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Also see this explosive report: Donald Rumsfeld Authorized Torture of Detainees at Guantanamo, Abu Ghraib The CIA destroyed videotapes showing its agents subjecting high-level al-Qaeda detainees to waterboarding after the agency's inspector general issued a classified report in the spring of 2004 that concluded the interrogation methods used on the prisoners "appeared to constitute cruel, inhumane and degrading treatment, as defined by the International Convention Against Torture."
Details about the videotapes were revealed in a February 2003 letter released in January by Congresswoman Jane Harman. Harman was the ranking Democrat on the House Intelligence Committee at the time she wrote the letter to the CIA advising the agency against destroying the videotapes. Prior to writing the letter to then CIA General Counsel Scott Muller, Harman had been briefed about the CIA's interrogation methods against so-called high-level detainees. The CIA declassified Harman's letter at the congresswoman's request.
"You discussed the fact that there is videotape of [high-level al-Qaeda operative] Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry," Harman wrote. "I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency."
Harman's letter provides a more thorough account of the possible reasons CIA officials destroyed the videotaped interrogations, which, according to media reports, took place in November 2005, more than two years after Harman sent a letter to Muller voicing disapproval about purging the videotapes. It also suggests intelligence officials heeded prior warnings to preserve the videotapes and destroyed the videotapes only after evidence of the agency's covert interrogation practices were revealed publicly in news reports.
Harman's letter did not raise concerns or express disapproval about the CIA's use of so-called "enhanced interrogation techniques." Moreover, her letter advising the agency against destroying the videotapes were made out of concern the footage CIA agents captured "would be the best proof that the written record is accurate, if such record is called into question in the future." It is believed Harman was referring to information about the 9/11 attacks and other purported plots against the United States.
At the time Harman wrote to Muller, CIA Inspector General John Helgerson was in the midst of an internal investigation into the agency's interrogation methods. Helgerson personally viewed the videotapes that showed two detainees being subjected to waterboarding by CIA officers, which formed the foundation for his still classified report on the CIA's methods of interrogation.
"In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability," according to a November 9, 2005, story in The New York Times published the same month the tapes were destroyed. "They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States."
"The officials who described the report said it discussed particular techniques used by the CIA against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world," The New York Times reported." They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the CIA since he was captured in March 2003. Mr. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe he is drowning.
The Justice Department has opened a formal criminal investigation into the destruction of the videotapes headed by John Durham, an assistant attorney general from Connecticut. Helgerson, who had been investigating the circumstances behind the tapes' destruction before the launch of the criminal probe, said he would recuse himself from the matter. Obama Pressured to Investigate Civil rights organizations have pressed President-elect Barack Obama to aggressively investigate the Bush administration's actions once he is sworn in next month. Obama has not indicated whether Eric Holder, his choice for Attorney General, will pursue an investigation into the Bush administration's policies, particularly issues related to torture.
In response to press reports about Obama shying away from such a probe, Michael Ratner of the Center for Constitutional Rights said "one of Barack Obama's first acts as President should be to instruct his Attorney General to appoint an independent prosecutor to initiate a criminal investigation of former Bush administration officials who gave the green light to torture."
In an article published in the magazine The Progressive, Ratner pointed to a statement Holder made a few months ago in which the Attorney General designee said the "American people" are owed "a reckoning."
Ratner said anything less than a full-scale criminal investigation - a substitute like a Truth Commission assigned simply to ascertain the facts - would be unacceptable.
"If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush administration who violated that Constitution, broke our laws, and tarnished our values," Ratner wrote. "To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.
"This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed." Torture Approved By Bush, Cheney, Rice
Helgerson launched a review of the CIA's interrogation techniques less than a year after a meeting was convened at the White House in July 2002. It was at this meeting former White House counsel Alberto Gonzales, Justice Department attorney John Yoo, Vice President Dick Cheney, Cheney's attorney David Addington, and unknown CIA officials discussed whether the CIA could interrogate Abu Zubaydah, a high-level al-Qaeda detainee captured in Pakistan in March 2002, more aggressively in order to get him to respond to questions about plots against the United States and its interests abroad. Less than a month after the meeting, on August 1, 2002, Yoo drafted a memo to Gonzales that was signed by Jay Bybee, the assistant attorney general at the time. That memo declared President Bush had the legal authority to allow CIA interrogators to employ harsh tactics to extract information from detainees. Human rights organizations and Democratic and Republican lawmakers have characterized the methods outlined in the Yoo memo as torture. Last April, President Bush told an ABC News reporter that he approved of meetings of a National Security Council's Principals Committee where senior officials discussed specific interrogation techniques that the CIA could use against detainees. The Principals Committee included, in addition to officials named above, Cheney, included then-National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, CIA Director George Tenet and Attorney General John Ashcroft. Rice admitted for the first time in September that she led those high-level discussions, according to documents released late Wednesday by Carl Levin, the Democratic chairman of the Senate Armed Service Committee.
