The CIA has admitted that, in 2005, it destroyed videos from 2002 showing its officers interrogating two terrorists. One of them was Abu Zubaydah, a close associate of bin Laden; the second was an unidentified high level al Qaeda member. Zubaydah has been identified as one of the three terrorists who was waterboarded by the CIA.
As a general matter, destroying tapes of CIA interrogations seems like a good idea. For one thing, it’s not in our national security interests for videos showing how we obtain information from top terrorists, and what information we obtained, to be disseminated. In addition, the CIA has a valid interest in keeping the identity of its interrogators secret. Given the extent to which classified, highly sensitive information has been leaked, by 2005 the CIA had good reason to fear that these tapes would, in fact, be disseminated.
On the other hand, the CIA’s legitimate policy preferences (and, of course, mine) cannot outweigh any legal obligation it might have had to preserve and/or produce the tapes. The question, then, is whether such an obligation existed. I’m not aware of any statutory obligation, so the issue turns on whether a court, or some other body with similar authority, had ordered that the tapes be preserved or produced. A second and related issue is whether the CIA falsely and knowingly failed to disclose the existence and/or destruction of the tapes under circumstances in which it was obliged to make such disclosure.
I can’t tell from the accounts I’ve read so far what the answers to these questions are. The CIA does say it informed key members of congressional oversight committees about its decision to destroy the tapes, and Democrat Jane Harman, then the ranking member of the House Intelligence Committee, confirms that the CIA told her.
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