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CIA Tapes Re-ignite Debate on Interrogation Tactics

December 7, 2007 at 6:10 PM EDT
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Congressional Democrats called for an investigation Friday into whether a CIA decision in 2005 to destroy video tapes of the interrogations of two top terror suspects constitutes an obstruction of justice. Analysts offer insight on the potential fallout of the handling of the tapes.
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JIM LEHRER: The interrogation tapes. Ray Suarez has our story.

RAY SUAREZ: Did the CIA mishandle the videotapes of interrogations of senior al-Qaida members? For that, we get two views.

Mark Lowenthal was assistant director of central intelligence for analysis and production from 2002 to 2005 and served on the staff of the House Intelligence Committee. He’s now president of the Intelligence and Security Academy, which provides training in analysis for the government.

And Tom Malinowski, Washington director of Human Rights Watch, he served at the State Department and on the National Security Council staff in the Clinton administration.

Mark Lowenthal, what was your reaction to news that tapes of al-Qaida interrogations had been destroyed?

MARK LOWENTHAL, President, Intelligence and Security Academy: My initial reaction was that they just made a terrible blunder. I’m not sure if they did something illegal, but it — my first reaction was it was going to play out the way it’s played out, that it just — it creates a feeding frenzy over the fact that they had done it.

RAY SUAREZ: You were at the agency in the years that these interrogations were being done. What’s your sense of who had to know before something like this did happen?

MARK LOWENTHAL: Well, clearly, according to the statement that was released by Director Hayden, the DDO, the deputy director of operations, Jose Rodriguez, knew and gave the order. Apparently, the director at the time, Porter Goss, did not know, according to press accounts.

So probably not that many people would have known. I’m sure somebody had a conversation with somebody else, but it could have been a very small group of people who knew about the decision.

RAY SUAREZ: Tom Malinowski, your reaction to the news?

TOM MALINOWSKI, Human Rights Watch: Well, it’s beginning to look like the Watergate of waterboarding, very embarrassing, obviously, for the administration.

Clearly, the people who did this understood at some level that these tapes were potentially dynamite, that they portrayed something that most ordinary people would have considered to be awful, had they seen it actually on a videotape rather than simply reading about it in the newspaper.

Protecting interrogators

Tom Malinowski
Human Rights Watch
The CIA must be full of millions of documents and photographs and videotapes which, if they leaked, would reveal the identities of CIA agents. And yet there isn't a policy of destroying everything that might have somebody's name or picture on it.

RAY SUAREZ: But when the news was released that the tapes were destroyed, it was said that the reason they were was to protect the agents who might have been seen on those tapes doing those interrogations.

TOM MALINOWSKI: I just don't find that even remotely credible. I mean, the CIA must be full of millions of documents and photographs and videotapes which, if they leaked, would reveal the identities of CIA agents. And yet there isn't a policy of destroying everything that might have somebody's name or picture on it.

You know, if they were concerned about that, they could have gathered all the tapes in a room and destroyed all but one of them, but kept one in the most secure vault in the CIA headquarters. I'm sure the CIA could have protected at least one tape from being revealed.

Clearly, the only reason these tapes were destroyed was that somebody was worried that what they portrayed might be considered to be unlawful and might expose those agents or, in fact, CIA senior officials to potential investigation and even prosecution down the road.

RAY SUAREZ: Mark Lowenthal, what about that explanation, that it was done to protect the CIA operatives?

MARK LOWENTHAL: It's a very difficult explanation to accept, because you can always blot out names and do various things with the tapes. I think the concern -- and I'm sort of reading backwards here -- was that there would be inexorable pressure through some process, a judicial process, an investigation, to reveal the tapes and that, at that point, they would have considerable problems on their hands, not just about revealing identities, but about the graphics, how it looked.

You have to remember where we were in time. This is right after the Abu Ghraib, and they're not analogous situations, in terms of the activity. One is a case of prison guards being sadistic. This is an issue of an interrogation of a terrorist operative.

But I think they were so concerned that the pressure on them to release would be so inexorable that they just felt that this was a better decision. The discussion about saving the identities is probably not their strongest argument, I don't think.

Legal implications

Mark Lowenthal
Former Intelligence Official
As the White House said today, if it turns out this is a violation, then the attorney general will act on it. I don't think we know yet whether or not it violated any laws.

RAY SUAREZ: But is that a legal and licit defense, that this could have been embarrassing so we're going to destroy it? Isn't this material that was being sought by various arms of the United States government and various investigations and discoveries for terrorist defendants?

MARK LOWENTHAL: Well, as we understand it, the tapes were destroyed some time in 2005. So the 9/11 Commission, which had asked for the tapes and apparently did not see them, was out the business. They went out of business in August of '04.

They had not been shown to the Moussaoui trial. And the CIA later admitted that, but argued that there was nothing material in there. But as the White House said today, if it turns out this is a violation, then the attorney general will act on it. I don't think we know yet whether or not it violated any laws.

RAY SUAREZ: What do you think? What's your sense?

TOM MALINOWSKI: Well, the law says that if there's a pending investigation or if there's a reasonable expectation that investigators are going to want to see something, then you can't destroy it. And if you destroy it with that knowledge, then you may be actually credibly liable.

