To the record of lawless activity undertaken by the CIA in connection with the detention and interrogation of suspected terrorists, media reports have recently added this entry: Despite repeated requests from the 9/11 Commission for information about the interrogation of prisoners, the CIA failed to turn over videotapes that showed two high-level prisoners, Abu Zubaydah and Abd al-Rahim al-Nashiri, being waterboarded. According to Thomas H. Kean and Lee H. Hamilton, who served as the 9/11 Commission's Chairman and Vice Chairman, the CIA neglected even to inform the Commission that the tapes existed. Instead, for about three years, the CIA guarded the tapes secretly in facilities overseas. It quietly destroyed the tapes in 2005, just as public outrage over the abuse of prisoners was cresting.
Both the CIA's failure to turn over the tapes in 2002 and its destruction of the tapes in 2005 may have constituted federal offenses, and so it is appropriate that the Justice Department recently began an investigation that may result in criminal prosecutions. But the Justice Department's investigation is not enough. For one thing, it is not truly independent, because Attorney General Michael B. Mukasey has appointed an investigator who reports directly to him. (Just a few days ago, 18 members of the House Judiciary Committee formally requested that the Attorney General appoint an independent counsel.) Moreover, the Justice Department's investigation is limited in scope. It will consider liability for the CIA's destruction of the tapes but not for the torture that the tapes depict. There's no good reason why the inquiry should be limited in this way. The CIA should be held accountable not just for the cover up but for the underlying crime.
The CIA should be held accountable to the courts as well. Last week, the ACLU argued to a federal judge in New York that the CIA should be held in civil contempt for flouting a court order issued in 2004. Our motion stemmed from Freedom of Information Act requests that the ACLU and other public interest organizations filed more than three years ago for records concerning the torture of prisoners. When the CIA and other federal agencies stonewalled the requests, the ACLU filed a lawsuit. In September 2004, the court issued an order requiring the agencies to identify records responsive to the requests and to release those records or explain why the records should be withheld.
Since 2004, various federal agencies have released thousands of documents in response to the ACLU's requests. The documents have helped us understand why prisoners were abused and tortured in U.S. custody and what policies and practices must be changed to ensure that the abuse and torture end. The CIA, however, has released virtually nothing; it has consistently rejected transparency and compliance with the law in favor of obfuscation and delay. It has withheld hundreds of documents relating to the use of illegal interrogation methods, though the Freedom of Information Act allows it to withhold information only about interrogation methods that are lawful. When we asked the CIA to disclose a Presidential directive that permitted the agency to operate a secret prison system overseas -- an illegal prison system off-limits not just to lawyers but also to the International Committee for the Red Cross -- the agency refused even to acknowledge the existence of the directive, let alone explain how the directive could lawfully be withheld. The CIA acknowledged the existence of the directive only after President Bush discussed the secret prison system on national television.
We have been trying to uncover information about the Bush administration's torture policies for more than three years. With the destruction of the tapes, we now know that there's at least some information we will never get. Under the judge's 2004 orders, the CIA should have acknowledged the existence of the tapes and either disclosed them or explained how they could lawfully be withheld. The CIA did none of these things.
It is easy to understand, of course, why the CIA wanted the torture tapes to disappear. When the CIA destroyed the tapes in November 2005, public outrage over the abuse and torture of prisoners was growing. The evidence that the Bush administration had sanctioned torture was mounting daily. Congress was considering a bill, proposed by Senator John McCain, that would strengthen the prohibition against the cruel treatment of prisoners. (Congress enacted the Detainee Treatment Act in December.) Only two months earlier, the judge in our Freedom of Information Act lawsuit had ordered the Defense Department to release photographs and videotapes depicting the abuse of prisoners at facilities other than Abu Ghraib. The CIA undoubtedly destroyed its own videotapes because it feared that their disclosure could result in embarrassment to the agency, new legislative constraints on the agency's activities, and even criminal prosecutions.
But fear of accountability did not give the CIA the right to destroy the tapes, and the agency's actions suggest contempt not only for the court's orders but for the foundational idea that intelligence agencies should be subject to democratic control. The CIA improperly withheld and then destroyed evidence of criminal activity -- evidence that had been requested by the 9/11 Commission and that at least one federal court had ordered the CIA to identify and produce. It would be a severe blow to the rule of law if the agency were not held to account.
Jameel Jaffer is a litigator for the American Civil Liberties Union and Director of the ACLU's National Security Program and author (with Amrit Singh) of Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Columbia University Press 2007).