March 11, 2008
Tapegate: CIA Under Fire as Guantanamo Trials Approach
BY Stephen Grey
The United States is preparing to try six men in a military trial at Guantanamo for plotting the 9/11 attacks.
As George Bush vetoes a Congressional bill that would limit the CIA's ability to use harsh interrogation techniques, including "waterboarding," and the United States prepares to try six men at Guantanamo for plotting the 9/11 attacks, a hunt is now beginning for videos and documentary evidence that will show the truth of how such "high value" terrorist suspects have been interrogated and, some believe, tortured.
While the Pentagon is pushing ahead with prosecution in a military court of the alleged conspirators behind the World Trade Center attacks, behind the scenes a parallel criminal and congressional investigation is underway to determine how possibly crucial evidence for those trials was destroyed by the CIA.
Among those charged and facing the death penalty is Khalid Sheikh Mohamed (KSM), who is said to be the mastermind of the attacks. His confession, and that of other suspects, is likely to be a crucial part of the evidence against the men.
But as the CIA director General Michael Hayden testified to Congress on February 5, among the ways his confession was extracted was by "waterboarding" -- an interrogation technique once popular with the Khmer Rouge in Cambodia where a prisoner is strapped down and forced to breath through a wet towel, causing a genuine feeling of drowning.
Just how close the CIA's methods of interrogation came to torture is likely to be a key issue at the forthcoming military trials at Guantanamo.
Just how close the CIA's methods of interrogation came to torture is likely to be a key issue at the forthcoming military trials at Guantanamo. Defense lawyers will argue that testimony from the suspects and other witnesses was coerced and illegally obtained, and therefore unreliable.
The U.S. Government will argue in response that none of its interrogation methods even came close to torture. But they have a problem. The CIA has admitted that hundreds of hours of crucial video tapes that show how waterboarding and other aggressive methods were applied in practice were deliberately destroyed.
It has emerged that the deleted tapes showed the 2002 interrogations of two other prisoners in CIA hands that General Hayden has confirmed were "waterboarded" after 9/11: Abu Zubaydah, a top level alleged Al Qaeda commander, and Abd al-Rahim al-Nashiri, the alleged Al Qaeda former commander in the Gulf. The destruction is now under investigation both by Congress and a Department of Justice criminal probe. The question is whether these congressional and criminal inquiries may also help derail the prosecutions at Guantanamo.
Ironically, the reason for the destruction of the tapes and the subsequent ending of taped interviews, former CIA officers told me, was to prevent such tapes helping to put CIA interrogation officers in legal jeopardy. But as officials involved in those programs have maintained to me, all involved have always known they were skating on very thin ice.
The confession of Khalid Sheikh Mohamed (KSM), the alleged mastermind of the 9/11 attacks, is likely to be a crucial part of the evidence against the men to stand military trial.
"Whatever detailed legal authorities were obtained from the White House and the Department of Justice, and they certainly were provided, everyone was aware these bits of paper might be worth nothing in a courtroom," said a former senior CIA case officer. Now it looks like a destruction ordered to protect CIA officers from prosecution may be the very reason they are prosecuted.
Another recently retired CIA officer said it appeared to be no accident that the two prisoners whose interrogation records were destroyed, Abu Zubaydah and al Nashiri, were not among those charged with the 9/11 conspiracy, despite their seniority in Al Qaeda. "There is a fear that this row over the deleted tapes will spill over and threaten the military commission process. In fact, though, it's difficult to see how any high-value prisoner can be put on trial without the agency's interrogation techniques being subject to review in the courtroom."
For now, the man most in the firing line is Jose Rodriguez Jr., a former head of CIA covert operations, who ordered the tapes' destruction in 2005. Rodriguez has indicated that he will seek immunity from prosecution before he agrees to testify before Congress about the matter. And he has let it be known this action was taken under the instructions of his leadership in the CIA, as well as the authorization of Congressional intelligence committees. But Congress at least is vehemently denying it gave such permission.
Peter Hoekstra, the senior Republican on the House intelligence committee said no authority was given to Rodriguez to destroy any tapes. "Matter of fact, it appears that he got direction to make sure the tapes were not destroyed," he told the The New York Times.
Peter Hoekstra, the senior Republican on the House intelligence committee said no authority was given to Rodriguez to destroy any tapes. "Matter of fact, it appears that he got direction to make sure the tapes were not destroyed," he told the The New York Times. Meanwhile, the committee's top Democrat, Jane Harman, released a February 2003 letter she wrote to the CIA's then counsel in which she said destroying any CIA records of interrogations would "reflect badly on the agency."
In December, a coalition of human rights groups, including the ACLU, involved in long-term litigation to secure records of CIA internal investigations into its interrogation techniques, told a federal judge that the tapes' destruction amounted to a contempt of court. The judge Alvin Hellerstein indicated that he is likely to disagree; but he indicated not only that he would interview the CIA people involved but that he might order disclosure of whatever material remains if it was improperly classified.
Here then is how many close to the CIA fear this whole issue could snowball. While many have known that techniques like waterboarding and other harsh methods might well be judged illegal, and despite all the complaints of former prisoners, there has been no political or legal appetite for any agency outside the CIA to dig up all the facts. "It's been a case so far of don't look under the rocks, you don't know what you'll find," said one former official.
In my interviews with former prisoners held by the CIA, almost all of them described the presence of video cameras, implying the possibility of many more tapes in existence, even if some were retained unofficially. "Most prisoners were interrogated with video cameras," said Clive Stafford Smith, a British lawyer who represents more than a dozen inmates at Guantanamo.
