provided new details about the role played in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency’s clandestine branch, who ultimately ordered the destruction of the tapes.

The officials said that before he issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the C.I.A.’s top lawyer, John A. Rizzo, about the legal advice they had provided. But officials said Mr. Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the C.I.A. director, before he sent the cable to destroy the tapes.

“There was an expectation on the part of those providing legal guidance that additional bases would be touched,” said one government official with knowledge of the matter. “That didn’t happen.”

Robert S. Bennett, a lawyer for Mr. Rodriguez, insisted that his client had done nothing wrong and suggested that Mr. Rodriguez had been authorized to order the destruction of the tapes. “He had a green light to destroy them,” Mr. Bennett said.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

Top officials of the C.I.A’s clandestine service had pressed repeatedly beginning in 2003 for the tapes’ destruction, out of concern that they could leak and put operatives in both legal and physical jeopardy.

The only White House official previously reported to have taken part in the discussions was Ms. Miers, who served as a deputy chief of staff to President Bush until early 2005, when she took over as White House counsel. While one official had said previously that Ms. Miers’s involvement began in 2003, other current and former officials said they did not believe she joined the discussions until 2005.

Besides the Justice Department inquiry, the Congressional intelligence committees have begun investigations into the destruction of the tapes, and are looking into the role that officials at the White House and Justice Department might have played in discussions about them. The C.I.A. never provided the tapes to federal prosecutors or to the Sept. 11 commission, and some lawmakers have suggested that their destruction may have amounted to obstruction of justice.

Newsweek reported this week that John D. Negroponte, who was director of national intelligence at the time the tapes were destroyed, sent a memorandum in the summer of 2005 to Mr. Goss, the C.I.A. director, advising him against destroying the tapes. Mr. Negroponte left the job this year to become deputy secretary of state, and a spokesman for the director of national intelligence declined to comment on the Newsweek article.

The court hearing in the Guantánamo case, set for Friday in Washington by District Judge Henry H. Kennedy Jr. over the government’s objections, will be the first public forum in which officials submit to questioning about the tapes’ destruction.

There is no publicly known connection between the 16 plaintiffs — 14 Yemenis, an Algerian and a Pakistani — and the C.I.A. videotapes. But lawyers in several Guantánamo cases contend that the government may have used information from the C.I.A. interrogations to identify their clients as “unlawful combatants” and hold them at Guantánamo for as long as six years.

“We hope to establish a procedure to review the government’s handling of evidence in our case,” said David H. Remes, a lawyer representing the 16 detainees.

Jonathan Hafetz, who represents a Qatari prisoner at Guantánamo and filed a motion on Tuesday seeking a separate hearing, said the videotapes could well be relevant.

“If the government is relying on the statement of a witness under harsh interrogation, a videotape of the interrogation would be very relevant,” said Mr. Hafetz, of the Brennan Center for Justice at New York University law school.

In addition to the Guantánamo court filings, the American Civil Liberties Union has asked a federal judge to hold the C.I.A. in contempt of court for destroying the tapes. The A.C.L.U. says the destruction violated orders in a Freedom of Information Act case brought by several advocacy groups seeking materials related to detention and interrogation.
 
Gonzales Was There for Talks

http://www.cnn.com/2007/POLITICS/12/19/cia.tapes.ap/index.html?iref=topnews

Newspaper: Gonzales in on tape destruction talks


  • Story Highlights
  • New York Times reports White House lawyers discussed action with CIA
  • Former attorney general was administration counsel at the time
  • Harriet Miers and Cheney's chief of staff also named
  • Judge orders hearing on whether destruction violated court order
WASHINGTON (AP) -- Alberto Gonzales and other top White House lawyers took part in discussions about destroying CIA videotapes of interrogation of two al Qaeda suspects, the New York Times reported Tuesday night on its Web site.

At least four top White House lawyers discussed the issue with the CIA between 2003 and 2005, according to current and former administration and intelligence officials the newspaper did not identify.

Gonzales, the former attorney general who served as White House counsel until early 2005, was among those who took part, the officials said.

Also involved, according to the Times' sources, were David Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John Bellinger III, who until January 2005 was the senior lawyer at the National Security Council; and Harriet Miers, who succeeded Gonzales as White House counsel.