Responding in writing to questions by Levin, John B. Bellinger, Rice's legal adviser at the State Department, said they recalled participating in meetings with Ashcroft and Rumsfeld in July 2002 about an Army and Air Force survival training program called Survival, Evasion, Resistance and Escape (SERE) meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime.
Bellinger, who also worked with Rice at the NSC, the then National Security Adviser "expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations" and that Rice asked Attorney General John Ashcroft to "personally review the legal guidance" of specific interrogation techniques.
Waterboarding-or simulated drowning--has been regarded as torture since the days of the Spanish Inquisition.
"I recall being told that U.S. military personnel were subjected in training to certain physical and psychological interrogation techniques and that these techniques had been deemed not to cause significant physical or psychological harm," Rice wrote in response to a question about the SERE techniques.
But those techniques were meant to prepare U.S. soldiers for abuse they might suffer if captured by a brutal regime, not as methods for U.S. Interrogations, which is what Rice said the discussions at the White House centered on. Moreover, the SERE methods were first designed by the communist government of China to be used against U.S. soldiers. In his book, At the Center of the Storm, former CIA Director George Tenet wrote that he attended a meeting with Rice in May 2001 where Tenet discussed how Abu Zubaydah, the alleged high-level al-Qaeda operative, planned to attack the US and Israel.
"For my regularly scheduled meeting with Condi Rice on May 30, [2001], I brought along [deputy CIA director] John McLaughlin, [then director of the CIA's counterterrorist center] Cofer Black, one of Cofer's top assistants, Rich B. (Rich can't be further identified here). Joining Condi were [former White House counterterrorism czar Richard] Clarke and [former CIA official] Mary McCarthy," Tenet wrote. "Rich ran through the mounting warning signs of a coming attack. They were truly frightening. Among other things, we told Condi that a notorious al-Qa'ida operative named Abu Zubaydah was working on attack plans."
Abu Zubaydah was captured in Pakistan less than a year later and was whisked to a secret CIA prison site in Thailand, where he was interrogated and subjected to waterboarding-believed to have taken place sometime in July 2002 based on the discussions about interrogation methods Rice participated in with other White House officials.
FBI officials objected to the methods CIA interrogators used against Abu Zubaydah, according to previously released documents and testimony. The Abu Zubaydah case was the first time that waterboarding was used against a prisoner in the "war on terror," according to Pentagon and Justice Department documents, news reports and several books written about the Bush administration's interrogation methods.
Author Ron Suskind reported that President George W. Bush had become obsessed with Zubaydah and the information he might have about pending terrorist plots against the United States.
"Bush was fixated on how to get Zubaydah to tell us the truth," Suskind wrote in his book, The One Percent Doctrine. Bush questioned one CIA briefer, "Do some of these harsh methods really work?" Chertoff Provides Legal Guidance to CIA on Interrogation Methods
During this time, Homeland Security Secretary Michael Chertoff advised the CIA that its agents had the legal authority to use what was referred to as "enhanced interrogation techniques" on Abu Zubaydah, according to a little-known report published in The New York Times in January 2005.
Chertoff was head of the Justice Department's Criminal Division when CIA officials inquired whether its agents could be charged with violating the federal anti-torture statute for employing interrogation methods such as waterboarding. The tactic causes detainees to slowly drown, and is generally terminated before the detainees die.
"The CIA was seeking to determine the legal limits of interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda lieutenant who was captured in March 2002," says a January 29, 2005, New York Times story. That story quoted unnamed sources who told the newspaper "Chertoff was directly involved in these discussions, in effect evaluating the legality of techniques proposed by the CIA by advising the agency whether its employees could go ahead with proposed interrogation methods without fear of prosecution."
