The CIA Asked to Destroy Torture Tapes on Same Day They Claimed They Didn’t Torture
By: emptywheel
November 24, 2009
As William Ockham has noted, there is a new – very informative – Vaughn Index and Declaration out. I’ll have much more to say about these. But for now, look at what documents 3 and 4 from the Vaughn Index tell us about the timing of the torture tape destruction.
Leonie Brinkema was the Federal Judge presiding over the case of Zacarias Moussaoui, one of the alledged "20th Bombers." In the week and a half between her request for video/audio records of torture and the Government’s response, the tapes of the waterboarding of Abu Zubaydah were destroyed by the C.I.A. and they publicly denied torture. emptywheel seems to think Pete Hoekstra [R-MI] might have known they were being destroyed.
CIA Met with White House about How to Respond to Jane Harman’s Torture Warnings
By: emptywheel
November 24, 2009
After being briefed on February 5, 2003 that the CIA had used waterboarding and intended to destroy tapes depicting that torture, Jane Harman wrote CIA General Counsel Scott Muller a letter raising concerns. Harman warned CIA they should not destroy the torture tapes, whether or not they constituted an official record.You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. 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.
And she asked directly whether President Bush had bought off on torture as a policy.I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?
In his response to her, Muller basically ignored her warning about the torture tapes. And he gave her a very indirect answer to the question that–under the National Security Act–she should have been able to get a direct answer on, whether or not Bush had signed off on the torture.While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.
As it turns out, Scott Muller was not acting alone when he largely blew off Harman’s concern. Document 28 of the CIA’s Vaughn Index on the torture tape destruction reveals that CIA met with the White House about its response to Harman. [There’s also a one-page draft of the letter to Harman dated February 19.] The Vaughn Index describes the second email, which has the subject “Harmon Letter,” this way:This is a one-page email, discussing a meeting between CIA and the White House regarding the CIA’s response to a congressional inquiry. The document also includes the draft text of a letter to Congress. This document contains information relating to the sources and methods of the CIA. The document also contains predecisional, deliberative information, CIA attorney work-product, and information provided by a CIA attorney to his client in connection with the provision of legal advice.
Thus, even though Harman’s letter and Muller’s response have been declassified, the CIA is claiming that we can’t know what Muller advised [himself? Bush? Tenet? Precisely who is the CIA General Counsel’s client, here?] about how to respond to Harman’s inquiry. So we know that the White House weighed in on how to respond to Harman. We’re just not allowed to know how they weighed in.
I was writing earlier about DECEIT. Here, from a recent document dump, we begin to learn about some of the DECEIT in responding to Congressional Inquiries, specifically about torture and the [now destroyed] tapes of Abu Zubaydah’s waterboarding. Years before we knew about the Torture Program, before the Trial of and Judge Leonie Brinkema‘s request, Jane Harman [D-CA] warned the C.I.A. not to destroy the tapes. And they were hardly forthcoming in response to her question as to whether Bush had been involved in the torture decisions. Apparently, C.I.A. Lawyer Scott Muller met with the White House to discuss responding to Congresswoman Harman.
In the month before invading Iraq, the Administration was still pretty cocky. They just blew off Jane Harman‘s attempts to find out about the Torture Program and the President’s involvement – having learned of the program as a member of the Congressional Oversight Committee. But they got increasingly wary and secretive as time passed. In April 2004, we learned about Abu Ghraib, then gradually learned that these were not isolated events, but spillover from official Torture Programs used from early on in the War on Terror. So by the time of Zacarias Moussaoui‘s trial at the end of 2005, the C.I.A. was running scared. There was proposed legislation in Congress about Torture; Judge Brinkems was asking about video/audio records, so the C.I.A. destroyed the evidence – before publicly acknowledging that it existed. It’s been six years since we invaded Iraq, and the information is still only dribbling out for bird-dogging bloggers to pore over to extract the truth.
As a retired Psychiatrist, I still get piles of throw-away journals. One is the Psychiatric Times which I still peruse once and a while. In this issue, I was heartened to see that the lead article was Mental Health Professionals in the “Enhanced” Interrogation Room. It’s a good article, documenting the involvement of mental health types in the Torture Program, with commentary on how the various professional organizations have responded. It was one of the first times I’d seen a serious review of this program and what was being done to stop it from being repeated. As much as we owe to the bloggers who take the time to sift through the government documents as they are pried loose from the government, it’s important that this information be filtered out into the world at large. It’s a story that needs to be told over and over until it has been heard. The article ends:
Medical personnel involved in interrogations not only forgot the then-existing ethics codes, but they also seemed to have forgotten about the Geneva Conventions, although 94% reported being familiar with their proscriptions against torture. Or, perhaps, they were mindful that the Commander in Chief had concluded that the Conventions were inapplicable to their conduct. If so, then they might have known that his decision also eliminated the protections of Protocol 1: “Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”
Perhaps this last point is the crux. Health care professionals were in a position to stop what the Administration and its lawyers had promoted, but the promoted position threatened not only the dignity of the detainees, but also the independent professionalism of health care providers.
As the investigation announced by current Attorney General Eric Holder proceeds, maybe we in the legal and health care professions can find reason to hope that the past 8 years will provide incentive for our professional organizations to work together in support of both medical ethics and international human rights laws.
Jane Harman’s Letter to the C.I.A.:
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February 10, 2003
Mr. Scott Muller
General Counsel Central Intelligence Agency Washington, DC 20505
Dear Mr. Muller:
Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment. I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions. At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.
It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions. I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?
You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. 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.
I look forward to your response. Sincerely, JANE HARMAN |
UPDATE: emptywheel is on fire! Torture Tapes and CIA Retirements, John Durham’s Thirteen Documents
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