One former senior intelligence official told the Times there had been "vigorous sentiment" among some top White House officials to destroy the tapes.

Other officials asserted that no one at the White House advocated destroying the tapes, the newspaper said. Those officials added that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.

U.S. District Judge Henry H. Kennedy on Tuesday ordered Justice Department lawyers to appear before him at 11 a.m. Friday to discuss whether destroying the tapes, which showed two al Qaeda suspects being questioned, violated a court order.

The Justice Department has urged Congress and the courts to back off, saying its investigators need time to complete their inquiry. Government attorneys say the courts don't have the authority to get involved in the matter and could jeopardize the case.

For now, at least, Kennedy disagreed. Attorneys in unrelated cases, meanwhile, began pressing other judges to demand information about the tapes.

In June 2005, Kennedy ordered the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri.

The Justice Department argued that the videos weren't covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.

David Remes, a lawyer who represents Yemeni detainees at Guantanamo Bay, said the government was obligated to keep the tapes and he wants to be sure other evidence is not being destroyed.

"We want more than just the government's assurances. The government has given these assurances in the past and they've proven unreliable," Remes said. "The recent revelation of the CIA tape destruction indicates that the government cannot be trusted to preserve evidence."

Kennedy did not say why he was ordering the hearing or what he planned to ask. Even if the judge accepts the argument that the government did not violate his order, he still could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."

Also Tuesday, lawyers for a man convicted of terrorism charges alongside Jose Padilla asked a federal judge in Miami to force the government to turn over any remaining evidence regarding Zubaydah's interrogation.

Prosecutors have acknowledged that Zubaydah provided information identifying Padilla as an al Qaeda operative working on a purported "dirty bomb" plot, leading to his May 2002 arrest at Chicago's O'Hare International Airport.

Lawyer Ken Swartz said information about his client, convicted terrorism supporter Adham Amin Hassoun, might be found in those interrogations.

In a third case, this one involving another Guantanamo Bay detainee, attorney Jonathan Hafetz of the Brennan Center for Justice asked U.S. District Judge Gladys Kessler in Washington to schedule a hearing. Kessler's order, filed in July 2005, is almost identical to Kennedy's, and Hafetz says he worries key evidence was destroyed.

The Justice Department had no comment on Kennedy's decision to hold a hearing. Its lawyers are working with the CIA to investigate the destruction of the tapes and urged Kennedy to give them space and time to let them investigate.

Remes had urged Kennedy not to comply.

"Plainly the government wants only foxes guarding this henhouse," Remes wrote in court documents this week.

The Bush administration has taken a similar strategy in its dealings with Congress on the issue. Last week, the Justice Department urged lawmakers to hold off on questioning witnesses and demanding documents because that evidence is part of a joint CIA-Justice Department investigation.

Attorney General Michael Mukasey also refused to give Congress details of the government's investigation into the matter Friday, saying doing so could raise questions about whether the inquiry was vulnerable to political pressure.
 
New York Times Agrees to Story Correction on White House Role in Destroyed CIA Tapes

http://www.foxnews.com/story/0,2933,317445,00.html

Wednesday, December 19, 2007

WASHINGTON — The New York Times Wednesday issued a statement agreeing to correct a story it ran earlier in the day suggesting the White House was well involved in the discussions about whether to destroy CIA tapes showing interrogation methods of two Al Qaeda terrorists.

The decision to run a correction online and in the print edition of Thursday's paper was based on the subheadline of the story.

"The White House has not challenged the contents of our story, but it questioned the precision of the second deck of our headline: 'White House Role Was Wider Than It Said,'" reads the statement by the paper. "While Bush administration officials have discussed the White House role in the tapes episode (asserting, for example, that Harriet Miers opposed the destruction of the tapes) 'the White House' has not officially said anything on the subject."

The slight movement in the newspaper's position came after White House spokeswoman Dana Perino called for a correction to the story that suggested top White House lawyers were more involved than previously acknowledged in discussions over what to do with the tapes before they were destroyed in 2005.

Perino issued a statement calling for the correction to the story subheadline, seen in Times print editions. She told reporters that the newspaper's editors informed her that they agreed to retract the headline and run a correction.

"Well, it says, 'The White House role was wider than it said,' implying that I had either changed my story, or I or somebody else at the White House had misled the public. And that is not true," Perino said during Wednesday's press briefing.

