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Federal Judge Begins Investigation of CIA Tape Destruction

December 21, 2007 at 6:10 PM EDT
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In a hearing Friday, a federal judge sought answers on the legality of the 2005 destruction of CIA interrogation tapes. The NewsHour discusses the current investigation of the tapes with Ari Shapiro, justice correspondent for National Public Radio.
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JEFFREY BROWN: News reports this week said a wider than originally named circle of White House officials were involved in discussions about the destruction of two CIA interrogation tapes. The CIA has agreed to cooperate with congressional investigators.

And today, Justice Department lawyers were in federal court in Washington to answer complaints that the destruction of the tapes was in violation of an earlier court order.

We get an update on all this from Ari Shapiro, justice correspondent for National Public Radio.

Welcome.

ARI SHAPIRO, National Public Radio: Thanks, Jeff.

JEFFREY BROWN: Let’s start with today’s court hearing. You were there. First, remind us what the case was about.

ARI SHAPIRO: Well, back in 2005, this judge, Judge Henry Kennedy, had issued an order telling the government to preserve any documents relevant to abuse, torture or otherwise mistreatment of detainees at Guantanamo Bay prison.

Five months later, the CIA destroyed these videotapes depicting interrogations of two detainees at CIA prisons. And so this hearing was into whether the government — sorry, whether the court, rather, should open an inquiry into whether the government violated that court order from 2005.

JEFFREY BROWN: The original lawsuit, though, to go back, was brought by detainees at Guantanamo.

ARI SHAPIRO: That’s right. And so…

JEFFREY BROWN: About, for what purpose?

ARI SHAPIRO: Filing habeas corpus claims, petitions challenging their detention at Guantanamo. And so in court today you had government lawyers from the Justice Department arguing that the judge should not open this inquiry.

And on the other side, you had attorneys representing Guantanamo detainees saying that this inquiry is necessary to determine whether the government destroyed evidence.

Destroyed tapes relevant to probe

JEFFREY BROWN: All right, well, let's walk through that. Start with the lawyers for the detainees. Fill in that argument. What were they saying?

ARI SHAPIRO: The detainee lawyer, David Remes, essentially said the government can't be trusted here. He said the government has admitted to destroying evidence that could have been relevant to an investigation.

After all, at that time, Congress was investigating interrogation practices, and there were various court cases challenging interrogation practices. And the detainee lawyer Remes said, once the government has admitted that, you can't trust them to have retained other evidence that they're required to preserve for court cases.

He said, when there's smoke, there's fire, and even if I can't present specific evidence that the government destroyed evidence about interrogations of detainees at Guantanamo in 2005, the fact that we know now, he said, should be enough to raise serious concerns.

JEFFREY BROWN: Well, that's what I was going to ask you. Are they suggesting that there is a direct relevance or tie between those tapes and the cases of these detainees in Guantanamo?

ARI SHAPIRO: He said there may very well be. For example, he talked about one of his clients, a man named Mohammed Hassan, who was a Guantanamo detainee. And he said that Hassan was labeled an enemy combatant because senior al-Qaida leaders fingered him.

And so the detainee lawyer Remes said in court today we don't know which senior al-Qaida leader fingered him. It could be one of the al-Qaida leaders on the videotapes that were destroyed. He could have fingered my client under torture. He said that's something we'll never know, but it's a relevant question. And he said that goes to the point of why the court needs to investigate.

Tapes are internal matter, DOJ says

JEFFREY BROWN: All right, so then this was the first time the administration lawyers have spoken publicly and under oath since the CIA let the world know about these tapes. What was their argument?

ARI SHAPIRO: They made two arguments. First, they essentially said the Justice Department is investigating this. You should leave us alone.

They said that if the courts start to do their own investigation that could compromise the inquiry that the Justice Department is already doing into whether there should be any potential future criminal prosecutions.  That was one prong of the government's argument.

The other prong was these interrogations took place in 2002. They took place at a CIA prison. There's no connection here to the judge's 2005 order to preserve evidence of abuse at Guantanamo.

JEFFREY BROWN: The CIA prison not in the U.S.?

ARI SHAPIRO: Right, CIA prisons oversea, not at Guantanamo, Cuba. The government attorney said these men were detained in 2002; the interrogations took place in 2002; the men did not see any other detainees from the time they were captured to the time that these videos were made. And so he said it's impossible that these could relate to Guantanamo interrogations.

JEFFREY BROWN: And, therefore, they're not violating the court order that had been in place? That's the argument.

ARI SHAPIRO: That's what he said. That's the argument, but there's a catch here. The detainee lawyer pointed out that the government appeared to be working very hard not to say whether the detainees were at Guantanamo in 2005 or not.

Now, this gets a little thorny, but the president said that the two men depicted in these videos were transferred to Guantanamo in 2006. But the detainee lawyer pointed out that people are bounced from prison to prison all the time, and we have nothing on the record yet that says for certain that these men were not at Guantanamo in 2005.

JEFFREY BROWN: So what did the judge make of all this, questions that he asked? Did he tip his hand in any way?

ARI SHAPIRO: He frankly seemed a little skeptical.

JEFFREY BROWN: Skeptical of?

ARI SHAPIRO: Sorry, skeptical of the detainees' arguments, the detainee lawyer's argument. This judge is a Clinton appointee, but in court he asked the detainees' lawyers more questions than he asked the government lawyers.

