Biden wants special counsel for CIA destruction case

Inquiry Begins Into Tapes' Destruction
Inquiry Begins Into Tapes' Destruction
By Mark Mazetti and David Johnston
The New York Times
Sunday 09 December 2007

Washington - The Justice Department and the Central Intelligence Agency's internal watchdog on Saturday began a joint preliminary inquiry into the spy agency's destruction of hundreds of hours of videotapes showing interrogations of top operatives of Al Qaeda.

The announcement comes amid new questions about which officials inside the C.I.A. were involved in the decision to destroy the videotapes, which showed severe interrogation methods used on two Qaeda suspects, Abu Zubaydah and Abd al-Rahim al-Nashiri.

The agency operative who ordered the destruction of the tapes in November 2005 was Jose A. Rodriguez Jr., then the chief of the C.I.A.'s national clandestine service, known as the Directorate of Operations until 2005. On Saturday, a government official who had spoken recently with Mr. Rodriguez on the matter said that Mr. Rodriguez told him that he had received approval from lawyers inside the clandestine service to destroy the tapes.

This disclosure could broaden the scope of the inquiry into the tapes' destruction. Several officials said that top lawyers at the White House and the Justice Department advised the C.I.A. in 2003 not to destroy the videos.

Current and former intelligence officials said that the agency's senior lawyer, John A. Rizzo, had not been notified about the decision and was angered to learn about the destruction of the tapes, which could complicate the prosecution of Abu Zubaydah and others.

Mr. Rizzo's position, together with the fact that the C.I.A. inspector general, John L. Helgerson, is now examining the matter, indicates a greater level of internal concern at the agency over the destruction than Gen. Michael V. Hayden, the C.I.A. director, indicated in his message to agency employees on Thursday. General Hayden's message said that Mr. Helgerson's office had reviewed the tapes in 2003, but did not mention whether the inspector general had signed off on their destruction.

In a statement released on Saturday, General Hayden said he welcomed the inquiry and the "C.I.A. will cooperate fully."

Investigators will gather facts to determine whether a full inquiry is warranted. If it is determined that any agency employee broke the law, the standard procedure would be for Mr. Helgerson to issue a criminal referral to the Justice Department.

The investigation comes after both the Senate and House intelligence committees started their own investigations into the destruction of the tapes. In a statement on Saturday, the chairman of the House Intelligence Committee, Representative Silvestre Reyes, Democrat of Texas, said the inquiry would be an "important first test" for Attorney General Michael B. Mukasey to demonstrate his independence. "I have yet to receive a satisfactory answer as to why Congress was kept in the dark about this matter," he said.

In a letter to the C.I.A. on Saturday, Assistant Attorney General Kenneth L. Wainstein, who heads the Justice Department's National Security Division, requested to meet with Mr. Helgerson and Mr. Rizzo early next week to discuss the inquiry.

Mr. Rodriguez, who could not be reached for comment, announced his retirement from the agency this summer. The New York Times has made a request through an agency spokesman to speak with him.

Officials have acknowledged that the destruction of evidence like videotaped interrogations could raise questions about whether the C.I.A. was seeking to hide evidence of coercion. A review of records from military tribunals indicates that five lower-level detainees at Guant‡namo Bay, Cuba, were initially charged with offenses based on information provided by or related to Abu Zubaydah.

Military defense lawyers said the fact that interrogation tapes were destroyed could provide a way to challenge other cases that may be based on information from Abu Zubaydah, though such challenges would face major legal obstacles under the current rules for military prosecutions. They said the defense could argue that the tapes might have raised questions about whether the information was believable or whether Abu Zubaydah had invented it simply to stop aggressive interrogation techniques. Col. Steven David, the chief military defense lawyer for the Guant‡namo war crimes cases, said at a trial, "The inference is they destroyed it because it was bad for them."

He said the disclosure of the destroyed tapes "raises serious concerns" about other potential prosecutions, but it was too early to say how many, or how serious the damage might be. In any case based on information from Abu Zubaydah, defense lawyers could raise the issue of the destroyed tapes as a way to challenge the case. From a defense lawyer's perspective, Colonel David said, "the issue becomes what is lost, what is destroyed, what else has been destroyed and what else is out there that we are not aware of."

Abu Zubaydah and Mr. al-Nashiri, who is said to be the chief planner of the 2000 attack on the Navy destroyer Cole, are the only suspected Qaeda figures identified so far as the subjects of interrogations recorded on the destroyed tapes.

The destruction of the tapes has intensified the focus on Abu Zubaydah, who was captured in March 2002. As one of the first close associates of Osama bin Laden to be caught after the 9/11 attacks, Abu Zubaydah became a test case on which the C.I.A. built and then adjusted its program of aggressive interrogations and overseas secret jails in the years that followed.

Current and former intelligence officials have said that Abu Zubaydah was subjected to coercive techniques by C.I.A. interrogators even before the Justice Department issued a formal, classified legal opinion in August 2002 declaring that the coercive techniques did not constitute torture.