The Times story — published Tuesday night on its Web site and in Wednesday's print editions — says that the lawyers involved in the CIA tape discussions included Miers, the former White House counsels Miers and Alberto Gonzales, David Addington and John Bellinger, some of the Bush administration's most powerful current and former legal advisers.

The Times cited unnamed current and former administration and intelligence officials, reporting, "The accounts indicate that the involvement of White House officials in the discussions before the destruction of the tapes in November 2005 was more extensive than Bush administration officials have acknowledged."

The Times writes that one former senior intelligence official with direct knowledge of the matter "said there had been 'vigorous sentiment' among some top White House officials to destroy the tapes."

While other officials told The Times "no one at the White House advocated destroying the tapes ... [H]owever, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal."

In addition to calling for a correction to the headline, Perino's statement Wednesday called the story "pernicious and troubling."

"The New York Times today implies that the White House has been misleading in publicly acknowledging or discussing details related to the CIA's decision to destroy interrogation tapes," Perino said.

But she said that couldn't be the case because the White House has been under strict orders not to comment publicly.

"Under direction from the White House General Counsel while the Department of Justice and the CIA Inspector General conduct a preliminary inquiry, we have not publicly commented on facts relating to this issue, except to note President Bush's immediate reaction upon being briefed on the matter.

"Furthermore, we have not described — neither to highlight, nor to minimize — the role or deliberations of White House officials in this matter.

"The New York Times' inference that there is an effort to mislead in this matter is pernicious and troubling, and we are formally requesting that New York Times correct the sub-headline of this story."

Perino provided a number of examples in press briefings with President Bush, herself and White House spokesman Tony Fratto declining to comment on the matter.

In one briefing on Dec. 10, a reporter asked Perino if Miers knew about the CIA tapes and whether she asked the CIA not to destroy them, which some reports have indicated.

"No. No. It's going to unfortunately be one of those briefings — I'm not able to comment on anything regarding that, except for what I said on Friday," Perino replied, "which is now, and since then, the Justice Department and the CIA have started a preliminary inquiry. We are supportive of that. We are in the fact-gathering stage, and we are providing them information. So beyond that I am not able to comment or characterize."

This latest news follows Tuesday's ruling by a federal district court judge who ordered the administration to appear in court Friday to answer questions over whether it violated a 2005 order the judge issued to preserve records related to detainees held in Guantanamo Bay, Cuba.

U.S. District Judge Henry H. Kennedy on Tuesday ordered Justice Department lawyers to appear before him Friday at 11 a.m. The Justice Department has urged Congress and the courts to back off, saying its investigators need time to complete their inquiry. Government attorneys say the courts do not have the authority to get involved in the matter and could jeopardize the case.

For now, at least, Kennedy disagreed. Attorneys in unrelated cases, meanwhile, began pressing other judges to demand information about the tapes.

In June 2005, Kennedy ordered the Bush administration to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department argued that the videos were not covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.
 
House Judiciary witness: Destroyed CIA tapes are 'ultimate cover-up'

http://rawstory.com/news/2007/Witness_tells_House_Judiciary_destroyed_tapes_1220.html

David Edwards and Jason Rhyne
Published: Thursday December 20, 2007

The CIA's official explanation for destroying at least two videotapes depicting severe interrogation techniques "fails the straight-face test," an expert witness told the House Judiciary Committee Thursday.

In a hearing focused on the Justice Department's role in the tapes' destruction and the legality of torture tactics, George Washington University Law School professor Stephen Saltzburg heavily rebuked CIA reasoning that the decision was made in part to protect the identify of interrogators.

"The rationale for destroying the tapes to protect the identity of the interrogators is almost as embarrassing as the destruction itself," said Saltzburg, who is also general counsel for the National Institute of Military Justice. He said that the tapes could easily have been modified to obscure the faces of those involved, and that regardless, the CIA keeps a written record of which officers interrogated detainees.

"And so the explanation for destruction fails the straight-face test," he said. "The only plausible explanation, I believe, is that the CIA wanted to assure that those tapes would never be seen by any judicial tribunal -- not even a military commission -- and they would never be seen by a committee of Congress."

