8/8/2019 01-11-08 Wfp CIA Tapes

1/8

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

Centers Twin Towers not only inflicted a terrible human tragedy on

America but set into motion reactionary forces within our government that

would undermine this nations 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

Voices 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 presidents 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 CIAs secret interrogations

methods as an alternate set of interrogation procedures. This presidentialadmission came in response to international criticism. The president proudly

told Americans that the CIAs 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 providedinformation that helped us stop another planned attack on the United States

after the more physically aggressive interrogation procedures were

employed.

8/8/2019 01-11-08 Wfp CIA Tapes

2/8

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 presidents reasoning mirrors that of famed constitutional attorney Alan

Dershowitz who said torture is justified in order to find a terrorists 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 personon 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 ones own life. In his article The Argument

for Torture, Vaknin endorsed Dershowitzs notions about torture:

One has a right to save ones 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 ones 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 countrys internal

security forces could use moderate physical pressure while interrogating

8/8/2019 01-11-08 Wfp CIA Tapes

3/8

terrorist suspects. President Bush adopted essentially the same position by

authorizing the CIAs 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 hes drowning.

Human rights groups have called this procedure torture.

The United States does not torture, the president said, disagreeing with

those groups. Its against our laws, and its 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 warcrimes 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 CIAs secret prisons program, the agencys 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 wereunder indictment in Italy for kidnapping an Italian citizen who was

subsequently tortured at one of the agencys 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.).

8/8/2019 01-11-08 Wfp CIA Tapes

4/8

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

Bushs 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 interrogationtapes 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

commissions 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.

8/8/2019 01-11-08 Wfp CIA Tapes

5/8

[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 commissions 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 byCongress 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.

8/8/2019 01-11-08 Wfp CIA Tapes

6/8

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 Departments 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 theres a lot of people in this

country that like the idea of torturing these people. And thats just a painful

fact. But its also a painful fact that its a crime. And when the president says

that we got some useful evidence, I dont know if thats true or not, but its

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 judges June 10, 2005 Document

Preservation Order, Kennedy denied the motion, saying:

The document preservation order that is the subject of the instant motion, inpertinent 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

CIAs custody. Petitioners assert that this revelation raises grave questions

about the governments compliance with the preservation order [that]

warrant the Courts 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 courts 2005 Order is warranted. The 2005 Order prohibits

8/8/2019 01-11-08 Wfp CIA Tapes

7/8

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 courts 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 Courts] Order of June 2005. The Department of Justice alsoinformed the court that if the National Security Division concludes that

there was a violation of this courts 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 Justices 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 especiallywarranted 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 theElectronic 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

8/8/2019 01-11-08 Wfp CIA Tapes

8/8

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 Americathat suffers from the hypocrisy openly demonstrated by our officials

actions.