CIA DESTROYS TORTURE TAPES

I see from Memorandum that the only people writing about this at the moment are on the left. I sincerely hope that changes because this is a very important story and I would hate to think that a sense of partisanship would intrude on what is a probable violation of the law.

There may be good reason to destroy DVD’s of interrogations. But not when they have probative value in a potential court case nor when they are destroyed to cover up wrong doing by employees of the government:

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agencyâ€™s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.Aâ€™s secret detention program, according to current and former government officials. The videotapes showed agency operatives in 2002 subjecting terror suspects â€” including Abu Zubaydah, the first detainee in C.I.A. custody â€” to severe interrogation techniques. They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said. The C.I.A. said today that the decision to destroy the tapes had been made â€œwithin the C.I.A. itself,â€ and they were destroyed to protect the safety of undercover officers and because they no longer had intelligence value. The agency was headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined this afternoon to comment on the destruction of the tapes.

This is bad enough. But what makes this a budding scandal for the CIA is that both the 9/11 Commission and attorneys for Zacarias Moussaoui specifically requested such evidence and the CIA denied they had it:

The recordings were not provided to a federal court hearing the case of the terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the C.I.A. for transcripts and any other documentary evidence taken from interrogations of agency prisoners. C.I.A. lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the C.I.A. did not possess recordings of interrogations sought by the judge in the case. It was unclear whether the judge had explicitly sought the videotape depicting the interrogation of Mr. Zubaydah.

Granted the judge may not have asked for the specific tapes nor did the 9/11 Commission request anything specific. But if the CIA is going to hang its hat on that defense, damn them. Their failure to turn over potential exculpatory evidence may open an avenue of appeal for Zacarias Moussaoui to at least grant him a new trial. And they impeded the 9/11 investigation by failing to fully cooperate with the Commission’s requests for information.

It is against American law to torture prisoners – even terrorists. And American law’s definition of torture mirrors that of the definition given by the Geneva Convention. The Geneva Convention prohibits the kind of “severe interrogation techniques” that were used on Zubaydah. It’s not a question of whether waterboarding isn’t really “torture” because our special forces guys go through it as part of their training. Or other “stress techniques” aren’t really torture because they leave no marks or don’t really distress the prisoner. The law is the law and these special interrogation techniques are in violation of the Geneva Convention and hence, American law.

If one plus one still equals two, that would mean that the officials who were concerned that the tapes “could expose agency officials to greater risk of legal jeopardy” and went ahead and destroyed them anyway are up for obstruction charges.

We can argue – and I have in the past on this site – that the Geneva Convention is ridiculously out of date, moldy in its thinking and laughably naive about men at war and the exigencies of the times. And the fact that we and other western countries are the only ones who even make an attempt to conduct ourselves by its rules is patently unfair and revealing of a sickening double standard abroad in the world.

But until and unless it is amended, those officials who authorized the interrogations and who carried them out could be in violation of the law and subject to prosecution. Destroying the tapes therefore is destroying potential evidence in a criminal trial.

I don’t write much about the torture issue anymore because it sickens me to have my friends on the right trying to excuse it and it nauseates me when the left moralizes about it. It is wrong and will come back to haunt us. Not because, as some argue, that it puts our own soldiers in danger. That argument flies in the face of history. We have never fought a war where the enemy we were fighting followed the Geneva Convention. In fact, most of the enemies we have fought have been flagrant violators of human decency in their treatment of prisoners much less paying any attention to the strictures in the GC.

We should not torture because of who we are not because of what the Geneva Convention says, or the left says, or the hypocritical third world moralists say. It is wrong for Americans to do it. And yes, waterboarding is torture. Putting a prisoner in stress positions is torture. Sleep deprivation is torture.

Forget the hysterics from our political opponents and examine the issue not as a partisan but as question of simple human decency. If we Americans have lost that – if we’ve forgotten that we hold ourselves to a higher standard than the brutes we are fighting and their allies in the hypocritical third world, then we will have lost a very important component of what makes us an exceptional nation.

I don’t know if we have the courage to face this issue and bring the violators to some kind of justice. I totally reject the idea of allowing any kind of foreign tribunal to judge Americans for the simple reason I wouldn’t trust them to be fair and objective, anti-Americanism being a dominant ideology in much of the world where the efficacy of such tribunals is acknowledged. And facing the music on torture opens a chasm beneath our feet in that the techniques used on these prisoners were approved at the highest levels of the American government. The idea that these officials will walk away scott free is troubling. But if you put Bush on trial, what does that do as far as limiting the options of his successors? And is it the kind of precedent we really want to set?

I don’t know the answers to those questions. And those on the left, blinded by their unreasoning hatred of this president, are not the ones to judge the best course of action. But there clearly must be some kind of accounting for what has been done in our name. How that plays out will say a lot about us as a nation that purports to stand for the best in humanity and not the worst.

UPDATE

More from the Times here.

And The Blotter is reporting that DCIA Hayden issued a statement to CIA employees before the Times article broke, giving a rather disingenuous reason for the destruction of the tapes:

CIA Director Mike Hayden sent a message to CIA employees today saying “the press has learned” that the CIA videotaped interrogations in 2002 and that the tapes were subsequently destroyed in 2005. The decision to destroy the tapes was made by the CIA , but he says the leaders of the congressional intelligence committees knew about the tapes and the decision to destroy them. Hayden offers an explanation for why the tapes were destroyed—“no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries” and offers another defense of the interrogation techniques used by the CIA. John Sifton, a human rights attorney who is active in cases involving the CIA’s secret prison program, said today that the destruction of the tapes is a scandal. “This is a major piece of the mosaic of evidence, and now it’s gone,” said Sifton. “They should be ashamed of themselves.”

If the CIA didn’t have a history of stiffing Congressional Committees, judicial proceedings, and special tribunals like the Warren Commission, we might be more inclined to believe General Hayden.

But it is ridiculous for Hayden to say that the decision to destroy them was made in a political vacuum. As the Times article points out, the tapes were destroyed at the height of Congressional interest in the CIA’s interrogation techniques. To then go ahead and destroy a tape that may have been instructive of how the CIA carried out interrogations would seem to infer cover-up rather than some kind of standard operating procedure.

That is, unless you trust what Hayden and others are saying about the subject. And frankly, they lost the right to get the benefit of the doubt long ago.

UPDATE: 12/7:

Jamses Joyner also sees obstruction of justice as a problem for those who ordered the tapes destroyed. He also points out that there was Congressional oversight of a sort in that the Chairmen and Vice Chairs of the House and Senate Intel Committees were informed of the plan to destroy the tapes. (No mention of informing the Speaker and Minority Leader in the House and the Majority/Minority Leader in the Senate which would also be the custom in these cases of limited notification.)

James pretty much takes Hayden at his word as far as why the tapes were destroyed but points out the discrepancies in his explanation. Any way you slice it, someone needs to be held accountable for the tape’s destruction.