Continued Saltzburg, "With [the CIA tapes] gone, we have the ultimate cover-up. The indisputable evidence no longer exists, and memories will undoubtedly differ about what happened."

He also chided Congress for not choosing to rein in CIA practices.

"It's vitally important for this Congress to recognize that it's part of the interrogation process," he said. "This Congress decided not to restrict the CIA, at least not explicitly. And it decided not to confine the CIA to interrogation techniques that are contained in the Army Field Manual."

A representative from the Justice Department was invited to testify before the committee, but was not present at the hearing.

Another hearing witness, former CIA general counsel and DOJ prosecutor John Radsan, was pressed by committee member Rep. Bobby Scott (D-VA) as to whether interrogators resorting to torture could be prosecuted criminally if a legal definition of the practice could be agreed upon.

"If the tapes clearly depict torture," said Scott,"let's kind of think who could be guilty of a criminal offense."

Responded Radsan, "If we agree that the conduct on those tapes [is torture], that person who did the conduct is guilty...that's for sure." He offered the same analysis for those authorizing torture.

In statements before witnesses were called, Democratic committee members also admonished the White House for its alleged role, as reported by the New York Times, in participating in discussions about the tapes with the CIA.

"It is important that we investigate these allegations carefully," said Rep. Jerrold Nadler (D-NY), "because if true, we may be facing the possibility of a dangerous and criminal abuse of powers at the highest levels of our government."

Rep. Sheila Jackson Lee (D-TX) called on the US to take a moral stand on the issue of torture , and said the country should separate itself from other nations engaging in the practice.

"This government has to be based on truth and transparency, and it certainly must be based on security, the protection of America," she said. "But the United States does not make those practices of violating the law, violating the Constitution, violating the international convention on torture -- it must not make that the norm...therefore we must not draw to the practices of foreign dictators, but we must stand alone as a beacon of light shining around the world to ensure the principles of freedom and equality and justice reign strong in this nation."

This video is from CNN.com, broadcast on December 20, 2007.

Video At Source
 
Bush: My answer on when I learned about CIA tape destruction 'sounds pretty clear to me'

http://rawstory.com/news/2007/Bush_My_answer_on_when_I_1220.html

Published: Thursday December 20, 2007

At his year-end press conference, President Bush spoke on the economy, but the very first question after his opening remarks was about the ongoing CIA tape destruction controversy.

Bush complained that Congress had stuffed a year-end spending bill with hundreds of projects that he called wasteful and instructed his budget director to explore options for dealing with them. He said he will ask his budget director to review options for eliminating spending he considers wasteful in the half-trillion dollar spending bill that Congress just passed.

The president did praise Congress for sending him "a spending bill to fund the day to day operations of the federal government. They passed this bill without raising taxes." But he complained that the measure was done so late in the year that it could slow the processing of tax returns to millions of Americans.

He said his administration would "work hard to minimize" such a delay.

The president got a little testy when a reporter asked him for more details on when he first learned about his administration's destruction of CIA interrogation tapes.

"It sounds pretty clear to me when I say the first recollection is when Mike Hayden briefed me," Bush said. "It sounds pretty clear to me."

Bush said he will reserve judgment about the CIA tape affair until several inquiries are finished.

Later, in a question about the 2008 presidential race, Bush was asked about what qualities he thought a potential president should possess.

After a moment of reflection, he said that strong guiding principles and the willingness to call on frank assessments from advisers were key.

"What are the principles that you will stand on in good times and bad times? What will be the underpinning of your decisions? What will it be?" the president said he would ask current Oval Office seekers. "Because a president needs to be consistent, and a president needs to understand that what may look like a non-issue today could be a big issue tomorrow."

Taking a somber tone, Bush also said it was paramount that a president rely on honest advice.

"How do you intend to get advice from people you surround yourself with...and what process will you have in place to ensure that you get the unvarnished opinion of advisers?" he asked. "Because whoever sits in that Oval Office is going to find this is a complex world..."

