[Congressional Record: December 7, 2007 (Senate)]
[Page S15026]
GOVERNMENT DESTRUCTION OF EVIDENCE
Mr. DURBIN. Mr. President, this morning, newspapers across America
reported that the Central Intelligence Agency and other intelligence
agencies have destroyed evidence, videotaped evidence of the
interrogation of prisoners. It is a startling disclosure. The United
States of America, a nation where the rule of law is venerated, has now
been in the business of destroying evidence, evidence of a very
sensitive nature, evidence which clearly should have been protected for
legal and historic purposes.
The late historian Arthur Schlesinger said this about this
administration's legal defense of torture:
No position taken has done more damage to the American
reputation in the world--ever.
We have been tested since 9/11 as a nation, tested in our resolve to
protect America, but also tested in our commitment to the values we
hold dear.
A time of war and a time of insecurity is a time of the greatest
testing. Many Presidents, even great Presidents in the past, have
failed that test: President Abraham Lincoln during the Civil War
suspending habeas; during World War I, serious questions were raised
about the patriotism of those who did not agree with our Government;
during World War II, under the administration of perhaps our greatest
modern President, Franklin Roosevelt, Japanese internment camps that
became a national embarrassment; during the Cold War, our enemies list
and the McCarthy hearings; all things that we look back on now and
realize do not reflect well on the United States and certainly do not
reflect our values.
Now, this administration, this war on terror, this treatment of
prisoners and detainees, it comes to our attention almost on a weekly
basis that, sadly, some have crossed the line. Every week there is a
new revelation about how the administration has engaged in activity
that is not consistent with American laws or values when it comes to
the issue of torture.
In this morning's paper, CIA officials disclosed they destroyed
videotapes of detainees being subjected to so-called enhanced
interrogation techniques. We do not know what those videotapes
included.
There was a period of time when the Bush administration had decided
to cast away the international standards of conduct, the Geneva
Conventions that we have been held to and proudly displayed for
decades. This administration redefined torture. Through a memo that has
now been made public, we know they reached extremes, which eventually
even they had to repudiate.
The CIA has also reportedly withheld information about these
videotapes from a Federal court and from the bipartisan 9/11
Commission.
Today I am sending a letter to Attorney General Michael Mukasey
calling on him to investigate whether CIA officials who covered up the
existence of these videotapes violated the law.
In a statement yesterday, GEN Michael Hayden, the CIA Director,
acknowledged the tapes were destroyed, and stated:
In 2002, during the initial stage of our terrorist
detention program, CIA videotaped interrogations, and
destroyed the tapes in 2005.
The New York Times reported today that:
The tapes were destroyed in part because officers were
concerned that video showing harsh interrogation methods
could expose agency officials to legal risks, several
officials said.
Now, the defense of the CIA is that they wanted to protect the
identity of those CIA employees who were engaged in the interrogation.
That is not a credible defense. We know that it is possible and, in
fact, easy to cover the identity and faces of those who were involved
on any videotape. Something more was involved.
The CIA apparently withheld information about the existence of these
videotapes from official proceedings, including the bipartisan
Hamilton-Kean 9/11 Commission and a Federal court. According to Philip
Zelikow, the Executive Director of the 9/11 Commission and formerly a
high-ranking official in the Bush administration:
The Commission did formally request material of this kind
from all relevant agencies, and the Commission was assured
that we had received all of the material responsive to our
request. No tapes were acknowledged or turned over, nor was
the commission provided with any transcripts prepared from
recordings.
CIA attorneys told the Federal court hearing the case of Zacarias
Moussaoui that videotapes of detainee interrogations did not exist.
This was a statement by our Government to a court involved a very
sensitive and important case.
The Justice Department has now acknowledged in a letter to the court
that this was not true. Courts of America were misled by the Justice
Department about the existence of this evidence.
CIA Director Hayden asserts the videotapes were destroyed ``in line
with the law.'' But listen to what the Federal obstruction of justice
statute says:
Whoever corruptly alters, destroys, mutilates, or conceals
a record, document, or other object, or attempts to do so,
with the intent to impair the object's integrity or
availability for use in an official proceeding; or otherwise
obstructs, influences, or impedes any official proceeding, or
attempts to do so, shall be fined under this title or
imprisoned not more than 20 years, or both.