He said, why shouldn't I just let the Justice Department do its own inquiry? And why shouldn't I -- or he said, do you have any evidence that the government specifically violated this 2005 order?

And the detainee lawyer responded to that, I don't have any specific evidence, but given what we do know about the CIA tapes' destruction and given how little we are able to access information about the subject, he said the burden should be on the government, not the detainees' lawyer, to show that they were in compliance with the 2005 order.

JEFFREY BROWN: Did we learn anything more about what's actually on these tapes today?

ARI SHAPIRO: Not today in court, but the government lawyer said some things under oath that had been reported previously by anonymous sources, by news reports. And the fact that the government said them under oath means it's now airtight.

For example, he said there are only two detainees depicted in these videotapes. Those two detainees were Abu Zubaydah, Abd Rahim al-Nashiri. Those are names that we knew before, but the fact that the government said this in court means we can now take it as absolute fact.

He said, as I mentioned before, that these two detainees were not in contact with any other detainees. And so these are facts that we can now nail down for certain; we don't have to rely on anonymous sources to report them.

Source of destroy order still murky

JEFFREY BROWN: All right. Now, in the meantime, the questions of who knew about the tapes, who authorized their destruction is still out there.

I referred in our introduction to the reports this week, largely from a New York Times story, that more White House attorneys, several, at least four, were involved at least in discussions about whether they should be destroyed. Bring us up to date on what's known about any possible connections between White House attorneys and the destruction.

ARI SHAPIRO: Well, we're just learning more and more day by day. And at first, the report was that it was only Harriet Miers, the White House counsel, who advised against destroying the tapes, and then other names started to come out, as you mentioned, this week.

Alberto Gonzales, who preceded Miers as White House counsel and later became attorney general, David Addington, who works on the vice president's staff as one of Dick Cheney's attorneys, and apparently some of these lawyers were advising against destroying the tapes. Some of them were advocating for destroying the tapes.

Now, the White House has said that, while the Justice Department investigates this matter, they're not going to comment on it. So this is a big question mark.

We certainly don't know now and may never know exactly what role each member of the White House staff played in this argument as it played out whether or not to get rid of the tapes.

JEFFREY BROWN: Of course, yesterday at his press conference President Bush repeated again that his first recollection -- his words -- of being told about the tapes were only recently from the CIA director.

ARI SHAPIRO: That's right, and he also said, We're not going to discuss the facts until the Justice Department does its own investigation. And so, you know, those of us in the media are certainly hoping that when that investigation concludes the report will be public, but we have no guarantee of that.

JEFFREY BROWN: Now, you said that the Justice Department is doing its investigation with the CIA. And one of their arguments today in court was, "Let us do it." In the meantime, Congress is also doing an investigation. Tell us about that.

ARI SHAPIRO: Right. So there's a total of three investigations, the courts, the Justice Department with the CIA, and Congress.

And the congressional investigation took a major step last night, issuing its first subpoena. The House Intelligence Committee subpoenaed Jose Rodriguez, who is the CIA official who issued the order to have the tapes destroyed.

JEFFREY BROWN: He's the one we know actually did issue the order.

ARI SHAPIRO: That's right. And his attorney has said that he was given the green light to issue the order to destroy the tapes. Now, we don't know what that green light means.

We look forward to hearing what he testifies to before the House Intelligence Committee. He may be able to shed a lot more light on this. We may also hear from John Riza, who is the CIA's top lawyer, the CIA's acting general counsel. He may also be able to shed a lot more light on this.

More tapes surface

JEFFREY BROWN: In the meantime, there is one more "in the meantime" here, which is the existence of some other tapes that has come out. These are tapes that were done by a foreign government that the CIA may have access to?

ARI SHAPIRO: Yes, this is so interesting, because this came out a couple of months ago and nobody paid a lot of attention to it. You know, the trial of Zacarias Moussaoui, the so-called 20th hijacker, captured the country's attention.

And during that trial, defense lawyers said, We want any tapes of interrogation of terrorism subjects that may relate to our case. And the government said, "We don't have any tapes."

So the trial took place. It concluded, and Moussaoui was sentenced to life in prison. Fine.

Then, a few months later, the government says, "We actually do have some tapes." And the phrase that they used was interesting: "The CIA acquired these tapes."

Sources tell us that what that means is that foreign governments recorded these interrogations and gave the tapes to the CIA. We don't know for certain who is in these tapes. It could be a narrow range of al-Qaida operatives who were in custody at that point, and we haven't seen the tapes, either.

But it suggests that there may be more out there than we are aware of.

JEFFREY BROWN: As far as we know, these tapes still exist, though?

ARI SHAPIRO: Right, as far as we know these tapes still exist. And there could be yet other tapes, even.

There's one human rights attorney who represents -- a group of human rights attorneys, actually, including the ACLU, representing former detainees from these CIA prisons. And one of those detainees described an interrogation at a prison in Afghanistan where he was accused of something that he said he didn't do.

And after that interrogation, he was very upset. A medic apparently came to his cell and said to him, "The important thing is you told your side of the story, and it was recorded." And this detainee says there were video cameras all over the prison.

Now, we don't know what that means, but it certainly suggests that there could be other tapes out there that we're just not even aware of yet.

JEFFREY BROWN: All right, more to come. Ari Shapiro of NPR, thanks very much.

ARI SHAPIRO: Pleasure to be here.