[NYTr] Destruction of Torture Tapes Could Alter Prosecutions of "Terrorists"

[All the News That Doesn't Fit]

The New York Times - Dec 9 (posted Dec 8), 2007
http://www.nytimes.com/2007/12/09/washington/09zubaydah.html

Destruction of C.I.A. Tapes Could Alter Prosecutions

By DAVID JOHNSTON

WASHINGTON, Dec. 8 — The destruction of hundreds of hours of videotapes
showing interrogations of top operatives of Al Qaeda, including Abu
Zubaydah, could complicate the prosecution of Mr. Zubaydah and others,
and it underscores the deep uncertainties that have plagued government
officials about the interrogation program.

Officials acknowledged on Friday that the destruction of evidence like
videotaped interrogations could raise questions about whether the
Central Intelligence Agency was seeking to hide evidence of coercion. A
review of records in military tribunals indicates that five lower-level
detainees at Guantánamo were initially charged with offenses based on
information that was provided by or related to Mr. Zubaydah. Lawyers
for these detainees could argue that they needed the tapes to determine
what, if anything, Mr. Zubaydah had said about them.

Mr. Zubaydah and another terrorism suspect, Abd al-Rahim al-Nashiri,
who is said to be the chief planner of the 2000 attack on the Navy
destroyer Cole, are the only suspected Qaeda figures identified so far
as the subjects of interrogations recorded on the destroyed tapes.

The destruction of the tapes has ignited a Congressional furor and
provoked demands for a Justice Department inquiry, but it has also
focused attention on the case of Mr. Zubaydah, who was captured in
March 2002. As one of the first close associates of Osama bin Laden to
be caught after the 9/11 attacks, Mr. Zubaydah became a test case on
which the C.I.A. built and then adjusted its program of aggressive
interrogations and overseas secret jails in the years that followed.

Current and former intelligence officials have said that Mr. Zubaydah
was subjected to coercive techniques by C.I.A. interrogators even
before the Justice Department issued a formal, classified legal opinion
in August 2002, declaring that the coercive techniques did not
constitute torture.

It is not known whether the videotape depicting Mr. Zubaydah’s
interrogation preceded the 2002 opinion, nor is it known what acts were
depicted on the tapes. Gen. Michael V. Hayden, the C.I.A. director,
said in a statement on Thursday that the tapes were intended as an
“internal check on the program in its early stages,” despite what he
called “the great care taken and detailed preparations made.”

But the destruction of the tapes in 2005 appeared to reflect what
former and current intelligence officials have described as
longstanding worries about the legality of its interrogation practices
and the possible legal jeopardy for any employees who engaged in the
program and the managers who supervised them.

Mr. Zubaydah’s case, which continues to be intensely debated in
counterterrorism circles, opens a vista into the broader discussion
about the Bush administration’s interrogation policies and the tactics
that were used on Mr. Zubaydah and other terrorism suspects. President
Bush has argued, since officially confirming the existence of the
interrogation program in September 2006, that Mr. Zubaydah’s case
proved the value of harsh interrogation methods because Mr. Zubaydah
yielded valuable intelligence about the 9/11 plot only after tough
tactics were employed.

That assertion was repeated on Thursday by General Hayden. His
statement said that to force a recalcitrant Mr. Zubaydah to give up
information, the C.I.A. devised “specific, appropriate interrogation
procedures” which, he added, were “lawful, safe and effective.” He said
all of the techniques used by the C.I.A. had been reviewed and approved
before their use by the Justice Department and other executive branch
agencies.

But other government officials have long disputed some aspects of the
C.I.A.’s version of events. These officials said Mr. Zubaydah, who had
been taken to a secret location in Thailand, cooperated with
interviewers from the Federal Bureau of Investigation. who used a
nonconfrontational approach, until C.I.A. interrogators took over the
questioning.

At that point, in April or May of 2002, officials briefed on the
classified details of the case said, C.I.A. officials expressed
dissatisfaction with the pace of the interviews and concluded that Mr.
Zubaydah was revealing only a little of what he knew. C.I.A.
interrogators, led by an outside consultant, ratcheted up the use of
aggressive techniques.

F.B.I. officials on the scene protested the use of tough tactics, but
C.I.A. officials insisted that their methods were warranted. C.I.A.
officials have insisted that their statements about the interrogation
are accurate, according to government officials briefed on the episode.
F.B.I. officials have declined to comment on the matter.

The C.I.A. and F.B.I. were badly split over the interrogation and,
after the Thailand confrontation, the F.B.I. forbade its agents from
taking part in sessions in which harsh methods were used. Former F.B.I.
officials said they had read transcripts of some interviews, but were
not told of the extensive videotaping.

In his early F.B.I. interviews, Mr. Zubaydah, who had been badly
wounded during his capture, identified Khalid Shaikh Mohammed as the
chief planner of the Sept. 11 attacks. He also identified Jose Padilla,
an American who was convicted in a Miami federal court in August on
terrorism-related charges, as a low-ranking follower of Al Qaeda.

Government officials said that during Mr. Zubaydah’s interrogation
sessions, his C.I.A. questioners used a number of tactics: noise,
stress positions, freezing temperatures, isolation and waterboarding,
in which a subject is made to believe he is being drowned. Mr. Zubaydah
is the first person known to be subjected to waterboarding by the
United States after the Sept. 11 attacks.

In 2002, during parts of June and July, current and former intelligence
officials have said, the C.I.A. suspended the use of harsh techniques
against Mr. Zubaydah, apparently fearful of the possible legal
consequences of going ahead until the Justice Department issued a
formal opinion.

In his statement, General Hayden said, as he has before, that the
Justice Department and other agencies approved the tough methods
intelligence officers used. Over the years, several Justice Department
legal opinions have come to light, including one concluding that
torture is “abhorrent.” But none of the opinions explicitly banned
techniques like waterboarding. Its legality is still being debated in
Congress, and a Congressional committee voted Wednesday to outlaw such
tactics.

Intelligence officials have said that because of the debate about
whether waterboarding may be considered torture, it was halted in 2003
and its use prohibited by General Hayden in 2006.

In part, the videotaping was an effort to keep the program within legal
limits. Though C.I.A. officials said they believed their methods were
lawful, they appeared to worry that they might later be criticized or
investigated on suspicion of engaging in torture, a felony under
federal law.

“The fact remains that that this effort was new,” General Hayden said,
“and the agency was determined that it proceed in accord with
established legal and policy guidelines.”

Margot Williams contributed from New York.

Copyright 2007 The New York Times