That is what the Federal criminal statute says. It is not my role or
Mr. Hayden's role to determine whether the law was violated. That is
the responsibility of the Department of Justice. That is the
responsibility of the Attorney General, Michael Mukasey.
As Mr. Zelikow said:
The executive branch and Congress need to decide how much
they care about this question. If they want to get to the
bottom of it, it's pretty easy for people to dig up the
relevant records and answer the questions that either
officials of the executive branch or the Congress could pose.
This is the first real test of Attorney General Michael Mukasey. I
hope he will do the right thing.
What is at stake goes to the heart of the rule of law and justice in
America. If our Government can destroy evidence, can misrepresent to
our courts whether that evidence ever existed, if it can attempt to
cover up wrongdoing, that goes way beyond the standards of justice and
the values of America.
This disclosure of the destruction of those videotapes goes to the
heart of who we are as a people. I do not know what was on those tapes.
It was clearly something very troubling or they would not have been
destroyed. I do not even know if it was incriminating, but we have a
right to know. In America, everyone is held accountable, including
officials at the highest levels of our Government.
It is time for this Department of Justice to turn the page from an
era when we were engaged in a new definition of torture, a new
definition of whether the Geneva Conventions were applicable, and bring
us back into the rule of law, into those standards of conduct which
have made America proud for so many generations.
Today I will be sending a letter to Attorney General Mukasey calling
for an official investigation of whether there was destruction of
evidence and obstruction of justice in the destruction of those
videotapes on the interrogation of detainees. This is not an issue that
can be ignored.
____________________
[Congressional Record: December 7, 2007 (Senate)]
[Page S15027-S15028]
THE DESTRUCTION OF CIA TAPES
Mr. KENNEDY. Mr. President, the torture debate took another deeply
troubling turn yesterday. The Nation learned the CIA had destroyed
videotapes of its employees in the act of using torture or other harsh
interrogation techniques on detainees.
Those tapes were not shown to Congress. They were not shown to any
court. They were not shown to the bipartisan 9-11 Commission. Instead,
they were destroyed.
What would cause the CIA to take this action? The answer is obvious--
cover up. The agency was desperate to cover up damning evidence of
their practices. In a letter to agency employees yesterday, CIA
Director Michael Hayden claimed that the tapes were a security risk
because they might someday ``leak'' and thereby identify the CIA
employees who engaged in these practices.
But that excuse won't wash. I am second to no one in wanting to
protect the brave men and women of the CIA. But how is it possible that
the director of the CIA has so little faith in his own agency?
Does the director believe the CIA's buildings are not secure?
Would it be beyond the agency's technical expertise to preserve the
tapes while hiding the identity of its employees?
Does the director believe that the CIA's employees cannot be trusted
not to leak materials that might harm the agency?
Or does he know that the interrogation techniques are so abhorrent
that they could not remain unknown much longer?
It is particularly difficult to take the director's explanation at
face value when the news that these CIA tapes were destroyed came the
very same week that we learned that as many as 10 million White House
emails have not been preserved, despite a law that requires their
retention. At the same time, the President continued to insist that we
grant immunity to the phone companies for their role in the illegal
wiretapping of American citizens.
The pattern is unmistakable. The past 6 years, the Bush
administration has run roughshod over our ideals and the rule of law.
For 4 of those 6 years, the Republican Congress did little to hold the
administration accountable. Now, when the new Democratic Congress is
demanding answers, the administration is feverishly covering up its
tracks. We haven't seen anything like this since the 18\1/2\-minute gap
in the tapes of President Richard Nixon.
These efforts are wrong, and they must be stopped. I and other
concerned Senators will today call upon Attorney General Mukasey to
immediately begin an investigation into whether the CIA's handling and
destruction of these tapes violated the law.
We also must redouble our efforts to make sure that future
interrogations by the CIA conform to our laws and values. No part of
our Government should engage in practices that are so horrific that we
cannot bear to see them on tape. To that end, I introduced legislation
to require that all Government agencies, including the CIA, follow the
standards of the Army Field Manual. Language that would take that
important step was recently included in the conference report on the
Intelligence authorization bill, and we must act to adopt it as soon as
possible.