"Through diligent investigation we know when the CIA took pictures of Mr Mohammed's brutalized genitalia; we know the identity of the CIA agents who were present; we know both their false identities and their true names..."
For now, investigations center on a program of taping interviews that was said to have ended in 2002. But many detainees reported to me and others that videotaping was a routine part of both rendition operations and secret detention that continued years afterward. Binyam Mohammed, a British resident now in Guantanamo, claims he spotted a camera operator videotaping his 2004 rendition transfer by the CIA from a prison in Morocco, where he said he had been tortured by being cut with razor blades.
He was also extensively photographed. "We can prove that a photographic record was made of this by the CIA," said Stafford Smith, who represents him. "Through diligent investigation we know when the CIA took pictures of Mr Mohammed's brutalized genitalia; we know the identity of the CIA agents who were present, including the person who took the pictures; we know both their false identities and their true names; and we know what those pictures show."
Mohamed Bashmilah, a Yemeni held in a CIA secret site in 2004 and 2005, remembered his cell being under constant video surveillance. When I met him in Yemen, he told me, "There were two cameras in my cell with a blinking red light. Even though I was in chains, they watched my every movement, and they were also watching me when I was interrogated."
In a court filing, the lawyers for another former CIA prisoner, Majid Khan, said U.S. officials were falsely claiming that taping ended in 2002 and only a small number of prisoners were the subject of harsh interrogation techniques.
CIA Director General Hayden has made clear in speeches that the videotaping of interrogations stopped in 2002 and that only about 30 of 100 CIA prisoners had required "special methods of questioning."
"Inaccurate statements by senior intelligence officials about the tape destruction, and false statements about Khan's experience in CIA custody, raise substantial concern that torture evidence in this case may be lost or destroyed absent a court order," attorneys Wells Dixon and Gita Gutierrez wrote.
In response, CIA Director General Hayden has made clear in speeches that the videotaping of interrogations stopped in 2002 and that only about 30 of 100 CIA prisoners had required "special methods of questioning." None of the techniques used by its officers involved causing any physical or mental harm to prisoners.
Hayden's assurances will be tested in the coming months. Until now, few in the FBI, for example, have wanted to be seen to do anything to hinder the CIA's key efforts to fight Al Qaeda. But, in a new climate, as the FBI, Congress and the courtrooms now begin to ferret through the files and take statements, it becomes increasingly likely that the issue of what went on in these interrogation rooms may finally come under legal scrutiny.
By bringing the CIA's former prisoners to trial in Guantanamo, lawyers for the accused will seek access through discovery to every document, photograph and video that may detail the way the agency looked after its prisoners. And despite President Bush's efforts to keep the matter secret, they will seek to make that information public.
This could be a problem for the CIA. When President Bush launched his "war on terror," he ruled that the Geneva Conventions did not apply to Al Qaeda prisoners, and the CIA acted accordingly. However, in June 2006, the Supreme Court appeared to rule against him, declaring that Common Article 3 of the Geneva Conventions, which bans not only torture but "inhumane" treatment, does and did apply to all U.S. operations. Ever since this ruling, there has been a real worry among officers that they could have walked into a trap.
Speaking at a conference at New York University last month, former chief of CIA Europe operations, Tyler Drumheller, described how most case officers had now taken out legal insurance with a Virginia firm, Wright and Co, that will pay up to $1 million in defending a lawsuit. "Most junior officers just get on with their work; they assume they will be looked after; but there is a worry at a senior level about whether this will prove to be the case."
The fact that the legal issue at stake is torture, a potential war crime, makes the danger potentially severe. "You are left with something that may rumble on for years, where, even if there is no actual prosecution in U.S. courts," another former CIA official told me. "We're talking about a serious business, a matter of war crimes. When it's a matter of violations of international laws, you risk a situation where some CIA officials just don't dare to travel abroad any more -- that's a problem for an intelligence agency."
Looking back to the days after the September 11 attacks, Drumheller remembers a meeting in Langley with close allies to discuss what tactics would be needed in the newly declared war on terror. An aggressive series of measures was outlined by the CIA's then counterterrorism chief Cofer Black.
As he left the meeting, Black turned to a colleague and warned, "We would probably all end up indicted for some of the things we would have to do to win the war," Drumheller recalls in his book On the Brink. He also wrote that Black almost appeared to "relish the prospect."
Now six years later, the moment when key CIA officials involved in prosecuting the war may have to testify about their conduct in a courtroom appears closer than ever. And as the hunt for the tapes continue, some wonder if it is the bureaucracy of spying that will be the undoing of the whole operation: the urge to catalog every detail of what the CIA did could end up furnishing a treasure trove of information that will be picked over for years.
Investigative reporter, Stephen Grey.
Stephen Grey is former head of investigations at The Sunday Times in London and author of Ghost Plane: The True Story of the CIA Rendition and Torture Program. He is one of a handful of journalists to uncover the secrets of the CIA's extraordinary rendition program, beginning with flight logs of the CIA's private planes, which he helped uncover to bring the program to public attention.
In November 2007, FRONTLINE/World broadcast "Extraordinary Rendition", Stephen Grey's investigation into one of the darkest sides of the Bush administration's war on terror -- its secret rendition program and global network of detention centers and prisons. You can watch the full show and other timeline features, maps and interviews online here.