CIA tapes: What do we still not know?

By Jane Harman

In February 2003, just weeks after becoming ranking member on the House Intelligence Committee, I learned at a briefing that the CIA intended to destroy a videotape of the interrogation of a high value detainee, Abu Zubaydah. I advised against it and followed up days later with a strong letter that the agency just declassified.

It was only after CIA Director Michael Hayden disclosed in December that videotapes had been destroyed that I was able to discuss the matter and my letter publicly.

The facts surrounding the 2005 destruction of the tapes — about which I was never told — must be learned. Attorney General Michael Mukasey announced last week that a veteran prosecutor will oversee a criminal investigation into whether the CIA broke the law when it destroyed the tapes. This probe and any others must be thorough and unflinching.

There is a distinct possibility that CIA testimony before the Intelligence Committees was misleading. It is a fact that Congress was not informed at the time of the tapes’ destruction.

Not only was Congress reviewing the Bush administration’s interrogation and detention policy during those years, the 9/11 Commission was also making inquiries of the agency, and several federal prosecutions were proceeding. Thomas Kean and Lee Hamilton, chairman and vice chairman, respectively, of the 9/11 Commission, recently accused the CIA of obstructing the panel’s investigation by failing to turn over the videotapes.

Who did what?

Senior White House officials — such as former legal counsel Harriet Miers and former attorney general Alberto Gonzales, among others — have revealed they were involved in discussions about the tapes’ disposition. The Department of Justice was, too.

Porter Goss, the CIA director in 2005, says he opposed destroying the tapes. The role of his subordinates, however, is still unclear.

While it is suddenly difficult to find anyone at CIA, the Justice Department or the White House who believed that the tapes should have been destroyed, the fact is they were — resulting in a breach of faith with Congress and possible criminal wrongdoing. It would be grossly unfair to make some in the agency take the fall for decisions made by others. This smells like the coverup of the coverup.

Since the 9/11 attacks, I have been calling on the Bush administration to articulate a clear legal framework for U.S. detention and interrogation policy — to protect privacy and civil liberties and also to provide the intelligence community with the guidance it needs to do its job without fear of reprisal or prosecution.

I voted against the Military Commissions Act, which passed Congress but provided in my view an inappropriate exemption for the CIA’s interrogation policy. More recently, I supported legislation to prohibit any interrogation techniques not contained in the Army Field Manual — effectively closing the loophole that allowed the CIA’s separate program to be established.

Unanswered questions

This episode is not just about the destruction of videotapes and those involved in the decision to do so. The thrust of my February 2003 briefing was about the administration’s use of enhanced interrogation techniques since 9/11. My contemporaneous letter questioned whether the White House had determined that those techniques were consistent with “the principles and policies of the United States” and whether the president had approved them.

I never got answers to my questions, nor has Congress ever received the Justice Department legal memoranda that we asked for.

The rest of the world is watching closely. We still have not recovered from the black eye of Abu Ghraib.

These latest revelations do enormous damage to our international standing and credibility — and are additional evidence that we stand at the brink of constitutional crisis.

Rep. Jane Harman, D-Calif., is chair of the Homeland Security Subcommittee on Intelligence and Terrorism Risk Assessment.

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