Destroyed CIA tapes to undermine Gitmo trials?
The CIA's admission that it filmed the interrogation of terrorism suspects and then destroyed the tapes will kill any chances of convictions, attorneys representing Guantanamo Bay prisoners say. "First, it's a criminal offence to destroy evidence," said Clive Stafford Smith of the legal group Reprieve. "Second, if you do, the American case law is quite clear: the charges get dismissed against the individual if it's evidence that would have helped the defense." Stafford Smith, who represents seven Guantanamo inmates, said, "Now, because they've tortured them, they've made the job of putting them on trial very much more difficult."
Human rights groups roundly condemned the CIA's actions. Jameel Jaffer, director of the American Civil Liberties Union's National Security Project, said in a statement: "Apparently the CIA believes that its agents are above the law."
Elisa Massimino of Human Rights First said: "At the same time Congress was passing laws to reinforce the ban on torture and other inhuman treatment of prisoners, it appears the CIA was destroying evidence of its own use of these illegal methods. Can there be a more telling admission that the CIA knew what it was doing was wrong?" She said the US Congress should demand—by subpoena if necessary—any evidence of CIA prisoner abuse not already destroyed.
The decision to destroy two videotapes documenting the use of waterboarding against Abu Zubaydah and another supposed al-Qaeda detainee was made in November 2005—just as the media were starting to focus on the existence of the secret CIA prison network. CIA director Michael Hayden told agency employees in a statement Dec. 6—one day after he learned the New York Times intended to publish an article on the destroyed videotapes: "The tapes posed a serious security risk. Were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from al-Qaeda and its sympathizers."
The order to destroy the tapes reportedly came from José Rodriguez Jr, then "deputy director of operations," of head of the CIA's clandestine missions. Hayden said the interrogations were filmed in 2002 after George Bush authorized the use of harsh interrogation, including waterboarding, against al-Qaeda suspects. "The agency was determined that it proceed in accord with established legal and policy guidelines," Hayden wrote. "So, on its own, CIA began to videotape interrogations."
But human rights attorneys remain skeptical of assurances. "I am confident that abusive interrogation techniques are going on even as we have this conversation," Stafford Smith told Reuters. (Reuters, The Guardian, Dec. 7)
See our last post on the torture scandal.
Waterboarding, 1858
File this under "the more things change, the more they stay the same." The website of the New York Correction History Society has a page on the use of waterboarding—then called the "shower bath"—as a "disciplinary measure" in New York state prisons over a century ago, with chilling excerpts and illustrations from an exposé in the Dec. 18, 1858 edition of Harper's!
ACLU demands independent prosecutor
From the ACLU, Dec. 7:
ACLU Calls for Independent Prosecutor to Investigate Destruction of CIA Interrogation Tapes
Says Possible Cover-Up of Potential Criminal Activity Needs to Be Examined
WASHINGTON - With the news yesterday that the Central Intelligence Agency destroyed at least two videotapes documenting the brutal interrogations of al-Qaeda suspects, the American Civil Liberties Union calls on Attorney General Mukasey to appoint an independent counsel to investigate, and if appropriate, prosecute any potential criminal activity. One of the tapes, made in 2002, purportedly shows the interrogation of Abu Zubaydah, who U.S. officials have acknowledged was subjected to waterboarding. The CIA destroyed the tapes in November 2005.
"The CIA’s destruction of these tapes shows complete disdain for the rule of law. This reeks of a deliberate cover up of potential criminal activity by the CIA, and the videos could have shown once and for all that the CIA does indeed torture," said Anthony D. Romero, Executive Director of the ACLU.
The CIA reportedly withheld knowledge of the tapes’ existence from federal prosecutors and the 9/11 Commission, both of which specifically asked for depictions of interrogations. The government also failed to produce the tapes as part of an ACLU Freedom of Information Act lawsuit in which a federal judge ordered the release of any documentation pertaining to treatment of detainees in U.S. custody. ACLU lawyers are considering appropriate next steps in that ongoing litigation. CIA officials claim the tapes were destroyed partly out of concern that showing the brutal interrogation methods could expose the agency to legal risks. Somewhat ironically, news of the tapes’ destruction came on the same day that Senator Dianne Feinstein (D-CA) added an amendment to the 2008 intelligence authorization bill that applies the Army Field Manual to all government agencies, including the CIA. The Army Field Manual prohibits specific acts of torture and abuse, including waterboarding, and also authorizes an array of specific interrogation tactics.
"For what reason would the CIA destroy these videotapes other than to cover up criminal acts committed during the brutal interrogations depicted on these tapes?" asked Caroline Fredrickson, director of the ACLU Washington Legislative Office. "The failure to turn over these tapes raises the kind of questions that only an independent prosecutor can investigate."
In June 2004, then-Attorney General John Ashcroft sent 21 referrals of possible violations of federal anti-torture laws by civilian interrogators to the U.S. Attorney for the Eastern District of Virginia. To date, the Justice Department has not brought any indictments based on these referrals.
Fredrickson added, "Attorney General Mukasey refused to comment on waterboarding and brutal interrogation methods during his confirmation hearings, but he cannot duck the issue any longer. This is his opportunity to restore Americans’ faith in government. The Department of Justice has failed to do its job of investigating and prosecuting possible violations by civilians in the past. Now three and a half years later, it is time to turn the matter over to an independent investigator."