During his Senate confirmation hearing in February 2005, Chertoff maintained he provided the CIA broad guidance in response to its questions about interrogation methods and never specifically addressed the legality regarding waterboarding or other techniques.
Chertoff told former CIA General Counsel Scott Muller and his deputy, John Rizzo, that an August 1, 2002, memo widely referred to as the "Torture Memo" put the CIA on solid legal ground and that its agents could waterboard a prisoner without fear of prosecution. The memo was written by former Justice Department attorney John Yoo.
Yoo's memo said Congress "may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
New Legal Guidelines Defining Torture
In the summer of 2004, Yoo's memo was publicly disclosed which led the administration to reject the former Justice Department official's legal opinion on interrogation methods. A new opinion made public in December 2004, signed by former Deputy Attorney General James B. Comey, rejected Yoo's interpretation of the law defining torture and more restrictive standards defining it were adopted.
"But a cryptic footnote to the new document about the 'treatment of detainees' referred to what the officials said were other still-classified opinions. Officials have said the footnote meant coercive techniques approved by the Justice Department under the looser interpretation of the torture statutes were still lawful even under the new, more restrictive standards," according to a November 9, 2005, report in The New York Times.
The new legal opinion meant agents involved in the interrogation of Abu Zubaydah could have found themselves in legal jeopardy if their conduct had been exposed publicly. And it was just a matter of time before details of the CIA's covert operations surfaced. "CIA People" Lied to Congress
Shortly before Helgerson completed his internal investigation in the spring of 2004, he tapped Mary O. McCarthy, a career CIA official, as deputy inspector general to assist him with a number of investigations including his probe of the CIA's interrogation methods.
McCarthy was also personally briefed on the existence and content of the videotapes, according to several CIA officials who worked closely with her, however it's unknown whether she viewed the material. McCarthy also oversaw the inspector general's investigation into the treatment of prisoners in Iraq and Afghanistan. But something related to the CIA's treatment of detainees had disturbed McCarthy enough to confide in her friends that the CIA covered-up the methods officers used when interrogating certain detainees.
According to a May 2006, Washington Post story, McCarthy "worried that neither Helgerson nor the agency's Congressional overseers would fully examine what happened or why." Another friend said, "She had the impression that this stuff has been pretty well buried." The Post story reported, "In McCarthy's view and that of many colleagues, friends say, torture was not only wrong but also misguided, because it rarely produced useful results."
McCarthy was among a group of former intelligence officials who late last year signed a letter opposing the nomination of Attorney General Michael Mukasey on grounds he would not denounce waterboarding. She alleged - two years or so after she and Helgerson completed their report into the agency's interrogation practices - CIA officials lied to members of Congress during an intelligence briefing when they said the agency did not violate treaties that bar, cruel, inhumane or degrading treatment of detainees during interrogations, according to a May 14, 2006, front-page story in The Washington Post.
"A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading," The Washington Post reported.
In April 2006, ten days before she was due to retire, McCarthy was fired from the CIA for allegedly leaking classified information to the media, a CIA spokeswoman told reporters at the time.
The CIA said McCarthy had spoken with numerous journalists, including The Washington Post's Dana Priest, who in November 2005 exposed the CIA's secret prison sites, where in 2002 the CIA videotaped its agents interrogating a so-called high-level detainee, Abu Zubaydah. The videotaped interrogation of Zubaydah, which is said to have shown the prisoner being subjected to waterboarding, was destroyed after Priest's story was published, and is now at the center of a wide-ranging Congressional and Justice Department investigation. Priest won a Pulitzer Prize for her expose. The CIA did not say whether McCarthy was a source for Priest's story.
Following news reports of her dismissal from the CIA, McCarthy, through her attorney Ty Cobb, vehemently denied leaking classified information to the media. However, the CIA said she failed a polygraph test after the agency launched an internal investigation in late 2005. The agency said the investigation was an attempt to find out who provided The Washington Post and The New York Times with information about its covert activities, including domestic surveillance, and it promptly fired her.