Following the press conference, House Democratic Caucus chair Rep. Rahm Emanuel (D-IL) issued the following statement:

“In 2007, Congress brought change to Washington, but President Bush’s veto pen prevented the kind of significant change our country needs. Rather than usher in support for new sources of energy, the President’s veto pen prolonged our addiction to oil. Rather than give 10 million children the health care they deserve, the President’s veto pen left millions of kids uninsured. And rather than hold Iraqis accountable for Iraq, Bush’s veto pen ensured the American military and taxpayers continue to bear the cost of the war. 2008 can be a year of big change if President Bush joins us in preparing for the future, rather than defending the failed policies of the past.”
 
Subpoena of CIA officials threatened
Justice Dept. action in tape destruction probe angers House panel chairman, who expects testimony from two top intelligence agency officials.

http://www.latimes.com/news/nationw...y?coll=la-headlines-nation&ctrack=1&cset=true

By Richard B. Schmitt, Los Angeles Times Staff Writer
December 20, 2007

WASHINGTON -- The chairman of the House Intelligence Committee, chafing at the Justice Department's handling of a probe into missing CIA interrogation tapes, threatened Wednesday to subpoena two top CIA officials to jump-start the panel's own investigation.

The department, which is conducting a criminal inquiry with the CIA inspector general into revelations that a CIA official destroyed videotapes of two terrorism suspects being interrogated in 2005, asked the panel last week to defer its inquiry.

Committee Chairman Rep. Silvestre Reyes (D-Texas) has called a hearing for Jan. 16. He said he expected testimony from both acting CIA general counsel John Rizzo and Jose A. Rodriguez Jr., the former head of the agency's operations branch, who authorized destroying the tapes.

Congressional leaders are angry because, they say, the administration did not keep them fully informed about the tapes at a time when they were investigating coercive interrogation techniques used after the Sept. 11 attacks.

Seeking to defuse the growing controversy, the Justice Department said late Wednesday that it had never advised the CIA not to cooperate with the committee, and that it hoped both investigations would proceed through "consultation and coordination," Justice spokesman Brian Roehrkasse said.

Meanwhile, the deputy attorney general-designate told the Senate Judiciary Committee on Wednesday that he would have counseled the CIA to preserve the tapes.

Mark Filip, a U.S. district judge in Chicago who has been nominated by Bush to be the department's second-ranking official, said at his confirmation hearing that he would make sure that the department was complying with any legal orders potentially covering the tapes.

"It might be the better practice to keep those in any event, given the interest in the subject matter that was on the tapes," he said.

A federal judge in Washington has set a Friday hearing to explore whether, in destroying the tapes, the U.S. violated an order he issued in a case concerning a group of alleged terrorists being detained at the Guantanamo Bay, Cuba, military prison.
 
White House faces hearing on CIA tapes
Bush Administration Faces Court Hearing Over the Destruction of CIA Videotapes

http://www.rawstory.com/news/mochila/White_House_faces_hearing_on_CIA_ta_12212007.html

MATT APUZZO
Dec 21, 2007 08:03 EST

The Bush administration has made its position clear in legal filings and now gets a chance to say it to a judge in open court: Hold off on inquiring about the destruction of CIA videotapes that showed suspected terrorists being interrogated.

U.S. District Judge Henry H. Kennedy ordered the hearing Friday over the objection of the Justice Department after lawyers raised questions about the possibility that other evidence also might have been destroyed.

Kennedy, appointed to the trial court by President Clinton, is considering whether to delve into the matter and, if so, how deeply.

The hearing marked the first time that administration lawyers were to speak in public and under oath about the matter since the CIA disclosed this month it destroyed the tapes of officers using tough interrogation methods while questioning two al-Qaida suspects.

Kennedy is presiding over a lawsuit by Guantanamo Bay prisoners who are challenging their detention. The judge had ordered the government not to destroy any evidence of mistreatment or abuse at the Navy base in Cuba.

Because the two suspects — Abu Zubaydah and Abd al-Rahim al-Nashiri — were being held overseas in secret CIA prisons, however, they are likely not covered by the order.

The tapes could be covered by a more general rule prohibiting the destruction of any evidence that could be relevant to a case. For example, if the tapes showed Zubaydah discussing any of the detainees in Kennedy's case, their destruction could have been prohibited.

Lawyers for both sides have filed classified documents regarding the tapes. That means there is a good chance Kennedy already knows whether the videos are relevant to his case.

If the judge believes the CIA destroyed the tapes to keep them from being used in court, he could side with the detainees' lawyers and order the government to disclose all the evidence it has collected, including any other evidence in addition to the tapes that has been destroyed.

