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Bad Is Hardly the Word for Destruction of CIA Tapes: Call It Criminal

I had wrapped up testifying before the House Judiciary Committee last week when a Republican Member caught me in the hall to say that yet another torture story was about to break. “It’s bad,” he grumbled. Bad is hardly the word to describe the disclosure that the Bush administration had ordered the destruction of tapes of the interrogation of al-Qaida leader Abu Zubaydah — it’s criminal.

The admissions made by CIA Director Michael Hayden now establish an impressive array of alleged crimes — allegations that would easily justify a grand jury investigation in any other case. It is equally clear that some of these alleged criminal acts involved President Bush directly (most obviously, the ordering of the torture of suspects) and a variety of high-ranking administration officials.

At issue are tapes of the interrogation of Zubaydah and Abd al-Rahim al-Nashiri (the alleged mastermind of the 2000 attack on the USS Cole), which reportedly involved the use of waterboarding. Invented during the Spanish Inquisition, waterboarding has been defined as a federal crime and a war crime by both U.S. courts and international law. The tapes were made in 2002. That date is important because the use of torture already was in the news and many, including myself, were charging that anyone ordering or engaging in such torture could be prosecuted. More importantly, both the 9/11 commission (acting under Congressional authority) and federal courts had demanded interrogation tapes but were told that they did not exist.

In 2005, the Senate Intelligence Committee repeatedly tried to determine if CIA interrogators were complying with interrogation guidelines. The CIA refused twice in 2005 to provide the committee with its general counsel’s report on the tapes.

Not only were these tapes relevant to pending cases, but it was clearly relevant to these two suspects who would seek the evidence in any future proceeding. Now, it appears that the administration not only lied to Congress and the courts but also destroyed evidence. The CIA maintains that no specific demand was made for these specific tapes and that absent knowledge of a pending or likely future proceeding, it was not obstruction to destroy the tape. That is precisely the argument repeatedly rejected by the Justice Department in past criminal cases.

Hayden told CIA employees that the agency destroyed all copies of the video in 2005. Hayden said one of the motivations was to guarantee that the identity of those doing the interrogation would never be made public. Thus, while courts and Congress and defense counsel were all being told that no such tapes existed, copies of the tapes and still pictures were being methodically collected and destroyed. Hayden’s rationale is a virtual admission of obstruction of both Congress and the courts.

In what may be as disturbing for some voters, Hayden pointedly implicated Democrats in the controversy, stating that the CIA told oversight committees of its intention to destroy the evidence. Two Democrats have now admitted that they knew of the plan: Sen. Jay Rockefeller (W.Va.) and Rep. Jane Harman (Calif.). They insist they did not know whether the plan was carried out — but they did nothing to stop it. Moreover, it now appears that Democrats and Republicans knew of the use of torture for years. According to The Washington Post, various leaders were briefed on the use of waterboarding in 2002, including now-Speaker Nancy Pelosi (D-Calif.).

Recently, the White House admitted that former White House counsel Harriet Miers also was informed of the plan to destroy the tapes. The White House insists (as do the Democratic Members) that she strongly encouraged the CIA not to carry out the plan. Once again, this is obviously insufficient. Miers was counsel to the president, who could have ordered the preservation of the tapes. She was aware of a plan that was presumptively unlawful and did nothing apparently but object.

The man most at risk in this scandal is Jose Rodriguez, who retired as head of the CIA’s clandestine directorate of operations in August. It was Rodriguez who reportedly ordered the tapes destroyed. However, Rodriguez is not alone as a possible target. Then-CIA Director Porter Goss insists he did not know the tapes were destroyed. However, he promoted Rodriguez and was the head of the House Intelligence Committee when it was informed of the plan to destroy the tapes.

According to new reports, Goss was informed of the tapes’ destruction “a couple of days” after it happened but decided to do nothing. He never informed Congress, the courts or counsel. Once again, he can best claim nonfeasance — and a degree of incompetence — as a defense.

Then there is the general counsel of the CIA during this period, Scott Muller. Muller was the one who informed Congress and thus knew of the plan. As an attorney, he is subject to bar rules concerning unlawful and unethical conduct. He could ultimately face an investigation on whether he should be disbarred for his role.

There are at least a dozen individuals who should be retaining private counsel in this matter. However, it is still not clear that either Republicans or Democrats truly want an independent investigation. Notably, Democrats have largely called for investigations by the Justice Department, which guarantees that the investigation would move at a glacial pace and remain under the control of the administration. It is obvious at this point that the Justice Department should not conduct an investigation that could threaten high-ranking officials, including the president himself.

We are now at a crossroad in history. On just the admissions made by Hayden, there appear to be at least six indictable offenses against at least a dozen individuals, including the president. That number of offenses and offenders is likely to increase in the coming weeks, but clearly includes obstruction of justice, obstruction of Congress, false statements to Congress, false statements to federal courts, conspiracy and, of course, torture. The question is not the clarity of the crimes, but the will of Congress to finally act and guarantee an independent investigation.

Despite the embarrassment to some Democrats, there is no way to continue to ignore a pattern of criminality that extends to the highest office in this country. These were crimes committed in our name, and it is time for the disclosure of the truth — wherever it may lead.

Jonathan Turley is a law professor at George Washington University and lead defense counsel in pending terrorism cases.

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