One of the unexpected turns in the trial of Zacarias Moussaoui (see item 274) came in October 2002 when he sought testimony from other terrorists in US custody. Based on a CIA declaration of May 9, 2003, the government made the following disclosure to the defense:
Question: Whether the interrogations of (redacted) are being recorded in any format?
On April 22, 2005, Moussaoui decided to plead guilty on all charges while denying any role in the 9/11 attacks, something of a logical contradiction. On November 14, 2005, in anticipation of the penalty phase of the trial, a CIA executive declared again:
“U.S. government does not have any video or audio tapes of the interrogations of (redacted)”
In a letter dated October 25, 2007 to US District Judge Brinkema who presided over the Moussaoui trial, US attorneys stated that the CIA notified them on September 13, 2007 that a videotape of an interrogation had turned up. A further search was made which uncovered a second videotape and a short audio tape. Prosecutors maintained that none of these made reference to Moussaoui or to 9/11 and that therefore these errors “do not prejudice the defendant in light of his guilty plea, extensive admissions in the penalty phase, and the jury’s decision not to impose a death sentence.” In other words, no harm no foul.
However as a result of this development in the Moussaoui case, on December 6, 2007, the story dribbled out that the CIA had made tapes of harsh interrogations, i.e. torture but had subsequently ordered them destroyed. Obviously, as the prosecutors’ letter to Brinkema showed, they did not get them all. In an attempt at damage control, current CIA director General Michael Hayden released a letter to CIA employees in which he said taping of interrogations was stopped in 2002 and that the destruction of the tapes was in order to protect CIA officials and their families from retaliation by terrorists. This fairy tale quickly became inoperative as other CIA officials admitted it was also to avoid legal jeopardy since the tapes showed what the world, with the exception of the Bush Administration, would consider torture. The destruction brought on its own legal questions however: destruction of evidence, obstruction of justice, and making false statements. The tapes made in 2002 covered two individuals. Because of the link to the Moussaoui trial, the first of these was soon identified as Abu Zubaydah whose testimony Moussaoui had sought. The second was later confirmed to be Abd al Rahim al Nashiri.
From here the story went in two directions. First, it came out that Jose Rodriguez then director of the CIA’s clandestine service ordered destruction of the tapes in November 2005 in or around Judge Brinkema’s second query about tapes. He supposedly did this “on his own” after consulting with two in house attorneys Steven Hermes and Robert Eatinger. Second, quite a few people in Washington knew about and had discussed the fate of the tapes between when they were made in 2002 and destroyed in 2005. These included in the intelligence community then DNI John Negroponte, then CIA Director Porter Goss, CIA General Counsel John Rizzo, at the White House Alberto Gonzales the President’s counsel, Harriet Miers who succeeded Gonzales in that position in 2005 after his move to Attorney General, John Bellinger senior attorney at the National Security Council, and David Addington then counsel to the Vice President, and in Congress various members of the Gang of Four: Senator Bob Graham (D-FL) and Representatives Jane Harman (D-CA), Nancy Pelosi (D-CA), and Porter Goss (R-FL). It appears that it was only among some of the White House lawyers, i.e. David Addington that there was any sentiment for the tapes’ destruction.
The idea that Rodriguez 3 years on, with talks going high above his pay grade, would suddenly decide on his own to destroy the tapes is as incredible as Hayden’s initial offering on the subject. The two questions about Rodriguez are who got to him and why someone did so at the end of 2005. Was it related to Judge Brinkema’s query or was is something else? Having destroyed what it thought was all the tapes allowed the CIA to reply to Brinkema that it had no tapes of interrogations (of Zubaydah). As the letter of the prosecutors to Judge Brinkema indicates, however, the CIA overlooked others, probably contractors, who made copies of some interrogations.
On December 12, 2007, the House Intelligence Committee announced an inquiry into the “torture tapes”. On December 14, 2007, Attorney General Michael Mukasey tried to shut it down by refusing to let the CIA cooperate with it. The Intel Committee threatened subpoenas on December 19 and the following day Mukasey
As a parenthesis, Hayden’s contention that videotaping of interrogation sessions ended in 2002 appears to be at variance with the government’s own admission that it “lost” the videotape of Jose Padilla’s last interrogation of March 2, 2004 (before his transfer to civilian custody on January 3, 2006). The judge in the Padilla case was Michael Mukasey.
On January 2, 2008, Attorney General Michael Mukasey named John Durham Deputy US Attorney for Connecticut as Acting US Attorney for Eastern Virginia for the purposes of investigating this matter. However, Durham will not be a special prosecutor. He will report to the Deputy Attorney General and through him to Mukasey and his investigation and any prosecutions that might stem from it must be approved by them. His investigation will be limited to the destruction of the two sets of tapes of the Zubaydah and al Nashiri interrogations and will not address the larger issue of other tapings (such as Padilla’s) and their destruction. Nor will there be any final report to inform the public about what happened. In other words, this is a carefully calibrated exercise in damage control and political kabuki.
At Jane Harman’s request, the CIA released on January 3, 2008, a declassified copy of a February 2003 letter she sent warning against destroying the torture tapes. This was in response to then CIA General Counsel Scott Muller indication that the tapes were slated for destruction. The tapes also figured in an investigation by CIA IG John Helgerson which concluded in May 2004 that the techniques shown might violate international law.
On February 6, 2008, it came out that Robert Spencer the prosecutor in the Moussaoui case had been told by a prosecutor working on a different project about the destruction of the tapes in February or early March 2006. Apparently suffering from the same memory afflictions as the previous Attorney General Alberto Gonzales, Spencer says he does not remember being told. That it took another 18 months and the finding of further tapes tells me that Spencer was not terribly energetic in searching for the information that Brinkema had asked for in May 2003 and again in November 2005 or interested in informing her of what he knew.