It is not known whether the videotape depicting his interrogation preceded the 2002 opinion, nor is it known what acts were recorded on the tapes. General Hayden said in his statement that the tapes were intended as an "internal check on the program in its early stages," despite what he called "the great care taken and detailed preparations made."

But the destruction of the tapes in 2005 appeared to reflect what former and current intelligence officials have described as longstanding worries about the legality of the C.I.A.'s interrogation practices and the possible legal jeopardy for any employees who engaged in them.

Abu Zubaydah's case opens a window on a broader debate about the Bush administration's interrogation policies and the tactics used on Abu Zubaydah and other terrorism suspects.

President Bush has argued, since officially confirming the existence of the interrogation program in September 2006, that Abu Zubaydah's case proved the value of harsh interrogation methods because Abu Zubaydah yielded valuable intelligence about the 9/11 plot only after those tactics were employed. That assertion was repeated on Thursday by General Hayden.

But other government officials have long disputed some aspects of the C.I.A.'s version of events. These officials said Abu Zubaydah, who had been taken to a secret location in Thailand, cooperated with interviewers from the F.B.I., who used a nonconfrontational approach, until C.I.A. interrogators took over the questioning in April or May of 2002 and used more aggressive techniques.

After the Thailand confrontation, the F.B.I. forbade its agents from taking part in sessions in which harsh methods were used. In his early F.B.I. interviews, Abu Zubaydah, who had been severely wounded during his capture, identified Khalid Shaikh Mohammed as the chief planner of the 9/11 attacks. He also identified Jose Padilla, an American who was convicted in a Miami federal court in August on terrorism-related charges, as a low-ranking follower of Al Qaeda.

Government officials said that during Abu Zubaydah's interrogation sessions, his C.I.A. questioners used tactics including noise, stress positions, isolation and waterboarding, in which a subject is made to believe he is being drowned. In 2002, during parts of June and July, current and former intelligence officials have said, the C.I.A. suspended the use of harsh techniques against Abu Zubaydah.
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William Glaberson contributed reporting from Washington, and Margot Williams from New York.

Hill Briefed on Waterboarding in 2002
Hill Briefed on Waterboarding in 2002
By Joby Warrick and Dan Eggen
The Washington Post
Sunday 09 December 2007

In meetings, spy panels' chiefs did not protest, officials say.

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

"The briefer was specifically asked if the methods were tough enough," said a U.S. official who witnessed the exchange.

Congressional leaders from both parties would later seize on waterboarding as a symbol of the worst excesses of the Bush administration's counterterrorism effort. The CIA last week admitted that videotape of an interrogation of one of the waterboarded detainees was destroyed in 2005 against the advice of Justice Department and White House officials, provoking allegations that its actions were illegal and the destruction was a coverup.

Yet long before "waterboarding" entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).

Individual lawmakers' recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. "And the reaction in the room was not just approval, but encouragement."

Congressional officials say the groups' ability to challenge the practices was hampered by strict rules of secrecy that prohibited them from being able to take notes or consult legal experts or members of their own staffs. And while various officials have described the briefings as detailed and graphic, it is unclear precisely what members were told about waterboarding and how it is conducted. Several officials familiar with the briefings also recalled that the meetings were marked by an atmosphere of deep concern about the possibility of an imminent terrorist attack.

"In fairness, the environment was different then because we were closer to Sept. 11 and people were still in a panic," said one U.S. official present during the early briefings. "But there was no objecting, no hand-wringing. The attitude was, 'We don't care what you do to those guys as long as you get the information you need to protect the American people.' "

Only after information about the practice began to leak in news accounts in 2005 - by which time the CIA had already abandoned waterboarding - did doubts about its legality among individual lawmakers evolve into more widespread dissent. The opposition reached a boiling point this past October, when Democratic lawmakers condemned the practice during Michael B. Mukasey's confirmation hearings for attorney general.

GOP lawmakers and Bush administration officials have previously said members of Congress were well informed and were supportive of the CIA's use of harsh interrogation techniques. But the details of who in Congress knew what, and when, about waterboarding - a form of simulated drowning that is the most extreme and widely condemned interrogation technique - have not previously been disclosed.

U.S. law requires the CIA to inform Congress of covert activities and allows the briefings to be limited in certain highly sensitive cases to a "Gang of Eight," including the four top congressional leaders of both parties as well as the four senior intelligence committee members. In this case, most briefings about detainee programs were limited to the "Gang of Four," the top Republican and Democrat on the two committees. A few staff members were permitted to attend some of the briefings.

That decision reflected the White House's decision that the "enhanced interrogation" program would be treated as one of the nation's top secrets for fear of warning al-Qaeda members about what they might expect, said U.S. officials familiar with the decision. Critics have since said the administration's motivation was at least partly to hide from view an embarrassing practice that the CIA considered vital but outsiders would almost certainly condemn as abhorrent.