He could order government officials to testify in court about the tapes, which were created in 2002 and destroyed in 2005.

The government has strongly urged against this move, saying it would disrupt a joint Justice Department-CIA investigation into the tapes. In court documents, acting Assistant Attorney General Jeffrey S. Bucholtz was concerned that Kennedy might order testimony that "could potentially complicate the ongoing efforts to arrive at a full factual understanding of the matter."

A congressional investigation is under way too. The CIA invited Capitol Hill investigators to the agency's Virginia headquarters Thursday to begin reviewing documents and records relating to the videotapes.

Kennedy could side with the Justice Department and agree there is no evidence the government acted improperly and, therefore, no reason to order anything else. Or he could say he lacks the authority to act because the videotapes were not related to his case.

Kennedy was as a federal prosecutor during the Nixon and Ford administrations until he was named a federal magistrate judge in 1976. President Carter appointed him to be a judge in the District of Columbia's courts and Clinton named him to the federal bench.
 
Congress subpoenas ex-CIA official
Congressional Panel Subpoenas Ex-CIA Official Who Ordered Destruction of Interrogation Tapes

http://www.rawstory.com/news/mochila/Congress_subpoenas_ex_CIA_official_12202007.html

PAMELA HESS
Dec 20, 2007 20:19 EST

The House Intelligence Committee issued a subpoena Thursday for Jose Rodriguez, the former CIA official who directed that secret interrogation videotapes of two suspected terrorists be destroyed.

The panel ordered Rodriguez, the former head of the CIA's National Clandestine Service, to appear for a hearing on Jan. 16. Committee Chairman Silvestre Reyes, D-Texas, said Rodriguez "would like to tell his story but his counsel has advised us that a subpoena would be necessary."

The CIA cracked open its files to congressional investigators Thursday, inviting them to the agency's Virginia headquarters to begin reviewing documents and records related to the videotapes.

House Intelligence Committee staff members want to know who authorized the tapes' destruction; who in the CIA, Justice Department and White House knew about it and when, and why Congress was not fully informed. The committee, which had threatened to subpoena the records if they did not get access this week, also wants to know exactly what was shown on the tapes, which document the harsh interrogation of two al-Qaida suspects in 2002. The CIA destroyed the tapes in 2005.

"We learned we have a long way to go, that there are a number of people involved that we need to talk with," said a committee official, who spoke on condition of anonymity because the investigation of the tapes' destruction is ongoing. "Many in the executive branch will be called." The committee is still drawing up its list of witnesses to call.

President Bush declined to address the controversy, saying at a White House news conference Thursday he was confident that administration and congressional investigations "will end up enabling us all to find out what exactly happened." He repeated his assertion that his "first recollection" of being told about the tapes and their destruction was when CIA Director Michael Hayden briefed him on it earlier this month.

At the Justice Department, investigators were combing through CIA e-mails and other documents and planning to interview former agency officials. One official familiar with the investigation said the review so far indicates that Alberto Gonzales, who served as White House counsel and then attorney general, advised against destroying the videotapes as one of four senior Bush administration attorneys discussing how to handle them. The official spoke on condition of anonymity because of the ongoing investigation. Gonzales' attorney, George Terwilliger, declined comment.

Another of the administration attorneys, John Bellinger, then a lawyer at the National Security Council, has told colleagues that administration lawyers came to a consensus that the tapes should not be destroyed, said a senior official familiar with Bellinger's account of the 2003 White House discussion. Bellinger could not be reached for comment.

"The clear recommendation of Bellinger and the others was against destruction of the tapes," the official said, speaking on condition of anonymity because of the sensitivity of the matter. "The recommendation in 2003 from the White House was that the tapes should not be destroyed."

Exactly which White House officials and attorneys discussed the tapes' destruction and when, with whom, and what they recommended is still a matter of dispute, and one that Reyes hopes his investigation will settle.

Reyes plans to open his investigation with testimony from Rodriguez and acting CIA general counsel John Rizzo on Jan. 16.

The CIA has consented to allow Rizzo to testify, although it has not committed to a date. Rodriguez is represented by attorney Robert Bennett, who also once represented President Clinton, two former secretaries of defense and New York Times reporter Judith Miller.