The Washington Post reported, "McCarthy was not an ideologue, her friends say, but at some point fell into a camp of CIA officers who felt that the Bush administration's venture into Iraq had dangerously diverted US counterterrorism policy. After seeing - in e-mails, cable traffic, interview transcripts and field reports - some of the secret fruits of the Iraq intervention, McCarthy became disenchanted, three of her friends say."
"In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA's detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (California), the senior Democrat," The Washington Post says. "McCarthy also told others she was offended that the CIA's general counsel had worked to secure a secret Justice Department opinion in 2004 authorizing the agency's creation of "ghost detainees" - prisoners removed from Iraq for secret interrogations without notice to the International Committee of the Red Cross - because the Geneva Conventions prohibit such practices."
The fact the videotapes were allegedly destroyed during the same month The New York Times published a story about Helgerson's classified report on CIA interrogation methods, and The Washington Post published a story exposing the CIA's covert interrogation activities at overseas prisons, suggests the CIA may have decided to destroy the videotaped interrogations because it feared that if the tapes became part of the public record it could expose its agents to a federal criminal investigation. Mukasey: No Evidence of Crimes Last week, Attorney General Michael Mukasey argued that there is no legal basis to prosecute current and former administration officials for authorizing torture and warrantless domestic surveillance because those decisions were made in the context of a presidential interest in protecting national security.
"There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful," Mukasey said during a Dec. 3 roundtable discussion with reporters.
Mukasey is wrapping his extraordinary argument in the context of protecting Bush's subordinates - at places like the Justice Department's Office of Legal Counsel, where Yoo drafted the "Torture Memo - from second-guessing for giving the President advice on what he can do in engaging in acts that would be illegal if done by someone else.
"If the word goes out to the contrary, then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future," Mukasey told the reporters.
Rep. John Conyers, chairman of the House Judiciary Committee, immediately took issue with the "breadth" of Mukasey's statement "and the blanket conclusion that everyone involved in approving these policies believed they were acting within the law."
Conyers reminded Mukasey that reams of evidence - including testimony from career military and law enforcement officials - show that top White House officials may have broken the law by authorizing torture and warrantless domestic surveillance.
"The public record reflects ample warning to administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers ... on interrogation issues and the stark warning by then-Deputy Attorney General [James] Comey that the [Justice] Department would be ashamed if the world learned of the legal advice it had given on torture issues," Conyers said in a letter to Mukasey.
Indeed, Maj. Gen. Antonio Taguba, who led the investigation of abuses at the Abu Ghraib prison in Iraq, said "there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
Conyers added, "Looked at another way, is it your view that the CIA attorney who reportedly told Guantanamo interrogators that Department legal guidance boiled down to 'If the detainee dies you're doing it wrong' - or the Department lawyer who advised him - justifiably believed that approach comported with the law?"
Conyers was referring to minutes of a discussion on Oct. 2, 2002, when Jonathan Fredman, chief counsel to the CIA's Counterterrorism Center, told U.S. military officials how interrogators could use the "wet towel" technique, known as waterboarding, to extract information from detainees.
"It can feel like you're drowning. The lymphatic system will react as if you're suffocating, but your body will not cease to function," Fredman said, adding that the "wet towel" technique would only be defined as torture "if the detainee dies."
"It is basically subject to perception," Fredman said. "If the detainee dies you're doing it wrong."
Fredman's comments prompted Lt. Col. Diane Beaver, then the chief military lawyer at the U.S. military base at Guantanamo Bay, Cuba, to respond: "We will need documentation to protect us."
Conyers's letter signals a strong possibility that his investigation into the Bush administration's interrogation practices will continue when the 111th Congress convenes in January.
Like Attorney General Gonzales before him, Mukasey has stonewalled congressional inquiries into the Bush administration's counterterrorism policies by refusing to release top-secret documents about the programs.
Mukasey also rebuffed a request by Conyers in June to appoint a special prosecutor to investigate whether Bush and senior members of his Cabinet committed war crimes by authorizing CIA and military interrogators to use harsh tactics against detainees at Guantanamo Bay and in Iraq.
That request followed an investigation by the International Committee of the Red Cross into interrogation practices at Guantanamo Bay, which "documented several instances of acts of torture against detainees, including soaking a prisoner's hand in alcohol and lighting it on fire, subjecting a prisoner to sexual abuse and forcing a prisoner to eat a baseball."
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