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The War Profiteers - War Crimes,
Kidnappings & Torture |
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July 26th,
2010 - Key Omission in Memo to Destroy CIA Terror Tapes |
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Key Omission in Memo to Destroy
CIA Terror Tapes By Matt Apuzzo & Adam Goldman Associated Press July 26, 2010 Washington - When the CIA
sent word in 2005 to destroy scores of videos showing waterboarding and other
harsh interrogation tactics, there was an unusual omission in the carefully
worded memo: the names of two agency lawyers. Once a CIA lawyer has weighed
in on even a routine matter, officers rarely give an order without copying
the lawyer in on the decision. It's standard procedure, a way for managers to
cover themselves if a decision goes bad. But when the CIA's top
clandestine officer, Jose Rodriguez, told a colleague at the agency's secret
prison in Thailand to destroy interrogation videos, he left the lawyers off
the note. The destruction of the tapes
wiped away the most graphic evidence of the CIA's now-shuttered network of
overseas prisons, where suspected terrorists were interrogated for
information using some of the most aggressive tactics in U.S. history. Critics of that George W.
Bush-era program point to the tapes' destruction and say his administration
was trying to cover its tracks. The reality is not so
simple. Interviews with current and
former U.S. officials and others close to the investigation show that
Rodriguez's order was at odds with years of directives from CIA lawyers and
the White House. Rodriguez knew there would be political fallout for the
decision, according to documents and interviews, so he sought a legal opinion
in a way to gain needed legal cover to get the tapes destroyed - but not so
much that anyone would stop him. Leaving the lawyers he had
consulted off his cabled order to destroy the tapes was so unusual that a top
CIA official noted it in an internal e-mail just days later. The omission is
now an important part of the Justice Department's 2 1/2-year investigation
into whether destroying the tapes was a crime. Prosecutors have focused on
a little-used section of the 2002 Sarbanes-Oxley accounting law. That makes
it illegal to destroy documents, even if no court has ordered them kept and
no investigator has asked for them. Rodriguez, who wasn't
disciplined for what some former officials told prosecutors amounted to
insubordination, is frequently back at CIA headquarters as a contractor. The Associated Press has
compiled the most complete published account to date of how the tapes were
destroyed, a narrative that among other things underlines the challenges
prosecutors face in bringing charges. Most of the people
interviewed spoke on condition of anonymity because of the continuing
investigation. Some of the officials directly involved declined comment or
were unavailable. Taping CIA interrogations is
unusual, but the 2002 captures of al-Qaida operatives Abu Zubaydah and Rahim
al-Nashiri were unusual cases. The CIA wanted to unravel al-Qaida from within
and the Bush administration allowed increasingly severe tactics to try to
ensure cooperation. Officers began videotaping
to prove that Zubaydah arrived in Thailand wounded and to show they were
following Washington's new interrogation rules. Almost as soon as taping
began, officials began discussing whether to destroy the tapes. Dozens of
officers and contractors appeared on the tapes. If those videos surfaced,
officials feared, nearly all those people could be identified. In November 2002, CIA lawyer
John L. McPherson was assigned to watch the videos and compare them with written
summaries. If the reports accurately described the videos, that would bolster
the case that the tapes were unnecessary. Several of the 92 videos had
been taped over, so the quality was poor. Others contained gaps. When one
tape ran out, documents show, interrogators didn't always immediately insert
a new one. Many contained brief interrogation sessions followed by hours of
static. McPherson concluded in
January 2003 that the summaries matched what he saw. With that assurance, the
CIA planned to destroy the tapes. But lawmakers who were briefed on the plan
raised concerns, and the CIA scrapped the idea, agency documents show. The White House didn't learn
about the tapes for a year, and even then, it was somewhat by chance. Near the end of a May 2004
meeting between CIA general counsel Scott Muller and White House lawyers, the
conversation turned to the scandal over photos of abuse in the military's Abu
Ghraib prison in Iraq. National Security Council
lawyer John Bellinger's question was almost offhand: Does the CIA have
