Caught on Tape

When the New York Times reported last Thursday that the CIA had destroyed videotapes capturing the apparent torture of terrorist suspects during interrogations by CIA operatives, I found myself reading the first sentence of the article repeatedly, trying to put a finger on what troubled me most.

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about its secret detention program, according to current and former government officials.

Was it the images the tapes brought to mind, of the kinds of humiliating treatment some of those interrogations have reportedly involved? Was it the reminder of the extant "secret detention program" -- an extralegal detention regime that the administration insists to this day it can continue to pursue? Was it the "at least" caveat, signaling that we may be (again) only at the beginning of a scandal that distracts from current policy demands for months as the news emerges drip-drip-drip? Was it the raw destruction of information that might finally have added meaningful support to the otherwise detail-free assertions about what kind of intelligence such treatment actually produced?

No, I came to think, the saddest part had to be the date. The CIA destroyed the tapes in 2005, four years after September 11, three years after the interrogations themselves, two years after U.S. District Judge Leonie M. Brinkema ordered the CIA to turn over tapes of suspects whose testimony might be relevant to the defense of now-convicted terrorist Zacarias Moussaoui, and a year after the public reaction to the photos from Abu Ghraib made it clear that Americans had no intention of defending this kind of practice in their name. The CIA destroyed the tapes after the illegality of such actions had become so clear that the Bush administration itself retracted its memo purporting to provide legal cover for coercive interrogation.

They destroyed the tapes just as U.S. citizen "enemy combatant" Jose Padilla was indicted for the first time since his arrest three years earlier, making it apparent that Padilla would finally have the opportunity to test the evidence against him (which reportedly included testimony from one of the men whose interrogation appeared on the destroyed tapes) in federal court. And the destruction came as the Justice Department was actively reviewing eight cases referred to it by the CIA inspector general, detailing possible misconduct by CIA employees implicated in abuses including the deaths of detainees in U.S. custody. They destroyed the tapes long after the heat of the 9-11 emergency had dissipated, and long after instituting (successful) classification protections that had for years prevented public disclosure of the tapes. They destroyed them precisely at the moment it would have become clear to any reasonable government official that they had never mattered more to the administration of justice by the United States.

As a matter of law, more than one former federal prosecutor has explained to me off the record why the destruction of these tapes likely constitutes a crime. It is true that some federal obstruction charges require showing that the evidence destroyed was relevant to a specific pending proceeding, and one might argue that no specific proceeding was pending that might have required the consideration of the tapes. But well beyond the 9-11 Commission’s apparently unmet request for just this kind of information, this argument seems to fail on the facts, in light of the Padilla case and the many other proceedings and investigations in November 2005 that might have benefited from the evidence they contained. In any case, the federal criminal code is replete with obstruction-of-justice offenses, some of which require only a showing that a proceeding involving the evidence was "foreseeable." Indeed, it is hard to imagine something more foreseeable. Newly sworn in Attorney General Mukasey has thus been handed a golden opportunity to demonstrate just how independent he is by launching an investigation into the CIA’s conduct here, both in the destruction of the tapes, and in the abuse they might have revealed.

But our distress need not be limited to the concern that the destruction of the tapes was likely a crime. Far more difficult to remedy is the likelihood that this destruction is a manifestation culture -- a White House culture that prizes the raw assertion of power over real attention to effectiveness; a political culture that allows the occasional briefing of overlapping, overburdened, and understaffed legislative committees to substitute for meaningful congressional oversight; a judiciary that is too often afraid to inquire after any claim of official secrecy, and that imagines that the art of intelligence collection requires the expertise of rocket science. And perhaps most of all, an intelligence community marked by a culture of fiefdoms and insularity that, as the 9-11 Commission pointed out years ago, has come to burden more than benefit terrorism threat assessment and analysis.

An expert in organizations might tell us that one remedy for a problem of institutional culture is embracing a competing culture of professionalism. After all, it was the professional ethic (among other things) of the uniformed JAG lawyers in the Pentagon that led them to push back against Defense Secretary Rumsfeld’s authorization of coercive interrogations by the military. And it was no doubt the professionalism of the many CIA officials who chafed against practices like waterboarding that forced the administration to document -- and then unsuccessfully defend -- the legal rationale for their use. Let us hope that the only one who ends up bearing the blame for the crime committed here is not the officer who, however wrongly, just did as he was told.

If professionalism is indeed part of a solution, there is already a modest proposal on the table that at least tends in that direction. The intelligence community and its oversight committees on Capitol Hill would do well to embrace legislation put forward in the 109th Congress by Rep. Rush Holt (D-NJ) to mandate that all detainee interrogations be videotaped going forward. Yes, as the New York Times suggested, such tapes might be helpful to the government after the fact, allowing agents to capture every last ounce of information revealed by the subject. More salient here, as police departments across the country now recognize, videotaping suspect interviews is protection for the interviewer as much as the suspect himself. For the CIA hasn’t only destroyed evidence that likely revealed something terrible. It has destroyed the only evidence that could have supported the CIA’s (now deeply sullied) claims that what it does is lawful, effective, and just. If the United States is to win any “hearts and minds” in the fight against terrorism, recovering the ability to make that claim seems a fine place to start.

In the end, individual accountability, legislative attention, even structural reforms are valuable, but they can only do so much. Our political leaders who work in the service of national security must have a commitment to the idea of government under law. And our intelligence professionals have to believe in their bones that even when a law breaks in secret, it still makes a sound.