Information about the use of waterboarding nonetheless began to seep out after a furious internal debate among military lawyers and policymakers over its legality and morality. Once it became public, other members of Congress - beyond the four that interacted regularly with the CIA on its most sensitive activities - insisted on being briefed on it, and the circle of those in the know widened.

In September 2006, the CIA for the first time briefed all members of the House and Senate intelligence committees, producing some heated exchanges with CIA officials, including Director Michael V. Hayden. The CIA director said during a television interview two months ago that he had informed congressional overseers of "all aspects of the detention and interrogation program." He said the "rich dialogue" with Congress led him to propose a new interrogation program that President Bush formally announced over the summer

"I can't describe that program to you," Hayden said. "But I would suggest to you that it would be wrong to assume that the program of the past is necessarily the program moving forward into the future."

Waterboarding Used on at Least Three

Waterboarding as an interrogation technique has its roots in some of history's worst totalitarian nations, from Nazi Germany and the Spanish Inquisition to North Korea and Iraq. In the United States, the technique was first used five decades ago as a training tool to give U.S. troops a realistic sense of what they could expect if captured by the Soviet Union or the armies of Southeast Asia. The U.S. military has officially regarded the tactic as torture since the Spanish-American War.

In general, the technique involves strapping a prisoner to a board or other flat surface, and then raising his feet above the level of his head. A cloth is then placed over the subject's mouth and nose, and water is poured over his face to make the prisoner believe he is drowning.

U.S. officials knowledgeable about the CIA's use of the technique say it was used on three individuals - Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001, terrorist attacks; Zayn Abidin Muhammed Hussein Abu Zubaida, a senior al-Qaeda member and Osama bin Laden associate captured in Pakistan in March 2002; and a third detainee who has not been publicly identified.

Abu Zubaida, the first of the "high-value" detainees in CIA custody, was subjected to harsh interrogation methods beginning in spring 2002 after he refused to cooperate with questioners, the officials said. CIA briefers gave the four intelligence committee members limited information about Abu Zubaida's detention in spring 2002, but offered a more detailed account of its interrogation practices in September of that year, said officials with direct knowledge of the briefings.

The CIA provided another briefing the following month, and then about 28 additional briefings over five years, said three U.S. officials with firsthand knowledge of the meetings. During these sessions, the agency provided information about the techniques it was using as well as the information it collected.

Lawmakers have varied recollections about the topics covered in the briefings.

Graham said he has no memory of ever being told about waterboarding or other harsh tactics. Graham left the Senate intelligence committee in January 2003, and was replaced by Rockefeller. "Personally, I was unaware of it, so I couldn't object," Graham said in an interview. He said he now believes the techniques constituted torture and were illegal.

Pelosi declined to comment directly on her reaction to the classified briefings. But a congressional source familiar with Pelosi's position on the matter said the California lawmaker did recall discussions about enhanced interrogation. The source said Pelosi recalls that techniques described by the CIA were still in the planning stage - they had been designed and cleared with agency lawyers but not yet put in practice - and acknowledged that Pelosi did not raise objections at the time.

Harman, who replaced Pelosi as the committee's top Democrat in January 2003, disclosed Friday that she filed a classified letter to the CIA in February of that year as an official protest about the interrogation program. Harman said she had been prevented from publicly discussing the letter or the CIA's program because of strict rules of secrecy.

"When you serve on intelligence committee you sign a second oath - one of secrecy," she said. "I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything."

Roberts declined to comment on his participation in the briefings. Rockefeller also declined to talk about the briefings, but the West Virginia Democrat's public statements show him leading the push in 2005 for expanded congressional oversight and an investigation of CIA interrogation practices. "I proposed without success, both in committee and on the Senate floor, that the committee undertake an investigation of the CIA's detention and interrogation activities," Rockefeller said in a statement Friday.

Sen. John McCain (R-Ariz.), a former Vietnam War prisoner who is seeking the GOP presidential nomination, took an early interest in the program even though he was not a member of the intelligence committee, and spoke out against waterboarding in private conversations with White House officials in late 2005 before denouncing it publicly.

In May 2007, four months after Democrats regained control of Congress and well after the CIA had forsworn further waterboarding, four senators submitted written objections to the CIA's use of that tactic and other, still unspecified "enhanced" techniques in two classified letters to Hayden last spring, shortly after receiving a classified hearing on the topic. One letter was sent on May 1 by Sen. Russell Feingold (D-Wis.). A similar letter was sent May 10 by a bipartisan group of three senators: Dianne Feinstein (D-Calif.), Chuck Hagel (R-Neb.) and Ron Wyden (D-Ore.).

In a rare public statement last month that broached the subject of his classified objections, Feingold complained about administration claims of congressional support, saying that it was "not the case" that lawmakers briefed on the CIA's program "have approved it or consented to it."
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Staff writers Josh White and Walter Pincus and staff researcher Julie Tate contributed to this report.

I think there should be a special counsel; but would they have enough time to investigate and do something about it before the Bush administration gets out of office?