anything that could cause a firestorm like Abu Ghraib? Yes, Muller said. David Addington, a former
CIA lawyer who was Vice President Dick Cheney's legal counsel, was stunned
that videos existed, officials said. But he told Muller not to destroy them,
and Bellinger and White House counsel Alberto Gonzales agreed, according to
documents and interviews with former officials. That order stood for more
than a year. Muller's successor, John Rizzo, received similar instructions
from the next White House counsel, Harriet Miers: Check with the White House
before destroying the tapes. All the while, courts and
lawmakers looking into detainee treatment were unknowingly coming close to
the tapes: - A Virginia judge asked
whether there were interrogation videos of witnesses relevant to Sept. 11
conspirator Zacarias Moussaoui. But that didn't cover Zubaydah, who the judge
said was immaterial to the Moussaoui case, so the CIA didn't tell the court
about his interrogation tape. - A Washington judge told
the CIA to safeguard evidence of mistreatment at Guantanamo Bay. But Zubaydah
and al-Nashiri were overseas at the time, so the agency regarded the order as
not applicable to the tapes of their interrogations. - A New York judge told the
CIA to search its investigative files for records such as the tapes. But the
CIA considered the tapes part of its operational files and therefore exempt
from FOIA disclosure and did not reveal their existence to the court. - The Sept. 11 commission
asked for many documents, but never issued a subpoena. Despite the White House
orders, momentum for destroying the tapes grew again in late 2005 as the CIA
Thailand station chief, Mike Winograd, prepared to retire. Winograd had the tapes and
believed they should be destroyed, officials said. At CIA headquarters,
Rodriguez and his chief of staff agreed. Winograd did not return several
messages from the AP seeking comment. On Nov. 4, 2005, Rodriguez
asked CIA lawyer Steven Hermes whether Rodriguez had the authority destroy
the tapes. Hermes said Rodriguez did, according to documents and interviews.
Rodriguez also asked CIA lawyer Robert Eatinger whether there was any legal
requirement to keep the tapes. Eatinger said no. Both Eatinger and Hermes
remain with the agency and were unavailable to be interviewed. But both told
colleagues they believed Rodriguez was merely restarting the discussion.
Because of previous orders not to destroy the tapes, they were unaware
Rodriguez planned to move immediately, officials told the AP. Rodriguez told Winograd to
request approval to destroy the tapes. That request arrived Nov. 5. Rodriguez
sent his approval three days later. He and his chief of staff
were the only names on the cable. Had he sent a copy also to the CIA lawyers
- Rizzo, Hermes or Eatinger - or even to CIA Director Porter Goss, any of
them could have intervened. "Before Jose did what
he did, he was confident it was legal, that there was no impediment to him
doing it," his lawyer, Robert Bennett told the AP. "And he always
acted in the best interest of the U.S. and its people." It took about 3 1/2 hours to
destroy the tapes. On Nov. 9, Winograd informed Rodriguez the job was
complete. Goss and Rizzo wouldn't find out until the next day. Rizzo was angry and Miers
livid, according to internal CIA e-mails. Goss agreed with Rodriguez's
decision, the e-mails said, but predicted he'd get criticized for it.
Rodriguez was undeterred. "As Jose said, the heat
from destroying is nothing compared to what it would be if the tapes ever got
into public domain - he said out of context, they would make us look
terrible; it would be devastating to us," said an e-mail from an aide to
the agency's No. 3 official, Kyle "Dusty" Foggo. Such statements could be
used as evidence if prosecutor John Durham seeks charges in the case. Even if
Rodriguez genuinely worried about the safety of his officers and wasn't
trying to obstruct an investigation, if he feared the tapes might someday be
made public, that could be enough to violate the Sarbanes-Oxley obstruction
law. As the case winds down,
McPherson, who reviewed the tapes in 2003, again has been thrust into a
central role. McPherson has received immunity in exchange for cooperating
with prosecutors, an unusual protection for a government lawyer. CIA spokesman George Little
said the agency is cooperating with investigators. Rodriguez, now an executive
with contractor Edge Consulting, a job that regularly gives him access to the
national intelligence director's office and CIA headquarters, still hasn't
received an official retirement party. © 2010 The Associated Press External link: http://www.washingtonpost.com/wp-dyn/content/article/2010/07/26/AR2010072600575.html |