The Central Intelligence Agency was still defending, as late as last year, a 2005 decision by Gina Haspel and her former boss, Jose Rodriguez, to destroy videos of CIA torture at a black site Haspel oversaw, according to previously unpublished documents obtained by ThinkProgress.
Remarkably, the CIA argued that it did not need to preserve videotapes of its “enhanced interrogations” — torture sessions with suspects that involved methods like wall slams, confinement boxes, and waterboarding — because they were like formal government meetings, and therefore less stringent guidelines applied when it came to preserving records of such a “meeting.”
President Donald Trump nominated Haspel as CIA director last week. She was a “strong advocate” for destroying the torture tapes, a former CIA officers told The New York Times, and she reportedly sent the Nov. 8, 2005, memo that approved their destruction.
The new documents show the back-and-forth from March 2016 to February 2017 between the CIA and the National Archives and Records Administration, or NARA — the agency in charge of government records and their preservation —about the tape-destruction incident.
NARA can refer so-called “unauthorized disposition” cases to the Justice Department for prosecution, and it had done so in this case, but Justice declined to prosecute the CIA tape destruction in 2012. That left NARA’s hands largely tied, but the agency followed up with the CIA to press them on better preserving records in the future.
Now, with Haspel up for the top job at the CIA, human rights advocates worry about the tone she’ll set at an agency that has repeatedly resisted accountability over its role in torture after 9/11.
“If Haspel gets confirmed, especially if she gets confirmed without even any public acknowledgement of what her role was, that obviously send a bad signal,” Katherine Hawkins, an expert on CIA torture at the Project on Government Oversight, told ThinkProgress.
The CIA released the new documents in response to a Freedom of Information Act lawsuit by Douglas Cox, a law professor at the City University of New York. In the correspondence they show, the CIA maintained that it was justified in destroying the tapes of torture sessions because it preserved cables and transcripts that, in its own judgement, accurately depicted what was on the tapes. In other words, the CIA argued that it could destroy the videotapes because it still had a record of what was on them — albeit in written, not recorded, form.
“With respect to the information contained in the videotapes, it should be noted that this information was incorporated into CIA intelligence reporting and has been handled in accordance therewith,” Joseph W. Lambert, head of the agency’ Information Management Service, wrote in one May 12, 2016, letter to NARA.
The CIA’s Office of General Counsel reviewed the tapes in late 2002 and determined that “intelligence reporting” — cables from CIA field sites to its headquarters — did accurately reflect the contents of the tapes. But in its reply to the CIA, NARA said that did not give the agency a reason to destroy the tapes.
“NARA’s view is that recordings that document agency activities are presumptively federal records that must be appropriately scheduled and managed, regardless of whether information from them has been incorporated into another recordkeeping system,” the chief records officer, Laurence Brewer, wrote. “Accordingly, the CIA must contact NARA before making any future determination on the record status of such recordings.”
Congress gave NARA authority to determine what is a “record” under federal law in 2014. Previously, that authority rested with individual agencies. But the CIA was still defending its destruction of the tapes as late as 2017.
In a particularly striking interchange, Lambert compared torture sessions with formal government meetings. National Archives guidance from 1995 determined that a recording of a formal meeting can be destroyed if an accurate transcript exists.
But NARA objected to the CIA’s reasoning.
“[W]e disagree that an ‘interrogation’ would qualify as a ‘meeting,’” Brewer responded.
The CIA and the National Archives and Records Administration would not comment on-the-record about the contents of the letters.
NARA opened its investigation on Dec. 10, 2007, four days after The New York Times first reported that the CIA destroyed the tapes. But the CIA said it could not cooperate until after the Justice Department finished a separate criminal investigation into both the tape destruction and the interrogations themselves. That investigation ended without prosecutions in 2012. NARA followed up with the CIA about its own investigation in March 2016. NARA did not respond when asked why it took four years to follow up on the investigation.
The videos were also the subject of a court order in a Freedom of Information Act lawsuit by the American Civil Liberties Union. The judge in that case sanctioned the CIA over the tapes’ destruction, but he declined to hold the agency in contempt.
The tapes were filmed in 2002 at a CIA blacksite in Thailand codenamed Cat’s Eye. An undated CIA inventory shows 92 videotapes in all — 90 from the interrogation of suspected Al Qaeda member Abu Zubaydah and two from the interrogation of accused U.S.S. Cole bomber Abd al-Rahim al-Nashiri. Twelve videos showed what the CIA called “enhanced interrogation techniques” but what many others, including President Barack Obama, called torture.
Haspel arrived at Cat’s Eye in late October 2002, after the CIA had finished interrogating Zubaydah, a former senior CIA official told The New York Times. Al-Nashiri arrived the next month, and Haspel oversaw his interrogation with techniques like waterboarding — a form of controlled drowning.
Even before Haspel arrived at Cat’s Eye, there was a debate within the CIA about what to do with the videotapes. Internal cables and emails released to the American Civil Liberties Union in a separate lawsuit show that some within the agency felt that the tapes created an unacceptable security risk, that they needed to be destroyed, and that the law didn’t specifically preclude their destruction.
“[C]ontinued retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations,” one Oct. 25, 2002, cable said.
Other internal CIA memos from 2002 and early 2003 instructed Cat’s Eye to retain the videos, and internal memos from 2003 and 2004 show a discussion within the CIA about whether the videotapes would be covered by federal records laws.
The decision by Rodriguez, who was then head of CIA’s Directorate of Operations, to approve destruction of the videos was controversial within the agency and the White House, emails released to the ACLU show. Then-CIA Director Porter Goss expressed agreement with the decision during a meeting with Rodriguez afterward, according to one Nov. 10, 2005, email to then-CIA Executive Director Kyle “Dusty” Foggo.
“As Jose said, the heat from destroying [the tapes] is nothing compared to what it would be if the tapes ever got into [the] public domain — he said that out of context they would make us look terrible; it would be ‘devastating’ to us,” the email, whose author is redacted, said.
A follow-up email to Foggo from the same redacted author later that same day was less confident.
“Dusty – ok – on the Zabaydah [sic] tapes — I am no longer feeling comfortable,” it began.
The email went on to claim that Rodriguez hadn’t consulted John Rizzo, the CIA’s then acting general counsel, or the CIA’s Inspector General before giving the OK to destroy the tapes. That cut the White House out of the loop, too, allegedly angering then White House Counsel Harriet Miers.
The email then mentions the person who drafted the memo approving the tape destruction. While the name is redacted in the email, The New York Times reported that person was Haspel.
“Cable was apparently drafted by [redacted] and released by Jose; they are only two names on it so I am told by Rizzo,” the email said. “Either [redacted] lied to Jose about ‘clearing’ with [redacted] and IG (my bet) or Jose misstated the facts. (It is not without relevance that [redacted] figured prominently in the tapes, as [redacted] was in charge of [redacted] at the time and clearly would want the tapes destroyed.)”
UPDATE, May 9, 2018: In an open confirmation hearing before the Senate Intelligence Committee on Wednesday, Acting CIA Director Gina Haspel said she was not on the 92 interrogation videos the CIA destroyed.
“I would also make it clear that I did not appear on the tapes, as has been mischaracterized in the press,” Haspel said in response to a question from Sen. Richard Burr (R-NC). “However, as chief of staff and I believe like everyone at the agency at that time, we were extremely concerned about the security risk that was posed to our officers.”