As founder John Adams said, our Nation is ``a Nation of laws, not
men.'' That basic principle is at risk today from an administration
that is engaging in a coverup--systematically destroying records,
commuting sentences, and stonewalling congressional investigations. The
CIA's role in this coverup is only the latest reminder that Congress
must fight harder to prevent this administration from making a mockery
of the rule of law, and to preserve the right of the American people to
know what the Government has been doing in their name.
Mr. OBAMA. Mr. President, I wish to express my serious concern over
the Central Intelligence Agency's confirmation that videotapes
depicting brutal interrogation techniques were destroyed.
First, it is important that we note the broader context of this
debate. The United States of America is a nation born out of a struggle
against tyranny, and our founding legal document asserts that the rule
of law applies to all men and women, and all branches and agencies of
government. We are not a perfect Nation, but our national greatness is
marked by our ability to rise above our imperfections through our
allegiance to our values and to the rule of law. Time and again,
America has triumphed because of the contrast we draw to tyranny. We
are a nation that set captives free, shut down torture chambers, and
extended freedom and international law to more of humanity.
Now, we are engaged in a new kind of conflict. And the question that
we have faced since September 11, 2001, is how we are going to respond
to the shadowy, stateless, terrorist enemies of the 21st century.
Tragically, the Bush administration has too often chosen to respond
to this enemy by abandoning our values and ignoring laws that it deems
inconvenient. So we have seen excessive secrecy, indefinite detention,
warrantless wire-tapping, and `enhanced interrogation techniques' like
simulated drowning that qualify as torture through any careful measure
of the law or appeal to human decency. For each of these new policies,
we have seen dubious legal reasoning that does not stand up to the
harsh light of review or the sound judgment of our Constitution.
Yesterday, we learned that in November 2005, the CIA destroyed
videotapes of its interrogations of two prominent al-Qaida suspects,
including a close Osama bin Laden associate Abu Zubayadah. Media
reports suggest that these videotapes depict brutal interrogation
techniques, and could certainly be relevant to ongoing investigations
and inquiries. Furthermore, these videotapes were not provided to the
9/11 Commission, which made a broad set of requests for classified
documents--including interrogation tapes and transcripts--that would
have included information about the 9/11 attacks.
The CIA has argued that these tapes needed to be destroyed to protect
the identities of the interrogators. Our government must go to any
length necessary to protect the identities of those
[[Page S15028]]
who serve in a covert capacity. But the CIA keeps scores of classified
material--including videotapes--while protecting the identities of its
agents. This raises serious questions about whether the tapes were
destroyed to protect the nature of the interrogation, rather than the
identity of the interrogator.
This incident deserves further congressional oversight and inquiry--
neither the CIA nor this interrogation program is immune to our laws.
This is yet another chapter in a dark period in our constitutional
history. Now, it is time to turn the page. That is why I was heartened
to learn that the House and Senate Intelligence Committees have reached
agreement on including a requirement in the Intelligence authorization
bill that subjects CIA interrogators to the guidelines on interrogation
included in the U.S. Army Field Manual. It would be a grave
disappointment--though not surprising--if this important step forward
were subject to a veto threat from the President. That must not deter
the Congress from moving forward. We have a responsibility to act.
We should not have a separate interrogation program whose methods are
so abhorrent that they cannot stand up to scrutiny. We should not have
to find ways of ignoring or averting our own laws to defend our
country. Torture does not work. Torture violates our laws. And torture
sets back the standing and moral leadership that America needs to
triumph in this global struggle. Our values and laws are not
inconvenient obstacles to the defense of our national security--they
can and must be a guiding force in our response to terrorism.
Today is Pearl Harbor day--a date when our Nation was subjected to a
terrible surprise attack, and when a generation of Americans answered
the call to defend our security and extend the cause of freedom. More
than 6 years after 9/11, we are still struggling to define our own
response to our generation's terrible surprise attack. As we defend
America, let us learn the painful lessons of these last few years, and
enlist our values and our Constitution in this first great struggle of
the 21st century.
____________________