Reyes also wants the CIA to make available CIA attorneys Steve Hermes, Robert Eatinger, Elizabeth Vogt and John McPherson to testify before the committee. Former CIA directors Porter Goss and George Tenet, former deputy director of operations James L. Pavitt and former general counsel Scott Muller are also on the list.

Muller, who headed the CIA's legal office from 2002 to 2004, advised agency officials against destroying the tapes, according to former government officials familiar with the situation who are not authorized to speak on the record.

Among the documents the House Intelligence Committee could see is a May 2004 memo Muller wrote recording details of a meeting with White House officials that occurred as the Bush administration was scrambling to deal with the unfolding Abu Ghraib prison abuse scandal. According to these officials, the White House raised the issue in that meeting and recommended the tapes be retained intact. Muller did not seek White House input in 2003 because he believed the issue had been decided within the agency, the officials said.

Reyes' panel rejected a Bush administration request that it defer its investigation until a preliminary inquiry being conducted the Justice Department and CIA inspector general is completed.

Reyes and the committee's top Republican, Peter Hoekstra of Michigan, asked last week for immediate delivery of all documents, cables and records regarding the taping of detainee interrogations, as well as for testimony from Rizzo and Rodriguez at a planned Dec. 18 hearing. The officials did not come and the documents were not provided immediately.

Reyes said the Justice Department's letter requesting a delay in his investigation had chilled the CIA's willingness to comply with the committee's requests for information and witnesses.

Justice Department officials denied that, saying their letter did not specifically forbid the CIA to testify or provide documents, something the officials said they have no authority to do. The officials spoke on condition of anonymity because they were not authorized to talk publicly about the letter.

Attorney General Michael Mukasey, however, has refused to immediately provide details of the Justice Department's investigation to the congressional judiciary committees out of fear that could taint what may become a criminal case.

In a separate tug-of-war over who has jurisdiction to investigate the videotapes matter, a federal judge has summoned Justice Department lawyers to his courtroom Friday to determine whether the destruction of the tapes violated a court order to preserve evidence about detainees.
 
9/11 Panel Study Finds That C.I.A. Withheld Tapes

http://www.nytimes.com/2007/12/22/w...54e0f8a21e0478&ei=5088&partner=rssnyt&emc=rss

By MARK MAZZETTI
Published: December 22, 2007

WASHINGTON — A review of classified documents by former members of the Sept. 11 commission shows that the panel made repeated and detailed requests to the Central Intelligence Agency in 2003 and 2004 for documents and other information about the interrogation of operatives of Al Qaeda, and were told by a top C.I.A. official that the agency had “produced or made available for review” everything that had been requested.

The review was conducted earlier this month after the disclosure that in November 2005, the C.I.A. destroyed videotapes documenting the interrogations of two Qaeda operatives.

A seven-page memorandum prepared by Philip D. Zelikow, the panel’s former executive director, concluded that “further investigation is needed” to determine whether the C.I.A.’s withholding of the tapes from the commission violated federal law.

In interviews this week, the two chairmen of the commission, Lee H. Hamilton and Thomas H. Kean, said their reading of the report had convinced them that the agency had made a conscious decision to impede the Sept. 11 commission’s inquiry.

Mr. Kean said the panel would provide the memorandum to the federal prosecutors and congressional investigators who are trying to determine whether the destruction of the tapes or withholding them from the courts and the commission was improper.

A C.I.A. spokesman said that the agency had been prepared to give the Sept. 11 commission the interrogation videotapes, but that commission staff members never specifically asked for interrogation videos.

The review by Mr. Zelikow does not assert that the commission specifically asked for videotapes, but it quotes from formal requests by the commission to the C.I.A. that sought “documents,” “reports” and “information” related to the interrogations.

Mr. Kean, a Republican and a former governor of New Jersey, said of the agency’s decision not to disclose the existence of the videotapes, “I don’t know whether that’s illegal or not, but it’s certainly wrong.” Mr. Hamilton, a former Democratic congressman from Indiana, said that the C.I.A. “clearly obstructed” the commission’s investigation.

A copy of the memorandum, dated Dec. 13, was obtained by The New York Times.

