The New York Times reports today that the destruction of video records of CIA interrogations of al Qaeda suspects that included the use of waterboarding was approved by agency lawyers:
WASHINGTON, Dec. 10 — Lawyers within the clandestine branch of the Central Intelligence Agency gave written approval in advance to the destruction in 2005 of hundreds of hours of videotapes documenting interrogations of two lieutenants from Al Qaeda, according to a former senior intelligence official with direct knowledge of the episode.
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The former intelligence official acknowledged that there had been nearly two years of debate among government agencies about what to do with the tapes, and that lawyers within the White House and the Justice Department had in 2003 advised against a plan to destroy them. But the official said that C.I.A. officials had continued to press the White House for a firm decision, and that the C.I.A. was never given a direct order not to destroy the tapes.
“They never told us, ‘Hell, no,’” he said. “If somebody had said, ‘You cannot destroy them,’ we would not have destroyed them.”
Interestingly, though, the CIA official who destroyed the tapes never sought approval for his action from the agency’s top lawyer:
In describing the decision to destroy the tapes, current and former officials said John A. Rizzo, the agency’s top lawyer at the time, was not asked for final approval before the tapes were destroyed, although Mr. Rizzo had been involved in discussions for two years about the tapes.
It is unclear what weight an opinion from a lawyer within the clandestine service would have if it were not formally approved by Mr. Rizzo. But the former official said Mr. Rodriguez and others in the clandestine branch believed the legal judgment gave them the blessing to destroy the tapes.
The former official said the leaders of the clandestine service believed they “didn’t need to ask Rizzo’s permission.”
As has already been noted, the destruction of the video records came despite the fact that they would have clearly seemed to have fallen within the records requested by the 9/11 Commission and those covered by a Federal Court order in the Zacarias Moussaoui case. In addition, it appears that the destruction may have violated another Court order:
In a related legal action, lawyers representing 11 inmates of the American military detention center at Guantánamo Bay, Cuba, filed an emergency motion on Sunday seeking a hearing on whether the government has obeyed a 2005 judge’s order to preserve evidence in their case.
The C.I.A.’s destruction of tapes “raises grave concerns about the government’s compliance with the preservation order entered by this court,” the lawyers, David H. Remes and Marc D. Falkoff, wrote in their motion.
The June 2005 order, signed by Judge Henry H. Kennedy Jr., of the United States District Court in Washington, required the government to “preserve and maintain all evidence and information regarding the torture, mistreatment and abuse of detainees” at Guantánamo.
That preservation order, one of several issued in Guantánamo cases, may be relevant to the C.I.A. videotapes, Mr. Remes said. He noted that the government has said that “a senior Al Qaeda lieutenant” reported seeing one of his Guantánamo clients in Afghanistan, raising the possibility that the statements on the destroyed videotapes may be relevant to his case.
“There is never any justification for destroying materials that any reasonable person would believe might be requested in a civil or criminal proceeding,” said Mr. Remes, of the law firm Covington & Burling. “The C.I.A. had every reason to believe the videotapes would be relevant down the road.”
Leaving aside the issue of the legality of the CIA’s action, it’s clear that this is turning into a huge political issue. And, as is often the case with Washington scandals, the coverup may end up being a bigger deal that the action itself.
