In November 2005 the CIA destroyed videotapes of interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, two early detainees in the Bush Administration’s “war on terror.” Two years later, the news breaks and the Administration assures us that the tapes from 2002 had nothing much of interest on them and that their destruction was nothing out of the ordinary.
Don’t be so sure.
Even the limited facts at hand make clear that the CIA ran through every legal and procedural red light within the government to prevent criminal conduct or its cover-up. And it seems that the Justice Department and even the White House are sufficiently implicated in both the underlying conduct and the cover-up to require an independent investigation. The manifest corruption of oversight mechanisms means that Senator Joe Biden is correct to call for a Special Counsel to conduct an independent criminal investigation.
Readers of The Nation already know about the Bush Administration’s grim and persistent addiction to torture. But CIA director Gen. Michael Hayden wants to set aside this record and persuade the public that the destruction of interrogation tapes indicates nothing sinister. “…other methods of documenting the interrogations–and the crucial information they produced–were accurate and complete. The Agency soon determined that its documentary reporting was full and exacting, removing any need for tapes,” he said, adding that preserving the tapes would have endangered CIA officials and their families.
Even if there were no evidence of the Bush Administration’s record of torture, Hayden’s explanation would not ring true. The notion that a record of an interrogation can be reduced to writing, with no further use for videotape, is belied by a basic premise of our judicial system: the credibility of a statement can only be judged by seeing a witness in the flesh. (We even protect this right in the Sixth Amendment’s Confrontation Clause). It is beyond bizarre for Hayden to claim that reducing a videotaped interrogation to a printed transcript can remove “the need for tapes.”
Further, Hayden’s claim that the tapes’ destruction was necessary to protect CIA employees is not credible. If that were the case, most of the CIA’s files would have to be routinely destroyed, since they refer to the identity of agents. And former agents would be shunted into witness-protection programs.
Hayden’s justifications also obscure the fact that the tapes’ destruction was very probably illegal by November 2005. While early news reports have suggested that the tapes might have been relevant to the prosecution of Abu Zubaydah, it seems almost certain that preservation of the tapes was legally required by the Jose Padilla prosecution.
The government had cited Zubaydah as one of the sources for information about Padilla, immediately after Padilla’s arrest on a material witness warrant in May 2002. On November 17, 2005, after three years’ detention as an “enemy combatant,” Padilla was indicted in a Miami federal court.