The explanation given by the CIA for destroying many hours of videotape of torture interrogations fails the straight-face test, George Washington University law professor Stephen Saltzburg told a congressional committee
As Saltzburg pointed out in a hearing before the House Judiciary Committee chaired by Rep. John Conyers (D-Mich.) on Dec. 20, 2007, the explanation that the videotapes were destroyed to protect the identity of interrogators, is almost as embarrassing as the destruction. Saltzburg rebutted it briskly:
1. The tapes could have been modified to make the interrogators unrecognizable.
2. One copy of the tapes could have been kept in a secure place with limited access.
3. The CIA is required to keep records on interrogators, so even with the tapes destroyed there is still a record of who the interrogators were.
4. Furthermore, the interrogators and others in CIA know who they are, so as long as they are alive their identity can still be revealed.
Saltzburg argues, When an agencys explanation for its actions is plainly frivolous, one must consider what the real explanation for that action must be and why the agency is desperate to conceal this explanation. In my judgment, the only plausible explanation for the destruction of the tapes is that they were destroyed to assure that they would never be viewed by any judicial tribunal, not even a military commission, or by a congressional oversight committee.
This reasonable view points to the fundamental question about the tapes themselves: What was on these videotapes that made their destruction seem politically necessary?
Every indication so far is that whoever destroyed the videotapes went out on a limb to do so, incurring considerable risk. Senior officials in the White House and the CIA have taken pains to distance themselves from the destruction.
The chair and co-chair of the 9/11 Commission, Thomas Kean and Lee Hamilton, have argued, in a Jan. 2 column for the New York Times titled Stonewalled by the C.I.A., that the CIA obstructed justice by not turning over the tapes to the Commission.
Obviously the videotapes show torture. That fact alone is horrible enough. Retired CIA analyst Ray McGovern, now a member of Veteran Intelligence Professionals for Sanity (VIPS), attended the Judiciary hearing and commented frankly that while the destruction of the videotapes is certainly important, more important yet is the basic fact that the CIA was conducting torture. As McGovern pointed out, the 9/11 Commission relied exclusively on these tapes for Chapters 5 and 7 of its final report.
But would the depiction of torture have been enough to impel the destruction of the videotapes? After all, numerous photographs showing the abuse of prisoners at Abu Ghraib and elsewhere were not destroyed.
In other words, the question remains what else was on the videotapes, besides torture?
The two prisoners depicted on the tapes were Abu Zubaydah, repeatedly alleged to be the mastermind of the Oct. 12, 2000, bombing of the USS Cole, at the port of Aden in Yemen, and Abd al Rahim al Nashiri, alleged ringleader of a similar bombing on Oct. 6, 2002, of a French oil tanker, the Limburg, holed off Yemen.
The Cole attack, in which 17 American sailors were killed, was allegedly financed and approved by Osama bin Laden, who is half Yemeni. Zubaydah, later assessed to be mentally unstable, was captured in March 2002 in Pakistan, where US intelligence found him by tracing his phone calls. He was transferred reportedly to more than one secret CIA prison.
The Yemeni government initially called the Limburg attack an accident. Al Nashiri was captured in the United Arab Emirates on Nov. 11, 2002, and reportedly was taken to a CIA interrogation center in Jordan allegedly connected with torture where about 100 detainees have been processed, including Khalid Shaikh Mohammed. Officials said that Abd al Rahim al Nashiri was such a big fish that reportedly they waited three weeks after his capture to release his name. On Nov. 22, 2002, officials released statements that al Nashiri was talking.
In 2003, the 9/11 Commission began asking CIA for documents and other information about the interrogation of detainees suspected of being al-Qaeda operatives. On April 12, 2003, in what was said to be a major blow to the Cole investigation, 10 suspects in the Cole bombing escaped from prison in Yemen.
On May 7, 2003, US District Court Judge Leonie Brinkema ordered the government to determine whether the interrogations of the detainees were being recorded. Two days later, Judge Brinkema asked whether the interrogations were recorded in any format. Attorneys for the DOJ, passing along the answer from CIA, said no. On May 15, the DOJ won two indictments in the USS Cole case, indicting in absentia two of the Yemeni fugitives. The Department of Justice flew some relatives of Cole victims to D.C. to watch the announcement. Yemen does not extradite its citizens to stand trial in other countries.
In March, 2004, the government of Yemen announced the recapture of the Cole suspects. Two other individuals were alleged to be the planners of the Cole and Limburg bombings.
One question unanswered even now is who had custody of or protected these fugitives for the next 10 months before they were recaptured?
On Sept. 29, 2004, al Nashiri was sentenced to death in Yemen, but in absentia, since he was still being held by US authorities. But on Feb. 5, 2006, a day before the start of a trial in Yemen of 15 suspects, 22 prisoners escaped again from a Yemeni prison, allegedly tunneling out obviously with help. According to Interpol, the escapees included Jamal Ahmed Badawi, a former associate of al Nashiri, and 12 other convicted members of al Qaeda allegedly involved in the Cole and Limburg attacks.
No one is talking about the Cole investigation now. But it looks as though the mysteriously destroyed videotapes connect with the Cole and Limburg cases at several points.
Meanwhile, the government argument against opening a full investigation into the destroyed tapes at the district court level in D.C. seems to be that the videotapes have no connection to Guantanamo, even though the individuals depicted in the tapes were transferred to Guantanamo. The government has not proven, or even said, that their transfer was unrelated to their interrogations, or to the destruction of the tapes.
When President Bush announced on Sept. 6, 2006, that several terrorists including Khalid Sheikh Mohammed and Abu Zubaydah had been transferred out of secret CIA prisons to Guantanamo, Bush claimed that Zubaydah had helped in the capture of KSM and other suspects.
Do the videotapes show questioners feeding names to Zubaydah? Do the videotapes show other persons present besides the torturers and the prisoners?
Attorney General Michael Mukasey announced on Jan. 2 that the Justice Department will investigate the destruction of CIA videotapes of torture interrogations.
Margie Burns is a Texas native who now writes from Washington, D.C. Email firstname.lastname@example.org. See her blog at www.margieburns.com.
From The Progressive Populist, February 1, 2008
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