Saturday, December 08, 2007

Destruction of Evidence and Plausible Deniability

Mark Mazzetti writes in the New York Times today that when the C.I.A. destroyed tapes showing the brutal interrogations of two Al Qaeda operatives, it did so against the advice of the White House, the Justice Department, and leading members of Congress:

The chief of the agency’s clandestine service nevertheless ordered their destruction in November 2005, taking the step without notifying even the C.I.A.’s own top lawyer, John A. Rizzo, who was angry at the decision, the officials said.

The disclosures provide new details about what Gen. Michael V. Hayden, the C.I.A. director, has said was a decision “made within C.I.A. itself” to destroy the videotapes. In interviews, members of Congress and former intelligence officials also questioned some aspects of the account General Hayden provided Thursday about when Congress was notified that the tapes had been destroyed.

Current and former intelligence officials say the videotapes showed severe interrogation techniques used on two Qaeda operatives, Abu Zubaydah and Abd al-Rahim al-Nashiri, who were among the first three terror suspects to be detained and interrogated by the C.I.A. in secret prisons after the Sept. 11 attacks.

Kevin Drum has an excellent post up about those "severe interrogation techniques":
So what would investigators have seen if they'd had access to the tapes? One of the captured prisoners was an al-Qaeda operative named Abu Zubaydah, and it turns out we have a pretty good idea of what the tape would have shown. First, Spencer Ackerman gives us this from James Risen's State of War:
Risen charges that Tenet caved to Bush entirely on the torture of al-Qaeda detainees. After the 2002 capture of Abu Zubaydah, a bin Laden deputy, failed to yield much information due to his drowsiness from medical treatment, Bush allegedly told Tenet, "Who authorized putting him on pain medication?" Not only did Tenet get the message — brutality while questioning an enemy prisoner was no problem — but Tenet also never sought explicit White House approval for permissible interrogation techniques, contributing to what Risen speculates is an effort by senior officials "to insulate Bush and give him deniability" on torture.

And here is Barton Gellman's gloss of Ron Suskind's The One Percent Doctrine:
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be....Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics.

[Other unrelated bungling described, all of which is worth clicking the link to read.]

Which brings us back to the unbalanced Abu Zubaydah. "I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?"

Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to" And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

So here's what the tapes would have shown: not just that we had brutally tortured an al-Qaeda operative, but that we had brutally tortured an al-Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical "confessions" under duress. This was all prompted by the president of the United States, implemented by the director of the CIA, and the end result was thousands of wasted man hours by intelligence and and law enforcement personnel.

Charles Krauthammer sees no problem in all of this. Andrew Sullivan listened to him tell Fox News last night that "the torture of terror suspects in 2002 was justified because the United States was flying blind and had no knowledge of what al Qaeda was planning."
He won't say "torture", of course, although the law is clear that it is torture. (He and Fox News keep referring to the notion of "harsh interrogation techniques". I think they realized that the "enhanced interrogation techniques" was a little too close to the Gestapo's euphemism for comfort.) And he then said that destroying the tapes was justified because you don't want them coming up on YouTube, do you? So there you have it: the government has a right to torture when it feels like it and the right to destroy the evidence because it would incriminate them and hurt the image of the United States. ...

So much for the "ticking time bomb" scenario:
Notice also that this isn't the ticking time bomb case that Charles has previously invoked to defend torture. There was no imminent threat to hundreds of thousands of people; we had no way of knowing for sure that Zubaydah had any knowledge of such a devastating threat; and we have no independent way of knowing whether the information he allegedly gave up under torture was factually accurate. And so in the initial cases of torture under this administration, we discover it was used simply because we had no good intelligence of future threats; and we decided to use torture for a fishing expedition. ...

Notice the passage I bolded, above, because the fact is that the Bush administration has betrayed everything good that the United States stands for, and without even the cold comfort of having achieved a practical purpose. Indeed, as another New York Times piece -- also by Mark Mazzetti, along with David Johnston -- reports, the destruction of taped evidence that Zubaydah and other high-level Al Qaeda officials were tortured throws the entire prosecution process into disarray:
The destruction of hundreds of hours of videotapes showing interrogations of top operatives of Al Qaeda, including Abu Zubaydah, could complicate the prosecution of Mr. Zubaydah and others, and it underscores the deep uncertainties that have plagued government officials about the interrogation program.

Officials acknowledged on Friday that the destruction of evidence like videotaped interrogations could raise questions about whether the Central Intelligence Agency was seeking to hide evidence of coercion. A review of records in military tribunals indicates that five lower-level detainees at Guantánamo were initially charged with offenses based on information that was provided by or related to Mr. Zubaydah. Lawyers for these detainees could argue that they needed the tapes to determine what, if anything, Mr. Zubaydah had said about them.

There are also cases like this one, in which a suspected terrorist said he was tortured, and his attorneys sought a court order -- before the news about these destroyed interrogation tapes broke -- to prevent the U.S. government from destroying evidence of his treatment in detention:
The first of the so-called high value Guantánamo detainees to have seen a lawyer claims he was subjected to “state-sanctioned torture” while in secret C.I.A. prisons, and he has asked for a court order barring the government from destroying evidence of his treatment.

The request, in a filing by his lawyers, was made on Nov. 29, before officials from the Central Intelligence Agency acknowledged that the agency had destroyed videotapes of interrogations of two Qaeda operatives that current and former officials said included the use of harsh techniques.

Lawyers for the detainee, Majid Khan, a former Baltimore resident, released documents in his case on Friday. They claim he “was subjected to an aggressive C.I.A. detention and interrogation program notable for its elaborate planning and ruthless application of torture” to numerous detainees.
The request for an order barring the government from destroying any evidence of torture was filed in the United States Court of Appeals for the District of Columbia Circuit, which is considering a challenge by Mr. Khan to his detention.

Mr. Khan’s lawyers claim that “there is a substantial risk that the torture evidence will disappear.” They did not specify what evidence they believe may exist.

An intelligence official speaking on the condition of anonymity said the C.I.A.’s interrogations of Mr. Khan were not videotaped.

Mr. Dixon, one of Mr. Khan’s lawyers, said Saturday that the admission that officials had destroyed videotapes of interrogations showed why such an order was needed.

“They are no longer entitled to a presumption that the government has acted lawfully or in good faith,” Mr. Dixon said.

The article also mentions that Khan has had contact with Abu Zubaydah, who is also at Guantanamo.

And you will be relieved to know that Pres. Bush and Vice-President Dick Cheney knew nothing whatsoever about these tapes. Didn't know they existed; didn't know they were destroyed.

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