January 7, 2008 – 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 when the videotapes were expected to be destroyed were revealed in a February 2003 letter released last week by Congresswoman Jane Harman (D-California). 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.
Harman’s letter provides a more thorough account of the possible reasons CIA officials destroyed the videotaped interrogations, which, according to public accounts, 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, which Truthout reported last week. 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 was published around 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.
Last week, the Justice Department announced it had 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.
Inspector General Probe Launched Shortly After Issuance of “Torture Memo”
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.
Yoo, Gonzales and Addington gave the CIA the green light to use a wide variety of techniques, including waterboarding, on Zubaydah and other detainees at several secret prisons overseas to “break” them and force them to cooperate with interrogators, according to an account published in Newsweek in late December 2003. 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.
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.
Deputy Inspector General Believed “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.