It's also just plain stupid. You know, in Washington, people seem to make this mistake again and again, forgetting that the destruction of evidence is often even more incriminating than the evidence itself. And I think that's the problem that the administration is going to face now.

Intelligence protocol

Tom Malinowski
Human Rights Watch
This country is going to face an incredibly painful issue: whether the president authorized the commission of what is a felony offense. .... Going back to the Spanish-American War, waterboarding has been prosecuted by American military courts.

RAY SUAREZ: Well, let's talk a little bit about policy. When there is material -- whether it's written material, photographs, in this case, videotape -- what do the rules say about what you're supposed to do with it and, when other people want to see it, how that happens?

MARK LOWENTHAL: A lot of rules. First of all, when other people want to see it, it depends who wants to see it under what circumstances. Are they cleared to see it? Do they have a need to see it? So that's one whole set of rules.

Another set of rules, if Congress asks for it -- and I've been on both sides of this debate, as you noted -- there's a tug-of-war. There are no firm rules about what you provide when.

My feeling was always, in the end, Congress will prevail, but Congress had not specifically -- I don't recall any members saying over the last 24 hours that they asked to see it. Ms. Harman apparently asked that nothing be destroyed in 2003.

Between the investigation, the 9/11 investigation, the agency says, "We showed them everything that was relevant that they needed to see." That's a judgment call. In that arena, you end up in tugs-of-war over what needs to be seen.

RAY SUAREZ: Is there as much legal jeopardy from the fact of the destruction as there might be from what's on that tape?

TOM MALINOWSKI: There may be legal jeopardy for both. But, of course, the more important issue is, what's on that tape? And let's not forget, presumably what the tapes portray is the technique known as waterboarding, a technique in which prisoners are made to feel -- actually made to undergo the process of drowning, and they're brought back just before they actually drown.

Most legal experts and, in fact, most members of Congress, including many Republicans, believe that this technique is torture. Torture is a felony.

And, you know, you're right. It's not like Abu Ghraib, but it's not like Abu Ghraib in a particularly grave sense, that this technique was authorized presumably by the president, and certainly by the director of central intelligence.

At some point, this country is going to face an incredibly painful issue: whether the president authorized the commission of what is a felony offense, something we have as a country prosecuted people for, for over 100 years. Going back to the Spanish-American War, waterboarding has been prosecuted by American military courts.

That's really what's at the heart of this. And the destruction of the tapes, I think, brings that issue to the fore at a particularly bad time for the administration.

Enhanced techniques

Mark Lowenthal
Former Intelligence Official
It will probably change the oversight rules. It will make it much harder at this point, in terms of the debate over the interrogation techniques that's still going on.

RAY SUAREZ: Does the presumption become, Mark Lowenthal, that there's torture on those tapes, even if there might not have been? Once you destroy them, don't you create the impression in large sections of the world that there was something to hide?

MARK LOWENTHAL: Probably. I mean, I think it's fairly commonly agreed there's probably some fairly rigorous -- and I'm not going to define "rigorous," because I've never seen the tapes -- there's probably some fairly rigorous interrogation going on. General Hayden said that in his letter, that the tapes were made so that people could see how the interrogation techniques played out and make sure people stayed in the rules.

But, yes, in the absence of the tapes, people will presume the worst. Very often you're faced with really bad choices, and I think -- and this was a case where the DDO, Jose Rodriguez, felt that -- he could have thought out all the questions we're asking after the fact and thought about, "What do I do if I keep the tapes? Do I destroy the tapes?" And he made a decision that destroying them was the better of the two bad choices.

RAY SUAREZ: Is there, in your view, a possible explanation that's satisfactory, a circumstance under which destroying those tapes would be permissible, even recommended?

TOM MALINOWSKI: I can't think of one.

RAY SUAREZ: Really?

TOM MALINOWSKI: I can't think of one. I can't imagine that anybody with any experience of life in Washington at the time would not have understood that, at some point or other, the destruction of these tapes would come to light and that it would be an enormous problem.

And this was 2005. Waterboarding, CIA interrogation techniques were already in the news. The Congress was debating the McCain amendment, as you recall, which ultimately passed and banned the use of many of these techniques. The CIA was certainly very, very nervous about all of that. This happened in an environment in which surely they knew how this would be perceived.

And, you know, I was a government official. I mean, you're taught as a government official that destroying documents that may be of great interest to the rest of the world, and particularly to potential investigators down the road, is just something that you never do. You're always going to pay a price for that. So I'm mystified.

RAY SUAREZ: And, very quickly, is this going to bring wanted, unwanted, needed -- whatever -- oversight onto the CIA about just how this material is handled?

MARK LOWENTHAL: Probably. It probably will. There will be discussion about rules for destroying certain types of intelligence, how you're supposed to handle it. It will probably change the oversight rules. It will make it much harder at this point, in terms of the debate over the interrogation techniques that's still going on.

RAY SUAREZ: Mark Lowenthal, Tom Malinowski, gentlemen, thank you both.

MARK LOWENTHAL: Thank you.

TOM MALINOWSKI: Thank you.