The Torture Tapes

Saturday, December 8, 2007

WHEN IT destroyed at least two videotapes of the interrogation of captured al-Qaeda operatives, the Central Intelligence Agency may have eliminated evidence of criminal activity. Abu Zubaida, one of the two detainees whose questioning was taped, is known to have been subjected to

waterboarding. The United States has prosecuted as criminals practitioners of that ancient torture technique for more than a century. Political appointees in the Justice Department prepared a notoriously twisted brief in 2002 justifying this barbaric practice as legal. But by 2005, when the tapes were destroyed, the White House had been forced to repudiate that "torture memo" and the CIA had stopped waterboarding under pressure from Congress. At the time, multiple investigations of the illegal abuse of prisoners were underway.

In that context, CIA Director Michael V. Hayden's assertion that the tapes were purged because of concerns they would leak and be used by al-Qaeda to track down interrogators is not credible. The CIA is skilled at keeping secrets and protecting agents without destroying valuable material. It is far more plausible that CIA officials eliminated evidence that could have been used to hold interrogators accountable for illegal acts of torture -- as well as the more senior administration officials who ordered or approved those acts.

Gen. Hayden's account of the tapes, which apparently was hastily prepared after the New York Times inquired about them, also asserts that top congressional leaders and committees were informed of the tapes' existence and of the decision to destroy them. This was quickly contradicted by a parade of Republicans and Democrats who said they were not told about the tapes' destruction in advance. Rep. Jane Harman (D-Calif.) said she warned in a 2003 letter against the destruction of any videotapes. The executive director of the Sept. 11 commission said it asked the CIA for such material in 2004 but did not receive it.

Congress has already immunized CIA staffers for the acts of torture they may have committed against al-Qaeda prisoners. But destruction of the evidence could still be a crime. Sen. John D. Rockefeller IV (D-W.Va.) said Thursday that the Senate intelligence committee he chairs has asked "for a complete and accurate chronology of events related to the tapes, including how the tapes were used, when and why they were destroyed, who was notified of their destruction and when, and any communication about them that was provided to the courts and Congress." Attorney General Michael B. Mukasey, who promised Congress he would uphold the law in just this sort of case, should order a criminal inquiry by the Justice Department.

In the meantime Congress must act to ensure that the CIA will no longer practice torture. On Wednesday a conference committee approved an amendment to an intelligence funding bill that would require that the recently revised Army interrogation manual, which bans waterboarding and other torture methods, apply to detainees held by U.S. intelligence agencies. Many senior military commanders -- including, most recently, Gen. David H. Petraeus -- have said that the techniques in the manual have proven effective in obtaining intelligence and that harsher methods are counterproductive. Senators who have trumpeted their faith in Gen. Petraeus's judgment in Iraq should listen to this counsel as well.

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