Among the statements that the memorandum suggests were misleading was an assertion made on June 29, 2004, by John E. McLaughlin, the deputy director of central intelligence, that the C.I.A. “has taken and completed all reasonable steps necessary to find the documents in its possession, custody or control responsive” to formal requests by the commission and “has produced or made available for review” all such documents.

Both Mr. Kean and Mr. Hamilton expressed anger after it was revealed this month that the tapes had been destroyed. However, the report by Mr. Zelikow gives them new evidence to buttress their views about the C.I.A.’s actions and is likely to put new pressure on the Bush administration over its handling of the matter. Mr. Zelikow served as counselor to Secretary of State Condoleezza Rice from 2005 to the end of 2006.

In an interview on Friday, Mr. McLaughlin said that agency officials had always been candid with the commission, and that information from the C.I.A. proved central to their work.

“We weren’t playing games with them, and we weren’t holding anything back,” he said. The memorandum recounts a December 2003 meeting between Mr. Kean, Mr. Hamilton and George J. Tenet, then the director of central intelligence. At the meeting, it says, Mr. Hamilton told Mr. Tenet that the C.I.A. should provide all relevant documents “even if the commission had not specifically asked for them.”

According to the memorandum, Mr. Tenet responded by alluding to several documents that he thought would be helpful to the commission, but made no mention of existing videotapes of interrogations.

The memorandum does not draw any conclusions about whether the withholding of the videotapes was unlawful, but it notes that federal law penalizes anyone who “knowingly and willfully” withholds or “covers up” a “material fact” from a federal inquiry or makes “any materially false statement” to investigators.

Mark Mansfield, the C.I.A. spokesman, said that the agency had gone to “great lengths” to meet the commission’s requests, and that commission members had been provided with detailed information obtained from interrogations of agency detainees.

“Because it was thought the commission could ask about the tapes at some point, they were not destroyed while the commission was active,” Mr. Mansfield said.

Intelligence officials have said the tapes that were destroyed documented hundreds of hours of interrogations during 2002 of Abu Zubaydah and Abd al Rahim al-Nashiri, two Qaeda suspects who were taken into C.I.A. custody that year.

According to the memorandum from Mr. Zelikow, the commission’s interest in obtaining accounts from Qaeda detainees in C.I.A. custody grew out of its attempt to reconstruct the events leading up to the Sept. 11 attacks in the United States.

Its requests for documents from the C.I.A. began in June 2003, when it first sought intelligence reports describing information obtained from prisoner interrogations, the memorandum said. It later made specific requests for documents, reports and information related to the interrogations of specific prisoners, including Abu Zubaydah and Mr. Nashiri.

In December 2003, the commission staff sought permission to interview the prisoners themselves, but was permitted instead to give questions to C.I.A. interrogators, who then posed the questions to the detainees. The commission concluded its work in June 2004, and in its final report, it praised several agencies, including the C.I.A., for their assistance.

Abbe D. Lowell, a veteran Washington lawyer who has defended clients accused of making false statements and of contempt of Congress, said the question of whether the agency had broken the law by omitting mention of the videotapes was “pretty complex,” but said he “wouldn’t rule it out.”

Because the requests were not subpoenas issued by a court or Congress, C.I.A. officials could not be held in contempt for failing to respond fully, Mr. Lowell said. Apart from that, however, it is a crime to make a false statement "in any matter within the jurisdiction of the executive, legislative or judicial branch."

The Sept. 11 commission received its authority from both the White House and Congress.

On Friday, the leaders of the Senate Judiciary Committee sent a letter to Attorney General Michael B. Mukasey and to Mike McConnell, the director of national intelligence, asking them to preserve and produce to the committee all remaining video and audio recordings of “enhanced interrogations” of detainees in American custody.

Signed by Senator Patrick Leahy, Democrat of Vermont, and Senator Arlen Specter, Republican of Pennsylvania, the letter asked for an extensive search of the White House, C.I.A. and other intelligence agencies to determine whether any other recordings existed of interrogation techniques “including but not limited to waterboarding.”

Government officials have said that the videos destroyed in 2005 were the only recordings of interrogations made by C.I.A. operatives, although in September government lawyers notified a federal judge in Virginia that the agency had recently found three audio and video recordings of detainees.

Intelligence officials have said that those tapes were not made by the C.I.A., but by foreign intelligence services.
 
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